The Domain of WTO Dispute Resolution

Trachtman, Joel P.

doi:10.2139/ssrn.149348

Cited by 49 publications

(13 citation statements)

References 6 publications

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“…That means, the appropriate analytical framework for understanding the current international order is the theory of incomplete contracts: The constitution and all the institutions emanating from the negotiation procedures have to be incomplete on reasons of principle (cf. Schwartz & Sykes, 2002;Trachtmann, 1999). This alone is sufficient to alleviate the tension between constitutionalist approaches and Jackson's view that we mentioned in the first paragraph of this section: the trade constitution is hidden because it has to be incomplete in order to cope with fundamental uncertainty.…”

Section: Levels Of Analysis and The Structure Of A Trade Constitutionmentioning

confidence: 97%

“…Regulative principles can also be located in the two-dimensional continuum that we sketched before, but they are not on the same analytical level as institutions. In international agreements as viewed from the perspective of international legal studies, regulative principles may adopt a formal position in the shape of ''standards'' as opposed to ''rules'', with the standards being much more open to interpretation and with regard to the results of adjudication (Trachtmann, 1999).…”

Section: Consensual/forcedmentioning

confidence: 99%

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Reciprocity and the hidden constitution of world trade

Herrmann‐Pillath

2006

Constit Polit Econ

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In common descriptions of the world trading system, MFN and national treatment embody the principle of non-discrimination. Reciprocity is mostly regarded as a remnant of mercantilist trade policy. This paper argues that reciprocity is the more fundamental constitutional rule, because it reflects the unanimity principle enabling countries to identify Pareto-improving changes of trade policy. I reconstruct the implicit constitution of world trade by applying some methodology of positive constitutional economics. A major result is that in the Uruguay round a fundamental constitutional change took place from general reciprocity to “status quo reciprocity”, which entails the possibility of Pareto-deteriorating institutional changes. Copyright Springer Science+Business Media, LLC 2006Positive constitutional economics, WTO/GATT, Reciprocity, Regionalism, MFN, F02, F13,

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Section: Levels Of Analysis and The Structure Of A Trade Constitutionmentioning

confidence: 97%

Section: Consensual/forcedmentioning

confidence: 99%

Reciprocity and the hidden constitution of world trade

Herrmann‐Pillath

2006

Constit Polit Econ

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“…In fact, the delegation of power to adjudicate disputes about the meaning of the WTO agreements inevitably also entails a delegation of authority to interpret them, to the extent that the texts are indeterminate (Trachtman 1999). Most disputes that reach the stage of a Panel report, and even more so one by the AB, are likely to revolve around some textual indeterminacy, if only because there is little point pursuing a claim whose outcome is plain.…”

Section: The Elusive Promise Of Legal Formalismmentioning

confidence: 99%

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

Picciotto

2005

Governance

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The creation of the Appellate Body (AB) of the WTO entails an unprecedented delegation of power to an international adjudicator, since the WTO requires states to ensure compliance of their domestic regulations with the sweeping obligations in WTO agreements. This is legitimized in some academic analysis and much political rhetoric in terms of the rule of law, suggesting that the role of the adjudicator is merely to apply the precise words of the texts agreed by states, according to their natural meaning. The AB has supported this, by adopting a formalist approach which combines an objectivist view of meaning with a legalistic style of judgement. However, both the general structure and many of the specific provisions of the WTO agreements are indeterminate and raise issues of interpretation which were known to be highly contestable. Although the delegation of adjudication in its early phase was considered to be of a narrow technical function, in the current phase interpretation is more clearly seen to involve a flexible application of principles to cases in the light of the policies involved. The AB's role would be better legitimized by adopting a more open epistemology and reasoning which could be accessible to a wider constituency. However, it is constrained by fear of usurping the political legitimacy of the governments to which it is primarily accountable, and they in turn are motivated by a reluctance to admit to their domestic constituencies how much power has been transferred to supranational instances such as the AB.

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“…143 The most convincing reading of this obligation is offered by Professor Trachtman, who emphasizes that the test refers to rules of interpretation rather than the substantive rules of customary international law. 144 The Vienna Convention on the Law of Treaties, widely accepted as reflecting customary international law, references substantive provisions of customary law, but as Trachtman argues, this does not indicate that such rules apply, but rather that they can be taken into account. 145 WTO Obligations, then, should be interpreted, where possible, to avoid conflict with the substantive norms of international law.…”

Section: Panels As Adjudicators Of International Lawmentioning

confidence: 99%

“…145 WTO Obligations, then, should be interpreted, where possible, to avoid conflict with the substantive norms of international law. 146 With respect directly applicable rules, however, it seems clear that only WTO law is to be considered. First, the text of the DSU indicates that panels should only look to WTO law.…”

Section: Panels As Adjudicators Of International Lawmentioning

confidence: 99%

Global Governance and the WTO

Guzmán¹

2002

SSRN Journal

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The international trading system, embodied in the World Trade Organization (WTO), is rightly celebrated as one of the great successes of international cooperation. The success of that system, however, has not been matched in other important areas of international policymaking, including environmental, labor, human rights, and competition policy. In recent years, the trading system has come under stress because the impact of its success has been felt in these "nontrade" areas. The liberalization of trade and the establishment of multilateral trading rules, for example, have made it more difficult for nation-states to impose trade sanctions on states that fail to undertake certain environmental measures. Governments, non-governmental organizations (NGOs), and individuals concerned about the impact of the trading system on these non-trade issues have challenged the WTO to address this concern. As of yet no consensus has emerged on the question of how to balance existing trade interests against these other interests.This Article proposes a strategy that would allow states to discuss trade and nontrade interests in a single forum. With a single place for the negotiation of a range of issues, states will be able to negotiate rules to govern the balance between trade and non-trade concerns. No such forum exists today.The best starting point for this effort is the WTO. The WTO has the advantage of being an established and successful organization that has proven itself capable of managing complex negotiations and administering the resulting agreements. It also has the advantage of a well functioning dispute resolution system. The primary problem with the WTO as the single home for these diverse issues is the fact that it is a trade organization, staffed by trade specialists, and prone to favoring trade interests over others. If it is to be an effective and accepted forum for non-trade issues, this trade bias must be eliminated.To overcome the trade bias of the institution, this Article advances a novel proposal to create autonomous, topical departments within the WTO. Each department would represent a single area, such as trade, environment, human rights, and so on. The departments would organize rounds of negotiation within their issue areas, leading to WTO obligations. In addition, to permit negotiation across issue areas, periodic "Mega-Rounds" would be convened in which trade concerns could be balanced against, for example, environmental concerns. The resulting agreements from the Mega-Rounds would also represent WTO obligations. The departmental structure would avoid the problems of a trade bias within the organization and retain the advantages of specialization. At the same time, the organization would have a mechanism to undertake the difficult but critical tasks of determining how trade and non-trade interests will interact.

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The Domain of WTO Dispute Resolution

Cited by 49 publications

References 6 publications

Reciprocity and the hidden constitution of world trade

Reciprocity and the hidden constitution of world trade

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

Global Governance and the WTO

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