Suchergebnisse

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This article investigates the origins and character of this feature of theWTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to the future operation of the dispute settlement system. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO– a fire alarm thatMembers can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, one that is both politically feasible in the short term and unlikely to have its legal effects disputed is a decision, made by consensus by theMembership, to clarify the relationship between the decision-making authority of the Ministerial Conference and the provisions governing appointment of Appellate Body members.
World Trade Organization, Appellate Body, International Dispute Settlement, Institutional Design, Dispute Settlement Body, International Courts

During the decade between 2007 and 2017, the World Trade Organization (WTO) became the almost exclusive forum for the settlement of interstate trade disputes. The previous 1995–2005 period had seen some signs that regional trade agreements (RTAs), such as the North American Free Trade Agreement (NAFTA), the Common Market of the South (MERCOSUR), and the Andean Community, could become alternative forums for dispute settlement in trade. Between 2007 and 2017, however, the only agreement under which (two) trade disputes were brought to adjudication was the Dominican Republic—Central America—United States Free Trade Agreement (CAFTA-DR).

ABSTRACT
Debates about the meaning of 'evolutionary interpretation' reveal the existence of two conflicting views. Some see evolutionary interpretation as an inevitable step in the ordinary process of applying fixed written language to changing reality. Others see it as a means for interpreters—and, crucially, adjudicators—to update the agreement being applied, infusing into the text the interpreter's view of what would be a desirable development of the relevant provisions. Benefitting from the views expounded and decisions collected by the authors of Evolutionary Interpretation and International Law, edited by Georges Abi-Saab, Kenneth Keith, Gabrielle Marceau, and Clément Marquet (Hart 2020), this piece investigates two core questions that run through debates regarding evolutionary interpretation. First is the question of what is meant by evolutionary interpretation, whether an unavoidable step in the norm application process or a decision to develop obligations beyond their original scope. Second is the question of the distinctive role of adjudicators, i.e. of whether evolutionary interpretation is a tool used by adjudicators to exercise authority over the legal framework being applied, bypassing the constraints of the consent-based international rule-making system.

Abstract
The United States-Mexico-Canada Agreement (USMCA) features a clause, dubbed 'anti-China', which sets out legal consequences in case one of the parties negotiates or enters into a free trade agreement (FTA) with a nonmarket economy (NME). A similarly worded objective appears among the negotiating objectives of the US for FTAs with the European Union, Japan, and the United Kingdom. This article examines the anti-NME clause, arguing that its concrete legal consequences are less relevant than its symbolic effects. The USMCA clause itself is difficult to replicate in bilateral agreements, since it depends on cooperation between the two nonsigning parties. Its operation is nonetheless similar to that of two unilateral remedies available under the law of treaties, permitting a reasonable assessment that the clause, if it follows its original design, will aim to permit termination of bilateral US FTAs in response to the other party entering into an NME FTA. While such a clause would offer little in terms of concrete effects if added to agreements that already permit unilateral withdrawal, its greatest value may not be in its legal effects but in its legitimating and signaling properties, which push USMCA parties to establish a common front in the 'geoeconomic' dispute between the United States and China.

For twenty years, World Trade Organization (WTO) Members managed to avoid invoking the security exception before WTO panels, leaving unresolved the tension between the self-judging element explicit in its text and the compulsory jurisdiction of WTO panels. Then, in 2017 and 2018, a dozen panels were established after the respondent declared that it deemed the challenged measures necessary to protect its essential security interests. The first panel report to examine the issue, in Russia – Traffic in Transit, was adopted in April 2019 without appeal. Its interpretation of General Agreement on Tariffs and Trade (GATT) Article XXI significantly limits the scope of the self-judging element in the provision and devises a three-step legal test to be met by Members invoking the exception, with the declared objective of safeguarding 'the object and purpose of GATT 1994 and the WTO Agreements more generally'. This article examines and discusses this interpretation and its effects over the role of the WTO in international trade relations, viewing it as the latest episode in the long-standing tension between mechanisms providing for compulsory international adjudication and the view that, where states deem their essential interests to be involved, the submission of disputes to adjudication remains subject to their sovereign determination.