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KEY ISSUES in WTO DISPUTE SETTLEMENT the first Ten Years

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KEY ISSUES in WTO DISPUTE SETTLEMENT the first Ten Years KEY ISSUES IN WTO DISPUTE SETTLEMENT The first ten years This book examines aspects of the operation of the WTO dispute settle- ment system during the first ten years of the WTO. It covers a representative cross-section of the issues and situations WTO Members have dealt with under the Dispute Settlement Understanding. The book is unique in that it includes contributions from virtually the entire gamut of actors involved in the day-to-day operation of the WTO dispute settlement system: Mem- ber government representatives, private lawyers who litigate on behalf of Member governments in the system, Appellate Body members, Appellate Body Secretariat staff, and WTO Secretariat staff. It also includes contri- butions from several academics who closely follow and carefully scrutinize all that goes on within the system. It therefore provides fascinating insights into how the system has operated in practice, and how the lessons of the first decade can be applied to make the system even more successful in the years to come. KEY ISSUES IN WTO DISPUTE SETTLEMENT The first ten years Edited by RUFUS YERXA AND BRUCE WILSON cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru,UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Informationonthistitle:www.cambridge.org/9780521861595 © World Trade Organization 2005 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format isbn-13 978-0-511-13293-3 eBook (NetLibrary) isbn-10 0-511-13293-x eBook (NetLibrary) isbn-13 978-0-521-86159-5 hardback isbn-10 0-521-86159-4 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Notesoncontributorspageviii Prefacexvii Tableofcasesxix Abbreviationsxxxvii partiIntroductionandGeneralConsiderations1 1 The power of the WTO dispute settlement system3 Rufus Yerxa 2 The WTO dispute settlement and general internationallaw7 Georges Abi-Saab part ii The WTO Dispute Settlement System: Its Processes and ItsInstitutions13 3 The WTO dispute settlement system and its operation: a brief overviewofthefirsttenyears15 Bruce Wilson 4 The role of the Dispute Settlement Body in the dispute settlementprocess25 Bozena Mueller-Holyst 5 Consultations and the panel process in the WTO dispute settlementsystem29 Gabrielle Marceau 6 Contingent trade remedies and WTO dispute settlement: someparticularities46 Jesse Kreier v vi contents 7 The making of the ‘World Trade Court’: the origins and development of the Appellate Body of the World Trade Organization63 Peter Van den Bossche 8Specialchallengesattheappellatestage:acasestudy80 Valerie Hughes 9 The reasonable period of time for compliance with the rulings and recommendations adopted by the WTO Dispute SettlementBody88 Werner Zdouc 10 Implementation of panel and Appellate Body rulings: anoverview98 Brendan McGivern 11 A brief introduction to countermeasures in the WTO disputesettlementsystem110 Yves Renouf part iii The WTO Dispute Settlement System: Systemic and OtherIssues123 12 The role of lawyers in the WTO dispute settlementsystem125 Giorgio Sacerdoti 13JurisdictioninWTOdisputesettlement132 Joel Trachtman 14DueprocessinWTOdisputes144 Andrew Mitchell 15StandardsofreviewinWTOpanelproceedings161 Matthias Oesch 16 Administration of evidence in WTO dispute settlement proceedings177 Scott Andersen 17 Confidentiality issues under the DSU: fact-finding process versusconfidentiality190 Olivier Prost contents vii 18Panels’consultationswithscientificexperts204 Mireille Cossy 19 Amicus curiae participation in WTO dispute settlement: reflectionsonthepastdecade221 James Durling and David Hardin 20 Suspension of concessions and retaliation under the Agreement on Safeguards: the recent US–SteelSafeguardscase232 Raimund Raith 21 Compliance with WTO dispute settlement decisions: is there acrisis?242 John Magnus 22DSUreview:aviewfromtheinside251 David Evans and Celso de Tarso Pereira partivAnnexes269 Annexes I–V Selectedstatistics:thefirsttenyearsoftheWTO271 NOTES ON CONTRIBUTORS Georges Michel Abi-Saab was appointed to the Appellate Body of the World Trade Organization in June 2000 and became Chairman of the Appellate Body in 2003. Born in Egypt on 9 June 1933, Georges Michel Abi-Saab is Honorary Professor of International Law at the Graduate Institute of International Studies in Geneva (having taught there from 1963 to 2000); Honorary Professor at Cairo University’s Faculty of Law; and a Member of the Institute of International Law. Professor Abi-Saab has also served as consultant to the Secretary-General of the United Nations. He represented Egypt in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law (1974 to 1977), and acted as advocate and Counsel for several governments in cases before the International Court of Justice (ICJ) as well as in international arbitrations. He has also served twice as judge ad hoc on the ICJ and as Judge on the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. He is a Commissioner of the United Nations CompensationCommissionandaMemberoftheAdministrativeTribunal of the International Monetary Fund and of various international arbitral tribunals. ScottAndersen is the Managing Partner of Sidley Austin Brown & Wood’s Geneva office. He focuses his practice on the use of WTO rules to resolve international trade disputes. Mr Andersen is also actively involved in the litigation and enforcement of matters submitted to WTO dispute set- tlement panels. Mr Andersen was recently lead counsel in the landmark Upland Cotton dispute challenging domestic and export agricultural sub- sidies causing serious prejudice. Between 1995 and 2000, Mr Andersen was the Legal Adviser to the US Mission to the WTO in Geneva, Switzerland where he represented the United States in more than 30 disputes before the WTO – both panels and the Appellate Body. In addition he was the Geneva USTR negotiator for environment, investment, balance of pay- ments, fishing subsidies, and customs valuation issues between 1996 and viii notesoncontributors ix 2000. Prior to his arrival in Geneva, Mr Andersen worked for five years at the US International Trade Commission, focusing on anti-dumping and intellectual property issues as well as participating in NAFTA investment negotiations. Mireille Cossy graduated in Law at the Universities of Lausanne and Geneva (Switzerland). In 1995, she joined the Trade and Environment Division of the World Trade Organization. Since 1999, she has been a Counsellor in the Trade in Services Division of the WTO, and currently focuses on issues related to environmental, energy and health services. She has also acted as Secretary to four WTO dispute panels. Before joining the WTO, she worked for the Swiss Ministry of Economic Affairs and for the International Committee of the Red Cross. James Durling is a partner in Willkie Farr & Gallagher LLP’s Washington DC office, where he specializes in international trade law. His practice focuses on trade remedy and WTO litigation, as well as trade policy advisory work. He has worked extensively on WTO dispute settlement proceedings, with a particular focus on WTO challenges to trade rem- edy measures. Mr Durling advised the foreign parties in the panel and Appellate Body proceedings on US – Steel Safeguards. He has also writ- ten extensively on the subject of WTO dispute settlement proceedings and trade remedies, including three books: Anatomy of a Trade Dispute (2000), Understanding the WTO Antidumping Agreement (2002), and Business Guide to Trade Remedies in the United States (2003). Mr Durling studied history at Haverford College (BA 1980), economics at Princeton Univer- sity (MPA 1984), and law at New York University (JD 1984). David Evans is a Senior Legal Adviser at the Ministry of Foreign Affairs and Trade in New Zealand. He was First Secretary in charge of WTO legal matters at the New Zealand Permanent Mission to the WTO from 2002–2005. He chaired the WTO Committee on Anti-Dumping Practices in 2003–2004. He has worked actively on a number of disputes, including Canada – Dairy, US – Steel Safeguards, and US – Lamb.HehasanLLB (Hons) and Bachelor of Arts (Political Science) from Auckland University. David Hardin is currently an associate attorney in Willkie Farr & Gallagher LLP’s Washington, DC office, where he specializes in inter- national trade law. His practice focuses on trade remedy cases before the WTO and various US trade agencies. Prior to joining Willkie Farr & Gallagher, Mr Hardin clerked at the US Department of Commerce and the US International Trade Commission. Mr Hardin studied political science x notesoncontributors at George Mason University (BA 1999) and law at the George Washington University Law School (JD 2003). Valerie Hughes has been Director of the Appellate Body Secretariat of the World Trade Organization since August 2001. Previously, she was with a private law firm in Ottawa, Canada. She also spent 19 years with the Government of Canada, during which she held various positions, includ- ing Director
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