Dispute Settlement
in the World Trade Organization
Fall 2005 • Seminar 745.01
Prof. Joost Pauwelyn (Office 4027)
Syllabus
Prerequisites: Students must have taken the introductory course on International Trade
Law or otherwise demonstrate a sufficient background in the field. The latter can only
join the seminar upon approval by the instructor.
Credits: 2/3. The third credit can be obtained by students who officially submit a 25 page
brief to the 2006 Sidley-IIEL WTO Moot Court Competition.
Evaluation: Each student must submit a reaction paper (between 2-4 pages long) to at
least 5 different seminar sessions. Papers should be sent to WTO@lists.law.duke.edu
before the seminar. This set of 5 papers will determine 60% of your grade; the
remaining 40% is based on moot court performance and class attendance & participation.
Sources: Students should familiarize themselves with the following two websites:
www.wto.org (official website of the World Trade Organization; click on “disputes” for
the dispute settlement gateway)
Note, in particular, the WTO Appellate Body’s Repertory of Report and Awards
at http://www.wto.org/english/tratop_e/dispu_e/repertory_e/repertory_e.htm
www.worldtradelaw.net (subscription website with summaries of all WTO rulings, links
to government web-pages and much more)
See also: Duke Law Library’s own Research Guide to the GATT/WTO:
http://www.law.duke.edu/lib/ResearchGuides/gatt/gattframe.html
Journals: For further background material, the following three journals are key:
Journal of International Economic Law: http://www3.oup.co.uk/jielaw/
Journal of World Trade: http://www.kluweronline.com/issn/1011-6702/contents
World Trade Review: http://www.journals.cambridge.org/journal_WorldTradeReview
Date
Aug. 24
Topic
I.
Introduction,
Historic
Development
and Overview
of WTO
Dispute
Settlement
Readings & Questions
1. Book, p. 1-16 and 43-75 (if need be, the latter can be skimmed)
2. Joost Pauwelyn, The Transformation of World Trade, MICHIGAN LAW REVIEW
(2005, forthcoming), p. 1-41 (if need be, focus in particular on the Introduction)
3. WTO News Items, The DSB Establishes Panels to Examine Aircraft Subsidies
Dispute, July 20, 2005, at
http://www.wto.org/english/news_e/news05_e/dsb_20july05_e.htm
Background:
* William Davey, The WTO: A Brief Introduction (2003), on blackboard
* William Davey, The WTO Dispute Settlement Mechanism (2003), on blackboard
and at
http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID419943_code030707570.pdf?abst
ractid=4199
Questions:
1. What are the major historical developments in dispute settlement from
GATT to WTO?
2. What are the conventional explanations for these developments (in
particular, the loss of the veto right in panel establishment) and what
other reasons do you deduce from my Transformation of World Trade
article?
3. What is the method of WTO dispute settlement (e.g., negotiation or
adjudication?)
4. What is the aim of WTO dispute settlement (e.g., rule compliance or
settlement?)
5. What is meant with the so-called “imbalance” between the political and
the judicial branches of the WTO? Do you agree that there is such
“imbalance”? Is it a “constitutional paradox”? Is it a problem, and if so,
how would you resolve it?
When preparing your answers to Questions 3-5, consider the Airbus-Boeing
Aircraft Subsidies case (point 3 of your readings).
Aug. 31
II.
Legal Basis,
Types and
Object of WTO
Complaints.
1. Book, p. 28-42 and 101
2. Joost Pauwelyn, A Typology of Multilateral Treaty Obligations: Are WTO
Obligations Bilateral or Collective in Nature? 14 EUROPEAN JOURNAL OF
INTERNATIONAL LAW (2003) 907, read 907-9, 915 (as of ILC Articles ...) to 917
and 941-945
3. US /Japan – Film dispute, case summary at
http://www.worldtradelaw.net/dsc/panel/japan-film(dsc)(panel).pdf, read only
p. 2-3 and 5 (as of Substantive Issues) to 10 (up to Restrictions on Large Retail
Stores)
4. Understanding on GATT Art. XXIV, paras. 13-15 at
http://www.wto.org/english/docs_e/legal_e/10-24.doc
5. ILC Articles on State Responsibility, at
http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm,
compare ILC Art. 2 to GATT Art. XXIII; and ILC Arts. 4, 5, 8 and 11 to
Understanding on GATT Art. XXIV:12. Read also ILC Arts. 12, 48 and 55.
6. Overview of Section 301 Procedures within the US at
http://www.osec.doc.gov/ogc/occic/301.html
Additional:
* Lothar Ehring, Dispute Settlement in the WTO, Theory and Practice, Cases and
Materials on blackboard and at
http://www.europainstitut.de/euin/llm/Vorlesungen/ehring.pdf , p. 40-82
*Santiago M. Villalpando, Attribution of Conduct to the State: How the Rules of
State Responsibility may be Applied Within the WTO Dispute Settlement System,
JIEL, July 2002
*Sharif Bhuiyan, Mandatory and discretionary legislation: The continued relevance
of the distinction under the WTO, JIEL 2002, p. 571-604
Questions:
1. What violations can one complain about in WTO dispute settlement?
2. To have a cause of action, is breach of a WTO rule always required? If not, what
are the alternatives to bring a successful WTO complaint (consider the Film
case)?
3. What type of governmental conduct is subject to WTO dispute settlement? What
governmental conduct is not? How is the DSU different from the ILC Articles in
this respect?
4. Can conduct by private operators be the subject of a WTO complaint? Compare
to the ILC Articles.
5. Who has standing to bring a WTO complaint? Compare to the ILC Articles.
6. How can private parties obtain redress for WTO violations? What is Section 301?
Sept. 7
III.
Sources of Law and
Treaty Interpretation
1. Book, p. 3-6
2. Joost Pauwelyn, The Sources of WTO Law, in CONFLICT OF NORMS IN
PUBLIC INTERNATIONAL LAW (2003), p. 40-52
3. Joost Pauwelyn, How to Win a WTO Dispute Based on non-WTO Law,
37:6 JOURNAL OF WORLD TRADE (2003), 997, read 997-1005
4. Robert Howse, The Jurisprudential Achievement of the WTO Appellate
Body, at
http://www.law.nyu.edu/kingsburyb/spring03/globalization/robhowsepa
per.pdf
5. Joost Pauwelyn, Reply to Joshua Meltzer (regarding Article 31.3(c)), 25
Mich. J. Int'l L. 924 (2003-2004)
6. Appellate Body Report on US – Gambling (2005), p. 51-60 (paras. 158178) and 67-69 (paras. 196-201).
7. For those who are unfamiliar with the case mentioned directly above
(item #6): Joost Pauwelyn, ASIL Insight: WTO Softens Earlier
Condemnation of U.S. Ban on Internet Gambling, but Confirms Broad
Reach into Sensitive Domestic Regulation, April 12, 2005.
Additional:
* Palmeter, David and Mavroidis, Petros, The WTO Legal System: Sources
of Law AJIL (1998) 398-413
* Michael Lennard, Navigating by the Stars: Interpreting the WTO
Agreements 5 JIEL 2002, 17-89
Questions:
1. What are the sources of law that WTO panels can apply?
2. Can WTO panels refer to and/or apply rules of public international law
outside WTO covered agreements?
3. Is there a hierarchy in the elements for treaty interpretation referred to
in Arts. 31-32 of the Vienna Convention?
4. Which of those elements does the case law of the Appellate Body
favor? For what reasons? And does it matter? Consider Howse’s view
in the light of the US - Gambling ruling.
5. What requirements must a rule of international law meet before it can
be referred to pursuant to Art. 31.3(c) of the Vienna Convention? Does
it suffice for the disputing parties to be bound by it?
Sept. 14
1.
IV.
Overlaps with Other
International Courts
and Tribunals.
Conflicts and Choice
of Law
2.
3.
4.
5.
6.
Joost Pauwelyn, How to Win a WTO Dispute Based on non-WTO Law,
37:6 JOURNAL OF WORLD TRADE (2003), 997, read 1005-1019
Case law Excerpts on Article 23 DSU
NAFTA provisions on overlaps & cultural industries
WTO dispute on Canada - Periodicals (complaint by US), case
summary at http://www.worldtradelaw.net/dsc/ab/canadaperiodicals(dsc)(ab).pdf ; no need to read it all, just ask yourself why
this case was brought to the WTO and not to NAFTA; could Canada
have insisted on resolving the case at NAFTA?
ICJ Statute, Arts. 34-38 (at http://www.icjcij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm)
UN Convention on the Law of the Sea, Arts. 279-288, 291, 293 and 311
(at
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
7.
8.
9.
EC/Chile – Swordfish case, before WTO, DS193 and ITLOS, at
http://www.itlos.org/start2_en.html, go to "Proceedings", then "docket"
then Case No. 7
Nicaragua/Honduras border dispute, before WTO, DS 188&201 and
ICJ, at
http://www.icj-cij.org/icjwww/ipresscom/ipress2002/ipresscom200217_nh_20020618.htm
Additional:
* Rosalyn Higgens, The ICJ, The ECJ and the Integrity of International
Law, ICLQ, Jan. 2003, p. 1-20, read only p. 12-20
* Joel Trachtman, The Domain of WTO Dispute Resolution, 40 Harvard
International Law Journal (1999) 333-377
* Joost Pauwelyn, The Role of Public International Law in the WTO: How
Far Can We Go?, 95 American Journal of International Law 535-78 (2001)
Questions:
1. What is the jurisdiction of WTO panels? How can it overlap with that of
NAFTA, ITLOS or the ICJ? Consider, in particular, Canada Periodicals; the EC-Chile Swordfish case and the Nicaragua/Honduras
border dispute.
2. What happens in the event of overlap of jurisdiction? Who decides where
a case goes (forum shopping)? What about re-submitting a case, after
losing it in one tribunal, to another tribunal?
3. What law can each of these tribunals apply? What happens in the event of
conflict of norms?
4. What happens in the event the applicable law before two tribunals were to
differ; what if it is the same but the tribunals each have a different view
leading to conflicting judgments?
Sept. 21
V.
The Main Players in
WTO Dispute
Settlement:
WTO Members,
Panelists, the
Appellate Body, the
Secretariat, Private
Lawyers, Scientific
Experts, NGOs
1. Book, p. 9, 17-27, 63-74, 97-100, 170-178
2. Appellate Body excerpts on private lawyers
3. Claus-Dieter Ehlermann, Six Years on the Bench of the “World
Trade Court”, Some Personal Experiences as Member of the
Appellate Body of the WTO, Journal of World Trade, 2002, 605,
639, read only: 2–4 (composition) and 5–7 (divisions)
4. Petros Mavroids, Amicus Briefs before the WTO: Much Ado
About Nothing?, Jean Monnet Working Paper 2/01, at
http://www.jeanmonnetprogram.org/papers/01/010201.rtf
5. Appellate Body rulings on Amicus Curiae briefs
6. Joseph Weiler, The Rule of Lawyers and the Ethos of Diplomats:
Reflections on the Internal and External Legitimacy of WTO
Dispute Settlement, 35 Journal of World Trade 2001, 191, focus on
p. 193-200
7. Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement,
51 International & Comparative Law Quarterly 325-64 (2002)
http://www3.oup.co.uk/iclqaj/hdb/Volume_51/Issue_02/pdf/51032
5.pdf only read p. 350-354 (coverage of expert advice)
Additional:
* The Rules of Conduct for WTO Dispute Settlement, Book, p. 170-178
* Georg C. Umbricht, An `Amicus Curiae Brief' on Amicus Curiae Briefs
at the WTO, 4 JIEL 2001, p. 773-794
* James Bacchus, Table Talk: Around the Table of the Appellate Body of
the WTO, 35 Vand. J. Transnat’l L. 1021-1039
Questions:
1. What are the pros and cons of letting private lawyers represent
states in WTO disputes? Where do you stand?
2. What are the pros and cons of permitting amicus curiae briefs?
Where do you stand?
3. What is the difference between third parties and amici?
4. Do you trust panel and Appellate Body members? What kind of
people should they be? How are they held accountable?
5. Should panels become permanent bodies? Should Appellate Body
members be appointed for life?
6. What is the role of the WTO Secretariat? Does it have too much
influence?
7. What is the place of scientific experts in WTO dispute settlement?
What can they, and are they permitted to, contribute? Are panels
bound by their views?
In preparing your answers to questions 5-7 consider, in particular Weiler’s
theory of internal v. external legitimacy
Sept. 28
VI.
Selected Procedural
Questions:
Burden of Proof, Level
of Proof and Standard
of Review
1. Book, p. 101-108, 66-67, 71-72, 154-6
2. Joost Pauwelyn, Evidence, Proof and Persuasion in WTO Dispute
Settlement, Who Bears the Burden?, 1 JIEL 1998 227, read 227-9,
233-5, 237-42 and 252-8
3. Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement,
51 International & Comparative Law Quarterly 325-64 (2002)
read 359-362 (full article in Unit V).
4. Additional case law excerpts on burden of proof
5. Case law excerpts on standard of review
Additional:
* GAO Report on WTO, Standard of Review and Impact of Trade Remedy
Rulings, p. 1-7, 21-2 and 26-32 at
http://www.gao.gov/new.items/d03824.pdf * S. Croley and J. Jackson,
WTO Dispute Procedures, Standard of Review and Deference to National
Governments 90 AJIL 1996, 193-213
* Stefan Zleptnig The Standard of Review in WTO Law: An Analysis of
Law, Legitimacy and the Distribution of Legal and Political Authority, at
http://eiop.or.at/eiop/pdf/2002-017.pdf
* Matthias Oesch, Standards of Review in WTO Dispute Resolution, JIEL
(2003), 635 at http://www3.oup.co.uk/jielaw/current/pdf/060635.pdf
Questions:
1. What is the difference between burden of proof, level of proof and
standard of review?
2. What are the precise rules on burden of proof in WTO dispute
settlement?
3. How does the WTO’s presumption or prima facie technique work?
Does it help or complicate the evaluation of whether a party met
its burden?
4. What refinements and/or reversals of earlier practice (as reflected
in my Evidence, Proof and Persuasion piece) do you discover
when reading the excerpts from the Japan – Apples II, Gambling
and Tariff Preferences (GSP) cases?
5. What is the level of proof required to convince a WTO panel? Is it
“preponderance of the evidence” (see Asbestos excerpt) or
“probative or compelling evidence” (see DRAMS excerpt)? Or
does it differ between agreements? What is required for a prima
facie case?
6. What standard of review must panels respect when reviewing the
WTO consistency of member state conduct? Is there really a
difference between DSU Art. 11 and AD Art. 17.6?
7. What standard of review must the Appellate Body respect when
reviewing panel findings?
Oct. 5
1.
2.
VII.
3.
Remedies in WTO Dispute
Settlement
4.
Book, p. 74-87, 88-91 and 92-96
Joost Pauwelyn, Enforcement and Countermeasures in the WTO,
AJIL, 2000, at http://www.asil.org/ajil/v94335.pdf, read p. 335-341
Mark Movsesian, Enforcement of WTO Rulings: An Interest Group
Analysis, 32 Hofstra Law Review (2003), 1-21 (read enough to get
his main point)
Joost Pauwelyn, Draft: How Binding Are WTO Rules?
A Transatlantic Analysis of International Law, Presented at the
University of Tuebingen, 14-16 October 2004, at
http://www.law.duke.edu/fac/pauwelyn/pdf/wto_rules.pdf, read p.
1-20 and 34-41 (conclusion)
Additional:
* Marco Bronckers & Naboth van den Broeck, Financial Compensation
in the WTO: Improving the Remedies of WTO Dispute Settlement, JIEL
(2005) 101-126
* Petros C. Mavroidis, Remedies in the WTO Legal System: Between a
Rock and a Hard Place, EJIL 2000, 763-815.
* W. Schwartz and A. Sykes, The Economic Structure of Renegotiation
and Dispute Resolution in the WTO, Journal of Legal Studies, Jan. 2002,
179-204 .
* Steve Charnovitz and Jason Kearns, Adjudicating compliance in the
WTO, JIEL (2002), 331
Questions:
1. What are the different steps, in each stage of the procedure after
the DSB adoption of a dispute settlement report, that
complainants can rely on to achieve compliance as against
recalcitrant defendants?
2. How do the remedies in the DSU compare to those offered in
general international law? Which set of remedies offers more to
the complainant? Which is more effective to induce
compliance?
3. Is the WTO a property or a liability rule regime? What about
general international law?
4. DSU Art. 22 refers to compensation. What form does it take?
How do you explain that this remedy is only rarely resorted to?
5. Are you in favor of a new remedy of retroactive monetary
compensation in the WTO?
6. How is WTO retaliation kept in bounds? What form does
retaliation eventually take?
7. Is WTO retaliation aimed at re-balancing the trade scales or at
inducing compliance? If the latter, is the current level/method of
retaliation sufficient to induce compliance? Why was it not set
at a higher level?
8. What are the pros and cons of equivalent suspension of
concessions as a (and the only) remedy of last resort?
Oct. 19
VIII.
The Calculation and
Selection of “Trade
Sanctions”
1. Hormone beef arbitration, at
http://www.worldtradelaw.net/reports/226awards/echormones(226)(us).pdf, read pp. 2-11 and 17 very carefully
2. US - FSC arbitration report, at
http://www.worldtradelaw.net/reports/226awards/usfsc(226).pdf , read pp. 6-20 very carefully, skim pp. 20-33
3. US – Byrd arbitration report, at
http://www.worldtradelaw.net/dsc/arb226/usbyrd(dsc)(22.6).pdf, skim to understand gist of this ruling
4. Joost Pauwelyn, Draft: How Binding Are WTO Rules? A
Transatlantic Analysis Of International Law, Presented at the
University of Tuebingen, 14-16 October 2004, at
http://www.law.duke.edu/fac/pauwelyn/pdf/wto_rules.pdf, read
p. 20-34. (Full article in Unit VII.)
5. EC Notice Requesting Comments on Retaliation List in
FSC (September 2002)s
6. EC Council Regulation (EC) No 2193/2003 of 8 December
2003 establishing additional customs duties on imports of
certain products originating in the US
7. US-EC dispute on EC enlargement consequences for US rice
exports: comments on US proposal to retaliate
8. US retaliation list in Hormone dispute
.
Optional:
* Joost Pauwelyn, WTO Victory Over Steel Hides Deficiencies, The
Jurist (forthcoming), at http://jurist.law.pitt.edu/forum/Pauwelyn1.php
* Lawrence & Stankard, Should Export Subsidies be Treated
Differently?, Draft paper 2005, at
http://ksghome.harvard.edu/~RLawrence/Export%20Subsidies%20May2
7.pdf read p. 14-20
Questions:
1. How is the level of suspension of concessions calculated? When
does the clock start ticking?
2. Is the amount based on the value of the violation by the
wrongdoer, economic harm to the victim or rather trade effects
suffered by the victim? What should it be in your view?
3. In what sense are export subsidy cases treated differently when
it comes to remedies? Why? Should there be such a difference?
4. What considerations must countries that impose trade sanctions
take into account? How are product lists chosen? How can
product selection make retaliation more effective. Consider the
US practice in Hormones and Rice; the EC practice in FSC.
Oct. 21
(Friday,
lunch time
event, TBC)
Paper will be circulated
Guest Speaker:
Prof. Petros C. Mavroidis
(Columbia University,
Counsel at the WTO for
developing countries and
Chief ALI Reporter on
Principles of Trade Law):
See also: American Law Institute (ALI) Project on Principles of
Trade Law: The World Trade Organization at
https://www.ali.org/ali/Stu_Trade_WTO.htm
“A Critical Evaluation of
10 Years of WTO
Jurisprudence”
Oct. 26
Nov. 2
NO SEMINAR
Moot Court
Nov. 9
Paper will be circulated
Guest Speaker:
Prof. Eric Reinhardt
(Department of Political
Science, Emory
University)
“Developing countries in
WTO Dispute Settlement
and Reform of the DSU”
Nov. 16
Nov. 23
Moot Court
Moot Court
See also:
* Marc Busch and Eric Reinhardt, Developing Countries and
GATT/WTO Dispute Settlement, 37:4 Journal of World Trade
(2003) 719-735
* Andrew Guzman and Beth Simmons, Power Plays & Capacity
Constraints: The Selection of Defendants in WTO Disputes,
forthcoming, J. Leg. Stud. (2005)