Copyright 2000 Federal News Service, Inc.
Federal News Service
June 20, 2000, Tuesday
SECTION: PREPARED TESTIMONY
LENGTH: 5518 words
HEADLINE:
PREPARED TESTIMONY OF PROFESSOR JOHN H. JACKSON
BEFORE THE
SENATE FINANCE COMMITTEE SUBCOMMITTEE ON INTERNATIONAL TRADE
SUBJECT - U.S. INTERESTS AND EXPERIENCE IN THE WTO DISPUTE
SETTLEMENT SYSTEM
BODY:
I. Introduction
The World Trade Organization (WTO) has been in existence slightly over
five years. Its predecessor, the General Agreement on Tariffs and Trade (GATT),
operated for almost fifty years as a "provisional" treaty and institution, but
the WTO has a definitive, legal international organization structure. By most
accounts, the WTO has been an enormous success, and has been diligently
implementing and providing the appropriate infrastructure for the massive treaty
results of the Uruguay Round of multilateral negotiations. The WTO has the
unparalleled responsibility of overseeing a treaty of 26,000 pages, including
approximately 1,000 pages of dense, and often relatively ambiguous, treaty text.
(The other 25,000 pages are generally schedules of concessions, both regarding
goods and services.) However, there are increasing worries about the direction
and the long-term viability and strength of the WTO, particularly during the
last year or two, and accentuated by a disturbing failure of the Third
Ministerial Conference, which was held in Seattle in late 1999. A central
feature of the WTO is its dispute settlement mechanism. Indeed, the statesmen
involved in the Uruguay Round and the WTO, and the current WTO officials and
ambassadors, take considerable pride in this feature. The WTO dispute settlement
system has had an enormous impact on the world trade system and its diplomacy.
This dispute settlement system is unique in international law and international
relations practice, in having a remarkable juridical and "legalistic" system for
disputes, with a virtually automatic application of its decisions and reports in
a manner that is binding on the members of the WTO. These attributes are in the
context of an extraordinarily broad and comprehensive competence (unlike some of
the more specialized systems of this type, which also have a great deal of
rigor). In addition, the questions posed to the dispute settlement system often
strike at the heart of the tension between views desiring a protection of
nation-state sovereignty on the one hand, and the needs in the context of
"globalization" or intertwining of economies requiring greater international
cooperative mechanisms to allow the international economy to continue to work
successfully.
II. The WTO Dispute Settlement System The First Five Years
Since the WTO entered into force, there have been 193 complaints,
involving 151 "distinct matters."1 If more than one country brings a complaint
against the same measure, the complaints will be consolidated and reviewed by a
single panel. To date, the Dispute Settlement Body (DSB) has adopted 34 panel or
Appellate Body reports (26 Appellate Body reports and eight panel reports).
Since the appellate reports usually accept or affirm part of the first-level
panel report, there are about 60 reports overall that have all or part
application.
At the beginning of the WTO, it was generally expected that
almost every case would be appealed. To date, 39 panel reports have been issued.
In three cases, the fame for appeal has not run out.2 Of the remaining 36 cases,
28 were appealed, and eight were not appealed. Thus, Appellate Body review was
invoked in 78 percent of the cases. Possibly and hopefully, the modest trend of
non-appeal can be attributed to a greater sense of predictability and direction
that is developing through the Appellate Body decisions and very elaborate
reports, so that disputing parties can more likely see when appeals would not be
useful. Of course, there may be other reasons not to appeal, such as when both
sides feel that they do not want certain issues tested at the appellate level,
or when both sides feel that they have achieved what they wished to achieve from
the first-level panel report. In addition, there is additional expense for
bringing an appeal.
There are some interesting features of the
statistics regarding the dispute settlement. In 1995 the industrialized and the
less-developed countries brought an equal number of cases.3 During the next five
years, the number of cases brought by less-developed countries remained
relatively constant, while the number brought by industrialized countries peaked
at 40 cases in 1997 and fell to 22 in 1999.4 The United States and the European
Union have been the most frequent complainants. Each of these two entities has
participated as complainants or respondents in about half of the WTO cases.5
One encouraging characteristic of the cases brought so far is that a
very large number are settled, in the sense of never leading to a panel report.
The DSB has established 64 panels out of 151 distinct matters. Our statistical
analysis concluded that adopted panel or Appellate Body reports resolved 46
disputes, while 43 disputes were resolved in other ways (such as settlement or
withdrawal of contested measures).6 Interestingly, no cases were resolved by
good offices, conciliation, or mediation, as provided for in the DSU rules.7
This may suggest a need to enhance the use of this potential procedural phase of
the process.
One of the significant overall statistics is the staggering
number of cases, and thus the exceptional work load of the WTO dispute
settlement system, both at the first-level panel stage, and at the appellate
stage. There are some estimates that suggest that well over half, maybe
two-thirds or three-fourths of the effective work of the diplomats, missions,
and secretariats in the WTO system is now related in one way or another to the
dispute settlement process, including consideration of potential suits to bring.
A key question, perhaps not yet fully answered, although an optimistic view
suggests that the practice so far is encouraging, is whether the dispute
settlement system is in fact lending a greater degree of predictability and
reliability to the world trading system, including to the millions of
entrepreneurs who depend on the trade treaties for a certain amount of security
and decreased risk of their many transactions and other economic activities that
cross borders.
The tough issues of implementation of the dispute
settlement decisions were encountered in a significant way in the second half of
1998. In particular, the Banana case brought some of these issues to the
forefront.8 Until that time, it looked as if compliance and implementation were
on an appropriate track, with most of the countries complying with the DSU rules
on compliance, even the trading "superpowers," namely, the United States, Japan,
and the European Communities. Each of these countries had indicated that its
policy would be to comply with the results of the dispute settlement system,
and, in many cases, they have either fully complied, or are in the process of
complying in a satisfactory manner.
The Banana case has a contrary
history, unfortunately. In addition, the Beef Hormones case has proven difficult
in this regard.9 Several recent cases look as if they will also be difficult to
manage in the compliance or implementation phase. One of these is the so-called
FSC (Foreign Sales Corporation) case against the United States.10 Other cases
that may pose important problems in this regard are the aircraft cases between
Canada and Brazil, and the Australia Leather case, where a panel ruled that a
refund of duties is required.
In the Australia - Leather case, a
"compliance review" panel determined that Australia had failed to withdraw the
prohibited subsidies within 90 days and thus had not taken measures to comply
with the recommendation of the DSB.11 In the Canada -Aircraft and Brazil
-Aircraft cases, two compliance review panels concluded that Brazil had failed
to withdraw prohibited export subsidies within 90 days/12 and Canada had failed
to withdraw prohibited export subsidies within 90 days.13
One issue,
which has been raised in several cases, is whether the action by the losing
party has been a "true implementation" of the recommendations of the report. In
the Banana case, the United States challenged the Europeans in this regard, in a
series of ancillary procedures, to try to resolve the differing viewpoints on
this.14 During this procedure, it was discovered that there was a very
significant problem of inconsistency between two different provisions of the DSU
(Articles 21.5 and 22). Different views of the meaning of those Articles
resulted in something of an impasse, and there have been a number of suggestions
as to how those clauses should be rephrased to solve the apparent inconsistency.
In the meantime, the parties to several subsequent disputes have concluded
bilateral agreements governing the application of Articles 21.5 and 22 to that
dispute, in an attempt to resolve that particular dispute despite the lack of
clarity between these two provisions.15
Compensatory measures may be
taken if the losing party does not bring into effect a true implementation of
the report, and the United States has several times applied compensatory
measures against the European Union.16 Almost from the beginning of the WTO
dispute settlement system, there has been a controversy about whether the treaty
obligations of the DSU require the losing WTO member to perform obligations as
set forth in the final dispute report, or whether the country concerned has the
complete juridical freedom to choose between performance on the one hand, and
providing "compensation" or accepting retaliatory measures on the other hand. I
have taken the view that the treaty text imposes an international law obligation
to perform, and does not give a free choice to prefer compensatory measures.17
In addition, there is some policy that would lead one to conclude that it was
better to require performance. In particular, to have a system where the rich
countries can always "buy out" of the obligations, particularly those with
respect to small or less powerful countries in the world, raises an important
asymmetry that could undermine the credibility of the whole procedure. Likewise,
it creates an additional uncertainty for millions of independent entrepreneurs
and traders, who otherwise would like to depend upon the rule structure as
formulated by the treaty text. Nevertheless it would be useful to do some
serious thinking about other alternatives such as "payment compensation" schemes
to avoid retaliation, since the latter tends to undermine general trade policies
of liberalization.
III. Evaluating the Process and Assessing the
Jurisprudence
A survey of the jurisprudence of the Appellate Body
appears to demonstrate that this body has a more deferential attitude towards
national government decisions (in other words, more deference to national
"sovereignty"), than sometimes has been the case for the first-level panels or
the GATT panels? In some sense, therefore, the Appellate Body has been
exercising more "judicial restraint" and has been more hesitant to develop new
ideas of interpreting the treaty language than sometimes has been the case in
the first-level panels themselves. It is not clear why this is so, but one can
note that the Appellate Body roster contains relatively few GATT specialists.
Rather, the Appellate Body, which is considered to have outstanding members, has
members that are more "generalists" than one would typically find on the
first-level panels or in the GATT panels in previous years. This could be a very
good omen, because the care and appropriate deference to national decisions may
be a significant factor in the long-run general acceptance of the work of the
WTO Dispute Settlement Body among a great variety and large number of nations of
the world.
There is, of course, quite a bit of criticism of some of the
dispute settlement report results. Quite often persons who have not read, or
perhaps not understood, the reports, indulge in this criticism. However, the
reports are quite finely crafted. Even at the first-level panel, the panels now
look to what the Appellate Body may do, and the quality of the reports under the
WTO seems quite a bit higher on the average than at least most reports under the
GATT. There is, of course, a certain lack of political accountability by the
dispute settlement process, particularly the results of the Appellate Body. This
is largely due to the failure of the members of the WTO to appropriately
exercise their responsibilities regarding negotiations and the making of certain
decisions under the WTO Charter,/19 which they could use to critique dispute
settlement reports that seem to be wrong. The charter has constrained both
negotiations and decisions, making it quite a bit harder for anything but a
complete, or almost complete, consensus to operate in the WTO. However, there
does seem to be general satisfaction by the WTO members of the dispute
settlement reports, and arguably that satisfaction represents accountability for
the system towards governments and their constituencies. Clearly, however,
members of the so-called civil society argue that the system is not accountable
enough to them, or particular groups among them. This is a very important
jurisprudential and political theory question, in which the WTO system will have
to engage itself during the short- and long-term future.
IV. Emerging
"Constitutional" Problems of the WTO Dispute Settlement System It seems clear
that the new dispute settlement system is having a profound impact on the
methods of diplomacy, based on many discussions with diplomats and other
officials in the WTO, as well as observation and reading of reports and
developments. The fact that the final report of the dispute settlement system is
now essentially automatically adopted has shifted the dynamics of the role of
dispute settlement in the system. Under the GATT, there was the blocking
opportunity, but there was also a "political filter" process by which a
political body (the GATT Council) would evaluate a report, and on some
occasions, refuse to adopt the report (even when blocking did not cause such
refusal). Thus, there was arguably something of a political legitimization for
the end result, which could operate as a check against the dispute settlement
process. The elimination of a blocking opportunity was one of the important
features of the Uruguay Round reforms, but the quid pro quo for this was the
development of an appellate procedure. The appellate procedure has many
admirable traits. But in the context of the WTO, where the decision-making
process is often paralyzed and cannot really review or change the results of an
Appellate Body report and its determinations, the Appellate Body has wound up
with a great amount of power. This amount of power has been noticed and
commented on. By contrast, many national systems with powerful supreme courts
and judicial review have also the possibility of legislative (and even
constitutional amendment) changes that can effectively overrule the highest
court. Thus there is concern that the WTO appeal procedure has put too much
power in the hands of a group of very fine persons who are, however, not always
able to appraise all of the different political and economic factors that would
go into a more "legislative" judgment. The Appellate Body members themselves
would be quick to recognize this and indeed, have been, it is argued, extremely
cautious in how they have applied the treaty texts, partly because of their
sense of responsibility and judicial restraint.
What might the future
bring? What potential circumstances or events could have a strong impact on the
dispute settlement system? Several emerging factors and developments may have
significant impacts. If a new negotiating round is finally launched, it would
not be foolhardy to predict that at least some results of such a negotiation
will have some specific and perhaps more generic impacts on the dispute
settlement system. The DSB itself might recognize and give more weight to its
responsibility to supervise the dispute settlement process, and could develop
means to critique the Appellate Body's and first-level panels' adopted reports.
Furthermore, the impacts on developing countries could lead developing
country initiatives and supporters from industrial countries, to try to redress
some of the particularly harsh impacts on developing country participation in
the processes. One particular reform would be to provide a certain amount of
"legal aid" assistance to the advocacy of developing countries, partly to
improve their capacities to participate in the dispute settlement procedures,
but also to lower the cost to them of those procedures.20
The potential
impact of a Chinese membership in the WTO has been commented on extensively.
There is considerable concern that the transition phase of the Chinese economy,
from state-operated or non- market-operated techniques to a more market-oriented
technique, could give rise to a number of dispute settlement procedures brought
against China by existing members of the WTO. Some even worry about a massive
caseload completely overloading the dispute settlement system.21 Certainly, some
care needs to be taken by the negotiators in this context, perhaps to develop
alternative means to resolve disputes in cases like China and for China itself.
Finally, there are increasing demands for "transparency" and "democratic
participation" in the dispute settlement process.
Partly, this is a
function of the increasing understanding among knowledgeable critics of the WTO
about the power of the dispute settlement process and how it can impact
constituents' lives.
Almost every institution has to face the task of
how to evolve and change in the face of conditions and circumstances not
originally considered when the institution was set up. This is most certainly
true of the original GATT, and now of the WTO. With the fast-paced change of a
globalizing economy, the WTO will necessarily have to cope with new factors, new
policies, and new subject matters. If it fails to do that, it will, sooner or
later, be marginalized. This could be quite detrimental to its broader
multilateral approach to international economic relations, pushing nations to
solve their problems through regional arrangements, bilateral arrangements, and
even unilateral actions. Although these alternatives can have an appropriate
role and can be constructive innovators for the world trading system, they run
considerable additional risks of ignoring key components and the diversity of
societies and societal policies that exist in the world. In other words, they
run a high risk of generating significant disputes and rancor among nations,
which can inhibit or debilitate the advantages of cooperation otherwise hoped
for under the multilateral system.
How will the WTO solve or attempt to
solve some of these issues? The First Ministerial, held at Singapore in 1996,
faced some of these questions. Many conclude that the results of that meeting
did not suggest very innovative ways to cope with new issues. Obviously, the
ministers felt both the legal constraints of the WTO Charter, and political as
well as economic constraints of attitudes of constituents in a number of
different societies. The Third Ministerial Conference in Seattle failed so far
to develop a framework for a new negotiation that might address some of these
issues.
The issues needing resolution could be broadly grouped into two
categories: (1) substantively new issues and (2) a number of procedural or
arguably interstitial ("fine-tuning") issues for the Organization. It is clear,
for example, that a variety of the procedures of the dispute settlement process
(particularly relating to the text of the DSU), as well as other procedures
regarding decision making, waivers, new accessions, are being scrutinized and
various suggestions for improvement are being put on the table. With respect to
dispute settlement, most readers are aware that the treaty text itself called
for a review during the calendar year 1998, which was not accomplished.22
How can these many issues be considered and dealt with in the current
WTO institutional framework? There is a delicate interplay between the dispute
settlement process on the one hand, and the possibilities or difficulties of
negotiating new treaty texts or making decisions by the organization that are
authorized by the Uruguay Round treaty text, on the other hand.
What are
the possibilities of negotiating new text or making decisions pursuant to the
WTO charter? Clearly these possibilities are quite constrained. In the final
months of the Uruguay Round negotiations, the negotiators built a number of
checks and balances into the WTO charter, to constrain decision making by the
international institution that would be too intrusive on sovereignty. The
decision-making provisions (Article IX) and the amending provisions (Article X)
of the WTO charter limited what the WTO membership can do.23
These amending provisions are probably as difficult as those that existed under
the GATT (largely copied from the GATT, with the possible exception of certain
non-substantive procedural amendments). Under the GATT, it was perceived by the
time of the Tokyo Round in the 1970s that amendment was virtually impossible, so
the Contracting Parties developed the technique of side agreements. The theory
of the Uruguay Round was to avoid this GATT a la carte approach and pursue a
single agreement approach. Various attitudes toward that approach persist in the
WTO.
Apart from formal amendments, one can look at the powers concerning
decisions, waivers, and formal interpretations. But in each of these cases,
there are substantial constraints. Decision making (at least as a fallback from
attempts to achieve consensus) is generally ruled by a majority-vote system, but
there is language in the WTO (Article IX:3) as well as the long practice under
the GATT, that suggests that decisions cannot be used to impose new obligations
on members.24 In the GATT, waivers were sometimes used to innovate and adjust to
new circumstances, but this process fell into disrepute and caused the
negotiators to develop Uruguay Round texts that quite constrained the use of
waivers, particularly as to the duration of waivers and also subjecting waivers
to explicit revocation authorities. The GATT had no formal provision regarding
interpretations, and thus the GATT panels probably had a bit more scope for
setting forth interpretations that would ultimately become embedded in the GATT
practice and even subsequent negotiated treaty language. However, the WTO
addresses this issue of formal interpretations directly, imposing a very
stringent voting requirement of three-fourths of the total membership. Since
many people observe that often a quarter of the WTO membership
is not present at key meetings, one can see that the formal interpretation
process is not an easy one to achieve. Some observers feel, however, that in
some contexts the technical requirements of consensus (not unanimity)/25 may not
always be so difficult to fulfill.
Given these various constraints, it
would be understandable if there were a temptation to try to use the dispute
settlement process and the general conclusions of the panel reports to redress
treaty ambiguity or gaps. However, Article 3.2 of the DSU itself warns against
proceeding too far in this direction, saying: "Recommendations and rulings of
the DSB cannot add to or diminish the fights and obligations provided in the
covered agreements." The emerging attitudes of the Appellate Body reports seem
to reinforce a policy of considerable deference to national government decision
making, possibly as a matter of"judicial restraint," ideas such as that quoted
from Article 3 of the DSU, and otherwise expressed by various countries who fear
too much intrusion on "sovereignty."
In short, there are indications
that the dispute settlement system cannot and should not carry much of the
weight of formulating new rules either by way of filling gaps in the existing
agreements, or by setting forth norms that carry the organization into totally
new territory such as competition policy or labor standards.
In
addition, there are many procedural questions. Some of the procedures under the
Dispute Settlement Understanding are now being questioned. Various suggestions
are coming forward, and some lists of proposals for change exceed 60 or 80 items
or suggestions. Many of these suggestions are reasonable fine-tuning, without
dramatic consequence to the system, but even the fine-tuning can be difficult to
achieve given some of the constraints on decision making. One of the geniuses of
the GATT and its history was its ability to evolve partly through trial and
error and practice. Indeed, the dispute settlement under GATT evolved over four
decades quite dramatically-- with such concepts as prima facie nullification or
the use of panels instead of working parties, becoming gradually embedded in the
process and under the Tokyo Round Understanding on Dispute Settlement becoming
definitive by consensus action of the Contracting Parties.
But the
language of the DSU (as well as the WTO charter) seems to constrain greatly some
of this approach compared to the GATT. Article 2.4 of the DSU states that
"(w)here the rules and procedures of this understanding provide for the DSB to
take a decision, it shall do so by consensus." The definition of consensus is
then supplied in a footnote, and although not identical with "unanimity,"
provides that an objecting member can block consensus. Likewise, the WTO charter
itself provides a consensus requirement for amendments to Annexes 2 and 3 of the
WTO. It will be recalled that Annex 2 is the DSU. Thus, the opportunity to
evolve by experiment and trial and error, plus practice over time, seems
considerably more constrained under the WTO than was the case under the very
loose and ambiguous language of the GATT, with its minimalist institutional
language.
Thus, we have a potential for impasse or inability to cope
with some of the problems that face the WTO.
V. Conclusion
We
can see that if we are trying to appraise the value and effectiveness of the WTO
dispute settlement process during its first five years, we have to be cautious.
Two years ago, we could have been very optimistic since, at that time, some of
the very tough issues, including issues of implementation, had not yet been
reached, and major governments were indicating that they intended to perform all
obligations raised by the dispute settlement reports. But during the last two
years, a number of further issues, and some very "tough cases" have come to the
floor.
Nevertheless, it is possible to make some preliminary judgments.
First of all, such judgments depend very much on the question one is asking.
For example, we could appraise the dispute settlement system by how
effective it is in promoting the settlement of cases, or how it develops the
jurisprudence in the sense of providing greater certainty and stability while
resolving ambiguities in the rule structure. Another possibility is to ask how
effectively the results of dispute settlement cases have been implemented.
Finally, one can ask about the degree to which there has been political and
public acceptance of the results of the dispute settlement process.
With
respect to each of these four ways to appraise the system, it seems to this
author that the first two questions could be answered optimistically, indicating
quite a good record so far of settling cases (including approximately half the
cases being settled before they get to a panel process). Similarly, good marks
could be given to the development of the jurisprudence, which is highly
sophisticated and of very high quality. On the other hand, there are some
important questions about implementation of the results of the procedures and,
in addition, some developing troubles concerning political acceptance.
As indicated earlier in this manuscript, important problems are emerging
regarding the WTO dispute settlement procedures. Most salient are the problems
pointed out, regarding the danger of overloading the system in terms of
caseload, but also in terms of the types of issues that are passed on to the
dispute settlement process, in the absence of effective ways to negotiate.
Nevertheless, I think a broad-brush approach would allow the careful
observer of the process to say that the record has been extraordinarily good
during the first five years, perhaps better than any other comparable
international law tribunal.
FOOTNOTES:
1 "Overview of the
State-of-play of WTO Disputes" available on the WTO Web site
(http://www.wto.org) (dated May 19, 2000) (hereinafter State- of-Play of WTO
Disputes).
2 Panel Report, Canada- Patent Protection Term, WT/DS 170/R,
circulated May 5, 2000; Panel Report, Korea-Measures Affecting Government
Procurement, WT/DS 163/R, circulated May 1, 2000; Panel Report, United States -
Anti-DurnpingAct of 1916, WT/DS136/R, circulated Mar. 31, 2000.
3 See
Young Duk Park & Barbara Eggers, WTO Dispute Settlement 1995-99: A
Statistical Analysis, 3 JIEL 193, 194-95 (2000).
4 See Park &
Eggers, supra note 3, at 194.
5 See Id.
6 See Id. at 196-97
(analyzing disputes through January 1, 2000).
7 See id.
8
Appellate Body Report, European Communities - Regime for the Importation, Sale
and Distribution of Bananas, WT/DS27/AB/R, adopted Sept. 25, 1997. See generally
Mauricio Salas & John H. Jackson, Procedural Overview of the WTO EC- Banana
Dispute, 3 JIEL 145 (2000) (discussing procedural aspects of the banana
dispute).
9 Appellate Body Report, European Communities - Measures
Affecting Meat and Meat Products (Hormones), WT/DS26 & 48/AB/R, adopted Feb.
13, 1998.
10 Appellate Body Report, United States- Tax Treatment for
"Foreign Sales Corporations, "WT/DS 108/AB/R, adopted Mar. 20, 2000.
11
Panel Report, Australia- Subsidies Provided to Producers and Exporters of
Automotive Leather, Recourse to Article 21.5 of the DSU by the United States,
WT/DS126/RW & WT/DS 126/RW/Corr. 1, adopted Feb. 11, 2000, para. 7.1.
12 Panel Report, Brazil - Export Financing Programme for Aircraft,
Recourse by Canada to Article 21.5 of the DSU, WT/DS46/RW, circulated May 9,
2000, para. 7.1.
13 Panel Report, Canada- Measures Affecting the Export
of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/RW,
circulated May 9, 2000, para. 6.2.
14 See Salas & Jackson, supra
note 8.
15 See Brazil- Export Financing Programme for Aircraft, Recourse
by Canada to Article 21.5 of the DSU, WT/DS46/13, Nov. 26, 1999; Canada -
Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to
Article 21.5 of the DSU, WT/DS70/9, Nov. 23, 1999; Australia- Subsidies Provided
to Producers and Exporters of Automotive Leather, Recourse by the United States
to Article 21.5 of the DSU, WT/DS126/8, Oct. 4, 1999.
16 In both the
Banana and the Beef Hormones cases, the United States sought and received
authorization from the DSB to suspend concessions to the European Communities.
See State-of-Play of WTO Disputes, supra note 1. In the Beef Hormones case,
Canada also sought and received authorization to suspend concessions to the EC.
See Id.
17 John H. Jackson, Editorial Comment: The WTO Dispute
Settlement Understanding: Misunderstandings on the Nature of Legal Obligation,
91 AM. J. INT'L L. 60 (1997).
18 See John H. Jackson, Dispute Settlement
and the WTO, 1 JIEL 329 (1998).
19 The phrase "WTO Charter" refers to
the Agreement Establishing the World Trade Organization. See Agreement
Establishing the World Trade Organization, 33 I.L.M. 13, 15 (1994) (hereinafter
WTO Charter).
20 The Institute of International Economic Law was founded
at Georgetown University Law Center in 1999. Its Director is John H. Jackson.
21 See, e.g., Congressman Richard A. Gephardt, Press Release: Gephardt
Speech on China PNTR (Apr. 19, 2000), available at
<http://democraticleader.house.gov/media/b speech, asp> (visited May 4,
2000).
22 The Uruguay Round treaty text calls for a "full review of the
dispute settlement rules" of the WTO during 1998.
23 See Decision on the
Application and Review of the Understanding on Rules and Procedures Governing
the Settlement of Disputes. WTO Charter, supra note 19, arts. IX and X.
24 WTO Charter, supra note 19, arts. IX:2, X:3, and X:4; DSU supra note
Error! Bookmark not defined, art. 3.2. See, e.g., Appellate Body Report, Japan-
Taxes on Alcoholic Beverages, WT/DSS, 10 & 11/AB/R, adopted Nov. 1, 1996;
Appellate Body Report, European Communities - Regime for the Importation, Sale
and Distribution of Bananas, WT/DS27/AB/R, adopted Sept. 25, 1997; Appellate
Body Report, European Communities - Measures 4ffecting Meat and Meat Products
(Hormones), WT/DS26 & 48/AB/R, adopted Feb. 13, 1998.
25 WTO
Charter, Article IX, footnote 1, defines consensus as follows: "The body
concerned shall be deemed to have decided by consensus on a matter submitted for
consideration, if no Member, present at the meeting when the decision is taken,
formally objects to the proposed decision." See WTO Charter, supra note 19, art.
IX n. 1.
END
LOAD-DATE: June 21, 2000
