MJIEL Vol 8 Issue 3 2011 - Editorial

Communication Flows in International Economic Law

 

In 2011 there have been some fifteen disputes adjudicated in the WTO. Ten of these have been decided at the Panel level and some five have been deliberated upon by the Appellate Body. Three of the Panel Reports are in the Appellate process. Nine of the disputes have involved trade remedies with the majority involving anti-dumping. Three disputes concern technical standards; three have involved Chinas Protocol of Accession and two disputes have a focus mainly on national treatment. The United States has been involved in some nine of these disputes out of these the US has been a respondent in all of them. The EU has been involved in four cases twice as respondent and twice as a complainant. China has been involved in some five of these disputes four times as a complainant and once as a respondent. Other major emerging economies participating in disputes include Mexico, Brazil and Korea. Disputes in which other developing countries have been parties include those involving the Philippines, Viet Nam, Thailand and Indonesia.

The year 2011 is of course but a snap-shot of a picture of the kind of disputes that have ended up in WTO deliberations. Nevertheless some observations are called for. First, is the prominence of a major trading country viz., the United States as a respondent, is not exemplary? Second, the number of disputes involving trade remedies is a symptom of protectionist pressures in the world economy. Third, disputes involving Chinas Protocol of Accession, both in terms of the undertakings therein, and its relationship with the rest of the WTO Agreements, must at the least call for some lessons for the future in accession negotiations and the drafting of such protocols. Finally, whereas the participants in the disputes broadly mirror the assembly of the membership of the Appellate Body in terms of user of dispute settlement and international trade it does not mirror the full spectrum of levels of development of the membership of the WTO. Moreover, the precedent of appointing former WTO Ambassadors by an appointment panel of mainly WTO Ambassadors particularly without formal legal training raises serious questions about the rule-orientated nature of the Appellate system, the degree to which it takes seriously the requirement of independence in the appointment of Appellate Body members including the due process in the internal manner of nomination within a member State. At the least those members who presume to nominate a candidate for election in an international judicial forum must be invited to demonstrate that their internal process of nomination is objective and ensures the selection of the best candidate that the member country can offer to compete for election against the background of the criteria set out in the WTO Dispute Settlement Understanding.

  Asif H Qureshi

  Editor-in-Chief


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