Font Size: a A A

On Regional Economic Integration Dispute Settlement Mechanism Under The WTO Framework To Co-exist And Expand

Posted on:2011-03-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:E G ZhaoFull Text:PDF
GTID:1116360305497615Subject:International law
Abstract/Summary:PDF Full Text Request
Based on the theory of Regionalism, Economy Integration, and the WTO system, the author studies the real cases from both WTO and the Regional Trade Agreements dispute settlement mechanisms to make a inter-related researches. There should be particular rules with regards to either to prevent or dissolve such trade disputes arose out of members within RTA or WTO systems. As the number of alliances of RTAs getting more and more, the applicable dispute settlement systems become even important than it was ever before. The author analyzed those proper cases and made comparisons among them, trying to get evidences showing regularities as how "Forum Shopping" works. Then some conclusions were drawn based upon the above-mentioned regularities. This article is made up with 5 chapters, excluding the preface and conclusion.In Chapter 1,the inter-twined relationship between the Globalization and Regionalization of world economy was first discussed, then WTO dispute settlement systems briefly introduced. The WTO in the past 15 years was further discussed at the last part of this chapter. "Economic Globalization" shows not only the territory's expansion physically, but also those closer relationships among each and every independent economic entity. In contrary, "Economic Regionalization" demonstrates the unification of systems, monetary or international trade systems for example, and the facts of highly inter-dependence among member states from the same RTA. Furthermore, RTA provides for free-economy and free-trade opportunities, especially under such heavy atmosphere of delaying and retarding negotiation on global economic topics. That is to say, the "Economic Regionalization" generate fundamental driving forces to push the free-economy and free-trade onto their right track. On the contrary, RTAs should not be directed to advocate the discrimination of the Most-Favor-Nation doctrine of the WTO, and the world economy as well.The Dispute Settlement System is very important to keep WTO work well and smoothly. As one of many great achievements of the Uruguay Round, Dispute Settlement System's rule-based characteristics make easier the dissolution of the disputes. In the past 15 years, DSB rendered panel, and sometimes appellate reports on not only the disputes between the United States and Europe Union (the Great-2), but also those between the Great-2 countries and the developing countries, of which the Great-2 lose. This explains the fact that the Dispute Settlement Systems are accepted by most of the member states of WTO.In Chapter 2 the author briefly discussed the RTAs and their dispute settlement systems as well. It covers Europe Union, ICSID, NAFTA, ASEAN, and APEC. Every RTA needs to have a good dispute settlement system in order to function well. Take ICSID as a good example. ICSID is referred to as one of the many dispute settlement systems spelled out in the NAFTA Agreement, and at the same time one very important system utilized a lot by the developing countries from central-America. Although ICSID is not flawless, but still there are many cases waiting in lines to be solved. On the other hand, the dispute settlement systems of NAFTA cover almost every field, no matter suits are brought by states or private parties. Panels constituted under chapter 19of NAFTA conduct judicial review of trade remedy decisions rendered by competent national investigating authorities. Chapter 11 of NAFTA provides for an investor-state arbitration process. Regarded as one of the most controversial aspects of NAFTA, chapter 11 allows an investor who is national of one of the NAFTA parties to commence arbitration against another NAFTA party for breach of the agreement's investment rules. As far as the implementation of the panel report, chapter 20 panel reports of NAFTA request the parties to apply them just as suggestions for reaching a mutual solution. Under the DSU of the WTO, the DSB-and not the parties-is the one in charge of adopting the report by negative consensus and may not alter. Hence the implementation process of NAFTA is less inferior to that of WTO.In Chapter 3,the author analyzed cases from GATT/WTO and EC/EU. GATT was the first dispute settlement system which escaped from power-oriented settlement systems. That is to say that the rules contained in the GATT agreement were abide by the signatories of GATT at that time. The first part of this chapter discussed cases brought under GATT and NAFTA, which include:United States-Anti-Dumping Duties on Gray Portland Cement and Cement Clinker from Mexico, United States-countervailing Duties on Fresh,Chilled and Frozen Pork from Canada, United States-Measures Affecting the Export of Pure and Alloy Magnesium from Canada. These cases illustrated that conflict nature between the GATT dispute settlement system and that of NAFTA.Europe Union is the most successful regional agreement with Europe court the sole dispute settling agency. When there are disputes arouse between the Europe countries and members of WTO, the dispute settlement systems applied. The next part of this chapter discussed cases involving EU/EC countries under DSU of WTO. Cases include:Turkey-Restrictions on Imports of Textile and Clothing Products, Argentina-Definitive Anti-Dumping Duties on Poultry from Brazil, Brazil-Measures Affecting Imports of Retreaded Tyres, EC-Regime for the Importation, Sale and Distribution of Bananas. These cases provided grounds to further understand the fundamental principles such as non-discriminatory, WTO primacy over RTA, and how to solve the overlapped jurisdiction while there's no black-and-white doctrine.In Chapter 4, the author focused on the inter-relationship between WTO and NAFTA. Forum Shopping is the main topic of this chapter. The author discussed first the luxury NAFTA states have is to choose from NAFTA and WTO where to litigate against the opponents. Both the WTO and the NAFTA mechanisms are at least nominally legalistic or rule-based systems, which incorporate a formal adjudicatory decision-making process and effective enforcement mechanisms. Possible factors that affected the chose of proper forum were drawn after then. Cases studied here are:Lumber Disputes of the U.S.and Canada, United States-Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, Mexico:Tax Measures on Soft Drinks and Other Beverages, Tariffs Applied by Canada to Certain U.S.-Origin Agricultural Products, United States-Determination of the International Trade Commission in Hard Red Spring Wheat from Canada, Matter of the U.S.Safeguard Action Taken on Broom Corn Brooms from Mexico.From the statistics of the official web site of the WTO, Canada sued the U.S. in 15 cases while was sued by the 5 cases. Mexico sued the U.S. in 9 cases, while was sued by the 6 cases. The author concluded that the NAFTA states utilize either WTO dispute settlement systems or the NAFTA dispute settlement systems very often to solve disputes among them. How the member states choose from which Forum to litigate became a more interesting topic and will be explained in detailed in the next chapter.In chapter 5,the author illustrated the inter-relationship among RTAs and the WTO. First the impacts of RTAs on WTO were disused and explained. Being a member of Custom Unions, Turkey argued that the WTO panel had no jurisdiction for reviewing disputes between it and India in Turkey-India Clothing and Textiles case. The appellate body ruled against Turkey which clarifies the WTO's primacy over Customs Unions. Overlapping of Jurisdiction is another area where RTAs have impact on WTO. In the second part of this chapter conflicts and choice of forum between NAFTA and WTO were discussed. To summarize the factors as to how to choose from available forum from the previous chapters,4 questions were asked:(1)Are there legal requirements that dictate one forum over the other; (2)If not, are there obvious substantive law advantages for one forum over the other; (3)are there procedural differences that are likely to be important; and (4)what political considerations affect the choice? The author analyzed the above questions and reached answers from the cases cited in the previous chapters.To conclude this article, the author cited the dispute settlement systems under FTAA(Free Trade Area of America) negotiated agreement as an example to illustrate some improvements from the systems of NAFTA and WTO as well. There are few improvements such as Third Parties Involvement, Precedence System, and Rules as to Forum Shopping. These are also the author's recommendations to the China-Asean Free Trade Agreement.
Keywords/Search Tags:WTO, Reginal Economic Integration, Dispute Settlement, Forum Shopping
PDF Full Text Request
Related items