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Alternative Dispute Resolution and the WTO

  • Cristiane Lucena CarneiroEmail author
Chapter

Abstract

This chapter analyzes the contribution of alternative dispute resolution for trade disputes wherein trade barriers were imposed for environmental and public health reasons (T&E disputes). T&E disputes have been channeled through the WTO dispute settlement mechanisms, which contain strong enforcement mechanisms that are expected to deter noncompliance. Nonetheless, empirical evidence suggests that these disputes have a low probability of reaching a settlement and often generate final rulings that are not complied with (Davey, Evaluating WTO dispute settlement: what results have been achieved through consultations and implementation of panel reports?, 2005). The study concentrates on one T&E dispute decided by the WTO, identifies several aspects that distinguish T&E disputes, and argues that an alternative dispute resolution procedure proposed by Brams and Taylor (Fair division: from cake-cutting to dispute resolution, 1996; The win–win solution: guaranteeing fair shares to everybody, 1999), called Adjusted Winner (AW), may increase the chances of compliance and present the parties with a superior outcome. An application of AW based on data from interviews with government officials and policy experts generates a hypothetical outcome, which is subsequently compared to the actual adjudication outcome. The analysis shows that recourse to AW may provide more opportunities for compliance by presenting the parties with an outcome that is more fair in terms of three criteria: efficiency, envy-freeness, and equitability.

Keywords

Trade and environment disputes Alternative dispute resolution Adjusted Winner Dispute settlement 

Notes

Acknowledgements

The author wishes to thank Steven Brams and Jeffrey Dunoff for very useful comments, as well as feedback when an earlier version of this chapter was presented at Prof. Alberto do Amaral Júnior’s Research Seminar, University of São Paulo School of Law.

References

  1. Abbott K, Keohane R, Moravcsik A, Slaughter AM, Snidal D (2000) The concept of legalization. Int Organ 54:401CrossRefGoogle Scholar
  2. Barton J, Goldstein J, Josling T, Steinberg R (2006) The evolution of the trade regime: politics, law and economics of the GATT/WTO. Princeton University Press, PrincetonGoogle Scholar
  3. Bown C (2004) On the economic success of GATT/WTO dispute settlement. Rev Econ Stat 86:811CrossRefGoogle Scholar
  4. Brams S, Mitts J (2014) Mechanism design in M&A auctions. Del J Corp Law 38(3):873Google Scholar
  5. Brams S, Taylor A (1996) Fair division: from cake-cutting to dispute resolution. Cambridge University Press, New YorkCrossRefGoogle Scholar
  6. Brams S, Taylor A (1999) The win–win solution: guaranteeing fair shares to everybody. W.W. Norton & Company, New YorkGoogle Scholar
  7. Busch M, Reinhardt E (2000) Bargaining in the shadow of the law: early settlement in GATT/WTO disputes. Fordham Int Law J 24:12Google Scholar
  8. Busch M, Reinhardt E (2006) Fixing what “ain’t broke”? Third party rights, consultations, and the DSU. In: Van der Borght K, Georgiev D (eds) Reforming the WTO dispute settlement system: a contribution to a durable framework. Cameron May, LondonGoogle Scholar
  9. Davey W (2005) Evaluating WTO dispute settlement: what results have been achieved through consultations and implementation of panel reports? Illinois Public Law and Legal Theory Research Papers Series. Research Paper No. 05-19, 30 November 2005Google Scholar
  10. Davey W (2014) The WTO and rules-based dispute settlement: historical evolution, operational success, and future challenges. J Int Econ Law 17:679CrossRefGoogle Scholar
  11. Davis C, Bermeo S (2009) Who files? Developing country participation in GATT/WTO adjudication. J Polit 71:1033CrossRefGoogle Scholar
  12. Dunoff J (1994) Symposium: resolving trade-environment conflicts: the case for trading institutions. Cornell Int Law J 27:1090Google Scholar
  13. Fontagné L, von Kirchbach F, Mimouni M (2005) An assessment of environmentally-related non-tariff measures. World Econ 28:1417CrossRefGoogle Scholar
  14. Guzman A, Simmons B (2002) To settle or empanel? An empirical analysis of litigation and settlement at the World Trade Organization. J Leg Stud 31:205CrossRefGoogle Scholar
  15. Guzman A, Simmons B (2005) Power plays and capacity constraints: the selection of defendants in WTO disputes. J Leg Stud 34:557CrossRefGoogle Scholar
  16. Helfer L (2013) Flexibility in international agreements. In: Dunoff J, Pollack M (eds) Interdisciplinary perspectives on international law and international relations. Cambridge University Press, New YorkGoogle Scholar
  17. Koremenos B (2016) The continent of international law: explaining agreement design. Cambridge University Press, New YorkCrossRefGoogle Scholar
  18. Leitner K, Lester S (2016) WTO dispute settlement 1995–2015 – a statistical analysis. J Int Econ Law 19(1):289CrossRefGoogle Scholar
  19. Martin C (2001) The relationship between trade and environment regimes: what needs to change? In: Sampson G (ed) The role of the World Trade Organization in global governance. The United Nations University Press, New YorkGoogle Scholar
  20. McCall Smith J (2006) The politics of dispute settlement design: explaining legalism in regional trade pacts. In: Simmons B, Steinberg R (eds) International law and international relations. Cambridge University Press, New YorkGoogle Scholar
  21. Petersmann EU (2000) Alternative dispute resolution-lessons for the WTO? In: Weiss F (ed) Improving WTO dispute settlement procedures. Issues and lessons from the practice of other international courts and tribunals. Cameron May Ltd, LondonGoogle Scholar
  22. Reinhardt E, Busch M (2002) Testing international trade law: empirical studies of GATT/WTO dispute settlement. In: Kennedy D, Southwick J (eds) The political economy of international trade law: essays in honor of Robert E. Hudec. Cambridge University Press, New YorkGoogle Scholar
  23. Steinberg R (2006) In the shadow of law or power? Consensus-based bargaining and outcomes in the GATT/WTO. In: Simmons B, Steinberg R (eds) International law and international relations. Cambridge University Press, New YorkGoogle Scholar
  24. Weiler J (2001) The rule of lawyers and the ethos of diplomats: reflections on the internal and external legitimacy of WTO dispute settlement. J World Trade 35:19CrossRefGoogle Scholar
  25. Whitlock J (2002) Japan-measures affecting agricultural products: lessons for future SPS and agricultural trade disputes. Law Policy Int Bus 33:753Google Scholar

Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.International Relations Institute, University of São PauloSão PauloBrazil

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