Abstract
The contrasting perspectives between Brazilian domestic courts on WTO agreements — as a representative of an emerging economy in Latin America — in a comparative perspective with European Union courts, one of the major economies of the world, provides an illustrative scenario that suggests that relations of power are an important factor in the adoption, or not, of direct effect of WTO agreements. When traditionalism is chosen without consideration of powerful WTO member states’ interpretation, then the question becomes whether the judicial enforcement of the GATT would attain the raison d’être of traditionalism which is to bring power under law. This study puts into question the core assumptions of traditionalism and indicates that, instead of bringing power under law, judicial enforcement of trade rules in Latin America provokes more asymmetry in the world balance of power. In fact, the traditionalist perspective constrains weaker countries more in their domestic policies over international trade agreements, as rich WTO member states do not provide rights of action on trade rules at their domestic level. In the current description of the world, the impact of traditionalism in developing countries enhances the disequilibrium and inequality among nations with the benefit of powerful economies. As a result, traditionalism in the context of international trade agreements seems to sparks the very imbalance of power that it seeks to avoid through the enforcement of international trade agreements by domestic courts.
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- 1.
WTO News: Speeches—DG Pascal Lamy (2011).
- 2.
See Colares (2011).
- 3.
The Dispute Settlement Understanding has been under review at the WTO for improving the dispute settlement system. For an overall account of these negotiations, see Evans and Tarso Pereira (2005).
- 4.
WTO, Members and Observers (2014).
- 5.
WTO, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/9, adopted 20 May 1996, implementation notified by the United States on 25 September 1997.
- 6.
WTO, United States—Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, adopted 24 February 2011, implementation notified by the United States on 19 December 2011.
- 7.
In 2011, the EU, the US and Canada notified the DSB that they reached a satisfactory solution to the disputes WT/DS26, DS48, DS320 concerning meat and meat products (Hormones), which had started in 1996.
- 8.
In November 2012, the parties notified the DSB that they reached a mutually agreed solution to the disputes WT/DS16, WT/DS27.
- 9.
Knop (2000), p. 517.
- 10.
Ibid., p. 506.
- 11.
Rubenfeld (2005), p. 289.
- 12.
Sykes (2005), p. 633.
- 13.
Ibid., p. 646.
- 14.
Ibid.
- 15.
Ibid., p. 633.
- 16.
WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article 3.7.
- 17.
Posner (2009), p. 112.
- 18.
Azevedo (2013).
- 19.
Guzman and Pauwelyn (2009), p. 77.
- 20.
Sloss (2010), p. 3.
- 21.
Nollkaemper (2011), p. 1.
- 22.
Examples of long-standing disputes where powerful WTO members have refused to comply with WTO law, even after a ruling from the WTO dispute settlement system, are the European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS16, WT/DS27, WT/DS105, WT/DS158, WT/DS361, and WT/DS364, the European Communities—Measures Concerning Meat and Meat Products (Hormones), WT/DS26, and United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285.
- 23.
Breyer (2003).
- 24.
Lawrence v. Texas, 539 U.S. 558, 572–573 (2003).
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de Santa Cruz Oliveira, M.A.J. (2015). Conclusion. In: International Trade Agreements Before Domestic Courts. Springer, Cham. https://doi.org/10.1007/978-3-319-13902-9_6
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