International Dispute Settlement

1. JUSTIFICATION:
International business transactions and international trade agreements are often a source of
disputes related with a different bundle of issues linked to the interpretation of the agreement
in itself, involving stakeholders and dependent issues (labor and environmental standards,
intellectual property rights, etc). This course will be concentrated in the study of the WTO
dispute settlement system and its differences with other similar procedures in the field of
investment and regional trade agreements. In addition, this course is intended to provide
analytical tools for future decision-makers in the public and private sector (including NGO´s
managers) when analyzing the costs and opportunities of using the DSS.
2. GENERAL OBJECTIVE (S):
To develop analytical skills and research methods to understand the practical operation of
the DSS for trade and investment including its consecuences for related issues and
stakeholders at the domestic and international level. The student is required to have a deep
understanting of the legal background of the system as well the negotiation setting in which
international agreements related to dispute resolution are crafted.

5. ANALYTIC DESCRIPTION OF CONTENTS:
PART I
DISPUTE SETTLEMENT SYSTEM AND THE INTERNATIONAL TRADING SYSTEM
5.1. The importance of the WTO Dispute Settlement System (history and
overview)
Objective:
To understand the history and evolution of the WTO DSS and its impact in trade
liberalization. Indentify the main challenges and the overview of trade issues submitted
under the Dispute Settlement Understanding.
Key study points:
Ø Security and Predictability of the Multilateral trading system
Ø Preserving The Rights and Obligations of WTO members
Ø Clarification of Rights and Obligation Trough Interpretation
Ø Main Principles
Compulsory readings
Dispute Settlement Training Module (Available online following next link. User registration is
requested)
http://www.wto.org/english/tratop_e/dispu_e/disp_s ettlement_cbt_e/intro1_e.htm
5.2. The Dispute Settlement Understanding
Objective:
4/1
To analyze to role of the DSU in the introduction of a strong dispute settlement system after
the Uruguay Round. Identify the relation between the dispute settlement system and the
covered WTO agreements.
Key study points:
Procedures and stages of a dispute
Who can use the system?
The amicus curie institution
Compulsory readings:
Dispute Settlement Training Module (Available online following next link. User registration is
requested)
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/intro1_e.htm
6.1 WTO Bodies involved in the dispute settlement process and legal basis for a
dispute
Objective:
To identify the structure of the system by analyzing the role of Panels and the Appellate
Body, the Director-General and the WTO Secretariat when solving disputes.
Key study points:
Ø Fuctions and Composition of the Panels
Ø Tasks and background of the Apellate Body
Ø Arbitration and Rule of Conduct
Compulsory readings
Dispute Settlement Training Module (Available online following next link. User registration is
requested)
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/intro1_e.htm
Petersmann, Ernst-Ulrich. Reforming the World Trading System: Legitimacy, efficiency, and
Democratic Governance. Chapter six: Strategic Use of WTO Dispute Settlement
Proceedings for Advancing WTO Negotiations on Agriculture. Pag 127-144.
5/1
6.2 The process-stages in a typical WTO Dispute Settlement Case (Part I)
Objective:
To understand the various stages through which a dispute can pass in the WTO DSS:
Mutually Agreed solution and Consultation, Adjudication and Implementation of the Panel
and Appellate Body reports.
Key study points:
Ø Objective of consultations
Ø Legal basis and requirements for a request for consultations (parties and third parties)
Ø The establishment of a panel
Ø Multiple complaints and multiple parties
Compulsory readings
Harvard International Law Journal .Spring, 1999 *333 THE DOMAIN OF WTO DISPUTE
RESOLUTION . Joel P.
Cases:
DISPUTE SETTLEMENT: DISPUTE DS48
European Communities — Measures Concerning Meat and Meat Products (Hormones)
DISPUTE SETTLEMENT: DISPUTE DS321
Canada — Continued Suspension of Obligations in the EC — Hormones Dispute
6.3 The process-stages in a typical WTO Dispute Settlement Case (Part II)
Objective:
To understand the various stages through which a dispute can pass in the WTO DSS:
Mutually Agreed solution and Consultation, Adjudication and Implementation of the Panel
and Appellate Body reports.
Key study points:
6/1
Ø Submissions and oral hearings
Ø Deliberation of the Panel and Preparation of the Panel Report
Ø Findings, conclusions and suggestions on implementation
Ø Appellate Review
Ø Implementation and Surveillance
Compulsory readings
WTO, Appellate Body Secretariat. WTO Appellate Body Repertory of Reports and Awards
(1995-2006 Third Ed.). Amicus Curiae Briefs.Pag. 75-82.
Petersmann, Ernst-Ulrich. Reforming The World Trading System: Legitimacy, efficiency,
and Democratic Governance. Chapter twenty-four: Transparency, Public Debate, and
Participation by NGOs in the WTO: a WTO Perspective
6.4 Legal issues arising in WTO Dispute Settlement Proceedings
Objective:
To analyze the requirements for complaints under the DSS (establishment of a Panel).
Identify claims versus arguments, the role of exceptions, the burden of proof and the Panel´s
right to seek information.
Key study points:
Ø The concept of “legal interest”
Ø “No violation complaints”
Ø Claims under GATT 1994
Ø Direct and Indirect economic effects
Compulsory Readings:
Cases:
The Banana´s saga
EC — Bananas III
— Complainants: Ecuador, Guatemala, Honduras, Mexico, United States DS27
European Communities — Regime for the Importation, Sale and Distribution of Bananas
— Complainants: Guatemala, Honduras, Mexico, Panama, United States DS158
7/1
— Complainants: Guatemala, Honduras, Mexico, United States DS16
— Complainant: Panama DS105
Turkey — Fresh Fruit Import Procedures
— Complainant: Ecuador DS237
US — Certain EC Products
— Complainant: European Communities DS165
US — Section 301 Trade Act
— Complainant: European Communities DS152
6.5 Developing countries in the WTO Dispute Settlement System
Objective:
To understand how the DSU specifically refers to developing country members and provides
especial rules applicable to disputes involving a developing country member (analyzing the
case of especial and differential treatment for the purpose of the WTO DSS)
Key study points:
Ø Special and differential treatment in consultations, panel stage and implementation
Ø Least-Developed Country and DDS
Ø The advisory center of the WTO
Compulsory Readings:
(Available at the WTO website- Dispute Settlement Gateway-The Disputes)
Colombia´s participation in the WTO DSS
Cases
As complainant
DS78, DS188, DS228, DS230, DS361
As respondent
DS181, DS348, DS366
DISPUTE SETTLEMENT: DISPUTE DS246
European Communities — Conditions for the Granting of Tariff Preferences to Developing
Countries
8/1
6.6 Dispute Settlement in Trade Agreements (bilateral and RTA´s)
Objective:
To analyze and compare the different DS chapters in the different Regional Trade
Agreements, Bilateral Trade Agreements and regional blocks. Identify the main
characteristics and the level of complementarity or overlapping with the WTO DSS.
Key study points:
Ø Settling disputes in NAFTA
Ø Settling disputes in MERCOSUR
Ø Settling disputes in EU
Ø Settling disputes in CAN
Ø Settling disputes in COLOMBIA-US FTA
Compulsory Readings:
Resolving US-European Trade Disputes Through Law: Is the WTO Dispute Settlement
Mechanism Effective? William J. Davey © 2003 (Available at EAFIT INTERACTIVA)
Cases
The Soft Lumber Saga (dealing with NAFTA):
US — Export Restraints
— Complainant: Canada DS194
US — Section 129(c)(1) URAA
— Complainant: Canada DS221
US — Softwood Lumber III
— Complainant: Canada DS236
US — Softwood Lumber IV
— Complainant: Canada DS257
US — Softwood Lumber V
— Complainant: Canada DS264
US — Softwood Lumber VI
— Complainant: Canada DS277
United States — Provisional Anti-Dumping Measure
9/1
— Complainant: Canada DS247
United States — Reviews of Countervailing Duty on Softwood Lumber from Canada
— Complainant: Canada DS311
Dealing with MERCOSUR
Brazil — Retreaded Tyres
— Complainant: European Communities DS332
6.7 International Dispute Settlement and Trade Related Issues (PART I)
Objective:
To analyze the trade related issues (investment, environmental protection, intellectual
property rights, food security, labor standards, human rights) and its implication for
adjudicating rights and vindicating obligations under the WTO DSS. Identify the links
between the DSU and the exceptions provided in GATT Article XX.
Key study points:
Ø The idea of self contained regimes
Ø The dilemma of trade and….
Ø Sovereignty and legitimacy when challenging/defending trade measures based on
non trade concerns
Ø The cross retaliation issues
Compulsory Readings:
Ø ABBOTT, Frederick. “Cross-Retaliation” in TRIPS: issues of Law and Practice.
International Centre for Trade and Sustainable Development (ICTSD)
Ø European Communities — Measures Affecting the Approval and Marketing of Biotech
Products
Ø Nicaragua — Measures Affecting Imports from Honduras and Colombia
10/1
6.8 International Dispute Settlement and Trade Related Issues (PART I)
Objective:
To analyze the trade related issues (investment, environmental protection, intellectual
property rights, food security, labor standards, human rights) and its implication for
adjudicating rights and vindicating obligations under the WTO DSS. Identify the links
between the DSU and the exceptions provided in GATT Article XX.
Key study points:
Ø MEAS and Dispute settlement Mechanism
Ø IPRS and Dispute settlement Mechanism
Compulsory Readings:
Ø Petersmann, Ernst-Ulrich. Reforming The World Trading System: Legitimacy,
efficiency, and Democratic Governance. Chapter seventeen: the Human Rights
Approach advocated by the UN high Commissioner for Human Rights and by the
International Labour Organization: Is It Relevant for WTO law and Policy?. Pag. 357-
384.
7.1 CONTRACT LAW – The basis for agreements
Objective: To understand the elements of a valid, enforceable contract.
Topics: What makes a contract valid and enforceable, and what can make a contract invalid
and unenforceable. Oral vs. Written Agreements.
Compulsory Readings:
David P. Twomey and Marianne Moody Jennings, Business Law and the Legal Environment,
(Vol 1 2014), Chapters 12 - 20
R. Dolzer & C. Schreuer, Principles of International Investment Law (OUP, 2008), Chapter I:
Nature, Evolution, and Context of International Investment Law.
M. Sornarajah, The International Law of Foreign Investment (2nd edition 2004), Chapters 5 &
6
11/1
S W. Schill, The Multilateralization of International Investment Law (CUP, 2010), Chapter 1
8.1 Alternative Dispute Resolution
Objective: To understand the differences between Conciliation, Mediation and Arbitration and
when to use them.
Topics: What is the difference between the different types of Alternative Dispute Resolution.
When should you use them? How can they be effective?
9.1 Court Systems and Enforcement
Objective: To understand how court systems work, and how to enforce agreements, domestic
or international.
Topics: What are the different court systems of the world? How do you use the court system
to enforce agreements (how do you hold the parties to the promises made in the agreement)?