WTO Dispute Settlement Body

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A critical reaction to Joost Pauwelyn and Krzysztof Pelc’s “The WTO Secretariat’s ‘Open Secret’: Unpacking the Controversy”

In their EJIL:Talk! posts of August 18  and 19, in which they respond to a Reply by Armin Steinbach, Joost Pauwelyn and Krzystof Pelc heavily criticized the role of the WTO Secretariat in supporting the WTO panels. In their opinion, which is based on previous research by them published in a recent issue of AJIL and a recent issue of EJIL, they submit that (if I may summarize the authors’ position with my own words) the set-up of the panels system, based on non-professional, often occasional, ad hoc panelists  (arbitrators), mostly picked by the Director General of the WTO ( de facto by the Secretariat) among trade diplomats, with the Secretariat holding the pen and actually writing the draft of the reports that decide the disputes is unique as compared to other international adjudicatory systems. This constellation, which moreover, in their opinion, is not  generally known, thus offending the requirement of transparency, compresses the proper role of the adjudicators to the point of undermining the legitimacy of the decisions and rendering…

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Overcoming the Global Vaccine and Therapeutics Lag and ‘Vaccine Apartheid’: Abuse of Rights in the EU’s Continued Blocking of the TRIPS Waiver for COVID Vaccines and Related Medicines

Entering the third year of this global pandemic, the United States posted a grim global record of 1 million COVID cases on 3 January 2022.  This record, of course, exists in a shadow of relative non-transparency about COVID incidences, fatalities, and hospitalizations in many parts of the world, arising either from authoritarian regimes refusing to provide…

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The second chapter on a national security exception in WTO law: the panel report in Saudi Arabia – Protection of IPR

Introduction For many decades, national security exceptions had been dealt with only in rare instances, under the GATT 1947 regime as well as under the law of the WTO. The scope and design of the national security exception of Art. XXI GATT 1947 which served as a model for Art. XIV bis GATS and Art. 73 TRIPS has…

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Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

  Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its…

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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the…

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