• 무역학회지
• /
• 제45권2호
• /
• pp.177-189
• /
• 2020

The dispute settlement mechanism of the World Trade Organization (WTO) is in great peril. The Appellate Body has ceased to function last December as the United States has blocked the appointment of new Appellate Body members since 2017. The focus of this study is on the examination of US's discontent on the Appellate Body and various efforts to reform the Appellate Body. In a recent report, the US Trade Representative raises its concerns on the Appellate Body including 90 days mandatory deadline, transitional rules for outgoing Appellate Body members, scope of appeal, advisory opinions, precedent, recommendation, and overreach without offering any viable solutions. Some of WTO members and experts proposed several Appellate Body reform measures but agreement between WTO members is unlikely in a foreseeable future. Alternative dispute settlement mechanisms should be seriously considered such as interim appeal arbitration arrangements, separate dispute settlement mechanisms for trade remedies, unilateral retaliatory measures without WTO authorization. Rules-based multilateral dispute settlement system is imperative to small open economies like Korea. The Korean government should actively participate in Appellate Body reform discussions with other WTO members to keep the WTO dispute settlement system from collapsing.

• 한국중재학회지:중재연구
• /
• 제29권4호
• /
• pp.187-210
• /
• 2019

This article examines the necessity for the introduction of an ICSID Appellate System. In comparison with the WTO appellate system, the ICSID ad hoc Committee has a very limited mandate. An annulment inquiry under the ICSID arbitration system barely focuses on whether the arbitral decision resulted from a justifiable process. As long as there is procedural legitimacy, the resulting awards remain unaffected under the annulment procedure, irrespective of mistakes of fact or law. In contrast, in the WTO DSS the AB substantively reviews panel rulings and suggestions that are founded on any deficiency of objectivity or error in the interpretation of a particular WTO provision. This defect intrinsic in the annulment procedure could cause injustice to a party earnestly interested in correcting recognized misapplication of law by ICSID tribunals. Accordingly, the establishment of an appellate system would result in a more substantive and procedural review of awards. The creation of such an ICSID appellate system would ensure thorough scrutiny of the decisions of the tribunal of first instance, leading to better reasoned outcomes. This could lead to a crystallization of predictability in investment relations. The end result would be that fairness, clarity, reliability, and legality in the ICSID adjudicative process would be unassailable, to the advantage of all the contracting parties.

• 통상정보연구
• /
• 제9권2호
• /
• pp.307-325
• /
• 2007

Examining the standards of review adopted by the dispute settlement body of the WTO in its decision on safeguard measures, the Appellate Body offers no coherent guidance or theory as to the legitimation of the safeguard measures adopted by the domestic authorities. It faults the lack of reasoned and adequate explanation in the national authorities' decision to impose safeguard measures, yet its own explanation of the permissible role for safeguard measure could hardly be less instructive. The Appellate Body has consistently emphasized fidelity to text in its decision but that approach can not work properly when the text is fundamentally deficient from the viewpoints that neither Article XIX nor the safeguard Agreement establish a coherent foundation for safeguard measures due to their vague and abstract provision. Without any coherent theory on guidance as to the legitimation of the safeguard measures, it would be absurd to expect WTO members to produce a reasoned and adequate explanation as to how their safeguard measures are in compliance with the WTO roles. In the absence of a thorough renegotiation for the proper operation of the WTO safeguard system, which seems quite unlikely for the foreseeable future, perhaps the unique method out of the current predicament is for the Appellate Body to lead a movement in establishing a sensible common law of safeguards, drawing on extra-textual guidance including the standards of review about their proper role in the WTO safeguard mechanism.

• 무역상무연구
• /
• 제13권
• /
• pp.699-733
• /
• 2000

This article analyzes the state-of-play of WTO dispute settlement for first four and a half years. Remarkable points found on this analysis are as follows: First, the Quad consisting of the United States, the European Community (EC), Canada and Japan has participated in the WTO dispute settlement mechanism more frequently than any other WTO member. Second, among developing country members some leading countries such as Korea, Brazil and India have relied actively upon the mechanism to claim and defend their rights and obligations under the WTO rules. Third, bilateral dispute settlements generally have been preferred to multilateral dispute settlements by the panel or Appellate Body. Fourth, observation of the Appellate Body proceedings well shows WTO members' strategy to use every process available to them. Fifth, the provisions of GATT 1994 have been most frequently invoked by the members. GATS and TRIPS Agreement disputes are mainly involved in developed countries, in particular the U.S. and the EC. Sixth, very high winning ratio in the panel and Appellate Body process indicates that complaining parties review the possibility to get favorable rulings even before referring to the Dispute Settlement Body (DSB) and prepare for the case very thoroughly. Seventh, roughly speaking, disputes were settled within two or three years. Therefore, seeking bilateral dispute settlement can be more advantageous to a complaining party than referring to a panel or an arbitrator because of low costs and short time period in dispute settlement. Finally, the DSB approved retaliatory actions for winning complaining parties against the defending parties who had rejected implementation of its rulings and recommendations. In conclusion, it can be said that the WTO dispute settlement mechanism has been operated very successfully for the first four and a half years. It is hoped that continued study on state-of-play of WTO dispute settlement mechanism will be contributory to improved national interest of Korea.

• 한국중재학회지:중재연구
• /
• 제30권4호
• /
• pp.3-29
• /
• 2020

The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

• 무역상무연구
• /
• 제38권
• /
• pp.265-302
• /
• 2008

This paper intends to analyse some legal issues on "Zeroing" which is based on the article 2.4.2 under the WTO Anti-dumping Agreement. "Zeroing" stands for a specific methodology in calculating a general dumping margin for a product in question under which negative individual dumping margins are treated as zero (thus "zeroed") before aggregating all individual dumping margins. The article 2.4.2 of the Anti-dumping Agreement regulates three types of calculating methodology on dumping margin as first symmetrical method(average-to-average: A-A), second symmetrical method(individual-to-individual: I-I) and asymmetrical method(average-to-individual: A-I). However, this article does not have any provisions about the "Zeroing" practice. In their anti-dumping practices, the EC and the United-States calculated dumping margin based on the "Zeroing", but this methodology has been disputed in the Dispute Settlement Body(DSB) of the WTO. This paper analysed their legal problems with some WTO cases in particular concerning EC-Bed Linen, U.S.-Softwood Lumber Zeroing, U.S.-Zeroing(EC) and U.S.-Sunset Review(Japan) cases. On the basis of theses analysis, we can therefore ask some questions as follows; To begin with, although the article 2.4.2 of the WTO Anti-dumping Agreement does not clearly refer to the "Zeroing", how do some developing countries, as the U.S.A and the E.U. calculate dumping margin as the "Zeroing"? Secondly, what is the relationship between the symmetrical method and asymmetrical method to the dumping margin? And if we adopt the zeroing method, what is the different rate to anti-dumping margin? Thirdly, although the Panel decided that the zeroing methodology of dumping margin used by th U.S.A in administrative review between the U.S.A and the E.U, why does the Appellate Body made the decision that the american methodology is incompatible with the WTO Anti-dumping Agreement? Lastly, what will be affected the upper decision taken by the Appellate Body to the DDA negotiation of anti-dumping matters? Even though the WTO Appellate made a decision that the zeroing method is incompatible with the principles of the WTO law, this methodology contains a lot of problems. Some members of the WTO as the U.S.A and the E.U did not officially declare this methodology to abandon, and the debate concerned is arguing. Therefore this paper tried to present the adequate solution in order to promote the zeroing methodology in the international anti-dumping system and practices.

• 통상정보연구
• /
• 제16권3호
• /
• pp.465-486
• /
• 2014

본 연구는 브라질 오렌지 주스사건의 제로잉에 대한 판결을 분석하고 있다. 미국은 동 사건에서 행정재심사에서 제로잉을 사용하였고, '거래에 대한 가중평균' 제로잉의 사용을 금한다는 이전 상소기구의 판례를 따르는 패널 판결이 내려졌다. 그러나 패널의 판결이 분쟁해결시스템내의 '안정성과 예측가능성'을 고려하여 나왔다는 점에 주목하면서, 동일한 법적 문제에 대한 상소기구의 판례에 대한 선례구속원칙이 암묵적으로 적용되고 있음을 판단할 수 있었다. 하지만 상소기구의 판결에 대한 패널의 이견 또한 확인할 수 있었다. 미국-오렌지주스사건의 판결이 오랫동안 이어져 온 제로잉 사용을 금지할 수 있을 것 같지만 제2.4조 하의 공정비교요건의 확대적용은 제로잉에 대한 쟁점을 지속시킬 가능성을 가지고 있는 것으로 판단된다. 다행스러운 것은 동 사건의 판결에 맞추어 행정재심사에 대한 제로잉을 금지하겠다는 미국의 발표가 있었다. 결국 제로잉에 대한 여러 분쟁이 남아있지만, 미국-오렌지주스 사건의 판결이 반덤핑협정하의 제로잉관행에 대한 최종적인 판결이라고 조심스럽게 예상해 본다.

• 한국중재학회지:중재연구
• /
• 제27권4호
• /
• pp.157-177
• /
• 2017

World Trade Organization(WTO) has 164 members since it has established on 1995. It plays a significant role in solving the world trade disputes. The process of the dispute settlement mechanism includes five steps: Negotiation, Establishment of experts group, Deliberation of appellate body, Execution and Supervision of Verdict and the Sanctions for Default. It suggested that the higher rate of developed countries using mechanism to solving the disputes than developing countries solving disputes by mechanism through the analysis of dispute of WTO members. Meanwhile, the more powerful economic entity is, the more trade dispute will be. There are several problems of mechanism by analysis the recently famous cases of trade disputes: Overburden of experts panel, Low utilization rate of the mechanism of developing countries, Lack of economic competition policy and labor standard terms and Unfulfillment of retaliatory measures of developing countries towards developed countries. This paper propose proper solutions and advises to improve mechanism of WTO dispute settlement.

• 통상정보연구
• /
• 제19권4호
• /
• pp.95-124
• /
• 2017

이 사건은 아르헨티나가 적용한 금융 조세 외환 등록에 관한 8개의 조치가 서비스무역에 관한 일반 협정(General Agreement on Trade in Services) 하의 최혜국대우 의무, 내국민대우 의무 및 시장접근 보장 의무의 위반에 해당하는지에 관한 다툼이다. 이들 대상조치는 '조세 투명성에 협력하지 않는 국가'의 서비스 및 서비스 공급자와 '조세 투명성에 협력하는 국가'의 서비스 및 서비스 공급자를 달리 대우하는 조치이다. 아르헨티나는 대상조치가 "조세 목적을 위한 투명성 및 정보교환에 관한 글로벌포럼" 및 "국제자금세탁방지기구" 체제에 부합하며 GATS 제XIV조 및 금융서비스부속서의 예외규정에 의해 정당화된다고 주장하였다. 요컨대 이 사건은 정당한 정책목적을 달성하기 위한 규제를 채택할 국가의 권한과 이로 인해 발생하는 경쟁조건의 변화의 문제이며, GATS 전문에서 밝히고 있는 회원국의 권리와 의무 간 균형을 어떻게 맞추어야 할 것인지의 문제이다. 상소기구는 (i) 서비스 및 서비스 공급자의 동종성 심사, (ii) GATS 제II조 및 제XVII조 하의 불리하지 않은 대우 판정 심사, 그리고 (iii) 금융서비스부속서 제2(a) 항이 적용되는 조치의 범위에 대한 판단을 통하여 이러한 균형을 맞추고 있다. 이 글에서는 이 사건의 대상조치와 패널의 판정을 정리하여 배경을 제시한 후 상소기구 판정을 분석한다. 분석은 앞에서 언급한 주요 쟁점을 중심으로 하며 패널의 판정, 기존의 다른 WTO 판정례 및 연구논문 하에서의 논의와 어떠한 차이를 가지는지를 파악하여 그 의미를 논한다.

• Journal of Korea Trade
• /
• 제27권5호
• /
• pp.41-62
• /
• 2023

Purpose - This paper examines whether the imposition of countervailing duties by the United States on undervalued foreign currency is legally consistent with the WTO's SCM Agreement. Design/methodology - The study uses a methodology that involves analyzing relevant WTO agreements, prior panel reports, Appellate Body decisions, and other legal documents. Findings - The findings suggest that to impose countervailing duties, certain legal requirements must be met, including financial contribution, benefit, and specificity. The paper also notes that when calculating the benefits of undervalued foreign currency, losses from import activities due to currency undervaluation must be considered. Additionally, classifying all exports to the US under specific industries or business groups is likely to be inconsistent with the SCM Agreement. Originality/value - Even the US countervailing measures on exchange rate subsidies may not comply with WTO regulations due to incorrect calculation of benefits and a lack of specificity, however, it suggests that when intervening in the foreign exchange market, the measures should aim to achieve only minimum policy goals.