- Email: [email protected]
World Trade Organization Dispute Settlement Decisions: Bernan's Annotated Reporter
Reviews
759
Norman, OK 73019 USA PII S1352-0237(99)00117-3 World Trade Organization Dispute Settlement Decisions: Bernan’s Annotated Reporter. Volume One, Decisions Reported January 29, 1996–February 25, 1997. Lanham, MD: Bernan Press, 1998. 535p. ISBN 0-89059-105-9. $75.00. World Trade Organization Dispute Settlement Decisions: Bernan’s Annotated Reporter. Volume Two, Decisions Reported February 26, 1997–May 31, 1997. Lanham, MD: Bernan Press, 1998. 508p. ISBN 0-89059-106-7. $75.00. The signing of the Final Act of the United Nations Conference on Trade and Employment on March 24, 1948, in Havana, Cuba, offered hope that new opportunities for free and open trade on the world market would rise from the ashes of World War II. The Havana Charter, as it became known, created the International Trade Organization (ITO) to help energize and support the “Bretton Woods” institutions now known as The World Bank and International Monetary Fund. In addition, the tariff schedules and provisions of the Final Act concerning the protection of trade concessions among countries were combined to form the General Agreement on Tariffs and Trade (GATT). In the words of Assistant Secretary of State for Economic Affairs William L. Clayton: For the first time in history, [the ITO] asks all nations to commit to a policy of non-discrimination in their customs charges and requirements and in their internal taxation and regulation. It asks them to reduce tariffs and other barriers to trade and it lays down detailed rules to insure that the freedom that is gained by reducing visible tariffs shall not be lost by building up invisible tariffs. It also lays down rules under which import and export quotas (the most serious of all forms of trade restriction) can be limited, controlled, and eventually abandoned [1].
The promise contained in Clayton’s statement was never realized. Broad factors such as the Cold War, unending economic conflict between developed and emerging nations, and continued adherence to protectionism, together with a variety of other significant historical circumstances, contributed to undermining the possibilities embodied in the Havana Charter. Most important, though, was the fact that the United States Congress never ratified the Charter, although the United States did adhere to the general principles of the GATT through the exercise of the president’s executive authority to negotiate tariff concessions. The ITO dissolved quickly without U.S. support, while the GATT, basically a legal document, formed the guiding principles for free trade during the next 40 years. However, beginning in the late 1970s, four issues arose that placed into question the continued effectiveness of the GATT. First, the European Community began to expand its membership quickly. This led to concerns, especially in the United States, that European economic integration would create an impenetrable trading block capable of effectively excluding the importation of goods and services produced by non-European Community nations. Concerns continued to heighten in the 1990s with the establishment of a systematic program for establishing a European market of free flowing goods and services constructed around a single European currency, the “Euro.” The second issue concerned the increased competition in the world market brought about by the rejuvenated economies of Europe and Japan, together with the emergence of strong industrial economies in Taiwan, Hong Kong, Singapore, and South Korea. This development led to concerns in the U.S. that, in order to gain a foothold in the world marketplace, countries in Asia and Europe were adopting unfair trade practices, such as product dumping, in violation of GATT principles and rules. The third development that raised questions about the GATT’s continued effectiveness concerned the shift to high technology industries. A central issue associated with the trade of high technology goods and services was the need to protect intellectual property rights. The provisions of the GATT were viewed as insufficient in protecting the intellectual property rights of companies trading on the global market. The United States entertainment industry’s attempt to end the illegal copying of movie videos and computer software in China and other Far Eastern countries offers the clearest case study of this development in recent years.
760
Reviews
Finally, Article 22 and Article 23 of the GATT concerning procedures for the settlement of trade disputes between nations were always considered weak and insufficient. The expansion of the European Union, increased competition brought about by emerging industrial economies, and the issue of intellectual property rights contributed to a growing perception among world leaders that the GATT’s dispute settlement provisions were increasingly inadequate. In short, the global economy that the GATT served when it was formulated in the 1940s had changed so drastically during the past decade that the agreement was no longer valid in today’s economic climate. Concerns about the applicability of the GATT during the post-Cold War era led to a series of economic negotiations among world leaders culminating in the Uruguay Round. Although talks almost failed, the Uruguay Round eventually established a set of principles intended to address specific problems with the GATT and to halt the general erosion of faith in the overall viability of a multilateral system of world trade. During the Uruguay Round it quickly became apparent among the participants that the ad hoc and provisional nature of the GATT (the agreement was never officially ratified in any national parliament or legislature nor were provisions created to establish a governing body) doomed the agreement to becoming an increasingly ineffective means for insuring fair trade and a legal instrument for eliminating protectionism in the world market [2]. It is from this realization that the World Trade Organization (WTO) was born on January 1, 1995. However, many would argue that the WTO actually represents the cumulative effort of a 50-year struggle to end protectionism and create a truly open global market. The early work of the WTO was to take over and enhance the guiding principles of the GATT, implement the commitments to an open trading environment undertaken at the end of the Uruguay Round, and lay the foundation for developing a mutually supportive, yet enforceable, dispute settlement system. The four years that have passed since the establishment of the WTO is an inadequate amount of time to measure the extent of the WTO’s effectiveness in promoting the lofty goals set forth during the conclusion of the Uruguay Round. Nevertheless, the organization is now recognized as the authoritative referee in settling trade disputes among its growing membership. Until now it was difficult to obtain documentary evidence to examine the effectiveness of WTO dispute settlement decisions. International Legal Materials is relatively current but the periodical only includes the text of selected cases. The WTO Annual Report provides a comprehensive overview of current issues, outlines future prospects in the world trade system, and gives a wealth of statistical data, but the reports do not include the text of dispute settlement decisions. The WTO website ,http://www.wto.org. contains a growing volume of information, including how the WTO settles disputes, thorough coverage of consultation requests, data on distinct matters and active, completed, or settled cases, the working procedures for appellate review, the rules of administrative and judicial conduct, and reports from panel and appellate bodies. Unfortunately, this reviewer consistently found accessing the WTO website to be slow and, once connected, often difficult to retrieve linked pages within the website. Given these factors, Bernan’s Annotated Reporter on WTO dispute settlement decisions is of enormous value to students and researchers interested in the current affairs of global trade and economic integration. Each volume of the annotated report includes the full-text of all WTO dispute settlement decisions in dense, but clearly readable text. Entries are introduced by a table of contents and give the procedural history, factual background on the case, the general and specific arguments from the participants, and the WTO’s legal analysis and findings. Following the summary of conclusions are annotations identifying legal determinations referenced by the Panel or Appellate Body during the course of its ruling on the case. Following the full-text decisions and summary annotations are four tables. The first table provides a general overview of all Panel and Appellate dispute settlement activity reports. Listed are requests for consultations by the WTO, panel requests, the establishment of panels, reports issued by the Panels and Appellate Body, and updates on the adoption or appeal of the reports. Table I also utilizes “see” references to illustrate connections between complaints that are disputed by more than one country. Table II alphabetically lists all member countries involved in disputes to date. Both tables include citations to WTO source documents. Tables III and IV provide information on the cases reported in each particular volume. Table III lists treaty provisions interpreted in the Dispute Settlement Decisions. References to paragraph numbers and WTO documents are provided for each entry. Table IV lists references within each report regarding other WTO and GATT decisions, protocols, announcements, and reports published in the Basic Instruments and Selected Documents. Each volume concludes with a topical index with references to cases by paragraph.
Reviews
761
The WTO Dispute Settlement series, supplemented with information derived from the WTO website, offers students and scholars access to a wealth of primary documentation on all WTO dispute resolution activities. As the organization matures and attempts to fulfill the goals set forth for the WTO during the Uruguay Round, but captured much earlier in the words of William L. Clayton concerning the ITO, this resource forms the definitive basis for measuring, evaluating, and ultimately determining, if the goals are met. Bernan has done an outstanding job making a comprehensive, yet affordable, resource available for accomplishing this task.
NOTES 1. Clair Wilcox, A Charter for World Trade, with a Foreword by William L. Clayton (New York: The Macmillan Company, 1949), viii–ix. 2. Joseph A. Greenwald, “Regionalism, Multilaterialism, and American Leadership” in The Bretton Woods-GATT System: Retrospect and Prospect After Fifty Years , ed. Orin Kirshner (New York: M. E. Sharpe, 1996), 270–283.
ROBERT V. LABAREE The Von KleinSmid Center Library University of Southern California Los Angeles, CA 90089-0182 USA PII S1352-0237(99)00118-5 Fifty Years of the International Court of Justice: Essays in honour of Sir Robert Jennings. Edited by Vaughan Lowe and Malgosia Fitzmaurice. Cambridge, UK: Cambridge University Press, Grotius Publications, 1996. 640p. ISBN 0-521-55093-9 (hardback). $125.00. Fifty Years of the International Court of Justice is part festschrift and part reflection on the work of the International Court of Justice during its first 50 years. The book’s essays honor Sir Robert Jennings, a judge of the court since 1982 and President of the Court from 1991–1994. A select group of international judges, practitioners, and academics authored the essays. Not intended for the layman, the essays provide a scholarly examination of the Court and international law. The introductory materials consist of a list of contributors and their affiliations, a brief biographical sketch of Jennings and his contributions to international law, a list of Jennings’ publications, and a table of cases heard by the Court. The cases are arranged alphabetically and followed by page numbers for references to each case in the text. Thus, the table serves as an index for the cases. A subject index, focusing primarily on legal topics, is at the rear of the book. The book divides its 33 essays among five sections. One essay is in French; the rest are in English. Although the work lacks a comprehensive bibliography, each essay is accompanied by numerous footnotes. The book seeks to portray a picture of the International Court of Justice by examining the practice and procedure of the Court, its relationship with the rest of the United Nations, and the role the Court plays within the international legal order. The book also addresses sources and evidences of international law and the areas of substantive law the Court has considered. The first, fourth, and fifth sections cover the role of the Court, its practices and procedures, and the Court’s place within the United Nations. The first section examines the International Court of Justice and its role as a world court. Section four covers various facets of the Court such as procedural law, questions of jurisdiction; nationality of claims; and the use of expert testimony, intervention, provisional measures, and remedies. This section also explains the use of “chambers,” smaller groups of justices that examine cases not addressed by the full Court. This section also looks at the role of the President of the Court. The fifth section has two essays on the role of the Court within the United Nations. The first essay elaborates on the Court’s interaction with the General Assembly, and the second discusses the Court’s relationship with the Security Council. The other half of the essays, divided between the second and third sections, address the sources and evidences of international law and the areas of substantive law the Court has considered, respectively. Section two includes municipal law reasoning, estoppel and acquiescence, the
759
Norman, OK 73019 USA PII S1352-0237(99)00117-3 World Trade Organization Dispute Settlement Decisions: Bernan’s Annotated Reporter. Volume One, Decisions Reported January 29, 1996–February 25, 1997. Lanham, MD: Bernan Press, 1998. 535p. ISBN 0-89059-105-9. $75.00. World Trade Organization Dispute Settlement Decisions: Bernan’s Annotated Reporter. Volume Two, Decisions Reported February 26, 1997–May 31, 1997. Lanham, MD: Bernan Press, 1998. 508p. ISBN 0-89059-106-7. $75.00. The signing of the Final Act of the United Nations Conference on Trade and Employment on March 24, 1948, in Havana, Cuba, offered hope that new opportunities for free and open trade on the world market would rise from the ashes of World War II. The Havana Charter, as it became known, created the International Trade Organization (ITO) to help energize and support the “Bretton Woods” institutions now known as The World Bank and International Monetary Fund. In addition, the tariff schedules and provisions of the Final Act concerning the protection of trade concessions among countries were combined to form the General Agreement on Tariffs and Trade (GATT). In the words of Assistant Secretary of State for Economic Affairs William L. Clayton: For the first time in history, [the ITO] asks all nations to commit to a policy of non-discrimination in their customs charges and requirements and in their internal taxation and regulation. It asks them to reduce tariffs and other barriers to trade and it lays down detailed rules to insure that the freedom that is gained by reducing visible tariffs shall not be lost by building up invisible tariffs. It also lays down rules under which import and export quotas (the most serious of all forms of trade restriction) can be limited, controlled, and eventually abandoned [1].
The promise contained in Clayton’s statement was never realized. Broad factors such as the Cold War, unending economic conflict between developed and emerging nations, and continued adherence to protectionism, together with a variety of other significant historical circumstances, contributed to undermining the possibilities embodied in the Havana Charter. Most important, though, was the fact that the United States Congress never ratified the Charter, although the United States did adhere to the general principles of the GATT through the exercise of the president’s executive authority to negotiate tariff concessions. The ITO dissolved quickly without U.S. support, while the GATT, basically a legal document, formed the guiding principles for free trade during the next 40 years. However, beginning in the late 1970s, four issues arose that placed into question the continued effectiveness of the GATT. First, the European Community began to expand its membership quickly. This led to concerns, especially in the United States, that European economic integration would create an impenetrable trading block capable of effectively excluding the importation of goods and services produced by non-European Community nations. Concerns continued to heighten in the 1990s with the establishment of a systematic program for establishing a European market of free flowing goods and services constructed around a single European currency, the “Euro.” The second issue concerned the increased competition in the world market brought about by the rejuvenated economies of Europe and Japan, together with the emergence of strong industrial economies in Taiwan, Hong Kong, Singapore, and South Korea. This development led to concerns in the U.S. that, in order to gain a foothold in the world marketplace, countries in Asia and Europe were adopting unfair trade practices, such as product dumping, in violation of GATT principles and rules. The third development that raised questions about the GATT’s continued effectiveness concerned the shift to high technology industries. A central issue associated with the trade of high technology goods and services was the need to protect intellectual property rights. The provisions of the GATT were viewed as insufficient in protecting the intellectual property rights of companies trading on the global market. The United States entertainment industry’s attempt to end the illegal copying of movie videos and computer software in China and other Far Eastern countries offers the clearest case study of this development in recent years.
760
Reviews
Finally, Article 22 and Article 23 of the GATT concerning procedures for the settlement of trade disputes between nations were always considered weak and insufficient. The expansion of the European Union, increased competition brought about by emerging industrial economies, and the issue of intellectual property rights contributed to a growing perception among world leaders that the GATT’s dispute settlement provisions were increasingly inadequate. In short, the global economy that the GATT served when it was formulated in the 1940s had changed so drastically during the past decade that the agreement was no longer valid in today’s economic climate. Concerns about the applicability of the GATT during the post-Cold War era led to a series of economic negotiations among world leaders culminating in the Uruguay Round. Although talks almost failed, the Uruguay Round eventually established a set of principles intended to address specific problems with the GATT and to halt the general erosion of faith in the overall viability of a multilateral system of world trade. During the Uruguay Round it quickly became apparent among the participants that the ad hoc and provisional nature of the GATT (the agreement was never officially ratified in any national parliament or legislature nor were provisions created to establish a governing body) doomed the agreement to becoming an increasingly ineffective means for insuring fair trade and a legal instrument for eliminating protectionism in the world market [2]. It is from this realization that the World Trade Organization (WTO) was born on January 1, 1995. However, many would argue that the WTO actually represents the cumulative effort of a 50-year struggle to end protectionism and create a truly open global market. The early work of the WTO was to take over and enhance the guiding principles of the GATT, implement the commitments to an open trading environment undertaken at the end of the Uruguay Round, and lay the foundation for developing a mutually supportive, yet enforceable, dispute settlement system. The four years that have passed since the establishment of the WTO is an inadequate amount of time to measure the extent of the WTO’s effectiveness in promoting the lofty goals set forth during the conclusion of the Uruguay Round. Nevertheless, the organization is now recognized as the authoritative referee in settling trade disputes among its growing membership. Until now it was difficult to obtain documentary evidence to examine the effectiveness of WTO dispute settlement decisions. International Legal Materials is relatively current but the periodical only includes the text of selected cases. The WTO Annual Report provides a comprehensive overview of current issues, outlines future prospects in the world trade system, and gives a wealth of statistical data, but the reports do not include the text of dispute settlement decisions. The WTO website ,http://www.wto.org. contains a growing volume of information, including how the WTO settles disputes, thorough coverage of consultation requests, data on distinct matters and active, completed, or settled cases, the working procedures for appellate review, the rules of administrative and judicial conduct, and reports from panel and appellate bodies. Unfortunately, this reviewer consistently found accessing the WTO website to be slow and, once connected, often difficult to retrieve linked pages within the website. Given these factors, Bernan’s Annotated Reporter on WTO dispute settlement decisions is of enormous value to students and researchers interested in the current affairs of global trade and economic integration. Each volume of the annotated report includes the full-text of all WTO dispute settlement decisions in dense, but clearly readable text. Entries are introduced by a table of contents and give the procedural history, factual background on the case, the general and specific arguments from the participants, and the WTO’s legal analysis and findings. Following the summary of conclusions are annotations identifying legal determinations referenced by the Panel or Appellate Body during the course of its ruling on the case. Following the full-text decisions and summary annotations are four tables. The first table provides a general overview of all Panel and Appellate dispute settlement activity reports. Listed are requests for consultations by the WTO, panel requests, the establishment of panels, reports issued by the Panels and Appellate Body, and updates on the adoption or appeal of the reports. Table I also utilizes “see” references to illustrate connections between complaints that are disputed by more than one country. Table II alphabetically lists all member countries involved in disputes to date. Both tables include citations to WTO source documents. Tables III and IV provide information on the cases reported in each particular volume. Table III lists treaty provisions interpreted in the Dispute Settlement Decisions. References to paragraph numbers and WTO documents are provided for each entry. Table IV lists references within each report regarding other WTO and GATT decisions, protocols, announcements, and reports published in the Basic Instruments and Selected Documents. Each volume concludes with a topical index with references to cases by paragraph.
Reviews
761
The WTO Dispute Settlement series, supplemented with information derived from the WTO website, offers students and scholars access to a wealth of primary documentation on all WTO dispute resolution activities. As the organization matures and attempts to fulfill the goals set forth for the WTO during the Uruguay Round, but captured much earlier in the words of William L. Clayton concerning the ITO, this resource forms the definitive basis for measuring, evaluating, and ultimately determining, if the goals are met. Bernan has done an outstanding job making a comprehensive, yet affordable, resource available for accomplishing this task.
NOTES 1. Clair Wilcox, A Charter for World Trade, with a Foreword by William L. Clayton (New York: The Macmillan Company, 1949), viii–ix. 2. Joseph A. Greenwald, “Regionalism, Multilaterialism, and American Leadership” in The Bretton Woods-GATT System: Retrospect and Prospect After Fifty Years , ed. Orin Kirshner (New York: M. E. Sharpe, 1996), 270–283.
ROBERT V. LABAREE The Von KleinSmid Center Library University of Southern California Los Angeles, CA 90089-0182 USA PII S1352-0237(99)00118-5 Fifty Years of the International Court of Justice: Essays in honour of Sir Robert Jennings. Edited by Vaughan Lowe and Malgosia Fitzmaurice. Cambridge, UK: Cambridge University Press, Grotius Publications, 1996. 640p. ISBN 0-521-55093-9 (hardback). $125.00. Fifty Years of the International Court of Justice is part festschrift and part reflection on the work of the International Court of Justice during its first 50 years. The book’s essays honor Sir Robert Jennings, a judge of the court since 1982 and President of the Court from 1991–1994. A select group of international judges, practitioners, and academics authored the essays. Not intended for the layman, the essays provide a scholarly examination of the Court and international law. The introductory materials consist of a list of contributors and their affiliations, a brief biographical sketch of Jennings and his contributions to international law, a list of Jennings’ publications, and a table of cases heard by the Court. The cases are arranged alphabetically and followed by page numbers for references to each case in the text. Thus, the table serves as an index for the cases. A subject index, focusing primarily on legal topics, is at the rear of the book. The book divides its 33 essays among five sections. One essay is in French; the rest are in English. Although the work lacks a comprehensive bibliography, each essay is accompanied by numerous footnotes. The book seeks to portray a picture of the International Court of Justice by examining the practice and procedure of the Court, its relationship with the rest of the United Nations, and the role the Court plays within the international legal order. The book also addresses sources and evidences of international law and the areas of substantive law the Court has considered. The first, fourth, and fifth sections cover the role of the Court, its practices and procedures, and the Court’s place within the United Nations. The first section examines the International Court of Justice and its role as a world court. Section four covers various facets of the Court such as procedural law, questions of jurisdiction; nationality of claims; and the use of expert testimony, intervention, provisional measures, and remedies. This section also explains the use of “chambers,” smaller groups of justices that examine cases not addressed by the full Court. This section also looks at the role of the President of the Court. The fifth section has two essays on the role of the Court within the United Nations. The first essay elaborates on the Court’s interaction with the General Assembly, and the second discusses the Court’s relationship with the Security Council. The other half of the essays, divided between the second and third sections, address the sources and evidences of international law and the areas of substantive law the Court has considered, respectively. Section two includes municipal law reasoning, estoppel and acquiescence, the