The Age of Innocence: The evolution of the case-law of the WTO dispute settlement. Subsidies as case-study
Research output: Chapter in Book/Report/Conference proceeding › Chapter
Colleges, School and Institutes
Through the analysis of the topical and salient jurisprudence on subsidies and countervailing duties, this chapter attempts to trace the development of the role of dispute settlement in the WTO in its first twenty years. Against a paradigmatically unclear regulatory framework, what has been the attitude of the Panels and the Appellate Body during this long period? Was the first phase of dispute settlement one of simple discovery? Has this progressively made way for a more active approach towards the law, which could be – and has been - tagged ‘activism’? Using representative examples of subsidy decisions by Panels and the Appellate Body, this chapter argues that the Panels are on the whole more self-restrained than the Appellate Body. Furthermore, the latter is increasingly departing from its original ‘textual’ approach and adopting innovative decisions, which either raise serious doubts about their correctness or should be assessed as being plainly wrong. The chapter advocates that WTO adjudicating bodies should pay more attention to the ‘negotiated balance’ and the ‘point of balance’ of the various disciplines in the SCM Agreement and that, in this respect, a stronger use of the negotiating history is necessary.
|Title of host publication||Assessing the World Trade Organization. Fit for Purpose?|
|Subtitle of host publication||World Trade Forum|
|Editors||Manfred Elsig, Bernard Hoekman, Joost Pauwelyn|
|Publication status||Published - May 2017|