Cover -- THE WTO IN THE TWENTY-FIRST CENTURY -- Title -- Copyright -- CONTENTS -- NOTES ON CONTRIBUTORS -- ACKNOWLEDGEMENTS -- TABLE OF DISPUTE SETTLEMENT CASES AND REPORTS CITED IN THIS BOOK -- LIST OF ABBREVIATIONS -- Introduction -- PART I The WTO at Ten -- 1 The WTO's tenth anniversary -- 2 The WTO at ten: its multilateral and regional involvements -- PART II Accomplishments and Future Prospects of the WTO Dispute Settlement System -- 3 The WTO dispute settlement system after ten years: the first decade's promises and challenges -- I. Context and landscape: the world of interdependence and its realities2 -- The general question of 'globalization' -- Economic policy and the value of markets -- General international law: changing fundamentals to cope with globalization and interdependence and conceptual weaknesses of international law -- II. The WTO generally -- III. The first decade of the WTO dispute settlement system -- Overview -- Policies of dispute settlement and the WTO -- Appraisal -- What are some of the problems that do need addressing? -- IV. Conclusion -- 4 WTO dispute settlement practice 1995-2005: lessons from the past and future challenges -- I. Lessons from the past -- 1. Lacunae in WTO law and lack of legal guidance by WTO Members -- 2. Strengths and weaknesses of the WTO dispute settlement system -- 3. Future challenges for WTO jurisprudence -- 4. WTO jurisprudence as an essential part of world trade governance: cui bono? -- II. Some 'principled challenges' for future WTO jurisprudence -- 1. Treaty interpretation as a 'holistic task' -- (a) Limits of textual interpretation -- (b) Increasing importance of contextual interpretation -- (c) Interpretative guidance by subsequent practice and 'relevant rules of international law applicable in the relations between the parties' (Article 31.3 of the Vienna Convention).

(d) The impact of 'object and purpose' on the 'ordinary meaning to be given to the terms of the treaty' and on the 'balancing' of rights and obligations -- 2. Applicable law and limited jurisdiction ofWTO dispute settlement bodies -- International trade sanctions for the promotion of human rights abroad -- International trade preferences for the promotion of human rights abroad -- International trade restrictions for the protection of human rights inside the domestic jurisdiction -- The Omega case in the ECJ -- The Schmidberger case in the ECJ -- Human rights-related non-discriminatory international trade regulation -- ECJ jurisprudence on trade-related biotechnology rights -- Human rights and unfair competition rules: the Hertel case in the European Court of Human Rights -- 3. The role of the judge in the WTO legal system -- (a) Judicial deference vis-à-vis WTO Members and political WTO bodies -- (b) The scope of judicial deference depends on the particular context of WTO law -- (c) Should the 'diplomatic panel jurisprudence' be further legalized? -- (d) International cooperation among judges and courts? -- 5 Evaluating WTO dispute settlement: what results have been achieved through consultations and implementation of panel reports? -- I. Brief overview of the WTO dispute settlement process3 -- II. Results of consultations -- 1. Overview21 -- 2. Types of results -- 3. Timing of results -- 4. Summary -- III. Implementation of panel/Appellate Body reports -- 1. Overview -- 2. Forms of implementation -- 3. Timing of implementation -- IV. Where are reforms needed? -- 1. Consultations -- 2. Implementation -- (a) Speeding up the formal dispute settlement process -- Panel composition -- Panel briefing -- Panel meetings -- Panel report preparation -- Panel report adoption -- Appeal and adoption of report -- Reasonable period for implementation -- Sequencing.

Conclusion -- (b) Improving remedies for non-compliance -- General considerations -- Specific proposals -- Money payments -- Retrospective assessment -- Increasing sanctions over time -- Concluding thoughts on improving implementation -- V. Conclusions -- 6 The responsibilities of a WTO Member found to have violated WTO law -- 7 'Public-private partnerships' in WTO dispute settlement: the US and EU experience -- I. The blurring of the public and the private in international trade law -- II. Public-private networks in perspective: new forms of governance -- III. Public-private partnerships in the United States for opening foreign markets: the United States' leading edge -- US private firms' strategic use of the WTO dispute settlement process -- Coordinating through trade associations -- Public-private exchange of information -- Working the interagency process -- Inciting congressional pressure -- The use of leverage points: publishing reports and initiating investigations -- Litigating before the WTO -- IV. Public-private partnerships in the European Union: moving toward a US model? -- The European Union's shift from a defensive to a market access strategy -- Alternative EU tracks for challenging foreign trade barriers -- The Article 133 process -- The TBR: Europe's reply to US Section 301 -- Use of the Article 133 and TBR tracks to date -- The European Communities in WTO litigation -- V. Conclusion -- 8 Accomplishments of the WTO dispute settlement mechanism -- I. Improvements over the GATT dispute settlement system -- II. Jurisprudence: treaty interpretation and rules of procedure in the DSU -- Customary rules of interpretation -- Burden of proof -- Due process -- Objective assessment by panels -- Other rules of procedure -- III. Jurisprudence: substantive obligations -- Most-favoured nation treatment -- National treatment -- General exceptions.

SCM Agreement -- Anti-Dumping Agreement -- Agreement on Agriculture -- GATS -- Summary -- IV. Broad-based confidence ofWTO Members -- V. Conclusion -- 9 Arbitration as an alternative to litigation in the WTO: observations in the light of the 2005 Banana Tariff Arbitrations -- I. Arbitration compared to litigation and 'alternative dispute resolution' -- II. Arbitration in the WTO -- 1. The current provisions providing for arbitration in the WTO agreements -- 2. The practice of arbitration in the WTO -- (a) The 2005 Banana Tariff Arbitrations -- (b) The Copyright Arbitration -- III. Arbitration in private international commercial disputes -- 1. The advantages of arbitration over litigation in private international commercial disputes -- (a) The decision is internationally enforceable against the losing party -- (b) The lack of an international court -- (c) Flexible, faster, and cheaper proceedings -- (d) Confidentiality -- IV. Observations on the applicability of arbitration as an alternative to litigation in the WTO -- 1. The advantages of arbitration over litigation in private international commercial disputes do not fully apply in the WTO context -- 2. Arbitration may serve as an alternative to litigation in specific circumstances -- (a) Disputes where both parties want an expeditious determination -- (b) Disputes where both parties want stricter confidentiality -- (i) Confidentiality in standard dispute settlement proceedings -- (ii) Shortcomings and gaps in confidentiality in standard dispute settlement proceedings -- (iii) Does arbitration offer a solution? -- (c) Disputes for which the DSU does not have jurisdiction -- (i) Conditions to waivers -- (ii) Mutually agreed solutions -- (d) Political dimensions of WTO litigation -- 3. Considerations when structuring arbitrations in the WTO -- (a) Ensure that the decision is enforceable.

(b) Ensure qualified arbitrators and secretariat support -- (c) Ensure certainty with respect to the involvement of third parties -- (d) Develop procedures in advance -- V. Conclusion -- 10 The evolving WTO dispute settlement system -- PART III Asian Perspectives on WTO Dispute Settlement -- 11 East Asia in the WTO dispute settlement mechanism -- 12 Japan's perspectives on the present Dispute Settlement Understanding negotiations -- I. The dispute settlement system in the past ten years -- 1. The dispute settlement system has expanded policy alternatives for WTO Members and accelerated the process of solving trade problems -- 2. Abundant jurisprudence accumulated in the past ten years -- 3. Collaboration between diplomats, lawyers, and law professors -- II. Overall assessment of the current DSU negotiations1 -- 1. Focused approach -- 2. Constructive discussion - broader participation? -- III. Some major issues and priorities for Japan -- 1. Sequencing and post-retaliation -- Sequencing -- Post-retaliation -- 2. Transparency -- 3. Panel composition -- IV. What will be the key elements for the successful conclusion of the present negotiations? -- 1. Development issues - improved access to the dispute settlement system -- 2. 'Legalization' or 'sovereignty (Member control)'? -- Consultations -- Panel -- Appellate Body -- V. Beyond the conclusion of the present negotiations -- 1. Prospects of the present DSU negotiations -- 2. What will happen in the coming ten years? -- 3. Jurisprudence and compliance -- 13 A review of some appellate decisions: law, policy, and economics in dispute settlement -- I. The Appellate Body and the Vienna Convention -- II. Policy considerations in the decision-making of the Appellate Body -- Should policy considerations be taken into account? -- The EC - Tariff Preferences case (2004) -- The US - Shrimp case (1997).

III. Economics and the Appellate Body.