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International Organizations. Supporters say it has helped prevent trade wars while protecting the rights of the smallest states in the WTO. But critics say only the strongest states are able to effectively argue their cases while opponents in the United States say its judgments sometimes infringe on national sovereignty. Daniel J. Lighthizer , a former Reagan Administration trade official who heads the international trade department at the Skadden law firm, on the fairness of the dispute settlement system.

Ikenson cites David Palmeter—a rabid critic of the entire antidumping regime who once referred to it as worse than "dog law" —as an objective source to defend WTO jurisprudence in the area. He also invokes a former deputy director-general of the WTO with oversight of dispute settlement in this same context, which is a little like asking the Appellate Body if they think they're doing okay.

Hufbauer once compared the sophistication of the legal analysis to what one would expect from a "first year law student. Serious concerns extend not just to the trade remedy and tax areas—but also relate to U. Ikenson and others suggest that sovereignty is not a concern because the WTO cannot force us to comply with its rulings. But they are also the first ones to say the sky will fall if we don't. Just a few days ago, Mr. I would argue that all sides of the larger trade debate have an enormous interest in seeing reform of the WTO dispute settlement system.

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One place to start would be establishing a blue ribbon commission in the U. It wouldn't be a cure-all, but it would start the process of re-instilling some faith in a system that needs it badly. I do not dispute Mr.

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The views of the administration and Congress presented by Mr. Lighthizer lack objectivity. After all, it is the administration that defends U. Furthermore, although John Greenwald is a knowledgeable and respected trade lawyer, he has represented domestic interests that have received Byrd amendment subsidies, which might animate his harsh assessment of the AB decision in that case. Like so much other dissent from WTO trade remedy rebukes, Professor Alford's denunciation of the recent AB decision on zeroing assumes that the due deference provisions in Article Article 2.

Under what permissible interpretation can zeroing be allowed while respecting the fair comparison language?

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Ikenson and I can agree that the United States has become the principal defendant at the WTO and is losing almost every case. This is not limited to trade remedy cases, although that is perhaps the most egregious area. Moreover, it is not credible to suggest that these problems simply reflect isolated cases, a pro-complainant bias or the grumbling of sore losers.

Consider just a few of the criticisms and their source:. This does not reflect some isolated inconsistency, but a system that has fundamentally lost its way. Nobody likes to lose. Almost every one has involved some aspect of the sacred trade remedy laws, which has many in Congress and within the trade remedy petitioners' bar crying foul.

To some true believers, dispute settlement losses concerning the U. The trade remedy laws enjoy broad bipartisan support in Congress, which has tied the president's hands in terms of negotiating any significant changes to the laws in trade agreements.

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Regrettably, much of that support is premised exclusively on the appealing rhetoric of fighting unfair trade, while Congress pays little attention to the highly technical rules and procedures and discretion that often unfairly skew antidumping and countervailing duty calculations. Thus, WTO dispute rulings against U. That, more than anything else, explains the resurgence of interest in the question of WTO fairness.

It would be impossible in the time and space allotted here to demonstrate how dispute panels and the Appellate Body have not overstepped their mandates in each case. I don't even assert that to be the case. Perhaps that has happened in an instance or two, but overwhelmingly the decisions impugning U.

If this debate were conducted five years ago, I suspect Mr.

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Lighthizer could comfortably argue the position I take today. In that period, the United States was mostly a complainant, and it won 76 percent of the time. Since then it has been mostly a defendant, and in keeping with the pro-complainant bias in WTO outcomes which should make sense since members tend to bring cases they are reasonably certain to win , has lost almost every case.

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  4. Although Mr. Lighthizer expresses concern over national sovereignty allegedly usurped, the fact is that the dispute settlement system has no claims whatever against the sovereignty of its members. WTO decisions do not bark orders; they do not mandate compliance. On the contrary, dispute settlement decisions "recommend" that the offending practice, policy, or law be brought into conformity with whatever WTO agreement it is found to be violating. Should the offending party choose not to comply, the complainant has recourse to retaliation, which is designed to shift the debate to the body politic of the offending party, where the interests affected by the offending practice and the interests affected by the retaliation can decide what's best for the country.

    The system is quite ingenious, balancing respect for national sovereignty with the capacity to compel. The WTO dispute settlement system is veering off course, and is increasingly a threat to the legitimacy of the entire body.


    Without confidence that disputes will be resolved fairly — and with full respect for the negotiated concessions actually made by parties to the WTO — there is no question you will see less support for the global system and less inclination of countries to make trade concessions in the future. That is a recipe for disaster. Trade remedies are a perfect example. While never the darling of pure free traders, measures to combat dumping, subsidies, and injurious import surges have always been deemed essential by open economies like the United States to maintain support for trade. Uruguay Round negotiators painstakingly set forth specific rules in this area and made clear that WTO dispute panels should defer to national authorities where possible.

    Instead of respecting this mandate, WTO jurists have engaged in an all-out assault on trade remedy measures. Even legal experts hostile to these laws, as well as the Bush Administration, have expressed astonishment at the level to which panels are simply writing new requirements into the WTO agreements. July 24, July 20, July 18, July 5, May 24, May 16, April 24, April 17, April 9, April 4, December 19, Release of Annual Report.

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