The Law and Politics of WTO Dispute Settlement

The Politics of International Law, eds. Wayne Sandholtz & Christopher Whytock, Oxford University Press, 2016

UC Irvine School of Law Research Paper No. 2016-10

33 Pages Posted: 19 Mar 2016 Last revised: 17 May 2016

See all articles by Gregory Shaffer

Gregory Shaffer

University of California, Irvine School of Law

Manfred Elsig

University of Bern

Sergio Puig

University of Arizona - James E. Rogers College of Law

Date Written: March 16, 2016

Abstract

Since its inception in 1995, the World Trade Organization (WTO) includes a highly judicialized dispute settlement system that is unique in international law and politics at the multilateral level. The WTO’s institutionalized processes significantly mediate power in dispute settlement. In this chapter, we evaluate “this move to law,” and assess the operation of the WTO dispute settlement system in political context across different governance stages. We analyze three stages of dispute settlement in line with the “stages of governance” framework developed by Wayne Sandholtz and Chris Whytock: first, we evaluate the selection process of those who interpret the rules; second, we address the context and politics of rule interpretation; and third, we discuss compliance with WTO dispute settlement rulings. The chapter shows how the law and politics of these three stages interact, so that a static analysis of individual governance stages is insufficient. As we explain, the selection of Appellate Body members, panelists, and secretariat members affects the interpretation of WTO rules. Certain interpretations, in turn, encounter stark resistance, leading to compliance challenges. The compliance challenges threaten the authority of panels and the Appellate Body, and can, in turn, inform subsequent interpretive choices, as well as the selection process of Appellate Body members and panelists. Law and politics thus continuously interact, shaping the WTO’s dispute settlement process. The chapter first evaluates the external and internal factors that drove the legalization and judicialization of the WTO dispute settlement system, and that of its predecessor, the General Agreement of Tariffs and Trade (GATT). It then analyzes three stages of governance and explains their interaction.

Suggested Citation

Shaffer, Gregory C. and Elsig, Manfred and Puig, Sergio, The Law and Politics of WTO Dispute Settlement (March 16, 2016). The Politics of International Law, eds. Wayne Sandholtz & Christopher Whytock, Oxford University Press, 2016; UC Irvine School of Law Research Paper No. 2016-10. Available at SSRN: https://ssrn.com/abstract=2748883

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

Manfred Elsig

University of Bern ( email )

Gesellschaftsstrasse 49
Bern, BERN 3001
Switzerland

Sergio Puig

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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