A legal drafting group for the Doha round: A modest proposal

Journal of World Trade

Volumn 37, Issue 6, 2003, Pages 1031-1036

  Kuijper, P J ^a  

^a EUROPEAN COMMISSION   (Belgium)

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EID: 65749120329     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2003053     Document Type: Article

References (23)

1. Especially former Director-General Mike Moore was fond of this expression and used it many speeches. It was, however, never quite clear who was supposed to be wearing this crown.
2. These are effects that those who are proponents of returning to the old, non-binding, system of dispute settlement, such as Barfield do not consider. Claude E. Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization (AEI Press 2001).
3. For a descriptive analysis, see David Palmeter and Petros Mavroidis, Dispute Settlement in the World Trade Organization (London: Kluwer Law International, 1999).
4. For some positive assessments of the system, see William J. Davey, "Has the WTO Dispute Settlement System Exceeded its Authority", in Thomas Cottier and Petros Mavroidis (eds), The Role of the Judge: Lessons for the WTO (London: Kluwer Law International, 2002).
5. Debra P. Steger, "The Struggle for Legitimacy in the WTO", in John M. Curtis and Dan Ciuriak (eds), Trade Policy Research 2003 (Ottawa: Department of Foreign Affairs and International Trade, 2003).
6. Claus-Dieter Ehlermann, Six Years on the Bench of the "World Trade Court" - Some Personal Experiences a Member of the Appellate Body of the World Trade Organization, 36 J.W.T. 4 (2002), 605-639.
7. See WT/DSB/M/61 with reference to WT/DS27/ARB, EC - Regime for the Importation, Sale and Distribution of Bananas - Recourse by the EC to Arbitration under Article 22.6 DSU. However, with the benefit of hindsight this was probably the best and the wisest way out of a terrible dilemma.
8. See in particular WT/DSB/M108, p. 17-20, in respect of WT/DS184/KB/R, US - Anti-dumping Measures on Certain Hot-Rolled Steel Products from Japan.
9. See also John Greenwald, WTO Dispute Settlement: An Exercise in Trade Law Legislation, J.I.E.L. (2003), 113-124
10. See WT/DSB/M/122, pp. 5-7. Partial non-adoption was refused on the basis that it would conflict with DSU Article 17.14.
11. See General Council Special Session of 22 November 2000, WT/GC/M/60. Also, with the benefit of hindsight, this can be seen as actually a normal interpretation of DSU Article 17.9 with the help of the theory of implied powers, as applied in the UN ever since the ICJ's Advisory Opinion in the case of Reparations for Injuries Suffered in the Service of the United Nations, see ICJ Reports 1949, p. 174 ff.
12. See WT/GC/W/473 of 3 May 2002, setting out major linguistic discrepancies in Article 9(1) of the Safeguards Agreement, para. 3 of Annex II of the Anti-Dumping Agreement and Article 18(2) of the Dispute Settlement Understanding. Also WT/GC/W/489, proposing draft interpretation decisions on the first and last-mentioned articles. Chile has obviously not considered that some of the linguistic discrepancies could be regarded as simple errors of translation. This would open the possibility of a correction of the Spanish text by the depositary, i.e. the Director-General of the WTO, according the procedure laid down in Article 79, para. 2, of the 1969 Vienna Convention on the Law of Treaties. This technique has been used in the WTO before, in order to insert Honduras into Annex VII, sub b) of the SCM Agreement.
13. See WT/GC/M/74, paras 66-79; and WT/GC/M/78, paras 141-154.
14. One only needs to read the summaries of the positions of the lawyers of the Member States in the first big "constitutional cases" of the ECJ to understand what I mean: see, for instance, Van Gend & Loos, ECJ Reports 1963 ECR, p. 1ff, in which the position of the Advocate-General Roemer was also entirely traditional in respect of the direct effect of Community law.
15. This account is based on the personal experience of the author as participant in the process. The main results of the legal vetting exercise under DDG Mathur concerned the conflict rules between the different parts of the WTO agreement and the rules of transition from GATT and GATT Codes to the WTO Agreement. Meaningful improvements in the text of the agreements were not achieved.
16. Based on accounts of participants in the NAFTA legal drafting process.
17. This is slightly comparable to how the Codification Division of the UN Office of Legal Affairs prepares the first draft of international conventions.
18. See WTO Doc. JOB(03)/1 of 26 January 2003.
19. Rule 53 of the Rules of Procedure of the Third UN Conference on the Law of the Sea: "The Drafting Committee shall, without reopening substantive discussion on any matter, formulate drafts and give advice on drafting as requested by the Conference or by a Main Committee, co-ordinate and refine the drafting of all texts referred to it, without altering their substance, and report to the Conference or to the Main Committee as appropriate. It shall have no power of or responsibility for initiating texts." UN Doc. A/CONF.62/30/Rev.3, adopted on 27 June 1974, amended on 12 July 1974, 17 March 1975 and 6 March 1980.
20. Rule 49 Rules of Procedure of the Conference on the Establishment of an International Criminal Court: "The Drafting Committee shall, without reopening substantive discussion on the matter, co-ordinate and refine the drafting of all texts referred to it without altering their substance, formulate drafts and give advice on drafting as requested by the Conference or by the Committee of the Whole and report to the Conference or to the Committee of the Whole as appropriate." UN Doc. A/CONF.183/6.
21. Rule 64.2 of the Draft Standard Rules of Procedure for UN Conferences, UN Doc. A/36/199: "The Drafting Committee shall prepare drafts and give advice on drafting as requested by the conference or any Main Committee. Subject to any general instructions of the conference, it shall co-ordinate and review the drafting of all texts adopted and shall report, as appropriate, either to the conference or the Main Committee concerned."
22. See Jonathan Swift, A Modest Proposal For Preventing The Children of Poor People in Ireland From Being Aburden to Their Parents or Country, and For making them Beneficial to the Public (Dublin: 1729). Although some might consider that the early involvement in negotiations of lawyers in a formalized manner is about as horrible as Swift's proposal for institutionalized cannibalism in order to relieve poverty in Ireland, it is hoped that this contribution will have demonstrated that there are real benefits.
23. See notes 2 and 3 above and the works referred to there.