The dispute settlement mechanism in FTAs is necessary as they provide means to settle disagreements on interpretation or compliance with treaty obligations. The dispute settlement mechanism help ease tensions among FTA parties and maintain healthy relationships among trading partners. Bashar H. Malkawi.

World Trade Organization (WTO) Agreement includes the Annex 2 Dispute Settlement Understanding (DSU) that reveals with WTO dispute settlement rules and procedures. The Dispute Settlement Body (DSB) is hereby established to administer these rules and procedures. The article analyses the problematic issues of the direct effect of the DSB decisions in the European Union (EU) legal order. ECJ concluded that an individual does not have the right to challenge, the incompatibility of Community measures with (...) WTO rules, even if the DSB had previously declared the EU legislation to be incompatible with those rules. The position of the ECJ is based on the WTO dispute settlement system specifics—the importance of the negotiation between the parties, even after the DSB decision-making and lack of reciprocity, which means that major commercial partners of the EU does not recognize the direct effect of DSB decisions. (shrink)

How can dispute records shed light on the study of dispute settlement processes and their social and political underpinnings? This volume addresses this question by investigating the interplay between record-making, disputing process, and the social and political contexts of conflicts. The authors make use of exceptionally rich charter materials from the Iberian Peninsula, Italy, and Scandinavia, including different types of texts directly and indirectly related to conflicts, in order to contribute to a comparative survey of early medieval (...) dispute records and to a better understanding of the interplay between judicial and other less formal modes of conflict resolution. Contributors are Isabel Alfonso, José M. Andrade, François Bougard, Warren C. Brown, Wendy Davies, Julio Escalona, Kim Esmark, Adam J. Kosto, Juan José Larrea, André Evangelista Marques, Josep M. Salrach, Igor Santos Salazar, and Francesca Tinti. (shrink)

The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas's discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures. We (...) show that these latter are oriented primarily to put the parties in a position to reach mutual understanding. Such an orientation is no mere idiosyncrasy of the DSS but is the only one consistently conducive to the WTO's general aims, in response to the various types of disputes that may arise between its Members. Before closing, we bring our procedural considerations to bear on the reform proposals of the DSS. (shrink)

Collective labour disputes are inevitably related to the institutes of a dispute, since the employees and employers often fail to reach a consensus on a particular issue. Moreover, the employers do not always follow the agreed terms and conditions of the collective agreement. In order to disclose the problems of the settlement of collective labour disputes in Lithuania, it is necessary to analyse the conception and classification of the institutes of dispute, distinguishing the conception of collective labour (...) disputes, the procedure of settlement of such disputes, and possible methods of settlement with the emphasis on the institutes of a strike. This article also seeks to reveal the peculiarities of the cases that settle individual labour disputes, the subject of which at least partially includes the provisions of the collective agreement, and collective labour disputes regarding the legality of strike. (shrink)

In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement (...) and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitation of democratic participation, and the creation of public narratives. The functional, process-oriented approach we offer depicts settlement as a device that does not stand in opposition to the promotion of rule of law values - but rather as an institution that enhances the articulation of public norms. Our discussion progresses against the background of three settlement arenas: settlement in the classic civil suit context, structural reform suits, and transnational Holocaust litigation. (shrink)

“Any bad settlement,” the wise patent litigator Elmer S. Albritton once observed, “is better than a good lawsuit.” Given the notorious strain of court proceedings and the recognition that settlement does not always prove attainable, a popular movement has recently arisen in favor of “alternative dispute resolution” . Indeed it has seemed to many who have participated as committee members, witnesses, or respondents in scientific misconduct cases that there ought to be some method of resolving such matters (...) that is less vexing than traditional adjudication. (shrink)

Alternative dispute resolution occurs outside the litigation process. The alternative dispute resolution (ADR) movement in North America has emphasized viable alternatives to the litigation framework, such as arbitration, mediation, med-arb, multi-party facilitation, non-legal negotiation, mini-trials, administrative hearings, private judging (“renta-judge”), fact finding, and moderated settlement conferences. This essay addresses argument in the dominant alternatives: arbitration, mediation, and multi-party facilitation. Prior to comparing argument in these ADR systems, each will be briefly described.

In the opening sentence of 2.6, which is of key significance, the meanings or references of are disputed, rendering the whole passage difficult. In the most widely established version, while —‘Evidence for the statement that Athens grew morethan other places because of migration is provided by the following, viz. that...’ This is consistent with taking either Athens or the other places as the subject of the infinitive, ‘Athens grew more’ or ‘the other places grew less’. If recapitulates the end of (...) 2.2, appears to refer to those migrations; but since it is a rare word, abnormal in that sense, and is obscure, Ullrich proposed, which makes a straight reference to migration, disposes of the obscurity, and provides an explicit subject for the infinitive. Gomme accepts this. I disagree, but yet believe that the established version, though capable of much improvement, is the best to date. (shrink)

INTRODUCTION In any society relatively few disputes are brought to judges for resolution. Most are handled informally or forgotten. Fewer still are cases that go to trial. Most are settled. Compromises are reached even in cases where issues are hotly contested and where millions or billions of dollars in damages are claimed. Recently, for example, one of the most controversial lawsuits of our time, the Agent Orange case, was settled. In that case, veterans of the Vietnam War, their spouses, and (...) their children alleged that a defoliant — Agent Orange – used in Southeast Asia contained dioxin and was responsible for deaths, debilities, miscarriages, and birth defects suffered by members of the plaintiff class. Class members argued that the manufacturers of the defoliant, seven major chemical companies, knew that it was tainted and should be made to compensate them for their injuries, claiming billions of dollars in damages. The case received national exposure and became a rallying point for veterans, a means they hoped to use to publicize their plight and to spur Congress to come to their aid. On the eve of trial, the case was settled. The defendants, who denied liability throughout the pretrial period, agreed to pay the veterans $180 million. In turn, the plaintiff class agreed to drop the suit. Thus ended a controversy which not only presented novel legal issues and tested the ability of the federal courts to handle complex lawsuits, but concerned the well-being of a large number of veterans, their spouses, and their handicapped children as well. (shrink)

The bitter, public contest for priority over the discovery of the virus that causes AIDS was officially closed in 1987 with equal credit being awarded to two parties from opposite sides of the Atlantic. One was led by Robert C. Gallo of the Laboratory of Tumor Cell Biology at the National Cancer Institute in the United States and the other was led by Luc Montagnier of the viral-oncology unit at the Pasteur Institute in France. Using citation counts from articles published (...) by the scientific community, a process of alloca tion of credit is examined and compared with this official settlement. A novel pattern emerges. It is found that the scientific community began to redistribute priority when the dispute became highly publicized and took little notice of the official settlement. This, along with the fact that Gallo has now officially been charged with misconduct by an investigative committee, may mean that Montagnier's team may eventually receive sole creditfor the discovery of the AIDS virus. The importance of examining priority disputes from many different angles and the potential for citation analysis in such cases are highlighted. (shrink)

The purpose of this article is to examine the feasibility and working of the conciliatory means for settlement of intellectual property disputes in Jordan. Arbitration is the principal mechanism used.

Under the WTO’s dispute settlement procedures, a party that has been injured by a scofflaw state’s failure to comply with its trade obligations may retaliate against the scofflaw state by withdrawing equivalent trade concessions. Legal and economic commentators generally view retaliation as an economically perverse strategy for enforcing freetrade norms. This Article explores an alternative explanation, arguing that retaliation may provide the optimal enforcement mechanism for trade liberalization given the prevalence of low compliance incentives and high enforcement costs (...) in international cooperation agreements. The Article argues that retaliation is superior to other remedial options because it enables an injured state to inflict maximum political costs on the scofflaw state by mobilizing powerful export groups in the scofflaw state against protectionist policies. Furthermore, this Article shows how the presence of significant protectionist groups in the injured state, which stand to benefit from retaliatory measures, also improves the injured state’s ability to commit to retaliation. Even if states have asymmetric preferences about protectionist policies, retaliation threats can still be credible since there is uncertainty about each state’s retaliation costs. Finally, the Article concludes that contrary to the conventional wisdom, the substantial role of uncertainty in this model indicates that specific performance, and not compensation, ought to be the goal of the WTO’s enforcement mechanism. (shrink)

Our target article modeled conflict within and between groups as an asymmetric game of strategy and developed a framework to explain the evolved neurobiological, psychological, and sociocultural mechanisms underlying attack and defense. Twenty-seven commentaries add insights from diverse disciplines, such as animal biology, evolutionary game theory, human neuroscience, psychology, anthropology, and political science, that collectively extend and supplement this model in three ways. Here we draw attention to the superordinate structure of attack and defense, and its subordinate means to meet (...) the end of status quo maintenance versus change, and we discuss how variations in conflict structure and power disparities between antagonists can impact strategy selection and behavior during attack and defense; how the positions of attack and defense emerge endogenously and are subject to rhetoric and propaganda; and how psychological and economic interventions can transform attacker-defender conflicts into coordination games that allow mutual gains and dispute resolution. (shrink)

Drawing on philosophy, history, and critical theory, Unconditional Life introduces a new perspective on the significance of post-war international law developments. The book examines the public discourse regarding technological risk in World War II texts of unconditional surrender, in the World Trade Organisation's EC-Biotech dispute, and in the International Court of Justices' Nuclear Weapons Advisory Opinion. The volume describes international law in terms of its management of, and relation to, the risks associated with technological innovation in war and in (...) trade. It proposes that international law, too, is itself a kind of technology: one intended to manage the material and existential risks inherent in the creation of a new international, postcolonial, political community emerging out of the Second World War. Members of this community are imagined to possess a universal quality: humanness, which itself is underscored by a power of invention. Yoriko Otomo demonstrates how international lawyers' inability to adjudicate questions of large-scale technological risk is due to the competing and intractable claims of international law.Offering a feminist analysis of the political economy that has created this crisis of governance, the book provides a way of understanding the structural inequities that will need to be addressed if international law is to remain a relevant forum for the adjudication of war and trade into the 21st century. (shrink)

The perspective of online dispute resolution is to develop an online electronic system aimed at solving out-of-court disputes. Among ODR schemes, eMediation is becoming an important tool for encouraging the positive settlement of an agreement among litigants. The main motivation underlying the adoption of eMediation is the time/cost reduction for the resolution of disputes compared to the ordinary justice system. In the context of eMediation, a fundamental requirement that an ODR system should meet relates to both litigants and (...) mediators, i.e. to enable an informed negotiation by informing the parties about the rights and duties related to the case. In order to match this requirement, we propose an information retrieval system able to retrieve relevant court decisions with respect to the disputant case description. The proposed system combines machine learning and natural language processing techniques to better match disputant case descriptions with court decisions. Experimental results confirm the ability of the proposed solution to empower court decision retrieval, enabling therefore a well-informed eMediation process. (shrink)

The author examines the history of pragmatism and maintains that a thematic continuity runs through the classical pragmatists, neopragmatitsts and contemporary pragmatists. This continuity can be vaguely characterized as an integration of theory and practice, but experience gives theory its content such that action is always guiding the formation of knowledge. There are four implications of this continuity. Pragmatists are centrally concerned with the human relationship to a process-oriented and evolving conception of nature. For pragmatists, our beliefs are regarded not (...) as propositions that map onto a separate and fixed reality, but instead their truth emerges out of the habits beliefs generate. Pragmatism emphasizes an openness to possibility since our access to the world of experience is mediated by a variety of selective interests, intellectual histories, varying linguistic and discursive practices. Pragmatists are deeply concerned with the social and political problems that confront us on a daily basis. The author also examines the manner in which James understands the term “metaphysics” given that pragmatism is a method for settling “metaphysical disputes.” Jamesian existential pluralism implies to maximize all possibilities that can satisfy everyone as much as possible without impeding and harming another's capacity to experience a rich and novel world. The author analyzes Todd May’s approach to the analytic-continental divide and concludes that if settlement embraces James’s thick conception of experience, then the resulting ontological pluralism is the best settlement possible, and this commitment to pluralism requires dissolving the exclusionary practices the analytic-continental divide suggests philosophically. (shrink)

The Court of Justice of the European Union (CJEU) has some basic structural features similar to that of most judicial bodies. According to the treaties, the members of the Court are chosen from individuals whose independence is beyond doubt and who possess the ability required for appointment to higher judicial offices. The involvement of the Court and its president in the most important reforms of the European Union's judicial architecture in recent years is a striking feature which may be called (...) judicial self‐government. International courts have shifted away from being principally committed to dispute settlement towards pursuing other goals, such as advancing international norms and facilitating cooperative international arrangements. The reinforcement of the cooperation of the Court with national courts on the one hand, and with international courts and tribunals on the other, is one of the great current challenges facing the Court. (shrink)

The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof underWTOdispute settlement mechanism.

This article analyses implementation of freedom of assembly within Lithuania and in some other States of the European Union. Attention is paid to the differences in the implementation practices for this freedom while analysing probability of restriction of freedom of assembly in the light of legal, political and social factors. The article aims to substantiate that the quality of decision while adopting spreading ideas and expressed views during peaceful meetings, or adopting them later, or dismissing in general, is determined by (...) the democratic society being formed in the state during a particular period. On the other hand, although physical restriction of diffusion of ideas while implementing freedom of assembly is legitimate, it should not become the main control tool, since the development of the state in this direction is absolutely opposite to the expansion of democratic ideas in the society. Legal education should become the priority area of the policy conducted by the state. Particularly since this priority provides the security for the spread of best practices in democratic states, thus laying the grounds for effective prevention of expression of illegal behaviour. Such illegal behaviour may occur in the form of incitement of hatred and aggression in respect of persons who have different faith, race, nation or sexual orientation. The article substantiates that the real challenge faced by the modern democracy is security for practical implementation rather than the formal recognition and regulation of rights and freedoms. It has been found in practice that the implementation of freedom of assembly can be faulty restricted by the procedural justice. After evaluating experience of the States of the European Union and the way in which their national legal system is structured, the recommendations are made enabling a timely dispute settlement concerning the right of assembly, i.e., in order to prevent decision making process from becoming an obstacle for the implementation of freedom of assembly. It is pointed out that settlement of the dispute concerning the permission to hold a peaceful assembly after the date of the assembly is pointless and denies social importance of right of the assembly. (shrink)

The article analyses enforcement of freedom of assembly, draws attention to faults of legal regulation of dispute settlement, and revises a possibility of restriction of freedom of assembly. The authors provide evidence that restriction of freedom of assembly by refusing to grant permission to hold a peaceful assembly, is not an effective measure, therefore, it is suggested to educate the public on legal issues in order to enlighten the society about detrimental effect of publicly expressed ideas that provoke (...) national or racial discord, to disclose actual intentions of people who instigate aggression, force and violence so that they do not attract and rally a sufficiently large part of the public. People usually believe that the society enjoys freedom of knowledge and the right to obtain all information, as well as all news that originate and spread across the market, as it creates a pre-requisite for strengthening the best and most useful culture projects resulting in the development of culture and, alongside, the law. (shrink)

The Dispute Settlement Reports of the World Trade Organization (WTO) include Panel and Appellate Body reports, as well as arbitration awards, in disputes concerning the rights and obligations of WTO members under the provisions of the Marrakesh Agreement Establishing the World Trade Organization. These are the WTO authorized and paginated reports in English. An essential addition to the library of all practising and academic trade lawyers, and needed by students worldwide taking courses in international economic or trade law. (...) Among others, DSR 2007: I reports on United States – Measures Relating to Zeroing and Sunset Reviews. (shrink)

Investor-state-dispute-settlement is an arbitration mechanism to settle disputes between foreign investors and host-states. Seemingly a technical issue in private international law, ISDS procedures have recently become a matter of public concern and the target of political resistance, due to the power they grant to foreign investors in matters of public policies in the countries they invest in. This article examines the practice of ISDS through the lenses of liberal-statist theories of international justice, which value self-determination. It argues that (...) the investor-state arbitration system illustrates how liberal-statist theories of international distributive justice ought to care about relative socioeconomic disadvantage, contra the sufficiency principle that they typically defend. The sufficiency principle draws on a questionable conception of the freedom that self-determination consists in. (shrink)

Investment protection clauses, and the investor-state dispute settlement mechanisms they enable, have become a common feature of international agreements on trade and investment. Intended to promote foreign investment, these protections may also discourage governments from regulating in the public interest. This raises challenging normative questions about the rights of investors and distributive justice. In this paper, I argue that a global investment regime that disadvantages developing countries and socially disadvantaged groups is prima facie unfair. This conclusion must be (...) defended against the claim that investors have certain independent moral rights to have their property protected, regardless of the distributive consequences. Granting the premise that such investor rights exist, I argue that these cannot plausibly ground a general rule against public interest regulation that undermines the value of property. I conclude that even if foreign investors have rights that must be safeguarded, the current investment regime must be reformed. (shrink)

Using food regime analysis, this paper critically analyzes how corporate actors amass, secure and apply power in the global agrifood system through International Investment Agreements (IIAs). IIAs are a key enabler of increasing corporate power in the agrifood system. We focus on three sets of investment provisions in IIAs: (a) the stringent enforceability mechanism of the investor-state dispute settlement (ISDS) system, (b) the expansion of the concept of expropriation, and (c) limitations or prohibitions on host countries to impose (...) performance requirements on foreign investors. We argue that these provisions compromise fairness in the international economic system. Attracted by promises of technology transfer, economic growth and employment, host states often prioritize policies that favor foreign investors even if such policies compromise domestic policy space. We provide analysis and examples of escalating corporate power at different stages of the industrial and transgenic model of agriculture. (shrink)

Free trade agreements are about reducing tariffs, market access in services, protection of intellectual property rights, streamlining customs procedures, trade remedy measures, and dispute settlement mechanism. Equally important if not even more important than these provisions is the designation of rules of origin. Many benefits can be lost if restrictive rules of origin are incorporated. Rules of origin are supposed to be straightforward and easy-to-follow methods used to determine origin of imported goods. The policy question that arises is (...) how to improve trade integration among Arab countries through more effective rules of origin. (shrink)

International law scholars and lawyers can rely on The Global Community Yearbook to better understand the wealth of case law now emanating from international courts and tribunals. Two new volumes each year include in-depth articles addressing topics of jurisprudence, while shorter notes explore current legal issues and provide context for the year's cases, which comprise the majority of the set. The editor, Giuliana Ziccardi Capaldo, has assembled a comprehensive look at the present and future development of the international legal order. (...) Each major international court or tribunal has its own section, which includes an introductory article on the activity of that organization over the course of the year. The activities of the court and tribunals are presented in the form of "legal maxims," that distil the most important elements of the legal decisions of the past year and that provide researchers with quick access to the relevant point of law in each case. The cases themselves are indexed within each court's section, and then again in a general index for the entire set. Contributed to by leading legal experts, The Global Community Yearbook addresses the major developments in the courts and tribunals, providing a valuable resource for anyone wishing to better understand the functions, decisions and structure of the international legal courts. International Courts and Tribunals covered include: International Court of Justice International Tribunal for the Law of the Sea WTO Dispute Settlement System International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Court of First Instance and Court of Justice of the European Communities European Court of Human Rights Inter-American Court of Human Rights Iran-U.S. Claims Tribunal International Centre for Settlement of Investment Disputes. (shrink)

This article explores how the segments of the state police and security organs were transformed into a large private security industry in Russia after 1992. As market reforms were launched, the numbers of private property owners grew dramatically, but the state institutions for the protection of property and dispute settlement were either absent or defunct. This gap was consequently filled with various private institutions, private protection companies and private security services being the major ones. The article studies the (...) context of their emergence, their functions and practices as well as their relations with the state and the criminal sector. (shrink)

Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of (...) war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1. (shrink)

The article presents an analysis of an extract from a Collective Philosophical Inquiry. Through this case study, we show the possible misunderstandings linked to the duality of two « worlds » : that of the teacher who experiments with CPI in her classroom and that of the researcher who is responsible for the design of this type of session. The « world » is defined as « conceptual, axiological and praxical background ». The confrontation between these worlds therefore questions both (...) the modalities of their necessary collaboration and the conditions of the construction and use of a true « professional genesis. (shrink)