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Non-compliance, renegotiation and justice in international adjudication: A WTO perspective

Published online by Cambridge University Press:  24 June 2016

SIVAN SHLOMO AGON
SIVAN SHLOMO AGON*
Affiliation:
Faculty of Law, Bar-Ilan University, Ramat Gan, 5290002, Israel
*
*Email: sivan.shlomo-agon@biu.ac.il
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Abstract:

Focusing on the expanding realm of international adjudication, this article approaches justice from the domain of the empirical and shows – through a careful, interview-based case study analysis in the WTO context – that justice in the international context is not only a contested concept, but also a multifaceted one, deeply embedded in notions such as the rule of law, fairness, equality, transformation, and cooperation. Whereas in the past, the primary, if not the sole role of international courts was that of settling disputes, in their modern legalised reincarnation these empowered international institutions have come to be seen primarily as enforcement mechanisms. Mechanisms that have been put in place by states in order to give effect to their originally negotiated commitments, and to hold states (or other entities) accountable for the international rules agreed-upon. Within this common enforcement-centred discourse of international courts, in turn, the natural tendency has so far been to think of ‘justice’ mainly through its ‘legal’ or ‘rule of law’ dimension. This article challenges this enforcement-centred discourse. Focusing on the vibrant WTO dispute settlement system (DSS) and its operation throughout the perennial EC–Bananas dispute, the article argues that the current enforcement-oriented debate of international courts, and the WTO DSS in particular, is lacking in several aspects. First, it brushes aside other important roles served by the DSS, and consequently overshadows the manifold social outcomes – beyond rule-compliance – produced by this system. Second, the prevalent rule-enforcement discourse further works in turn as to mask the multiple challenges of justice encapsulated in international disputes reaching the DSS docket, and obstructs the need to explore other conceptions of justice – beyond its legal-procedural meaning – such as global distributive, corrective, or transformative justice, through which the diverse roles and outcomes of the DSS may (and should) be evaluated. Against this backdrop, the article puts forwards a broad multifunctional account of the WTO DSS, which goes beyond the prevalent view of the system as primarily an enforcement mechanism, portraying it instead as a system of multiple, competing, and shifting roles. Among them, providing an orderly mechanism of renegotiation, redistribution, and settlement. Roles that essentially allow WTO Members to readjust their original WTO commitments and reallocate their burdens and benefits of international cooperation, and thereby to arrive at new – at times not fully legally-compliant – but not necessarily ‘unjust’ cooperative and sustainable social outcomes.

Keywords

complianceinternational adjudicationinternational rule of lawjusticeWTO dispute settlement system
Type
Research Article
Information
Global Constitutionalism , Volume 5 , Issue 2 , July 2016 , pp. 238 - 268
Copyright
Copyright © Cambridge University Press 2016 

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References

1 Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law 73.

2 Shany, Y, The Competing Jurisdictions of International Courts and Tribunals (Oxford University Press, Oxford, 2004)CrossRefGoogle Scholar; C Romano, ‘The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent’ (2007) 39 NYU Journal of International Law and Politics 791, 792–6.

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4 See e.g. J Bellinger, ‘International Courts and Tribunals and the Rule of Law’ in C Romano (ed), The Sword and the Scales: The United States and International Courts and Tribunals (Cambridge University Press, New York, NY, 2009) 1, 2; G Born, ‘A New Generation of International Adjudication’ (2012) 61 Duke Law Journal 775; B Zangl, ‘Is there an Emerging International Rule of Law?’ (2005) 13 European Review S73; B Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, NY, 2004) 1–3; A Huneeus, ‘Compliance with Judgments and Decisions’ in C Romano et al. (eds), The Oxford Handbook of International Adjudication (Oxford University Press, Oxford, 2014) 437. The emphasis placed on the enforcement role of international courts is further echoed in the extensive research evaluating their performance against their record in eliciting state compliance with international rules and decisions. See e.g. AT Guzman, ‘International Tribunals: A Rational Choice Analysis’ (2008) 157 University of Pennsylvania Law Review 171; C Schulte, Compliance with Decisions of the International Court of Justice (Oxford University Press, Oxford, 2004); EM Hafner-Burton, G Victor and Y Lupu, ‘Political Science Research on International Law: The State of the Field’ (2012) 106 American Journal of International Law 47, 93.

5 For recent contributions that go beyond the prevalent enforcement role or the traditional dispute settlement function of international courts see e.g. von Bogdandy and Venzke (n 3); Shany, Y, Assessing the Effectiveness of International Courts: A Goal-Based Approach (Oxford University Press, Oxford, 2014).CrossRefGoogle Scholar

6 See e.g. the discussion in E-U Petersmann, ‘International Rule of Law and Constitutional Justice in International Investment Law and Arbitration’ (2009) 16 Indiana Journal of Global Legal Studies 513; Broomhall (n 4) 52–62.

7 The issue of equal access to justice has been extensively discussed in the WTO DSS context, particularly in writing on developing countries’ participation in the system. See e.g. M Footer, ‘Developing Country Practice in the Matter of WTO Dispute Settlement’ (2001) 35 Journal of World Trade 55; ML Busch, E Reinhardt and G Shaffer, ‘Does legal capacity matter? A survey of WTO Members’ (2009) 8 World Trade Review 559.

8 For literature on procedural justice in the international judicial realm see e.g. AK Schneider, ‘Not Quite a World without Trials: Why International Dispute Resolution is Increasingly Judicialized’ (2006) Journal of Dispute Resolution 119; JP Gaffney, ‘Due Process in the World Trade Organization: The Need for Procedural Justice in the Dispute Settlement System’ (1999) 14 American University International Law Review 1173.

9 Interview with former AB member (19 April 2012).

10 D Winthrop, ‘Aristotle and Theories of Justice’ (1978) 72 American Political Science Review 1201, 1203; G Bien, ‘Aristotle on Justice (Book V)’ in O Höffe (ed), Aristotle’s “Nicomachean Ethics” (Brill, Leiden, 2010) 109–16.

11 R Teitel and R Howse, ‘Cross-Judging: Tribunalization in a Fragmented but Interconnected Global Order’ (2009) 41 NYU Journal of International Law and Politics 959, 961.

12 A Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 8; Y Shany, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’ (2012) 106 American Journal of International Law 225, 226; Bellinger (n 4) 2; B Kingsbury, ‘Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?’ (1999) 31 NYU Journal of International Law and Politics 679, 688.

13 Broomhall (n 4) 53.

14 S Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331, 355–6.

15 E-U Petersmann, ‘How to Promote the International Rule of Law? Contributions by the World Trade Organization Appellate Review System’ (1998) 1 Journal of International Economic Law 25, 31. See also D Evans and GC Shaffer, ‘Introduction’ in GC Shaffer and R Meléndez-Ortiz (eds), Dispute Settlement at the WTO: The Developing Countries Experience (Cambridge University Press, Cambridge, 2010) 1, 2 (referring to the WTO DSS as ‘a system designed to provide for the rule of law’).

16 Ibid.

17 Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401.

18 Evans and Shaffer (n 15) 1–2. The view of the legalised DSS as primarily an enforcement mechanism whose key goal is inducing compliance with WTO rules is prevalent in current literature. See e.g. P Eeckhout, ‘Remedies and Compliance’ in D Bethlehem et al. (eds), The Oxford Handbook of International Trade Law, (Oxford University Press, Oxford, 2009) 437, 443; J Nzelibe, ‘The Case Against Reforming the WTO Enforcement Mechanism’ (2008) University of Illinois Law Review 319; CP Bown, ‘The Economics of Trade Disputes, The GATT’s Article XXIII, and the WTO’s Dispute Settlement Understanding’ (2002) 14 Economics and Politics 283, 284, 288–9 (addressing the emphasis placed in the literature on the DSS enforcement role, to the neglect of its role as a forum of conciliation and negotiation).

19 On the multiple roles and goals of the WTO DSS and their shifting nature see S Shlomo-Agon, Is It All about Compliance: Towards a Multidimensional Goal-Based Approach for Analyzing the Effectiveness of the WTO DSS (unpublished PhD dissertation, December 2013) 97–147.

20 Appellate Body Report, European Communities–Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (9 September 1997) (hereinafter EC–Bananas).

21 Until November 30 2009 the European Union was known officially in the WTO as the ‘European Communities’ (EC). The ‘European Union’ has become the official name in the WTO upon the entry into force of the Treaty of Lisbon on 1 December 2009.

22 H Ruiz-Fabri, ‘The Relationship between Negotiations and Third-Party Dispute Settlement at the WTO, with an Emphasis on the EC-Bananas Dispute’ in L Boisson de Chazournes et al. (eds), Diplomatic and Judicial Means of Dispute Settlement (Martinus Nijhoff, Leiden, 2013) 87, 89.

23 These interviews form part of a broad series of semi-structured interviews conducted by the author, mainly in Geneva, in 2012. The present paper draws on 15 of these interviews. The interviews lasted an average of one hour and were conducted with well-placed WTO professionals, among them: AB members, panellists, senior and mid-level staff members of the WTO Secretariat, WTO ambassadors, legal counsel in trade delegations, and lawyers in private law firms and the Advisory Center on WTO Law (ACWL). For reasons of anonymity, the interviewees are cited throughout this work with generic references, such as ‘EU official’ or ‘WTO legal officer’.

24 HR Clark, ‘The WTO Banana Dispute Settlement and its Implications for Trade Relations between the United States and the European Union’ (2002) 35 Cornell International Law Journal 291, 301; K Buterbaugh and R Fulton, The WTO Primer: Tracing Trade’s Visible Hand through Case Studies (Palgrave Macmillan, New York, NY, 2007) 93–4, 102.

25 The first dispute was filed as a means of pressure on the EU while negotiations on the common banana regime were still underway. This dispute challenged the GATT-consistency of the various national banana policies existing in Europe at that time. See Report of the Panel, EEC–Members States Import Regime for Bananas, DS32/R (3 June 1993). The second dispute directly challenged the common EU banana regime. See Report of the Panel, EEC–Import Regime for Bananas, DS/38/R (11 February 1994).

26 On the diplomatic origin of the GATT and its DSS see e.g. J Jackson, ‘The Case of the World Trade Organization’ (2008) 84 International Affairs 437; RE Hudec, ‘The New Dispute Settlement Procedure: An Overview of the First Three Years’ (1999) 8 Minnesota Journal of Global Trade 1; RE Hudec Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Butterworth Legal Publishers, Salem, NH, 1993).

27 Under the WTO DSS ‘reverse consensus’ rule a penal/AB report is to be adopted unless there is a consensus of all WTO Members (including the winning party) against its adoption. The ‘reverse consensus’ thus makes the adoption of panel/AB reports in the WTO quasi-automatic.

28 Interview with WTO legal officer (10 July 2012).

29 E Guth, ‘The End of the Bananas Saga’ (2012) 46 Journal of World Trade 1, 6–7.

30 For an elaborate discussion of the various complicating factors that rendered EC–Bananas a ‘perennial’ dispute see Shlomo-Agon (n 19) 263–71.

31 Interview with former EU official (9 July 2012); see also interview with Ecuadorian official (17 July 2012) (‘[I]t was very difficult to find a solution because of the linkages between the ACPs as the former colonies with the European Union, and all the preferences that were being granted to them, so it was a very sensitive issue in that regard, and I think that made things even more complicated than what they were already’).

32 Interview with WTO practitioner (11 July 2012).

33 H Hauser and A Roitinger, ‘Renegotiation in Transatlantic Trade Disputes’ in E-U Petersmann and MA Pollack (eds), Transatlantic Economic Disputes: The EU, the US, and the WTO (Oxford University Press, Oxford, 2003) [hereinafter Transatlantic Economic Disputes] 487, 503.

34 KJ Alter and S Meunier, ‘Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute’ (2006) 13 Journal of European Public Policy 362.

35 Ibid, 374; Buterbaugh and Fulton (n 24) 102.

36 JF Colares, ‘The Limits of WTO Adjudication: Is Compliance the Problem’ (2011) 14 Journal of International Economic Law 403, 428.

37 Interview with WTO practitioner (19 April 2012) (noting that ‘the main reason why the European authorities decided to maintain’ the discriminatory banana import system was their belief that in this way they were ‘paying back’ to the former colonies the things that they ‘took away from them’ as colonisers); interview with WTO official (5 July 2012).

38 Interview with former official of Guatemala (24 July 2012) (alternations added).

39 Buterbaugh and Fulton (n 24) 93–4; T Josling and T Taylor, ‘Introduction’ in TE Josling and TG Taylor (eds), Banana Wars: The Anatomy of a Trade Dispute (CABI Publishing, Cambridge MA, 2003) [hereinafter Banana Wars] 1, 2.

40 Interview with ACWL lawyer (27 July 2012).

41 Interview with WTO legal officer (10 July 2012).

42 The EU-Latin American countries agreement entered into force on 1 May 2012, available at <http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=8501&back=8502> accessed 21 January 2016. The EU–US agreement entered into force on 24 January 2013, available at <http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=8502&back=8501> accessed 21 January 2016.

43 Note that in order to bring the preferential trade arrangements for the ACP countries under the auspices of the FTAs exception of GATT Article XXIV, the EU indeed launched in 2003 the Economic Partnership Agreements (EPAs) negotiations with groups of ACP states. Yet, due to the reluctance of the latter to substitute their unilateral trade preferences from the EU with reciprocal trade commitments under the EPAs, as required by GATT Article XXIV, at the time of writing, most of the EPAs have not yet been completed. See European Commission, ‘Overview of EPAs Negotiations’ (2016) <http://ec.europa.eu/trade/policy/countries-and-regions/development/economic-partnerships/> accessed 6 April 2016. As noted by Guth, in order to terminate the remaining gap of EU-non-compliance in EC–Bananas and bring banana imports from the ACP countries into full conformity with WTO rules, it is necessary that all EPAs will be signed and implemented. Guth (n 29) 8.

44 Interviews with WTO practitioners indeed reveal general satisfaction among governments and the private sector with the mutually agreed solution achieved in EC–Bananas. See interview with Ecuadorian official (17 July 2012); interview with former WTO ambassador (23 July 2012); interview with EU official (9 July 2012); interview with senior WTO official (23 March 2012); interview with ACWL lawyer (19 April 2012).

45 C Carmody, ‘A Theory of WTO Law’ (2008) 11 Journal on International Economic Law 527, 532.

46 See e.g. BL Brimeyer, ‘Banana, Beef, and Compliance in the World Trade Organization: The Inability of the WTO Dispute Settlement Process to Achieve Compliance from Superpower Nations’ (2001) 10 Minnesota Journal of Global Trade 133; KJ Alter, ‘Resolving or Exacerbating Disputes? The WTO’s New Dispute Resolution System’ (2003) 79 International Affairs 783; WJ Davey, ‘Compliance Problems in WTO Dispute Settlement’ (2009) 42 Cornell International Law Journal 119, 120; ML Busch and E Reinhardt, ‘Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement’ in Transatlantic Economic Disputes (n 33) 465, 475–9; PC Mavroidis, ‘The Trade Disputes Concerning Health Policy between the EC and the US’ in Transatlantic Economic Disputes (n 33) 233, 244–5.

47 J Smith, ‘Inequality in International Trade? Developing Countries and Institutional Change in WTO Dispute Settlement’ (2004) 11 Review of International Political Economy 542, 548.

48 Footer (n 7) 94.

49 M Bronckers and F Baetens, ‘Reconsidering Financial Remedies in WTO Dispute Settlement’ (2013) Journal of International Economic Law 281, 303; M Bronckers and N van den Broek, ‘Financial Compensation in the WTO: Improving the Remedies of WTO Dispute Settlement’ (2005) 8 Journal of International Economic Law 101, 106.

50 For an elaborate discussion of this role see Shlomo-Agon (n 19) 271–91.

51 For relevant writing on the function of the WTO DSS and other international courts as a means to facilitate dispute settlement through information-dissemination, construction of focal points, and stimulation of renegotiations see Guzman (n 4) 180–3; M Gilligan, L Johns and P Rosendorff, ‘Strengthening International Courts and the Early Settlement of Disputes’ (2010) 54 Journal of Conflict Resolution 5, 10–11; T Ginsburg and RH McAdams, ‘Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution’ (2004) 45 William & Mary Law Review 1229; J Linarelli, ‘The Role of Dispute Settlement in World Trade Law: Some Lessons from the Kodak-Fuji Dispute’ (2000) 31 Law and Policy in International Business 263, 335. For similar ideas regarding courts more generally see J Scott and SP Sturm, ‘Courts as Catalysts: Rethinking the Judicial Role in New Governance’ (2007) 13 Columbia Journal of European Law 565.

52 Interview with former EU official (9 July 2012).

53 Interview with member of the AB Secretariat (4 July 2012).

54 Interview with WTO legal officer (16 March 2012) (alternations added).

55 Note that absent retrospective remedies in the WTO DSS, respondents can violate WTO rules without fear of sanctions for the duration of the dispute settlement process and until retaliation is at hand. This situation allows recalcitrant Members to use the dispute settlement process to ‘buy time’ and prolong the application of their WTO-inconsistent policies. See M Wu, ‘Rethinking the Temporary Breach Puzzle: A Window on the Future of International Trade Conflicts’ (2015) 40 Yale Journal of International Law 95, 98, 101–7; Bronckers and Baetens (n 49); R Brewster, ‘The Remedy Gap: Institutional Design, Retaliation, and Trade Law Enforcement’ (2011) 80 George Washington Law Review 102.

56 Hauser and Roitinger (n 33) 504. Note that precisely in order to assure the EU ability to negotiate a solution – other than withdrawing a measure found by the DSS to violate WTO law – the ECJ has consistently denied ‘direct effect’ to WTO rulings and rules, including in the context of EC–Bananas. That is, the ECJ has denied the possibility of individuals and EU Members to challenge the validity of EU measures through an appeal to WTO law or legal rulings. See Case C-149/96, Portuguese Republic v. Council 1999 E.C.R. I–8395, paras 38–46; M Bronckers, ‘From “Direct Effect” to “Muted Dialogue”: Recent Developments in the European Courts’ Case Law on WTO and Beyond’ (2008) 11 Journal of International Economic Law 885; S Griller, ‘Judicial Enforceability of WTO Law in the European Union: Annotation to Case C-149/96, Portugal v. Council’ (2000) 3 Journal of International Economic Law 441.

57 Interview with former EU official (9 July 2012) (alternations added). A lawyer representing the ACP countries in EC–Bananas similarly stressed the ‘very tangible pressure’ exercised by the DSS on the EU in this case, the inability of the EU to refuse taking actions concerning its banana regime in the face of the adverse DSS rulings, and the major DSS contribution to ‘bending’ the EU ‘negotiating positions’ in the talks on the amended EU tariffs for banana imports. Interview with private attorney (19 July 2012).

58 Interview with US official (17 July 2012) (alternation added).

59 Hauser and Roitinger (n 33) 504.

60 Ibid.

61 Interview with former WTO ambassador (23 July 2012) (alternation added); interview with former official of Guatemala (24 July 2012) (noting that ‘even though there was no compliance in terms of the dispute settlement mechanism’ in EC–Bananas, the DSS ‘was an important element conducive to the negotiations that ended in the Geneva Agreement’).

62 Hauser and Roitinger (n 33) 504 (alternation added).

63 Interview with Ecuadorian official (17 July 2012). On Ecuador’s strategic use of the WTO DSS in EC–Bananas see Smith, JM, ‘Compliance Bargaining in the WTO: Ecuador and the Bananas Dispute’ in Odell, JS (ed), Negotiating Trade: Developing Countries in the WTO and NAFTA (Cambridge University Press, Cambridge, 2006) 257.CrossRefGoogle Scholar

64 Interview with former official of Guatemala (24 July 2012) (alternation added); interview with former WTO ambassador (23 July 2012).

65 Interview with WTO legal officer (10 July 2012) (alternation added).

66 Ibid.

67 Ibid.

68 See Decision by the Arbitrators, European Communities–Regime for the Importation, Sale and Distribution of Bananas, Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, para 2.13, WT/DS27/ARB (9 April 1999). In this DSU Article 22.6 arbitration between the EU and the US, the arbitrators chose to open their award by encouraging ‘the parties to continue in their efforts to reach a mutually acceptable solution to this matter promptly’, while noting that ‘the suspension of concessions is not in the economic interest of either of them’. The significance of this statement becomes all the more clear once one takes into account the rarity of such pronouncements in WTO judicial practice. Thus, Porges notes, although ‘[i]n theory, WTO panels may actively encourage settlement … in practice none do’. A Porges, ‘Settling WTO Disputes: What Do Litigation Models Tell Us?’ (2004) 19 Ohio State Journal on Dispute Resolution 141, 167.

69 J Pelzman and A Shoham, ‘WTO DSU-Enforcement Issues’ in H Beladi and KE Choi (eds), Trade Disputes and the Dispute Settlement Understanding of the WTO: An Interdisciplinary Assessment (Emerald Group Publishing, Bingley, 2009) 369, 376–7.

70 Panel Report, European Communities–Regime for the Importation, Sale and Distribution of Bananas, Recourse to Article 21.5 of the DSU by Ecuador, para 6.154, WT/DS27/RW/ECU (12 April 1999).

71 Ibid, paras 6.154–6.158.

72 Ibid, para 6.164.

73 T Josling, ‘Bananas and the WTO: Testing the New Dispute Settlement Process’ in Banana Wars (n 39) 169, 190.

74 Interview with WTO legal officer (16 March 2012) (alternations added).

75 On this tension between the DSS functions see Pelzman and Shoham (n 69) 377; C Carmody, ‘Remedies and Conformity under the WTO Agreement’ (2002) 5 Journal of International Economic Law 307, 322.

76 On the injustices associated with such a ‘buy-out’ possibility in the WTO DSS context see JH Jackson, ‘International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to ‘‘Buy Out’’?’ (2004) 98 American Journal of International Law 109, 117–8, 120–1.

77 In a somewhat similar spirit, Petersmann has noted: ‘In terms of Aristotelian distinction between ‘‘general principles of justice’’ (like liberty, equality, fair procedures, promotion of general consumer welfare) and particular principles of justice requiring adjustments depending on particular circumstances, WTO rule-making and WTO dispute settlement procedures can also contribute to ‘‘corrective justice’’ and ‘‘reciprocal justice’’, just as the special, differential and non-reciprocal treatment of less-developed WTO Members in numerous WTO provisions may contribute to ‘‘distributive justice’’.’ E-U Petersmann, ‘Multilevel Juridical Governance of International Trade Requires a Common Conception of Rule of Law and Justice’ (2007) 10 Journal of International Economic Law 529, 534.

78 Distributive justice is concerned with the ways in which benefits and burdens are shared among members of a society/community. C Armstrong, Global Distributive Justice: An Introduction (Cambridge University Press, Cambridge, 2012) 15–16. Note that while the concept of distributive justice as such has not been the subject of much academic inquiry in the context of the WTO DSS, the more general question of the relation between international trade and global distributive justice has attracted growing research attention in recent years. See e.g. ibid, 162–87; FJ Garcia, Global Justice and International Economic Law (Cambridge University Press, New York, NY, 2013); M Risse, On Global Justice (Princeton University Press, Princeton, NJ, 2012) 346–60.

79 Note that the new EU tariff rates for banana imports negotiated between the EU and the Latin American countries under the Geneva Agreement were incorporated into the EU’s WTO tariff schedules. Consequently, the new EU tariffs apply on an MFN basis, so that the redistributive outcome produced in EC–Bananas essentially extends to the entire WTO Membership.

80 A somewhat similar discussion may be found in Franck’s discussion of the ICJ 1969 North Sea Continental Shelf cases. See TM Franck, Fairness in International Law and Institutions (Oxford University Press, New York, NY, 1998) 61–3.

81 On corrective justice as applicable to private interests in bilateral contractual relationships and the remedy of compensation accompanying this justice conception see C Carmody, ‘WTO Obligations as Collective’ (2006) 17 European Journal of International Law 419, 423; Winthrop (n 10) 1024.

82 See e.g. Bronckers and van den Broek (n 49); J Pauwelyn, ‘Enforcement and Countermeasures in the WTO: Rules are Rules–Toward a More Collective Approach’ (2000) 94 American Journal of International Law 335, 346.

83 Carmody (n 81) 432. See also in this regard Carmody (n 45) 535.

84 Carmody (n 45) 532.

85 Carmody (n 81) 433.

86 Law Commission of Canada, ‘From Restorative Justice to Transformative Justice: Discussion Paper’ (1999) 42, available at <http://dalspace.library.dal.ca/bitstream/handle/10222/10289/Participatory%20Justice%20Discussion%20Paper%20EN.pdf?sequence=1> accessed 6 April 2016. The Discussion Paper begins with the notion of ‘restorative justice’ as it has been developed in the criminal justice system, and seeks to extend it, through the notion of ‘transformative justice’, to other fields of law.

87 Cf ibid, 27–8.

88 Carmody (n 45) 535.

89 Carmody (n 81) 434.

90 Franck (n 80) 7–9.

91 Ibid; May, L, Global Justice and Due Process (Cambridge University Press, Cambridge, 2010) 58–9.CrossRefGoogle Scholar

92 Franck (n 80) 7–8.

93 Ibid, 7.

94 May (n 91) 59.

95 Schneider (n 8) 128.

96 C Davis, ‘Do WTO Rules Create a Level Playing Field? Lessons from the Experience of Peru and Vietnam’ in JS Odell (ed), Negotiating Trade: Developing Countries in the WTO and NAFTA (Cambridge University Press, Cambridge, 2006) 219.