On 1 January 1995, the WTO and its new and sophisticated dispute settlement system entered into force. We have thus already entered the twenty-first year of its life. Although the number of disputes has dropped somewhat over the last decade, there is no sign of weakening. Indeed, during 2015, the year we discuss in this volume, the WTO adjudicating bodies issued 16 reports, including three reports discussing the extent of the reasonable period of time.

In December 2012, Japan requested the establishment of a World Trade Organization (WTO) Panel regarding antidumping (AD) duties that China had imposed on high-performance stainless steel seamless tubes (HP-SSST). The European Union joined as a complainant in June 2013. To some degree, this dispute follows earlier ones involving China, as similar procedural and substantial issues were raised in previous cases. However, this was the first time that the WTO Panel rejected some important claims, only for those decisions to be reversed by the Appellate Body. Now that various rulings have clarified these legal issues, it remains to be seen if HP-SSST represents the last part of growing pains for Chinese authorities to learn about AD legal procedures.

This article explores the idea that the USDOC imposed anti-dumping duties on Vietnamese shrimp producers despite the fact that the surge of shrimp imports giving rise to the duties may have come from elsewhere in the developing world. We argue that Vietnam's shrimp exporters may have been subject to anti-dumping duties because Vietnam has ‘non-market economy’ (NME) status in the United States. This makes it possible to levy higher duties against Vietnamese firms. We make the point that it was particularly inappropriate to impose anti-dumping duties against the Vietnamese shrimp industry because this industry shows clear indications of being perfectly competitive, whereby firms cannot dump. This in turn raises the question of how the USDOC was able to construct a dumping case where apparently none could have existed. Use of the ‘zeroing’ methodology, in conjunction with Vietnam's NME status, turns out to be central to the answer. The broader issue is that anti-dumping duties are overused where safeguards would be more efficient. The analysis is relevant for the current controversy over China's NME status with a number of its trading partners.

This dispute concerns the measures China took to implement the Dispute Settlement Body's rulings in China–GOES, which had found a number of violations with respect to China's antidumping and countervailing duties imposed on grain oriented flat-rolled electrical steel (GOES) imported from the United States. In this compliance proceeding, the United States claimed that the Redetermination issued by China's Ministry of Commerce (MOFCOM) continued to violate WTO law. At the center of the dispute were MOFCOM's findings that the US imports had the effect of suppressing and/or depressing the prices of domestic like products. While the Panel reached the conclusion that the MOFCOM findings were inconsistent with WTO rules, it did not clarify the criteria for determining such price effects. In this comment, we call for the adoption of a clearer and more objective standard for determining price suppression and price depression in antidumping and countervailing duty investigations, via the tools of economic modeling.

The Panel Report in Ukraine–Passenger Cars provides an opportunity to revisit an old debate over the role of safeguard measures in the WTO. With regard to the legal findings, the Panel followed the established jurisprudence in this area, and found a number of violations of the Safeguards Agreement. With regard to the economics, we delve more deeply into the economic and political background of the safeguards investigation. Ukraine was hit by the economic crisis shortly after its WTO accession that significantly liberalized import tariffs on passenger cars. Next, we offer a de novo look at the injury and causation issues in this case, and discuss the challenges of an industry reliant on offshored production that sees a safeguard as a mechanism to attract foreign direct investment (FDI) for production. We conclude with an assessment of the operation of the WTO's safeguards regime, along with some tentative suggestions for reform. Overall, our examination of the economic analysis by the investigating authority and the legal review by the WTO Panel raises questions about particular aspects of the domestic and WTO processes, but concludes that the system worked well in this case.

This paper provides a legal–economic assessment of the WTO Panel Report in US–Animals, one of a growing list of WTO disputes arising due to problematic conditions under which an importing country closes and reopens its market after an infectious disease outbreak in an exporting country. The United States banned imports of beef from Argentina following a 2000 Argentine outbreak of highly contagious foot-and-mouth disease (FMD), a disease not found in the United States since 1929. The United States refused to relax its import ban, and Argentina filed a WTO dispute in 2012, more than six years after its last FMD outbreak. Our analysis starts with Argentina's claim that the gap between its first requests, in 2002, to restore its trading rights and no action by the United States as of 2012 constituted ‘undue delay’. We rely on simple insights from economic research on asymmetric information problems – moral hazard and adverse selection – to describe the difficulties facing the World Organization for Animal Health (OIE) and the WTO's Sanitary and Phytosanitary (SPS) Agreement in dealing with problems like FMD. Such an environment creates disincentives for socially efficient behavior that were clearly realized in this episode. The exporting country has an incentive to hide information on outbreaks and report being disease-free too quickly, and the importing country has no incentive to quickly undertake the costly effort of conducting the necessary inspections to restore the exporter's market access. Finally, we address the Panel Report's treatment of alleged discrimination both across different FMD-impacted countries and across FMD-impacted and non-impacted geographic zones within Argentina, and we touch on the Report's shift in approach regarding the obligation of the United States to take into account the special needs of developing countries such as Argentina.

Trade in agricultural products raises sensitivities, particularly when imports originate from a trading partner experiencing an outbreak of some type of agricultural disease. In this article, we explain why despite the negative externalities associated with diseased imports, an importing country is generally not permitted to ban such imports outright under WTO law. Rather, it is allowed to do so only under specific circumstances. We also highlight how the recent India–Agricultural Products ruling contributes to the jurisprudence of two issues concerning the SPS Agreement: the interpretation of international standards, and the relationship between the risk assessment and scientific evidence requirements.

There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a ‘legitimate regulatory distinction’. In its recent compliance decision in the US–Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the US dolphin-safe tuna-labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB's application of the notion of risk-based regulation in the US–Tuna II dispute and finds the AB's reasoning lacking in coherence. Although risk analysis and calibration can in principle play useful roles in TBT cases, the AB needs to provide more explicit and careful guidance to WTO members and to panels to avoid the kind of ad hoc decision-making exhibited throughout the US–Tuna II dispute.

The dispute Argentina-Measures Affecting the Importation of Goods concerns a series of measures imposed by Argentine authorities on economic operators as a condition for obtaining import licenses. These measures were introduced with the goal of advancing the Argentine government's stated policies of re-industrialization, import substitution, and elimination of trade balance deficits. From a legal point of view, the least interesting feature of the dispute was the substantive compatibility of these measures with Article XI:1 GATT as they clearly constituted import restrictions. Identifying and classifying the measures involved, however, proved more challenging: based on vague policy guidelines, devoid of any legal basis, and consisting largely of wholly discretionary ad hoc action by the authorities, clouded in confidential obscurity, the measures escaped familiar categories and distinctions of WTO law. From an economic perspective, although Argentina's measures appear to have had no impact on its overall imports, they imposed large costs on foreign companies, as well as on Argentine importers and consumers.

This paper examines the World Trade Organization's Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach the stage of an arbitration report. Our legal–economic analysis focuses on several issues in the arbitration report. First, the complainants requested that, to compute the permissible retaliation limit, the arbitrators consider a new formula that would include the effects of domestic price suppression. We present a simple, economics-based model to explain the arbitrators’ rejection of this proposal. Second, we provide market context for the $1 billion finding. The arbitrators relied on the trade effects’ formula, which sets the retaliation limit as equivalent to the perceived loss of export revenue from the WTO violation. We argue that this amount was implausibly large, given the conditions in the US market for cattle and hogs during this period. We then describe the challenges facing arbitrators as they construct such estimates, including those likely to have arisen in this dispute.

The World Trade Organization (WTO) dispute settlement process allows a defending Member a ‘reasonable period of time’ (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period under the domestic legal system of the defending Member to make the changes necessary to comply with the WTO rulings. Our research confirms that in practice Arbitrators have determined this period by ‘splitting the difference’ approximately between the periods suggested by the complaining and defending Member. In addition, the process appears to reward defending Members that request an RPT that exceeds the 15-month guideline in Article 21.3(c).