The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Article 6 of the SPS Agreement presents a series of interlinked obligations for importing and exporting countries of diseased agricultural products. The Russia–Pigs dispute raises the question of when an importing country is justified in imposing a ban on products from exporting countries unaffected by the disease, on the basis of the fact that the country is part of the same customs union as another country inflicted with the disease. This Article contends that four distinct classes of cross-border and cross-product externalities ought to play an important role when assessing this question in the future. It discusses the possible roles to be played by bilateral, sequential, pass-through, and supply chain externalities in propagating the transmission of agricultural disease across borders through trade.

This paper examines two disputes brought by the United States and New Zealand in response to a series of import sanctions for agricultural products imposed by the Indonesian government to promote food self-sufficiency. We document the heterogeneous effect the sanctioning measures had on Indonesia's partners. We argue that Indonesia's import licensing regimes acted as a high, sometimes prohibitive, fixed cost of exporting. Frequent changes of regulation provided additional challenges and increased the costs of exporting. These properties determined the differential impacts of Indonesia's measures where some sustained significant market losses while other large exporters, in particular Australia, following a short decline strengthened their market position and export levels.

This paper analyzes the dispute Indonesia – Measures Concerning the Importation of Chicken Meat and Chicken Products from a legal-economic perspective. We evaluate alternative explanations for the motive behind Indonesia's import restrictions and conclude that they can be linked to protectionist political-economic motives and are most likely due to a self-sufficiency objective and the legal requirements attached to it. Economically, the import restrictions on chicken and other food products have led to substantial price volatility, and they impose costs on Indonesian consumers and small farmers who are net buyers of food, firms that import certain raw materials, as well as foreign exporters. Therefore, by making food more expensive and less accessible, they could reduce food security. We also argue that an additional issue with the goal of self-sufficiency in Indonesia is lack of comparative advantage in some food items, including chicken meat and chicken products. Legally, although the Panel highlighted that self-sufficiency is a legitimate policy objective that as such does not lead to a violation of WTO law, the Indonesia–Chicken case leads to the question of whether, in practice, it is feasible to implement a self-sufficiency target resorting only to WTO-compliant policies. Finally, we discuss potential alternative economic policies and examine whether Indonesia could have attained its food self-sufficiency objective in a WTO-consistent manner.

The EU–Fatty Alcohols decision of the Appellate Body addressed an important issue of the scope of permissible adjustments under Article 2.4 of the Agreement on Interpretation of Article VI of the GATT 1994, focusing on the ‘mark-up’ paid by an Indonesian exporter to a related company as a difference affecting price comparability between the export price and the normal value. The Appellate Body confirmed that the primary focus of the investigating authority's assessment is on whether the relationship between related companies can be demonstrated to be a factor that impacts the prices of the relevant transactions. This case raises the question of whether a harmonized approach to transfer pricing across different regulatory areas would be useful to bring greater consistency of treatment and certainty to international transactions.

In April 2017, a WTO panel ruled that China's anti-dumping investigation into imports of dissolving cellulose pulp from Canada violated the WTO's Anti-dumping Agreement. The panel found that China's description of the parallel price trends of dumped imports and domestic products failed to explain their finding that the dumped imports caused the decline in domestic prices. The ruling perhaps should not have surprised anyone as the WTO had made similar findings in disputes involving two previous Chinese anti-dumping investigations. This paper explores to what degree ‘parallel price trends’ can be used as a valid methodology to determine price depression, and whether it is the methodology itself that is problematic or China's implementation of that methodology that has caused it to lose three disputes over the past five years.

The WTO Appellate Body report United States – Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China is yet another in a long line of disputes involving US Department of Commerce's dumping margin calculation methodologies. The AB ruled against the United States on three important aspects: (1) the use of the Nails test to rationalize the exceptional method in Article 2.4.2 of the Anti-Dumping Agreement so as to justify using the weighted average-to-transaction methodology in dumping margin calculations; (2) the treatment of multiple companies in a non-market economy as a single NME-wide entity; and (3) the USDOC's policy of using adverse facts available for such an entity. Yet, some aspects of the AB's decision – most notably affirming the use of average prices – significantly weaken Article 2.4.2's pattern requirement and potentially open the door to greater use of the exceptional method.

This paper critiques a Panel ruling that was permissive in allowing the EU to exclude China from the renegotiations of several tariff lines of poultry meat and the related allocation of new tariff-rate quotas (TRQs). The EU's basis for exclusion was that China lacked a principal or substantial supplying interest in the modified tariff lines. The Panel's ruling supported China for only two tariff lines in which China eventually served 50% of the EU market after certain SPS measures expired, on the narrow basis that this import increase should have been considered a special factor in the TRQ allocation. The paper argues that the Panel ruled too narrowly by disregarding China's broader claims for a principal or substantial supplying interest. An interpretation consistent with the object and purpose of the GATT supports utilizing a broader set of evidence in China's claim as a principal or substantial supplier for renegotiations of tariff schedules. Allowing nations to use TRQs to prevent emerging markets from achieving a substantial supplying interest is a significant obstacle to the WTO's purpose. The Panel's ruling will be important for future TRQ renegotiations, such as those that would be necessary under Brexit.

This paper analyzes the most recent WTO Appellate Body (AB) report in a series of disputes between the US and the EU over government support to aircraft manufacturers Boeing and Airbus. The measures under dispute in US–Tax Incentives were investment promotion subsidies provided to Boeing by the State of Washington. The EU contended that the Washington State subsidies, which were conditioned on Boeing locating production of specific parts of its new 777X program within the state, were prohibited import substitution subsidies. The AB took this case as an opportunity to consolidate WTO case-law on import substitution subsidies. It confirmed a single legal standard for export promotion and import substitution subsidies but with a stricter requirement for a finding of a violation in the case of import substitution subsidies. We argue that the AB, in allowing the subsidies to Boeing, unnecessarily blurred the distinction between contingency in law and contingency in fact by ruling that identifying a condition requiring the use of domestic inputs would be a necessary element for a determination of a de facto contingency. This appears to be an unduly formalistic view that leaves little legal space for any de facto contingency claim in the future.