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The Creation of the Multilateral Trade Court: Design and Experiential Learning

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  • ELSIG, MANFRED
  • ECKHARDT, JAPPE

Abstract

The creation of the World Trade Organization (WTO)'s dispute settlement system (DSS) in 1995 remains one of the most puzzling outcomes in international politics and international law in the 1990s. We provide a new explanation for this move to law. We argue that important contextual variables of the negotiations have been largely overlooked by existing explanations, namely ‘experiential learning’. While negotiations to create institutions are characterized by uncertainty about distributional effects, negotiators will look for clues that moderate uncertainty. In the context of the Uruguay Round negotiations, a significant amount of information was drawn from actual practice and experience with the existing General Agreement on Tariffs and Trade (GATT) dispute settlement system. In short, experience gained with judicial institutions and outcomes is important to understand the key results of the negotiations: a legalization leap, more specifically a judicialization of the existing dispute settlement system. We focus on the two dominant actors in the negotiations (the United States and the (then) European Community) and provide evidence for our argument based on an analysis of GATT cases in the 1980s, GATT documents, and in-depth interviews with negotiators who participated in the negotiations.

Suggested Citation

  • Elsig, Manfred & Eckhardt, Jappe, 2015. "The Creation of the Multilateral Trade Court: Design and Experiential Learning," World Trade Review, Cambridge University Press, vol. 14(S1), pages 13-32, July.
  • Handle: RePEc:cup:wotrrv:v:14:y:2015:i:s1:p:s13-s32_00
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    Cited by:

    1. Rodrigo Fagundes Cezar, 2022. "The Intricacies of Firms’ Support for Labor Provisions in US Trade Agreements," Global Policy, London School of Economics and Political Science, vol. 13(4), pages 483-494, September.
    2. Todd Allee & Manfred Elsig, 2016. "Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements," The Review of International Organizations, Springer, vol. 11(1), pages 89-120, March.
    3. Johann Robert Basedow, 2022. "Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms," Regulation & Governance, John Wiley & Sons, vol. 16(4), pages 1362-1381, October.
    4. Elsig, Manfred & Ganeson, Kirthana & Jusoh, Sufian & Lugg, Andrew, 2024. "Why is there no investor-state dispute settlement in RCEP? Bargaining and Contestation in the Investment Regime," Papers 1436, World Trade Institute.
    5. Manfred Elsig & Bernard M. Hoekman & Joost Pauwelyn, 2016. "Thinking about the performance of the World Trade Organization: A discussion across disciplines," RSCAS Working Papers 2016/13, European University Institute.

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