Copyright (c) 2007 Minnesota Journal of International LawMinnesota Journal of International LawWinter, 200716 Minn. J. Int'l L. 1LENGTH: 20115 wordsThe Robert E. Hudec Article on Global Trade: Choice of Jurisdiction in International Trade Disputes: Going Regional or Global?NAME: Rafael Leal-Arcas*BIO: * Lecturer in Law, Centre for Commercial Law Studies (Queen Mary, University of London, UK); Formerly, Visiting Researcher at the European Law Research Center (Harvard Law School) and Fellow at the Real Colegio Complutense (Harvard University); Emile Noel Fellow 2004-2005 at the Jean Monnet Center for International and Regional Economic Law and Justice (New York University School of Law); Visiting Scholar during the fall of 2003 at the Institute for Legal Studies (University of Wisconsin-Madison Law School). Ph.D. candidate, LL.M. (European University Institute, Florence, Italy); J.S.M. (Stanford Law School); LL.M. (Columbia Law School); M.Phil. (London School of Economics and Political Science); B.A., J.D. (Granada University, Spain). The author has formerly served in various capacities at: the World Trade Organization Secretariat (legal affairs division); The United States Court of International Trade (Chambers of Judge Pogue); European Court of Justice of the European Communities (Chambers of Advocate General Kokott); Court of First Instance of the European Communities (Chambers of Judge Lindh); Delegation of the European Commission to the United Nations; United Nations Secretariat (economic and social council); European Commission Secretariat-General (forward studies unit); Council of Ministers of the European Union (legal service's external relations team); European Parliament Secretariat (Directorate-General for research). The author has previously taught at the National Law School of India University (Bangalore, India), where he was POROS Chair in European Union law, and the Law School of the Universidade Federal Minas Gerais (Belo Horizonte, Brazil). The author is most grateful to Professors Angel Sainz-Badillos and David Kennedy for their generosity in providing him with excellent means for work while he was at the Real Colegio Complutense of Harvard University.SUMMARY:... The General Agreement on Tariffs and Trade (GATT), reformulated and institutionalized as the World Trade Organization (WTO) in 1994, has provided much of the framework through which international trade has flourished for over fifty years. ... The WTO Dispute Settlement system has its roots in the 1947 General Agreement on Tariffs and Trade (GATT), which provided a procedural platform for dispute settlement and established guiding principles for periodic multilateral negotiations on a product-by-product basis. ... And, finally, if any of the disputing parties believe that the level of benefits suspended is "manifestly excessive," the party has the right to request the Commission to establish a panel which needs to present its determination within sixty days after the last panelist is selected or by which time the parties stipulate. ... Thus, Mexican trade officials indicated that "Mexico would not seek to retaliate right away if the U.S. did not bring itself into full compliance with the panel's findingafter 30 days, as would be [Mexico's] right under NAFTA dispute settlement procedures. ... Second, apart from the good faith requirement, the ambiguous nature of the thirty days for implementation could also be advantageous to the losing party. ... If the dollar amounts are very high, the WTO might be the better forum, while in the NAFTA, retaliation measures arecapped by WTO obligations. ... TEXT: [*2] INTRODUCTIONThe General Agreement on Tariffs and Trade (GATT), n1 reformulated and institutionalized as the World Trade Organization (WTO) n2 in 1994, has provided much of the [*3] framework through which international trade has flourished for over fifty years. The post-war philosophyof trade liberalization has also paved the way to the creation of regional trade agreements. n3Regional and multilateral n4 trade arrangements have [*4] promoted this growth in trade with the creation of institutions and procedures, particularly dispute settlement systems, through which signatories can ensure and enforce predictable and stable business environments for their citizens. During negotiations, state actors formulate institutions and structures within the agreements to enable the dispute settlement processes which may be most effective in resolving these disputes. The primary purpose of dispute settlement systems in international trade agreements is to "guarantee respect for the agreement(s), in responding to violations and legitimate expectations under such agreements." n5 The existence of rules, however, is not the only factor determining whether a dispute settlement system is effective.The political will, a calculus of the numerous domestic and international interests, of states to undertake the legal obligations of a trading system determines the effectiveness of the institutions created. Furthermore, although the political will of the states may support the institutional framework that has been negotiated, the political will to resolve any particular dispute determines whether and how it will be resolved. The available data thus seems to support Robert Hudec's proposition regarding the importance of political will in determining the effectiveness of international legal systems derived from the GATT experience. n6 He has stated that "political will is really more important than rigorously binding procedures - that strong procedures by themselves are not likely to make a legal system very effective if they do not have sufficient political will behind them." n7The importance of political will to the effectiveness of the dispute settlement rules of the WTO and Chapter 20 of the North American Free Trade Agreement (NAFTA) n8 will be [*5] examined in this article. n9 In the WTO, where the dispute settlement procedures appear to be rule-oriented, n10 as displayed in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), n11 there has been an effective compliance record overall. However, in politically sensitive cases, compliance has been slow or nonexistent, and there has [*6] been a growing use of Article 21.5 n12 Panels. n13 The NAFTA Chapter 20, the sole government-to-government dispute settlement mechanism in the NAFTA, is geared to bilateral, negotiated resolutions, as
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