Institutional Structure, Dispute Resolution, and Conclusion

• Author: Jon R. Johnson
• Pages: 277-306

CHAPTER

1

0

INSTITUTIONAL

STRUCTURE,

DISPUTE

RESOLUTION,

AND

CONCLUSION

This chapter will briefly

describe

the

institutional

structures

of the

trade

agreements

to

which Canada

is a

party

and the

general dispute settle-

ment procedures available

for the

resolution

of

disputes.

The

chapter

will then describe

the

investor-state dispute settlement procedures pro-

vided

for in

NAFTA

and

CCFTA

that

may be

invoked

by

investors

who

have

suffered

damage

as a

result

of a

breach

of the

investment provi-

sions

of

these agreements.

A.

INSTITUTIONAL STRUCTURE

Institutional structures

under

international

agreements range

from

no

structure

at all to

complex

and

intrusive supranational institutions that

have

direct authority over

the

conduct

of

prescribed matters within

member countries. While

the WTO

Agreement,

NAFTA,

CCFTA,

and

CIFTA

all

establish institutional structures, none

of

these agreements

create

supranational institutions along

the

lines

of the

European Union.

1) WTO

Agreement

The WTO

Agreement

established

the

World Trade Organization

(WTO),

an

international body with

a

legal personality headquartered

in

Geneva.

Its

principal

functions

are to:

277

facilitate

the

implementation, administration,

and

operation

of the

WTO

agreements;

provide

the

forum

for

negotiations among members concerning

their

multilateral trade relations;

and

administer

the

Understanding

on

Rules

and

Procedures

Governing

the

Settlement

of

Disputes

(Dispute

Settlement

Understa

nding

or

DSU).1

a)

Structure

The WTO

consists

of a

Ministerial Conference

composed

of

represen-

tatives

of the

members

who

meet every

two

years. There

is

also

a

Gen-

eral Council made

up of

representatives

of the

members,

as

well

as:

a

Council

for

Trade

in

Goods

to

oversee

the

functioning

of

GATT

1994

and the

other Multilateral Trade Agreements

in

Annex

1A

of the

WTO

Agreement;

a

Council

for

Trade

in

Services

to

oversee

the

functioning

of the

GATS;

a

Council

for

Trade-Related Aspects

of

Intellectual Property

to

over-

see the

TRIPS

Agreement.2

The

Ministerial Conference

is

also directed

by the WTO

Agreement

to

establish

a

Committee

on

Trade

and

Development,

a

Committee

on

Balance

of

Payments,

and a

Committee

on

Budget, Finance,

and

Admin-

istration.

These

committees

are to

carry

out

various functions

that

are

assigned

to

them.3

The

Multilateral Agreements also establish commit-

tees covering

the

specific subject matter

of the

agreement. Accordingly,

there

is a

Committee

on

Agriculture,4

a

Committee

on

Sanitary

and

Phy-

tosanitary

Measures,5

a

Textile Monitoring Body

(TMB),6

a

Committee

on

Technical Barriers

to

Trade,7

a

Committee

on

Trade-Related Invest-

1

Agreement

Creating

the

World

Trade

Organization,

15

April 1994 (Dobbs Ferry, N.Y.:

Oceana Publications, 1997) [WTO

Agreement],

art. III.

The WTO

also administers

the

Trade Policy Review Mechanism

discussed

in

chapter

1.

2 WTO

Agreement,

ibid.,

art.

IV,

para.

5.

3

Ibid.,

art.

IV,

para.

7.

4

Article

17

of the

Agreement

on

Agriculture,

set out in

Annex

1A

of the WTO

Agreement,

above note

1

[Agriculture

Agreement].

5

Paragraph

1 of

art.

12

of the

Agreement

on the

Application

of

Sanitary

and

Phytosanitary

Measures,

set out in

Annex

1A of the WTO

Agreement, ibid.

[SPS

Agreement].

6

Article

8 of the

Agreement

on

Textiles

and

Clothing,

set out in

Annex

1A of the WTO

Agreement,

ibid.

[Textile

Agreement].

7

Article

13 of the

Agreement

on

Technical

Barriers

to

Trade,

set out in

Annex

1A

of

the WTO

Agreement,

ibid.

[TBT

Agreement].

INTERNATIONAL

TRADE

LAW

278