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《国际政治经济学》文献资料（Political Economy of International Trade：International Influences）Overlapping institutions, forum shopping, and dispute settlement in international trade

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Overlapping Institutions,Forum Shopping,and Dispute Settlement in International Trade Marc L.Busch Abstract Preferential trade agreements offer members an alternative to dispute settlement at the World Trade Organization.This gives rise to forum shopping,in that complainants can file regionally,multilaterally,or not at all.What explains this choice of forum?I argue that complainants strategically discriminate among overlap- ping memberships:on a given measure(s),some prefer to set a precedent that bears only on a subset of their trade relations,others a precedent that bears on all their trade relations,while still others prefer not to set a precedent.Thus,the key to forum shopping is not simply which institution is likely to come closest to the complainant's ideal ruling against the defendant,but where the resulting precedent will be more useful in the future,enabling the complainant to bring litigation against other mem- bers,rather than helping other members bring litigation against the complainant.I consider disputes over Mexican brooms and Canadian periodicals. In 1996,Mexico challenged a U.S.safeguard measure under the provisions of the North American Free Trade Agreement (NAFTA).While few were surprised that Mexico filed this case,many were puzzled by Mexico's decision not to bring it, instead,to the World Trade Organization (WTO).Indeed,the case seemed better suited to the WTO since other members were affected,and because Mexico's argu- ments largely centered on issues of WTO law.At around the same time,the United States challenged Canadian measures on periodicals at the WTO.Although this case was widely anticipated,some thought the United States might bring it,instead, to NAFTA.2 After all,it seemed to be a strictly bilateral issue,and it might have For comments,I thank Vinod Aggarwal,Raj Bhala,Jane Bradley,Bill Davey,Rob Howse,Miles Kahler,Simon Lester,Rod Ludema,Ed Mansfield,Lisa Martin,Petros C.Mavroidis,John Odell,Joost Pauwelyn,Amy Porges,Eric Reinhardt,Peter Rosendorff,Ken Scheve,Ed Schwartz,Christina Sevilla, Michael Simon,Jay Smith,Debra Steger,Joel Trachtman,Todd Weiler,seminar participants in the Program on International Politics,Economics,and Security (PIPES)at the University of Chicago,and two anonymous referees.All shortcomings are,of course,my own.For research support,I thank the Canadian Institute for Advanced Research and the Social Science and Humanities Research Council of Canada.For research assistance,I thank Alex Muggah,Krzysztof Pelc,and Scott Winter. 1.See,for example,de Mestral 2005. 2.See,for example,Reif 2001. International Organization 61,Fall 2007,pp.735-61 2007 by The IO Foundation. D0L:10.1017/S0020818307070257

Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade Marc L+ Busch Abstract Preferential trade agreements offer members an alternative to dispute settlement at the World Trade Organization+ This gives rise to forum shopping, in that complainants can file regionally, multilaterally, or not at all+ What explains this choice of forum? I argue that complainants strategically discriminate among overlapping memberships: on a given measure~s!, some prefer to set a precedent that bears only on a subset of their trade relations, others a precedent that bears on all their trade relations, while still others prefer not to set a precedent+ Thus, the key to forum shopping is not simply which institution is likely to come closest to the complainant’s ideal ruling against the defendant, but where the resulting precedent will be more useful in the future, enabling the complainant to bring litigation against other members, rather than helping other members bring litigation against the complainant+ I consider disputes over Mexican brooms and Canadian periodicals+ In 1996, Mexico challenged a U+S+ safeguard measure under the provisions of the North American Free Trade Agreement ~NAFTA!+ While few were surprised that Mexico filed this case, many were puzzled by Mexico’s decision not to bring it, instead, to the World Trade Organization ~WTO!+ 1 Indeed, the case seemed better suited to the WTO since other members were affected, and because Mexico’s arguments largely centered on issues of WTO law+ At around the same time, the United States challenged Canadian measures on periodicals at the WTO+ Although this case was widely anticipated, some thought the United States might bring it, instead, to NAFTA+ 2 After all, it seemed to be a strictly bilateral issue, and it might have For comments, I thank Vinod Aggarwal, Raj Bhala, Jane Bradley, Bill Davey, Rob Howse, Miles Kahler, Simon Lester, Rod Ludema, Ed Mansfield, Lisa Martin, Petros C+ Mavroidis, John Odell, Joost Pauwelyn, Amy Porges, Eric Reinhardt, Peter Rosendorff, Ken Scheve, Ed Schwartz, Christina Sevilla, Michael Simon, Jay Smith, Debra Steger, Joel Trachtman, Todd Weiler, seminar participants in the Program on International Politics, Economics, and Security ~PIPES! at the University of Chicago, and two anonymous referees+ All shortcomings are, of course, my own+ For research support, I thank the Canadian Institute for Advanced Research and the Social Science and Humanities Research Council of Canada+ For research assistance, I thank Alex Muggah, Krzysztof Pelc, and Scott Winter+ 1+ See, for example, de Mestral 2005+ 2+ See, for example, Reif 2001+ International Organization 61, Fall 2007, pp+ 735–61 © 2007 by The IO Foundation+ DOI: 10+10170S0020818307070257

736 International Organization been easier for the United States to pursue remedies at NAFTA.Why,then,did Mexico and the United States defy expectations in choosing where to litigate these cases?More generally,how do members select among overlapping institutions in deciding which (if any)to petition in trying to resolve their conflicts?This prac- tice,which legal scholars call forum shopping,is a key part of any litigation strat- egy but has received little attention in international relations.3 This article advances a theory of forum shopping for dispute settlement in international trade. I argue that a complainant's choice of forum depends on whether it prefers to set a regional or multilateral precedent,or no precedent at all.Setting precedent means adding to an institution's body of case law concerning the obligation(s)in dispute.The incentive for a complainant to do this is that,in addition to curbing the defendant's protectionism,a precedent can facilitate future litigation,and encour- age more ex ante settlement,in relations with other members of the same institu- tion.The complainant must therefore be strategic about where it sets a precedent: while new case law can be used in litigation against other trade partners,it can also be used by these other trade partners to bring suits against the complainant. Forum shopping is thus about discriminating among overlapping memberships:a complainant may prefer that some precedents pertain only to members of a regional institution,others to members of the multilateral institution,and at times prefer not to set a precedent at all. Using a two-dimensional spatial model,I show that this decision depends on two variables:(1)the complainant's preference concerning the outcome of the dis- pute,which I define as being more or less "liberal,"or free-trade oriented,than the status quo policies of the defendant,other trade partners,and the likely ver- dicts of the regional and multilateral institutions;and(2)the complainant's expec- tation concerning the future value of the precedent set,by which I mean the likelihood that the complainant will use the resulting case law in future litigation against other members,more than other members will use it against the complain- ant.These variables combine to show that the complainant choice of forum is not simply a function of which institution is likely to come the closest to its ideal ruling against the defendant,but where the resulting precedent will be more use- ful,facilitating litigation against other members,as opposed to inviting litigation against itself.In particular,an illiberal complainant is more likely to file region- ally,and a liberal one multilaterally,even if they expect a more decisive legal victory over the defendant at the other institution.Yet,both will reverse their choice of forum if the expected value of future regional litigation is higher,an illiberal 3.Black's Law Dictionary defines forum shopping as "when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict."The importance of forum shopping in domestic litigation is discussed in Clermont and Eisen- berg 1995,while its importance in Canada-U.S.trade is discussed in Howse 1998. 4.Setting a precedent can encourage subsequent disputes to end in a negotiated settlement before the panel rules,or deter protectionist practices from arising in the first place.In other words,there is nothing about this argument that suggests that all later disputes will necessarily result in a legal verdict

been easier for the United States to pursue remedies at NAFTA+ Why, then, did Mexico and the United States defy expectations in choosing where to litigate these cases? More generally, how do members select among overlapping institutions in deciding which ~if any! to petition in trying to resolve their conflicts? This practice, which legal scholars call forum shopping, is a key part of any litigation strategy but has received little attention in international relations+ 3 This article advances a theory of forum shopping for dispute settlement in international trade+ I argue that a complainant’s choice of forum depends on whether it prefers to set a regional or multilateral precedent, or no precedent at all+ Setting precedent means adding to an institution’s body of case law concerning the obligation~s! in dispute+ The incentive for a complainant to do this is that, in addition to curbing the defendant’s protectionism, a precedent can facilitate future litigation, and encourage more ex ante settlement, 4 in relations with other members of the same institution+ The complainant must therefore be strategic about where it sets a precedent: while new case law can be used in litigation against other trade partners, it can also be used by these other trade partners to bring suits against the complainant+ Forum shopping is thus about discriminating among overlapping memberships: a complainant may prefer that some precedents pertain only to members of a regional institution, others to members of the multilateral institution, and at times prefer not to set a precedent at all+ Using a two-dimensional spatial model, I show that this decision depends on two variables: ~1! the complainant’s preference concerning the outcome of the dispute, which I define as being more or less “liberal,” or free-trade oriented, than the status quo policies of the defendant, other trade partners, and the likely verdicts of the regional and multilateral institutions; and ~2! the complainant’s expectation concerning the future value of the precedent set, by which I mean the likelihood that the complainant will use the resulting case law in future litigation against other members, more than other members will use it against the complainant+ These variables combine to show that the complainant choice of forum is not simply a function of which institution is likely to come the closest to its ideal ruling against the defendant, but where the resulting precedent will be more useful, facilitating litigation against other members, as opposed to inviting litigation against itself+ In particular, an illiberal complainant is more likely to file regionally, and a liberal one multilaterally, even if they expect a more decisive legal victory over the defendant at the other institution+ Yet, both will reverse their choice of forum if the expected value of future regional litigation is higher, an illiberal 3+ Black’s Law Dictionary defines forum shopping as “when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict+” The importance of forum shopping in domestic litigation is discussed in Clermont and Eisenberg 1995, while its importance in Canada–U+S+ trade is discussed in Howse 1998+ 4+ Setting a precedent can encourage subsequent disputes to end in a negotiated settlement before the panel rules, or deter protectionist practices from arising in the first place+ In other words, there is nothing about this argument that suggests that all later disputes will necessarily result in a legal verdict+ 736 International Organization

Institutions,Forum Shopping,and Trade Disputes 737 complainant because it will be less fearful of being sued by its more liberal multi- lateral trade partners,and a liberal one because it will be less concerned about suing its less liberal multilateral trade partners. Forum shopping has broader implications for studying institutions.First,it sheds light on the rational design literature,notably with respect to its treatment of mem- bership.As Koremonos,Lipson,and Snidal put it,membership "is an endogenous design choice"that can later emerge as an exogenous constraint on the use of an institution.>This is precisely what is happening here,only that,where forum shop- ping is concerned,the issue is how the overlap of two (or more)memberships affects not only the relative use of these institutions (that is,where a case is filed), but whether these institutions are used at all (that is,if a case is filed).Impor- tantly,while some institutions have few rules on overlapping memberships,others formally govern these relationships,including through merger,as examples in Cen- tral Asia and Africa make clear.Thus,the prospect of forum shopping raises ques- tions about how institutions manage overlapping memberships. Second,forum shopping also speaks to more general questions about institu- tional design,notably with respect to the trade-off between"rigidity"and"stabil- ity."Echoing Goldstein and Martin's argument that too much legalization may undermine trade liberalization at the WTO,?Rosendorff explains that institutions need to strike a balance between legalism(that is,rigidity),which aims at further- ing compliance,and flexibility (that is,stability),which helps attract and retain members.s While he looks at the Dispute Settlement Understanding(DSU)in this regard,the fact is that,by allowing forum shopping,the WTO and other institu- tions are also investing in flexibility,giving complainants latitude in deciding where to file cases.This opportunity for forum shopping,like membership,is an endog- enous design choice.For example,it has been hotly debated in drafting a dispute settlement mechanism for the World Intellectual Property Organization,where some members prefer to leave the choice of forum to the complainant,but where most "support the view that 'forum shopping'should not be allowed."Thus,forum shopping is a salient-and often contentious-issue in trying to balance rigidity and stability where memberships overlap. This article proceeds as follows.The first section elaborates the puzzle of forum shopping.The second section develops the argument of this article.The third sec- tion probes the usefulness of the argument in explaining the safeguard and peri- odicals disputes.The fourth section concludes with a discussion of implications for institutional theory. 5.Koremenos,Lipson,and Snidal 2001,777. 6.As I explain below,the Eurasian Economic Community and the Central Asian Cooperation Orga- nization have merged,while the Common Market for Eastern and Southern Africa and the African Economic Community are scheduled to do so. 7.Goldstein and Martin 2000. 8.Rosendorff 2005. 9.World Intellectual Property Organization 1990

complainant because it will be less fearful of being sued by its more liberal multilateral trade partners, and a liberal one because it will be less concerned about suing its less liberal multilateral trade partners+ Forum shopping has broader implications for studying institutions+ First, it sheds light on the rational design literature, notably with respect to its treatment of membership+ As Koremonos, Lipson, and Snidal put it, membership “is an endogenous design choice” that can later emerge as an exogenous constraint on the use of an institution+ 5 This is precisely what is happening here, only that, where forum shopping is concerned, the issue is how the overlap of two ~or more! memberships affects not only the relative use of these institutions ~that is, where a case is filed!, but whether these institutions are used at all ~that is, if a case is filed!+ Importantly, while some institutions have few rules on overlapping memberships, others formally govern these relationships, including through merger, as examples in Central Asia and Africa make clear+ 6 Thus, the prospect of forum shopping raises questions about how institutions manage overlapping memberships+ Second, forum shopping also speaks to more general questions about institutional design, notably with respect to the trade-off between “rigidity” and “stability+” Echoing Goldstein and Martin’s argument that too much legalization may undermine trade liberalization at the WTO, 7 Rosendorff explains that institutions need to strike a balance between legalism ~that is, rigidity!, which aims at furthering compliance, and flexibility ~that is, stability!, which helps attract and retain members+ 8 While he looks at the Dispute Settlement Understanding ~DSU! in this regard, the fact is that, by allowing forum shopping, the WTO and other institutions are also investing in flexibility, giving complainants latitude in deciding where to file cases+ This opportunity for forum shopping, like membership, is an endogenous design choice+ For example, it has been hotly debated in drafting a dispute settlement mechanism for the World Intellectual Property Organization, where some members prefer to leave the choice of forum to the complainant, but where most “support the view that ‘forum shopping’ should not be allowed+”9 Thus, forum shopping is a salient—and often contentious—issue in trying to balance rigidity and stability where memberships overlap+ This article proceeds as follows+ The first section elaborates the puzzle of forum shopping+ The second section develops the argument of this article+ The third section probes the usefulness of the argument in explaining the safeguard and periodicals disputes+ The fourth section concludes with a discussion of implications for institutional theory+ 5+ Koremenos, Lipson, and Snidal 2001, 777+ 6+ As I explain below, the Eurasian Economic Community and the Central Asian Cooperation Organization have merged, while the Common Market for Eastern and Southern Africa and the African Economic Community are scheduled to do so+ 7+ Goldstein and Martin 2000+ 8+ Rosendorff 2005+ 9+ World Intellectual Property Organization 1990+ Institutions, Forum Shopping, and Trade Disputes 737

738 International Organization The Puzzle Why do complainants file some disputes regionally,others multilaterally,and still others not at all?The most obvious answer would be that institutional rules pre- determine where complainants file.The purpose of this section is to show that there is ample opportunity for forum shopping,not least because,as with most other trade agreements,the WTO and NAFTA permit it.The WTO is less forth- coming than NAFTA on this point.On the one hand,the WTO claims "compul- sory jurisdiction"over those disputes that arise among its members.On the other hand,the WTO approves preferential trade agreements under Article XXIV of the General Agreement on Tariffs and Trade (GATT),taking into account that many have dispute settlement mechanisms of their own,thus inviting forum shopping. For example,in reviewing the Canada-U.S.Free Trade Agreement(FTA),which preceded NAFTA,a GATT Working Group asked representatives of both coun- tries what would happen"if the conclusions of the bilateral dispute settlement pro- ceedings...and those reached under the multilateral dispute settlement proceedings were different or even contradictory...?"0 For its part,NAFTA's main dispute settlement mechanism,Chapter 20,explains that"disputes regarding any matter arising under both this Agreement and the Gen- eral Agreement on Tariffs and Trade,any agreement negotiated thereunder,or any successor agreement...may be settled in either forum at the discretion of the complaining Party."This language is echoed in most other trade agreements, from the U.S.-Chile to the EC-Mexico and Canada-Costa Rica accords.2 If there is a disagreement over the complainant's choice of forum,NAFTA's Article 2005, paragraph 2,says that"normally"it should hear the dispute,with Articles 2005, paragraphs 3 to 4,claiming jurisdiction over disputes under Article 104(Environ- mental and Conservation Agreements),Chapter 7(Sanitary and Phytosanitary Mea- sures)and Chapter 9(Standards).These limited claims of jurisdiction,however, reflect the fact that,at the time of its inception,NAFTA either had an exclusive or stronger grasp of these issues in relation to the GATT,3 though they are unlikely (and,in fact,are doubtful to be able)to prevent a complainant from going,instead, to the WTO.14 10.GATT Basic Instruments and Selected Documents 1995,suppl.38. 11.Article 2005:1.Under the FTA,this was Article 1801:2. 12.Indeed,in reviewing the texts of all trade agreements containing a formal dispute settlement chapter,as listed in the Dartmouth Tuck Trade Agreement Database,I found only a few exceptions that,like the CARICOM-Colombia agreement,make no mention of the opportunity for forum shop- ping.See Tuck School of Business at Dartmouth,Tuck Trade Agreements Database.Available at (http:// cibresearch.tuck.dartmouth.edu/trade_agreements_db/).Accessed 21 March 2007. 13.In particular,there is no equivalent of Article 104 under the WTO,and while Chapters 7 and 9 had no formal equivalent under GATT,they do under the WTO (that is,the Agreement on the Appli- cation of Sanitary and Phytosanitary Measures,and the Agreement on Technical Barriers to Trade). 14.Marceau2001,1111

The Puzzle Why do complainants file some disputes regionally, others multilaterally, and still others not at all? The most obvious answer would be that institutional rules predetermine where complainants file+ The purpose of this section is to show that there is ample opportunity for forum shopping, not least because, as with most other trade agreements, the WTO and NAFTA permit it+ The WTO is less forthcoming than NAFTA on this point+ On the one hand, the WTO claims “compulsory jurisdiction” over those disputes that arise among its members+ On the other hand, the WTO approves preferential trade agreements under Article XXIV of the General Agreement on Tariffs and Trade ~GATT!, taking into account that many have dispute settlement mechanisms of their own, thus inviting forum shopping+ For example, in reviewing the Canada–U+S+ Free Trade Agreement ~FTA!, which preceded NAFTA, a GATT Working Group asked representatives of both countries what would happen “if the conclusions of the bilateral dispute settlement proceedings +++ and those reached under the multilateral dispute settlement proceedings were different or even contradictory+++ ?”10 For its part, NAFTA’s main dispute settlement mechanism, Chapter 20, explains that “disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement +++ may be settled in either forum at the discretion of the complaining Party+”11 This language is echoed in most other trade agreements, from the U+S+–Chile to the EC–Mexico and Canada–Costa Rica accords+ 12 If there is a disagreement over the complainant’s choice of forum, NAFTA’s Article 2005, paragraph 2, says that “normally” it should hear the dispute, with Articles 2005, paragraphs 3 to 4, claiming jurisdiction over disputes under Article 104 ~Environmental and Conservation Agreements!, Chapter 7 ~Sanitary and Phytosanitary Measures! and Chapter 9 ~Standards!+ These limited claims of jurisdiction, however, reflect the fact that, at the time of its inception, NAFTA either had an exclusive or stronger grasp of these issues in relation to the GATT, 13 though they are unlikely ~and, in fact, are doubtful to be able! to prevent a complainant from going, instead, to the WTO+ 14 10+ GATT Basic Instruments and Selected Documents 1995, suppl+ 38+ 11+ Article 2005:1+ Under the FTA, this was Article 1801:2+ 12+ Indeed, in reviewing the texts of all trade agreements containing a formal dispute settlement chapter, as listed in the Dartmouth Tuck Trade Agreement Database, I found only a few exceptions that, like the CARICOM–Colombia agreement, make no mention of the opportunity for forum shopping+ See Tuck School of Business at Dartmouth, Tuck Trade Agreements Database+ Available at ^http:00 cibresearch+tuck+dartmouth+edu0trade_agreements_db0&+ Accessed 21 March 2007+ 13+ In particular, there is no equivalent of Article 104 under the WTO, and while Chapters 7 and 9 had no formal equivalent under GATT, they do under the WTO ~that is, the Agreement on the Application of Sanitary and Phytosanitary Measures, and the Agreement on Technical Barriers to Trade!+ 14+ Marceau 2001, 1111+ 738 International Organization

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