Transnational Litigation, Arbitration, and Dispute Resolution
Once called the crown’s jewel, the dispute settlement system of the WTO is facing a major threat. The standing Appellate Body (AB), within the WTO Dispute Settlement Body (DSB), is not functioning normally—or even at all, as the United States has blocked all appointments of new AB members. As a result, cases can no longer be appealed, and this may leave decisions by the panels—which adjudicate the cases in the first instance—in legal limbo.
In 1964, the United States Congress passed a law providing that a United States district court "'may order' a person residing or found in the district to give testimony or produce documents 'for use in a proceeding in a foreign or international tribunal . . .
Since 2015, Brazil has concluded more than a dozen Cooperation and Facilitation Investment Agreements (CFIAs), in a radical departure from Brazil's earlier policy to remain out of the network of investment treaties. These CFIAs include a novel system, encompassing mechanisms for preventing and settling disputes, which differs strikingly from traditional investor-state arbitration available under most bilateral investment treaties.