The motivation for this book is the political and scholarly debates in the US and Canada at the time of enactment of implementing domestic legislation of the WTO Agreements that emerged from the Uruguay Round and came into effect in the beginning of 1995. The author focuses, in particular, on perceived impacts of the strength of the dispute settlement regime that was agreed to during the Uruguay Round on domestic sovereignty. In the US, concerns over international encroachment on domestic sovereignty were particularly acute, although they were echoed in more muted and ambivalent forms in Canada, where a strengthened dispute settlement regime was seen as having at least the advantage of potentially constraining hegemonic behaviour by the US in its international trade relations. In the US, concerns about the encroachment of international legal regimes on domestic sovereignty have been much longer standing and more intense in their nature, resulting, in the case of the implementation of the Uruguay Round Agreements, in the adoption of an extraordinary proposal by Senator Robert Dole to create a domestic review mechanism to oversee judgments released by the WTO Dispute Settlement regime if US measures were found to be inconsistent with its trade obligations. The central focus of the author's analysis throughout the book is whether, in the light of subsequent experience in both Canada and the US with the new, strengthened dispute settlement regime, these concerns over loss of political sovereignty have proven to be warranted.

In pursuing this inquiry, the author adopts a ‘law and politics’ perspective, drawing on a well-developed body of literature that is principally focused on the relationship between high courts and the political and bureaucratic arms of government in domestic democratic political systems. Within this body of literature, she identifies four rather divergent perspectives on the role of courts: the courts as adjudicators, adopting a relatively narrow textual approach to their adjudicative function; the courts as major public policy makers, exercising relatively expansive judicial discretion; the courts as constrained actors, where their ability to influence public policy is constrained by a variety of institutional and societal factors; and the courts as participants in the policy-making process, where the courts are simply one player in this process and interact with other institutional players in a conversation or dialogue in shaping public policy outcomes.

The heart of the book is a detailed examination of WTO case law since 1995 in which domestic policies or their application in Canada or the US have been challenged by foreign parties. Here she engages in a detailed, impressive, and original post-mortem of all the major WTO decisions affecting Canada or the US as a respondents between 1995 and 2010. She concludes that with very few exceptions (the US Foreign Sales Corporation case, the US Anti-Dumping Act of 1916 case, and the Byrd Amendment to US Anti-Dumping Laws case), the WTO dispute settlement regime has had a very limited impact on domestic policy-making in the two countries. She attributes this primarily to three factors: first, the executive and to some extent legislative branches of government in both countries have acted opportunistically in making minimal or pro forma changes to infringing policies, without changing significantly the substance of these policies; second, she argues that the WTO Dispute Settlement body, and in particular the Appellate Body, has been politically sensitive to issues regarding its legitimacy, especially in important areas of social policy, and has tended to frame its decisions relatively narrowly; and, thirdly, the remedial sanctions for violation of WTO commitments are limited, and typically take the form of prospective withdrawal of commitments by aggrieved complainants of equivalent value to the injury sustained as a result of a respondent's violations of their WTO commitments, hence limiting the consequences of non-compliance with WTO Dispute Settlement body rulings.

This book is an impressive work of scholarship, and sets a new standard in the scope of analysis appropriate in analyzing the implications of WTO case law. The particular strength of the author's analysis is her detailed investigation of the political motivations and origins of challenged measures and even more so the meticulous investigation of the consequences of particular decisions and domestic policy responses thereto. Trade law scholars conventionally have settled for parsing the doctrinal rulings of the Appellate Body, with little regard for the impact of these rulings on the actual policy-making process in affected countries. For her, the latter is a central focus of her analysis – in effect the impact of law or legal rulings ‘on the ground’, so to speak. In the light of the ambitions (largely realized) by the author in this book, trade law scholars in future are unlikely to be able to settle simply for parsing passages in Appellate Body rulings.

In a work of such ambitious scope, it is inevitable that there is room for disagreement about some features of her analysis. I note two that particularly struck me. In the important Shrimp–Turtles case, the author devotes all of six lines to the Panel and Appellate Body's ruling in the Article 21·5 compliance decision, and the reasons offered by the Appellate Body for upholding the US regulations in issue after revisions following the earlier Appellate Body's decision in the same case. The second decision in Shrimp–Turtles has important implications for the application of domestic environmental policies to foreign countries' imports in the future, and deserved fuller treatment. The second issue where I have significant reservations about the author's analysis relates to an issue that she deals with in an extensive chapter on US trade remedy laws and the WTO, where she points out that a strikingly high percentage of challenges to US laws or their application post-1995 have related to US trade remedy laws, in particular safeguards and anti-dumping. With respect to the latter, she is sympathetic to the position taken by the US in a number of these cases that nothing in the GATT or in the Uruguay Round Anti-dumping Agreement prohibits the practice of zeroing, where the US (and some other countries) have conventionally assigned a zero weight to home country transactions that entail prices below the export prices of the products in question, significantly increasing the likelihood of a finding of dumping. The Appellate Body has consistently taken the view that the practice of zeroing is a violation of the WTO Anti-dumping Agreement. The author views this as a case where the Appellate Body has been too expansive in its assertion of jurisdiction. I am skeptical of this claim. Scholarly commentators, for the most part, and especially economic commentators, have taken the view that there is no coherent policy rationale for the practice of zeroing (a position with which I concur). But the author sets aside normative dimensions of the issue in favour of a rather literalist view of the Anti-dumping Agreement, which she finds does not explicitly prohibit zeroing. However, one might just as easily argue that it does not explicitly permit it either, in which event it does not seem inappropriate for the Appellate Body to take into account broader normative considerations in its determinations of the legitimate scope of anti-dumping procedures.

At an institutional level, three other reservations occurred to me in reviewing the book. First, the author is inclined to contrast the more muted reactions in Canada to the prospect of international constraints on its domestic sovereignty flowing from the new, strengthened dispute settlement regime under the WTO with the more hostile reactions in the US. This comparison could have been enriched by a discussion of a somewhat different reaction by many Canadian commentators and interest groups to the international dispute settlement regime adopted under Chapter 11 of NAFTA relating to the impact of domestic laws and policies on foreign investors. Similarly, her analysis would have been enriched by some discussion of the Canadian position on international oversight of US trade remedy laws, where in the Canada–US free trade negotiations that preceded NAFTA the Canadian government declared that it was a central negotiating priority to obtain relief from US trade remedy laws, and in the end settled for what was then a novel international dispute settlement regime now found in Chapter 19 of NAFTA, where domestic dumping and countervail determinations are subject to review by bi-national panels. Thus, the Canadian position on the merits or otherwise of international oversight of domestic laws and their application is somewhat more nuanced than the author acknowledges. Conversely, the author unduly discounts the role of the US in advocating a strengthened dispute settlement regime from the mid-1980s onwards, and was probably the most politically influential proponent of such a regime, particularly in the wake of EU vetoes on the adoption of adverse decisions relating to its Common Agricultural Policy.

Second, the author also exaggerates the frailties and failures of the pre-WTO dispute settlement regime, in contrast to detailed findings by Robert Hudec and his students which reflect a much more positive view of the efficacy of the old GATT dispute settlement regime.Footnote ¹

Finally, accepting, for the most part, as accurate the author's characterization of the impact of the new WTO dispute settlement regime on domestic policies and their applications in Canada and the US as quite limited, and assuming that this conclusion generally holds for most WTO members, it would have been illuminating for the author in the concluding chapter to her book to pursue some of the broader institutional implications of this finding. One potential implication is that the WTO dispute settlement regime cannot be looked to as a serious substitute for the policy-making roles of the political organs of the WTO that are charged with responsibility for ongoing negotiations over new commitments. With the political organs of the WTO in stasis, and with the dispute settlement regime playing a relatively limited second-order role in interpreting and applying existing commitments, the prognosis for the future institutional health of the WTO would not seem to be encouraging. But the author has chosen not to explore these broader institutional issues.

None of these reservations should be taken as detracting seriously from the major scholarly accomplishment that this book represents, especially in the painstaking and meticulous post-mortems that the author undertakes of the major WTO challenges to domestic policies and their applications in Canada and the US post-1995.