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Study on Due Process in the Dispute Settlement of WTO

Author: LvWeiPing
Tutor: XuChongLi
School: Xiamen University
Course: International Law
Keywords: WTO Due Process Rule of Evidence Standards of Review
CLC: D996.1
Type: PhD thesis
Year: 2007
Downloads: 657
Quote: 5
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Abstract


The Dispute Settlement System of World Trade Organization was founded in 1995. It marked the development from‘right-oriented’to‘rule-oriented’in dealing with disputes between members. The Dispute Settlement System mixes the political method and legal method. Panels and Appellate Body first established two level jurisdiction systems in international law. This is a specially success in international jurisdiction mechanism. Appellate Body control Panels’report on facts and law so that it can relief the bad effect for automatically passing Panels’report.Panels and Appellate Body is the core of the Dispute Settlement System of WTO. As a quasi-judicial authority,the procedures of Panels show the development of Due Process in the Dispute Settlement of WTO. Due Process is the heart of judicial procedure. Fair judicial regulation and public hearing are two principals in Due Process. Due Process is a fundamental regulation in domestic Constitution in most country, including procedural due process and substantive due process. Rule of Evidence and Standards of Review in Panels’procedure are procedural due process in the Dispute Settlement of WTO. The two rules are not definite provided in Agreements of WTO or DSU,so Panels and Appellate Body take advantage of judicial activism to establish relevant rules.This dissertation is divided into three parts including preface, text and epilogue. The text includes four chapters:The Chapter one looks back the historical development of Panels from GATT to WTO. The author discusses the characteristic of Panels’procedure, and analyses the relation between Panels and Appellate Body. In Chapter two, the author discusses the rule and practice of evidence in Panels’procedure. The author analyses every kinds of rule under the whole prove process, from obtaining evidence, burdening proof, and questioning evidence to attesting evidence. Especially the hearing which Panels control the whole prove process, guarantees the low fair in Due Process. In Chapter three, the author studies the rule and practice of Standards of Review between facts and law in Panels’procedure. Standards of Review embody the standards applied in examining the behavior of members by Panels, including legislation and administration. Standards of Review is the core of Panels’procedure, it reflects the power distribution between WTO Dispute Settlement System and members. The appropriate Standards of Review try to balance the power between members and the WTO Dispute Settlement System. In general, according to different cases, the appropriate Standards of Review is applied from‘Total Deference’standards to‘De Novo Review’standards. The Chapter four discusses the future of Rule of Evidence and Standards of Review in Panels’procedure. The author compares the Rule of Evidence with Standards of Review, analyses the effects of amending DSU, and discusses the relation between China and WTO Dispute Settlement System, studies Chinese policy applied to due process in the Dispute Settlement System of WTO. As the conclusion of this dissertation, the epilogue compares procedural due process with substantive due process in the Dispute Settlement System of WTO, finds that the progress of substantive due process is not satisfied. The defect of structure in WTO and sensitive sovereignty lead members hesitate to push forward the development of substantive due process in the Dispute Settlement System of WTO.The Dispute Settlement System of WTO has walked twelve years up to now. The System’s expression is perfect. It fairly dealt with trade disputes between members, and won most members’trust. However, the reform of the Dispute Settlement System of WTO is prevented now. This situation is primarily caused by the political and economic relation nowadays. Every country, particular strong country, as an important motive force in constructing and modifying international economic law, lack the political will to improve the Dispute Settlement System of WTO. China, as a big developing country, honors its commitment under Agreements of WTO, supports Panels and Appellate Body to push the progress of procedural due process under DSU. At the same time, China approves of properly making progress of substantive due process in the Dispute Settlement System of WTO.History has proved that the development of multilateral trade system is not smooth, so the progress of substantive due process and procedural due process must face twists and turns in WTO. However, as a quasi-judicial authority, the Dispute Settlement System of WTO has founded. It marks a tendency towards Due Process in dealing with disputes between members.

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CLC: > Political, legal > Legal > International law > International Economic Law > International Business Law ( International Trade Law )
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