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Discussion on the Judicial Activism in WTO Dispute Settlement Mechanism

Author: DuWei
Tutor: LaiZiNing
School: Guangdong College of Commerce
Course: Civil and Commercial Law
Keywords: Dispute Settlement Mechanism Judicial Activism Strategy
CLC: D996.1
Type: Master's thesis
Year: 2011
Downloads: 53
Quote: 0
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Abstract


The dispute settlement mechanism which is called“WTO crown jewel”is the proudest achievements achieved by the Uruguay Round. The "reverse consensus" decision-making process adopted by Dispute Settlement Body (DSB), and the practice of rule-oriented based on "Dispute Settlement Understanding" (DSU) adopted by the Panel and Appellate Body is making the WTO dispute settlement mechanism increasingly legal in nature. Since established in 1995, WTO dispute settlement mechanism has made significant achievements in dealing with international trade disputes and is playing an increasingly important role. Because there are some vague, blank, missing in WTO Agreements on the text, the Panel and Appellate Body have great free discretion in the adaptation of laws and legal interpretation.This paper argues that the phenomenon of judicial activism in the current WTO dispute settlement mechanism is not only a temporary transitional phenomenon, but also a must-gone through process in the long-term development process which must been acquainted with a development and dialectical view. First of all, it is right to analyze specific issues to treat the specific case of judicial activism, should not been Systematically exclused and denied without any exception. That is to say accept and support the reasonable thing and reject and deny the unreasonable thing by use of the standard of the national interest. Second, with the backdrop of the rapid rise of China (in particular, China has surpassed Japan to become the world’s second largest economy in 2010 and is expected to surpass the U.S. as the largest economy in 2020 or 10 years), we should consider the long-term effect of judicial activism , some Judicial initiatives that may appears not be conducive now could greatly benefit the future development of our country and the right to maintenance. In addition, this paper make great emphasis on measures of problem solving. So it emphasize on solving and dealing with the practical problems and put forward the best possible response options.The first chapter is the analysis of judicial activism in the WTO dispute settlement mechanism. It includes the meaning of judicial activism, the rise of philosophy of judicial activism in the United States, the dispute of judicial activism and judicial restraint and the specific performance of judicial activism in GATT and WTO dispute settlement practice.The second chapter discusses the causes of judicial activism of the WTO dispute settlement mechanism. It consists of six aspects. The third chapter is the main performance of judicial activism of the practice of WTO dispute settlement mechanism. Friends of the courts and the introduction of non-trade values are the major problems that is analyzed and evaluated.The fourth chapter is the evaluation of judicial activism of WTO dispute settlement mechanism. It is divided into two parts: the first part is the international influence and countermeasures of judicial activism in the WTO dispute settlement mechanism; the second part respectively talks about the influences and countermeasures of judicial activism in WTO dispute settlement mechanism to on China.

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