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Deficiencies and Problems of the Mechanism of the WTO Dispute Settlement Body

Author: ZhangAiE
Tutor: NaLi
School: Jilin University
Course: International Law
Keywords: WTO Dispute settlement mechanism Defect Problem
CLC: D996.1
Type: Master's thesis
Year: 2005
Downloads: 838
Quote: 8
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Abstract

The mechanism of the WTO Dispute Settlement Body(DSB)is the kernel of the WTO. The practice has proved that the mechanism of the WTO DSB is the core of the judiciary of the WTO. The successful operation of the WTO owes to this mechanism to a great extent. If no this mechanism, the trade disputes among the parties should not be settled exactly and duly and the substantial rules should be a mere scrap of paper. So the WTO will become meaningless. In the mean while we must observe deficiencies of the mechanism of the WTO DSB soberly. We can’t say the mechanism is perfect and ripe all the same. Many parties put forward critical opinions on the mechanism of the WTO DSB and claim to amend it. To reform the mechanism of the WTO DSB became an important topic for discussion at the Doha Ministerial Conference in November 2001. Because this negotiation is beyond the total topics of the Doha agenda, it will be no time restriction until the negotiation succeeds. Under this background, to analyses and study deficiencies and problems of the mechanism of the WTO DSB is urgent and necessary. This article is divided into four chapters. On the basis of the brief introduction about the main programs of the DSB, I will expatiate on deficiencies and problems of the mechanism of the WTO DSB. Meanwhile I will put forward several opinions about the improvement of this mechanism. The first chapter is the summary of the mechanism of the WTO DSB. The primary procedures of the DSB include consultations, panel procedures, appellate procedures and implementation procedures. In addition, the mechanism of the WTO DSB also prescribes good offices, conciliations and mediations. These procedures ensure that the trade disputes among the parties can be settled exactly and duly. The second chapter expatiates deficiencies and problems in substance of the mechanism of the WTO DSB. 1. Non-essential Justice for the Developing Countries Though the DSU is considered as one of the most important achievements of Uruguay round multilateral trade negotiation, from the view of the developing countries, it still has some problems. These problems restrain the developing countries from participating in the DSB actively and effectively. It is reflected in several following respects mainly. First, the developing countries lack the professional lawyers who can deal with the WTO cases. It makes them in the disadvantageous position in the lawsuits against the developed countries. Second, the lawsuit costs are too high for the developing countries. When the developing countries attempt to litigate, they have to compare the interests with the costs. Third, the special and the differential treatment clauses are formalization and they lack the maneuverability. The legitimate rights and interests of the developing countries can’t be ensured practically. Fourth, because the developing countries lack the will and capital to retaliate, the implementation of retaliation is very difficult. Fifth, the suggestions of the developing countries are difficult to attract attention in the WTO. 2. Power of the mechanism of the WTO DSB is too large Not all types of disputes are suitable to be submitted to the DSB through the compelling jurisdiction such as the public healthy questions of one member.This kind of questions concerns the whole national existence of one country. Even these questions are submitted to the DSB, the final rulings are very difficult to be accepted and performed by the parties who lose the lawsuits. They prefer being retaliated to taking the lives of people to take a risk. 3. Deficiencies and problems of panel procedures The part-time character of panels will reduce the efficiency to judge the cases. Because of lacking the technological background, panels will lack confidence while judging some cases. And it is difficult to form the independent judgment. The experts of law in some domains are insufficient, which will influence the veracity and efficiency to judge. The third chapter expatiates deficiencies and problems in procedure of the mechanism of the WTO DSB. 1. Closed character of panel procedures The whole course that panels judge the cases is closed, lacking the transparency and openness. This must hinder the participation of NGO, and reduce the trust and support of the public on the judgment. The transparency of the mechanism of the WTO DSB should be strengthened to improve the operation of this mechanism. 2. Deficiencies and problems of appellate procedures Although appellate procedures play a positive role in practice for several years, as important procedures to settle the international dispute, it still has some deficiencies. The provisions are ambiguous what is the member qualification of the appellate body and whether the appellate body has the right to dismiss an appeal. The appellate body lacks the right to send the cases back to be reheard. These will influence the efficiency and authoritativeness ofappellate procedures. 3. Provisions are ambiguous about the order to apply DSU 21.5 and DSU 22 The two articles prescribe respectively the examinations whether the losing parties carry out the judgment and the retaliation. The order to apply the two articles is ambiguous. It may cause that the retaliation has began before the panel evaluation reports are passed. This will make the evaluation reports become meaningless. 4. Lengthy time-frame The prolonged adjudication can impact the exports of the concerned countries. The impact will be greater on the developing countries. They may lose many opportunities. 5.Compensation isn’t sufficient and timely Compensation is the temporary measure available in the event that the recommendations and rulings are not implemented within a reasonable period of time. Compensation is voluntary. Some countries may prolong time advisedly to protect themselves’short-term benefits. 6. Deficiencies and problems of retaliation Firstly, because the developing countries lack the will and capital to retaliate, the implementation of retaliation is very difficult. Secondly, the provisions about the extent and predictability of retaliation are lacking. The fourth chapter expatiates several opinions on perfecting the mechanism of the WTO DSB. We should improve the transparence of the mechanism of the WTO DSB, found a standing panel, strengthen the maneuverability of some articles and

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