Special Issue
Vol. VI, No. 1
(Summer '12)

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In contemporary society where transparency has become a widely shared and recognized value, international organizations are increasingly being called upon to open their internal decision-making processes to greater public participation and scrutiny. The World Trade Organization [WTO], and its predecessor, the GATT, like many other institutions in the field of international economic law, have commonly been perceived as lacking sufficient transparency. However, since its inception in 1994, the WTO has systematically worked to increase public access to information, both in the context of rulemaking and dispute settlement, and has set an early example for other institutions. This article reviews the WTO’s efforts in this area, including recent developments on issues such as open hearings and amicus curiae briefs. Comparisons are drawn with other fora, particularly regional trade agreements and investor-State dispute settlement mechanisms. This transparency “report card” finds that, on the whole, the WTO’s track record compares favourably with that of other similar institutions. Nonetheless, some suggest that further work is warranted, particularly in the context of dispute settlement. The article concludes recalling practical suggestions that could help make the WTO even more transparent, and further increase the public’s trust in its mission.

​The WTO dispute settlement system is the most successful and widely-used intergovernmental dispute settlement system. However, it is often alleged that, because of capacity and other constraints, developing country Members of the WTO are either downright unable to use this mechanism or that they do not bring all cases that could be commercially meaningful to them. This article examines the full range of real and alleged constraints on developing country participation in WTO litigation and concludes that, although smaller and developing country Members are at a relative disadvantage in a number of respects, many of the constraints typically identified play a much smaller role than usually alleged. We begin by highlighting two important background issues – first, the great disparity amongst developing countries and, second, the way in which economic size and share of global trade drive participation in the WTO dispute settlement system. We then examine and assess the role of a range of factors commonly identified as constraints on developing country participation in WTO litigation: legal capacity, domestic governance and the lack of a domestic trade policy community, insufficient retaliatory power, the duration and complexity of WTO proceedings, the fact that many developing countries trade under preferential trade arrangements, and the threat of political “retaliation” by a defendant. We conclude that the greatest constraints today on developing country participation in WTO dispute settlement are situated at the domestic, rather than at the multilateral level, and thus requires, first and foremost, action by developing country governments themselves.

​This paper discusses the development of standards of appellate review for factual, legal and law application questions in appeals before the WTO's Appellate Body. After explaining the distinctions between these kinds of issues, it traces the history of each in WTO dispute settlement. It also provides comparisons with certain national and regional legal systems. It concludes with some criticisms of Appellate Body jurisprudence, and calls on WTO Members to consider how the current approach is working.

Dispute settlement at the WTO does not end once the Panel and Appellate Body have issued their reports. Implementation proceedings, including arbitration on the reasonable time period for implementation, the level and manner of retaliation and further Panel proceedings on whether implementation has taken place, can be equally critical in order to secure compliance with the WTO agreements for developing members. Yet, either as complainants or as implementing parties, they may face specific challenges due to their socioeconomic vulnerabilities or costs associated with implementation. While the dispute settlement process includes a number of special and differential treatment (SDT) provisions for developing members, implementation proceedings offer much more limited safeguards and flexibilities, and their use by litigants and adjudicators has been very inconsistent. This article analyzes how members, parties, disputes, arbitrators, Panelists, the Appellate Body and the Dispute Settlement Body have addressed developmental claims and arguments in implementation proceedings. It finds that developing members have often argued that, based on SDT provisions, their development status should have a bearing on the time for implementation (by themselves or by an opposing party).

While arbitrators have been sensitive to such concerns, the time period granted has been rarely modified. By contrast, there are no specific SDT provisions relating to retaliation, yet arbitrators seem to have been more receptive to considering development-related arguments as part of their analysis. This may be a rare instance of development considerations being “mainstreamed” in the interpretation of WTO rules.

Beyond this doctrinal analysis, the article assesses the trajectory of attempts to reform implementation procedures from the Uruguay Round to the Doha Round. Drawing lessons from the practice of members and adjudicators, it offers a cautionary perspective on the likely effect of current proposals. The article concludes by offering avenues for improving the consideration of development and the consistency of arbitrators’ responses to developmental claims in implementation proceedings despite the absence of formal amendments or a Doha package.

​The World Trade Organization [WTO] features prominently in studies of international institutions, often cast either as a tool of rich-world domination over the poorer South or as a neutral mediator facilitating a tariff-free world of economic prosperity. This article instead analyses how the WTO has sought legitimacy for itself and for the underlying institution of free trade in the midst of questions regarding its organizational mandate and management of international trade negotiations. Historically, legitimacy for GATT and later the WTO was understood to derive from expanding membership and success at major trade round negotiations. In the past decade, and despite a lack of progress in the Doha Round, legitimacy has been built through institutional deepening by means of dispute resolution processes. This shift, I argue, raises epistemic questions of expertise, the relationship of models to real-world outcomes, and methods for bounding disputes over scientific facts. Based on a case study of the Brazil – Upland Cotton dispute and a trend analysis of over 400 total WTO disputes, I find that the WTO dispute settlement process is helping to legitimize the institution of free trade through its public display of rational authority and neutral expertise. At the same time, dispute panels have begun to pass judgment on issues of econometric and scientific uncertainty. As a result, the basis for the broader legitimacy of the WTO is shifting from questions of representation that have long drawn attention to epistemic issues, especially concerning the design of international trade models. The article thus provides insights on the resolution of disputes in global trade while contributing to our understanding of the evolving role of modelling at international organizations.

The WTO dispute settlement mechanism has been widely acclaimed as one of the most critical and useful features of the multilateral rules–based trading system. The Uruguay Round Understanding on Rules and Procedures Governing the Settlement of Dispute (DSU) has established an independent judicial system for the enforcement of agreements or commitments made by member countries in the WTO through the Dispute Settlement Body (DSB). The agreements or commitments represent the outcome of negotiations among the member governments themselves. This brief comment highlights some of the developments relating to the key elements of both the working of the WTO dispute system and recent trade disputes in 2010, which marked the 15th anniversary of the system. Having recorded over 400 trade disputes, the WTO dispute settlement system is considered as remarkably efficient, more so as disputes run significantly faster than cases in other international or regional institutions. There has been an increase in the participation of member countries in the dispute settlement system in 2010. In particular, the majority of cases filed during the year were initiated by developing countries, who also participated in many other cases as third parties. The improved effectiveness of the system has enabled member countries, both big and small, to exercise greater international legal scrutiny on the protectionist policies and practices of trading partners, thereby promoting a transparent and predictable environment that allows trade to flow more smoothly.

This note examines the shortcomings of the conventional analysis of why the WTO’s dispute settlement mechanism has not been equipped with retrospective remedies. In doing so, this note examines the neglected link between the underlying legal nature of WTO rules as international obligations of result instead of conduct, the ex-ante governmental filtering of WTO disputes, and the absence of retrospective remedies at the WTO. The two key findings of this note are as follows. First, in addition to the increasing complexity of WTO law, it is the underlying nature of WTO rules as international obligations of result that renders this part of international economic law particularly prone to good-faith breaches. Second, in light of the fact that individual WTO members are in a position where they may interpose themselves as political filters of potential disputes, equipping such a system with retrospective remedies would significantly raise the cost of breach, thereby eroding the economic benefits of the current system of prospective remedies. Therefore, by lowering the cost of not only good-faith breaches but of breach in general, the prospective nature of WTO remedies creates an important incentive for WTO members to participate in future rounds of trade liberalisation. Furthermore, the absence of retrospective remedies encourages WTO members to litigate disputes through to formal findings, thereby producing an important positive externality in the form of valuable clarifications of the complex legal framework applicable to all WTO members. Considering that the WTO’s poor and small members are more likely to commit good-faith breaches of the WTO Agreement, the absence of retrospective remedies is in line with strong efforts by the WTO to level the playing field between its members and to provide all of its members with equal opportunities in the context of WTO dispute settlement. Overall, it emerges that the existing prospective nature of WTO dispute settlement has served the international trading system rather well. A switch to retrospective remedies may do more harm than good.

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