3rd Semester, ILINew Delhi

Contents
I. Introduction
II. WTO over GATT
_ GATT Dispute Settlement Scheme
_ Establishment of WTO and its Specific Objectives
_ Dispute Settlement Understanding
III. Procedure to be by the DSB
_ Consultation and Mediation
_ Establishment of Panel
_ Report of the Appellate Body
_ Necessary Implications
IV. Case Analysis
_ Cases Filed by Less Developed Countries
_ Cases Filed against LDC
_ India in DSB
V. Criticism
VI. Conclusion
Introduction:

Economy of a nation depends heavily on the trade and commercial activities within and
outside its jurisdictions. Jurisprudence of trade in the classical era was that there should be no
restriction and there was no state to control the affairs over trade. But with the industrial
revolution, it was felt by majority nations that the trade between two individuals having
consequence in the income of the nation as whole and needs to be regulated with their own
laws and external agencies. Trade between two individuals belongs to a same nation can be
regulated by the law of that particular nation. But with regard the commercial transactions
between nations, there was no uniform mechanism or a body to systemize the international
trade, particularly when it comes a dispute between the parties or states. Immediately after the
World War II, negotiations between large counts of nation were initiated in the year 1944 at
Bretton Woods to form a body and treaty to coordinate international trade and successfully
concluded with the preparation of multilateral treaty with the General Agreement on Tariffs
and Trade in the Geneva meetings, 1947 and the GATT provisionally came into effect from
January 1, 1948. At the same time the attempt to establish an international body called
International Trade Organization was completed with the charter but failed to exist as it was
not adopted by the United States of America’s congress which was an important arm intended
in creating such an international body. From then, GATT was the only international
instrument administering international trade until 1995 when World Trade Organization was
established.
One of the important purposes for the establishment of GATT agreement was settling any
kind of trade disputes arising between nations. This article will discuss the provisions and the
procedures under GATT and WTO regarding international trade dispute settlement.
Discussion in the first part would be on the evolution of GATT and the emergence of the
international body WTO for settling disputes and the agreements under it. Second part will
give a brief overview of the Dispute Settlement Understanding followed by the WTO Dispute
Settlement Body in deciding trade disputes.

1 Safia Gupta, “From GATT to WTO”, available at:

http://legalserviceindia.com/article/l378-From-GATT-to-
WTO.html (Visited on September 12, 2011).
WTO over GATT:
GATT Dispute Settlement Scheme:
Main objective of the GATT was to limit the tariff charges and facilitating free trade for
the benefit of all the GATT contracting parties. Under the GATT, there was a procedure for
settlement of disputes in consensus mode, intended to provide an alternative measure to
retaliation, under two provisions.2 Article XXII allows for consultation among the disputed
nations and Article XXIII provides for panels comprising of all the contracting parties to
investigate and present its recommendations to resolve the conflict. Retaliation can also be
recommended under Article XXIII but it has occurred only once in the GATT history, almost
all
the parties agree to windup the policies in question.3 In the beginning, disputes under the
GATT
procedure were decided by rulings of the chairman of the council and later on disputes were
referred to the working parties which comprise of all the interested party’s representatives.
Then
all these procedures were replaced by a new process of establishing an independent expert
panel
consists of three or five experts who are not associated to the disputed parties.4 The report of
the
expert panel will sent for approval to the GATT council and once the recommendations of the
panel got approved, it will become binding on the parties. This evolution of GATT dispute
settlement process was the basis for the foundations for WTO Dispute Settlement
Mechanism.
In spite of the salient features of the DSP under GATT, it was not effectively enforceable
due to many reasons like positive consensus and retaliation measures which are not possible
in
all the cases. The defects in the GATT underwent eight rounds of multilateral trade
negotiations
to reduce tariffs and other barriers to international trade, but none of them were succeeded in
restoring the faith in world trading system.5 The seventh round of multilateral trade
negotiations
named as Tokyo round (1973-79) concentrated on a new way of promoting free trade by
reducing non-tariff barriers. Tokyo round had a significant role in reducing the blocking of
2 Mitsuo Matsushita, Thomas J. Schoenbaum and et. al., The World Trade Organization-
Law, Practice and Policy
5 (Oxford University Press, New York, 2nd edn., 2006).
3 Dan Kovenock and Marie Thursby, “GATT, Dispute Settlement and Cooperation”,
Working Paper available at:
http://www.nber.org/papers/w4071.pdf (Visited on September 12, 2011).
4 Historic Development of WTO Dispute Settlement System, available at:
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s1p1_e.htm#txt4
(Visited on March 14,
2011).
5 Surendra Bhandari, World Trade Organisation and Developing Countries 3(Deep & Deep
Publications Pvt. Ltd.,
2001).
consensus by a single party in the dispute settlement process. The inborn defects in the GATT
dispute settlement process led to number of problems in the mid-80s and the need for
improving
and strengthening the process was felt by almost all nations.6
Establishment of WTO and its Specific Objectives:
In addition to the non-tariff barrier reduction method introduced in the Tokyo round, dispute
settlement was also included and given higher importance in the later negotiation called
Uruguay
round(1986-94) which was the last round of GATT multilateral negotiations concluded with
the
creation of a new body to regulate and administer international trade. The final act of the
Uruguay round singed in the ministerial meeting at Marrakesh transformed the GATT in to
new
international organization called WTO came into being from 1st January 1995.7 The new
WTO
had its notable feature of creating a new procedure for adjudicating legal disputes under
GATT
and WTO with a dispute settlement procedure.8 WTO established with four main tasks under
the
agreement:
i) to provide a forum for negotiations among members both to current matters and any
future agreements,
ii) to administer the system of dispute settlement,
iii) to administer the trade policy review mechanism, and
iv) to cooperate as needed with the IMF and the World Bank.9
Settling trade disputes between the members is the primary objective of the WTO. For this
purpose the Uruguay round established a new system of dispute settlement with the
Understanding on Rules and Procedures Governing the Settlement of Disputes, in short the
Dispute Settlement Understanding. The concept of Appeal was introduced in the dispute
settlement under WTO in order to have an effective decision making authority called
Appellate
Body
6 Supra note 4.
7 Supra note 2 at 7.
8 Robert E. Hudec, “The New WTO Dispute Settlement Procedure: An Overview of the First
Three Years”, 8 Minn.
Journal of Global Trade 2 (1999).
9 Art III of the WTO Agreement.
Dispute Settlement Understanding:
The scheme of the DSU is to be an overall framework for the resolution of disputes in
field of international trade under WTO.10 The understanding consists of 27 articles providing
the
rules and procedures to be followed by the Dispute Settlement Body in interpreting and
enforcing all the covered agreements that make up the WTO.11 DSU itself under Article 3.1
provides for the application of Article XXII and XXIII of the GATT 1947.12 General
provisions
contained under Article 3 of the understanding addresses a set of objectives of the dispute
settlement mechanism under WTO. It says that the dispute settlement system of the WTO is
the
central pillar of the multilateral trading system and the decision or rulings of the DSB shall be
aimed at achieving a satisfactory settlement of the disputes in accordance with the provisions
of
the understandings and the covered agreements.13 Furthermore, Article 3.2 provides for the
application of customary rules of interpretation of public international law to clarify the
provisions of the understandings and the covered agreements. But the link between article 31
and
32 of the Vienna Convention and the interpretation requirement stated in Article 3.2 of the
understanding is now almost eliminated in the WTO law.14 In November 2001, at the Doha
Ministerial Conference, member governments agreed to negotiate to improve and clarify the
DSU, which was compelled in the 1994 decision itself to review the DSU after five years.15
Under Article 2 of the understanding, the general council has to establish a DSB which is
responsible for the administration of entire mechanism. DSB is composed of the ambassadors
from all the member countries representing their nation. The conclusion reached by the DSB
should be done only by consensus among the members, but not like the positive consensus as
in
GATT. This new procedure under the understanding eliminates the blocking possibility
through
a procedure known as ‘reverse consensus’.16 It is the sole authority responsible for
establishing
10 M B Rao and Manjula Guru, WTO Dispute Settlement and Developing Countries 38
(Lexis Nexis, New Delhi,
2004).
11 Bryan Mercurio and Mitali Tyagi, “Treaty Interpretation in WTO Dispute Settlement: The
Outstanding Question
of the Legality of Local Working Requirements”, 19 Minnesota Journal of International Law
275 (Summer, 2010).
12 Understanding on Rules and Procedures Governing the Settlement of Disputes(DSU), Art
3.1: Members affirm
their adherence to the principles for the management of disputes heretofore applied under
Articles XXII and XXIII
of GATT 1947, and the rules and procedures as further elaborated and modified herein.
13 Id Art 3.4.
14 Supra note 10 at 50.
15 Source: http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm (Visited on October 17,
2011).
16 John H. Jackson, “International Law Status of WTO Dispute Settlement Reports:
Obligation to Comply or Option
to ‘Buy Out’?”, 98 American Journal of International Lsaw 109 (2004).
panel, appellate body and implementing the findings or recommendation of the panel or
appellate
body. DSU explicitly establishes in the text itself the procedure for implementation of the
reports
of the panel or the recommendation of the appellate body. It addition, it clearly establishes a
choice for an obligation to implement the findings and the matter shall be kept under
surveillance
until the necessary implementation.17 Article 3.7 of the DSU warns the member countries to
be
prudent while invoking the DSB procedures and they should consider whether such action
under
the procedure would be fruitful and the aim of the mechanism is to secure positive solution to
a
dispute.18 Only when any positive solution is not possible, a member can invoke the dispute
settlement procedures. WTO members have filed over 427 complaints in just fifteen years.
The
detailed procedures to be followed by the DSB will be briefly explained under the following
heads.
Procedures to be followed by the DSB:
Generally a dispute arises when it seems to a member government that another member
government is violating an agreement or commitment under WTO. The dispute settlement
mechanism proceeds through three main stages i) Consultation, ii) Formal Litigation and iii)
Necessary Implementation. Settling dispute is the responsibility of the DSB and it is the sole
authority to do four main functions:
i) establish a panel of experts to consider the case,
ii) to accept or reject the report(findings) of the panel,
iii) to accept or reject the results of an appeal,
iv) to retaliate the parties which has failed to comply with the rulings.
Consultation and Mediation:
The formal proceeding starts, before taking over any action, when a member country
requests bilateral consultation at the WTO under article 4.19 This discussion process is to
provide
an opportunity to the parties to the dispute to negotiate themselves to see if they can settle
their
17 John H. Jackson, “The WTO Dispute Settlement Understanding – Misunderstandings on
the Nature of Legal
Obligation”, 91(1) American Journal of International Law 60 (Jan 1997).
18 Supra note 2 at 113.
19 Henrick Horn, Petros C. Mavroidis and et. al., “Is the Use of the WTO Dispute Settlement
System Biased?”,
available at: www.econ-law.se/Papers/Disputes000117.PDF (Visited on March 14, 2011).
differences amicably. This is a private process and there will be no secretariat or other
member’s
involvement. But additional (third) parties can join the consultation proceedings with the
consent
of the respondent. Strict time period should be maintained during the consultation. Once the
process started after joinder of third parties, the parties should complete their consultation
within
60 days and if it fails to settle the disputes between parties, the parties can ask the WTO
director
general to mediate or try to help in any other way.20 46% of the disputes filed before the
DSB
resolved among the parties themselves in this consultation process itself.
Establishment of Panel:
Complainant can request the DSB to establish the panel of experts to decide the case
when there is no response from the respondent on their request for consultation within 10
days or
the consultation process did not reach any solution within 60 days.21 A panel of experts
should be
appointed by the DSB within 45 days and the panels should consists of three or five persons,
well qualified governmental or non-governmental individuals, including persons who have
served on or presented a case to a panel, picked from a list of persons suggested by the
members
of the WTO.22 Generally the panel should start hearings on the basis of written submission
made
by the parties. The procedures to be followed by the panels are given under Article 12, which
mandates the panel to afford enough opportunity to the parties by framing a suitable time
table to
make their submissions.23 The third parties should also be given hearing opportunity by the
panel
and they can make their written submissions to the panel. The panel may seek information
and
technical advices from any appropriate individual or body when scientific and technical
issues
were raised by the parties. It should send its interim reports and should send its final report
the
parties and all the members of the DSB within 60 days of its establishment and in case of
urgency, the deadline may be shortened to three months. The panel discussions are highly
confidential and the reports shall be drafted by the panel even without the parties. If there is
no
consensus among the members against the findings of the panel, DSB must adopt the panel’s
20 Supra note 12 Art. 6.
21 Id Art. 4.7.
22 Supra note 2 at 109 and Id Art. 8.
23 Supra note 10 at 74.
report within 60 days of its submission. The panel, officially, helps the DSB in making
rulings or
recommendations. The panel’s findings have to be based on the agreements cited.24
Report of the Appellate Body:
Any party to a dispute, but not the third party, can appeal the report of the panel, even
both the parties can appeal to the Appellate Body. An appeal is limited to issues of law
covered
in the panel report and legal interpretations developed by the panel. Factual findings and
conclusions of the panel cannot be appealed.25 Each appeal is to be heard by a three member
division from a permanent seven member Appellate Body. Permanent members of the AB are
appointed by the DSB for a fixed term of four years, who are not affiliated to any government
and at the same time broadly representing the range of WTO membership.26 They have to be
persons with demonstrated expertise in law, international trade and the subject matter of the
covered agreements.27 The procedure to be followed by the AB should be drafted by the AB
itself in consultation with the Chairman of the DSB and the Director General. This AB can
uphold, modify or overturn the legal findings of the panel but they cannot reexamine the
existing
evidence or examine a new issue. As like the panel’s proceedings, AB hearings are also
confidential and AB can draft its final report in the absence of parties. The proceedings of the
AB should be completed within 60 days and in certain cases additional 30 days shall be
permitted. On submission of the AB’s report, the DSB has to adopt or reject it within 30 days.
Rejection is possible only when the DSB decides by a consensus not to adopt the report.
Unless
otherwise agreed by the parties to the dispute, the period from establishment of the panel to
adoption or rejection of the report of the panel or the AB by the DSB shall as a general rule
not
exceed nine months if the panel report is not appealed, and twelve months if the report was
appealed. 28
Once adopted, the report will become the recommendation or rulings of the DSB and the
same can advise the party concerned to bring their policies in conformity with the agreement,
if
they are found to be inconsistent with that covered agreement. In order to ensure
transparency,
24 Source: “Understanding the WTO: Settling Disputes, A Unique Contribution” available
at:
http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm (Visited on October 17,
2011).
25 Supra note 10 at 91.
26 Id.
27 Supra note12 Art. 17.3.
28 Id Art. 20.
all the written submissions made by the parties to the panel or the AB shall be treated as
confidential only available to the parties, but the parties themselves can disclose any
statements
or their position to the public. Furthermore even a party to a dispute cannot disclose any
details
or any information which was designated as confidential by the party submitted it.29
Necessary Implications:
Once the case is decided in favour of the complainant the DSB may accord the losing
party(respondent) a reasonable period of time, not exceeding fifteen months, to bring their
inconsistent laws, regulations, policies into conformity with the WTO agreements.30 This is
the
possible way or direction emerging from a WTO dispute and there is no concept of
punishment
or even restitution, but the trade sanction can be imposed only in exceptional cases. On the
expiry of twentieth day of the ‘reasonable period’, the winning party may request the DSB for
retaliation measures to induce action on the part of the losing party. This is very rare as
almost
all the WTO members voluntarily fulfill their obligation as per the DSB decisions in time.
The
DSB must grant the authorisation to impose trade sanctions (suspension of concessions or
compensation) within 30 days of the expiry of the time limit given to the losing party.31
Furthermore, when a losing party brings is laws into conformity with the concerned
agreement, it
can choose how to implement the decision and the DSB should monitor how the adopted
rulings
are being implemented. The losing party has no obligation to follow the way of
implementation
suggested by the winning party.
Case Analysis
Cases Filed by Less Developed Countries:
Developing countries account for seventy five percent of the WTO membership and are
increasingly able to use their power to influence negotiations traditionally dominated by
developed countries.32 Seven out of eleven most frequent complainants in the dispute
settlement
29 Id Art. 18.2.
30 Id Art. 21.3(c) and Supra note 19 at 4.
31 Id Art. 22.
32 Swapneshwar Goutam, “WTO & Development in Developing Countries Perspective”,
available at:
http://legalserviceindia.com/article/l425-WTO-&-Development-In-Developing-Countries-
Perspective.html (Visited
on October 2, 2011).
process are developing countries and they have filed 40% of the total complaints.33 From the
introduction of the dispute settlement mechanism under WTO the less developed, particularly
the
developing nations actively performed in the process. Canada, Brazil, Indian and Mexico are
noted as frequent complainants and third parties while USA and EU are the most frequent
users
of the mechanism.34 The first case filed before the WTO DSB was by Singapore against
Malaysia on prohibition of imports of polyethylene and polypropylene which was settled on
mutual agreement between the parties on March 1995. The second case filed by Venezuela
and
Brazil which was an important one on developing nation’s perspective is US Gasoline case35
relating to some provisions of the USA’s Clean Air Act which imposes standards for
reformulated and conventional gasoline. But the fact was that USA’s policy measures
restricted
imported gasoline and treated it in a less favoured manner. The panel’s report was in favour
of
the complainants but in the appeal, the AB has slightly modified the panel’s reasoning and
held
the measures taken by USA is not justifiable. Brazil has participated as a complainant in more
than 25 cases and most of them are against USA, EU and Canada.
Another important cases, which was initially succeeded by Malaysia along with India,
Pakistan and Thailand against USA is the US- Shrimp Case36, in which the USA’s
guidelines
restricting certain countries from importing shrimp were questioned. Both the panel and the
AB
concluded that the measure at issue, the import prohibition on shrimp and shrimp products
was
inconsistent with the GATT provisions. The same issue was, later on, held not in
contravention
to the agreement on considering the provisions on preservation of natural resources. Though
the
ruling was not complied with by the USA, it was noted in the WTO report that the
compliance
proceedings completed without finding of non-compliance.37 Some other countries like
Indonesia, Philippines, Thailand, Argentina and Mexico have also filed many cases against
the
developed fronts and failed in most of them. Another success of the developing countries
over
33 Gregory Shaffer and Ricardo Melendez-Ortiz (eds.), Dispute Settlement at the WTO: The
Developing Country
Experience 2 (Cambridge University Press, Cambridge, 2010). also see: David Evans and
Gregory Shaffer, “The
Developing Country Experience in WTO Dispute Settlement”, available at:
http://ssrn.com/abstract=1743727
(Visited on October 17, 2011).
34 Source: http://www.wto.org/english/tratop_e/dispu_e/speech_agah_4mar10_e.htm
(Visited on October 2, 2011).
The same source shows that the majority of cases filed in 2010 were brought by the
developing countries, also see
Infra note 67.
35 DS2 (1995).
36 DS58 (2000).
37 Source: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm (Visited on
November 14, 2011).
the developed nations is the Chicken Cuts case38. This case was filed by Thailand and Brazil
against the EU on their measures relating to tariff classification imposing duties on frozen
boneless chicken cuts and the same measures were held violative of GATT articles. Korea’s
case
on imposing additional duty on their Dynamic RAMs by Japan in the year 2007 was held in
consonance with the Agreements.
Cases Filed against LDC:
Developed economies like USA and EU are the nations which are very well using the
dispute settlement mechanism under WTO to enforce their economic rights. As noted earlier,
USA and EU are accepted as the most frequent users of the system. Starting from its first case
on
Korean measures concerning the test and inspection of agricultural products39, USA has filed
98
cases as a complainant of which about 50% of the cases against LDCs. As like USA,
European
Union has filed 85 cases as a complainant with most of them against LDCs. Canada’s
Aircraft
case against Brazil’s export financing programme was a good example for the privileges
enjoyed
by the wealthier nations in the DSB proceedings, where Brazil was held violated the
Agreement
on Subsidies and Countervailing Measures. Indonesia Autos case40 is another good example
for
the national treatment obligations, where finally Indonesia was asked by the DSB to stop
providing luxury tax exemption or import duty exemption to home car companies.
Argentina’s provisional and definitive safeguard measures on imports of footwear, was
held inconsistent with the Agreement on Safeguards.41 In Korea Beef case42 also the
measures
taken by Korea to restrict the beef imports from Australia and USA on the domestic support
programme was concluded as against GATT agreement and the measures accorded less
favoured
treatment to the imported beef. Statistics shows that more than 40% of the cases were filed by
the
developing countries and in about 35% of the cases they are the defendants.43 It was
observed by
38 DS269 and DS /286 (2003).
39 DS3 (1995).
40 DS 54,54, 59 and 64.
41 DS121 (1998).
42 DS 161, 169(1999).
43 Gregory Shaffer, “Developing Country Use of the WTO Dispute Settlement System: Why
it Matters, the Barriers
Posed, and its Impact on Bargaining”, available at:
http://ictsd.org/downloads/2008/05/shaffer_1.pdf (Visited on
November 14, 2011).
some scholars that, comparing the WTO dispute settlement mechanism, success rate of
developing countries over developed defendants are more under the GATT settlement
process.44
India in DSB:
India as a member of WTO has filed 19 cases before the DSB and involved in the
consultation process of 72 cases as a third party. There were 20 cases filed against India till
date.
First case was filed by India on different import regimes for automobiles followed by
Poland45
and a mutually agreed solution was reached between the parties during the consultation
process
itself. First case filed in the DSB against India was by the USA in the year 1996 on India’s
product patent stand. India was ruled to implement, in the patent laws, the mailbox rule and
Exclusive Market Right for pharmaceutical and agricultural chemical product patents. So
many
cases have been filed by USA and EU against India regarding the patents regime followed by
India. Another important case filed against India by USA and EU is India Autos case46
regarding
the measures taken by India to impose certain restriction to use imported components on
automobile industry in order to encourage domestic products was held violation of Article XI
of
the GATT. Similar case was filed by the USA on India’s quantitative import restrictions to
protect balance of payments under GATT. The case was decided by the DSB in favour of
USA
stating that India's monetary reserves were adequate, and, thus, India's Balance of Payments
measures were not necessary to forestall the threat of, or to stop, a serious decline in its
monetary reserves within the meaning of Article XVIII and India had violated Art. XVIII.47
This
observation clearly shows the biased nature of the dispute settlement system in favour of the
wealthier nations.
Many other cases brought by the developed nations against India like case on additional
import duty imposed by India on alcoholic beverages48, patent case by EU49 were decided
against India. On the other hand, cases filed by India like, shrimp case50, steel plate case51
and
44 Marc L. Busch and Eric Reinhardt, “Developing Countries and GATT/WTO Dispute
Settlement”, available at:
http://userwww.service.emory.edu/~erein/research/Berkeley.pdf (Visited on October 17,
2011).
45 DS19 (1995).
46 DS146 and DS175(2000).
47 DS90(1997).
48 DS360 (2007).
49 DS79 (1997(.
50 Supra note 36.
51 DS206 (2001) – US imposition of anti-dumping duties on certain imports manufactured
by SAIL.
textile case52 were also decided not in favour of India. One recent case filed by India against
the
EU, particularly Netherlands, is the case on seizure of generic drugs manufactured in India in
transit.53 This case is on the repeated wrongful seizure of generic drugs originating in India
while
transiting through ports and airports in Netherlands on patent infringement grounds. The
consultation process was started with third parties like Canada, China, Ecuador, Japan and
Turkey. The consultation process succeeded and the EU had accepted their seizure of generic
drugs was wrong and their members will amend their rules soon and India said it will
withdraw
the case when EU ratifies that amendment.54
Criticism:
Critic contends that the smaller countries in WTO exercise very little influence in the
dispute settlement mechanism and despite the WTO was aimed at protecting the developed
countries. The poorest countries in the WTO system are almost completely disengaged from
enforcement of their market access rights through formal dispute settlement litigation.55 It
was
observed by some scholars that disputes filed by USA and EU appear to have ended with the
defendant making the desired policy changes more frequently under WTO.56 The reason for
this
difference was very well analysed by a scholar and the reasons given by him for the poor
performance of LDC in WTO dispute settlement are the lack of legal and political capacity in
international trade and the fear of political or trade reprisal of the LDCs.57 The reason for
low
success rate of the LDCs are also analysed in the same study and the reasons were pointed on
the
LDCs concerns regarding experts, the need to hire experts for research and testimony to
support
their cases.58
52 DS243 (2002) – Rules of origin applied by US to restrict import of textiles from one
nation in protecting
domestic industry.
53 DS408 (2010).
54 Source: http://articles.economictimes.indiatimes.com/2011-04-
06/news/29388612_1_multilateral-intellectualproperty-
agreement-generic-drugs-valid-patents (Visited on November 14, 2011).
55 Chad P. Bown and Bernard M. Hoekman, “WTO Dispute Settlement and the Missing
Developed Country Cases:
Engaging the Private Sector”, available at:
http://www.brookings.edu/views/papers/200505bown.pdf (Visited on
October 2, 2011).
56 Marc L. Busch and Eric Reinhardt, “Transatlantic Trade Conflicts and GATT/WTO
Dispute Settlement”,
available at: http://www.ppl.nl/bibliographies/wto/files/1546.pdf (Visited on October 2,
2011).
57 Kristin Bohl, “Problems of Developing Country Access to WTO Dispute Settlement”, 9
Chi.-Kent J. Int'l &
Comp. L. 130 (2009).
58 Ibid.
Two other major issues attached with the WTO dispute settlement process are on
transparency and the right of private parties in the mechanism. Some scholars have
emphasised
on need for the participation of public and non-governmental organisations in the dispute
settlement process in order to provide a way for the weaker economies to approach DSB and
to
attain better achievement in the liberalised and priviatised global trade.59 Several ways have
been
recognized by experts in which a private non-governmental party might participate in the
system
like rights to observe, rights to submit amicus briefs, and rights to bring lawsuits directly.60
Opening the disputes procedures to public scrutiny and public participation was addressed by
the
USA in 1998 itself in the ministerial meeting.61 At the same time it was observed by some
other
scholars that the public access to documents and hearings will have some negative impact on
the
legitimacy of WTOs legal rulings.62 Regarding the biased nature of WTO against developing
countries, the main cause for this situation is that the developing countries are far less likely
than
richer countries to induce a settlement before the ruling is issued.63 It was observed by an
expert,
Breuss that the system has a tendency to lead WTO members to shoot in their own feet via
protectionary measures.64
In addition there were some arguments on the involvement of third parties in the dispute
settlement process which would complicate the dispute settlement and would make the
process
more costly with more voices and issues.65 Another argument was regarding the powers of
AB,
to ignore certain issues raised by the parties, given under Article 17.12 of the
understandings.66
59 Thomas J. Shcoenbaum, “WTO Dispute Settlement: Praise and Suggestions for Reform”,
47 Int’l & Comp. L. Q.
647(1998). and Supra note 55.
60 Joel P. Trachtman, Philip M. Moremen, “Costs and Benefits of Private Participation in
WTO Dispute Settlement:
Whose Right is it Anyway?”, 44(1) Harv. Int’l L.J. 221(2003).
61 The then president of USA Clinton’s address to the WTO Ministerial Meeting, May 19,
1998.also see Supra
note 8 at 43.
62 Supra note 8 at 46.
63 Trade Brief on the WTO Dispute Settlement by SIDA, April 2004, available at:
www9.georgetown.edu/faculty/mlb66/SIDA.pdf (Visited on October 17, 2011).
64 Wilhelm Kohler, “The WTO Dispute Settlement Mechanism: Battlefield or
Cooperation?”, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=764168 (Visited on November 12, 2011).
65 Marc L. Busch and Eric Reinhardt, “Three’s a Crowd: Third Parties and WTO Dispute
Settlement”, 58 World
Politics 446(April 2006).
66 Art. 17.12 says that ‘the AB shall address each of the issues raised’. By exercising this
power AB can simple
address few issues and neglect to consider other issues separately
Conclusion:
WTO established with the primary objective to promote free trade and stimulate
economic growth and the DSU under the WTO is providing an effective mechanism to
enforce
the trade agreements which experience any violation by its member governments. The
mechanism itself has its own positive and negative features. The Uruguay round and Doha
declarations were focused primarily on the involvement of LDCs in the dispute settlement
process. The understanding itself under many provisions gives some superior status for the
LDCs
to equally use the process, like Article 12.10 and 24 regarding time extension given for the
developing countries in consultation process. But the reality learned from the decided
disputes
under the DSU clearly shows that the process does not manage the universal economy
impartially. It generally focuses on the commercial interest of the profit making companies
rather
than the economic growth of all nations.
Though it is having many inherent defects, as an organization to encourage trade and
economic growth the WTO and the DSM are very well operating towards the stimulation of
trade and economic progress. Regarding the developing countries participation in the panel
process, by the end of 2010, 63 percent of the serving panelists were from developing
countries.67 Due to active participation of and the experience gained by certain developing
countries like India, Brazil, Argentina, Thailand, now there is a little shift in the mechanism.
Nations started understanding their rights and obligations under the WTO agreements. At
present, ignoring all the issues, the WTO DSB proceedings must be made in an impartial and
more transparent manner keeping in view the economic progress and interest of the humanity
rather than having 100% focus on trade.
67 Analysis of WTO DSB developments by Frederick Agah, the then Chairman of the DSB
(2010-11), available at:
http://www.wto.org/english/tratop_e/dispu_e/speech_agah_4mar10_e.htm (Visited on
September 12, 2011).
Bibliography
Primary Sources:
Books:
_ Gregory Shaffer and Ricardo Melendez-Ortiz (eds.), Dispute Settlement at the WTO: The
Developing Country Experience (Cambridge University Press, Cambridge, 2010).
_ M B Rao and Manjula Guru, WTO Dispute Settlement and Developing Countries (Lexis
Nexis, New Delhi, 2004).
_ Mitsuo Matsushita, Thomas J. Schoenbaum and et. al., The World Trade Organization-
Law, Practice and Policy (Oxford University Press, New York, 2nd edn., 2006).
_ Surendra Bhandari, World Trade Organisation and Developing Countries (Deep & Deep
Publications Pvt. Ltd., 2001).
Secondary Sorces:
Articles:
_ Bryan Mercurio and Mitali Tyagi, “Treaty Interpretation in WTO Dispute Settlement:
The Outstanding Question of the Legality of Local Working Requirements”, 19
Minnesota Journal of International Law 275 (Summer, 2010).
_ Chad P. Bown and Bernard M. Hoekman, “WTO Dispute Settlement and the Missing
Developed Country Cases: Engaging the Private Sector”, available at:
http://www.brookings.edu/views/papers/200505bown.pdf (Visited on October 2, 2011).
_ Dan Kovenock and Marie Thursby, “GATT, Dispute Settlement and Cooperation”,
Working Paper available at: http://www.nber.org/papers/w4071.pdf (Visited on
September 12, 2011).
_ Gregory Shaffer, “Developing Country Use of the WTO Dispute Settlement System:
Why it Matters, the Barriers Posed, and its Impact on Bargaining”, available at:
http://ictsd.org/downloads/2008/05/shaffer_1.pdf (Visited on November 14, 2011).
_ Henrick Horn, Petros C. Mavroidis and et. al., “Is the Use of the WTO Dispute
Settlement System Biased?”, available at: www.econlaw.
se/Papers/Disputes000117.PDF (Visited on March 14, 2011).
_ Joel P. Trachtman, Philip M. Moremen, “Costs and Benefits of Private Participation in
WTO Dispute Settlement: Whose Right is it Anyway?”, 44(1) Harv. Int’l L.J. 221(2003).
_ John H. Jackson, “International Law Status of WTO Dispute Settlement Reports:
Obligation to Comply or Option to ‘Buy Out’?”, 98 American Journal of International
Lsaw 109 (2004).
_ John H. Jackson, “The WTO Dispute Settlement Understanding – Misunderstandings on
the Nature of Legal Obligation”, 91(1) American Journal of International Law 60 (Jan
1997).
_ Kristin Bohl, “Problems of Developing Country Access to WTO Dispute Settlement”, 9
Chi.-Kent J. Int'l & Comp. L. 130 (2009).
_ Marc L. Busch and Eric Reinhardt, “Developing Countries and GATT/WTO Dispute
Settlement”, available at:
http://userwww.service.emory.edu/~erein/research/Berkeley.pdf (Visited on October 17,
2011).
_ Marc L. Busch and Eric Reinhardt, “Three’s a Crowd: Third Parties and WTO Dispute
Settlement”, 58 World Politics 446(April 2006).
_ Marc L. Busch and Eric Reinhardt, “Transatlantic Trade Conflicts and GATT/WTO
Dispute Settlement”, available at: http://www.ppl.nl/bibliographies/wto/files/1546.pdf
(Visited on October 2, 2011).
_ Robert E. Hudec, “The New WTO Dispute Settlement Procedure: An Overview of the
First Three Years”, 8 Minn. Journal of Global Trade 2 (1999).
_ Safia Gupta, “From GATT to WTO”, available at:
http://legalserviceindia.com/article/l378-From-GATT-to-WTO.html (Visited on
September 12, 2011).
_ Swapneshwar Goutam, “WTO & Development in Developing Countries Perspective”,
available at: http://legalserviceindia.com/article/l425-WTO-&-Development-In-
Developing-Countries-Perspective.html (Visited on October 2, 2011).
_ Thomas J. Shcoenbaum, “WTO Dispute Settlement: Praise and Suggestions for Reform”,
47 Int’l & Comp. L. Q. 647(1998).
_ Trade Brief on the WTO Dispute Settlement by SIDA, April 2004, available at:
www9.georgetown.edu/faculty/mlb66/SIDA.pdf (Visited on October 17, 2011).
_ Wilhelm Kohler, “The WTO Dispute Settlement Mechanism: Battlefield or
Cooperation?”, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=764168
(Visited on November 12, 2011).
Web Sources:
• http://wikipedia.org
• http://wto.org
• http://legalserviceindia.com
• http://ehow.com
• http://ssrn.com