T.R.A.D.E. Working Papers 1

INTRODUCTION

The Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes, adopted by the Trade Negotiations Committee on 15 December 1993, in part reads as follows: “Ministers ... invite the Ministerial Conference to complete a full review of dispute settlement rules and procedures under the World Trade Organization within four years after the entry into force of the Agreement Establishing the World Trade Organization, and to take a decision on the occasion of its first meeting after the completion of the review, whether to continue, modify or terminate such dispute settlement rules and procedures.”

Under this Decision, WTO Members were mandated to complete a review of the operation of the current Dispute Settlement Understanding (DSU) by the end of 19981, allowing the Third WTO Ministerial Conference, to be held in the United States in late 1999, to take a decision on whether to continue, modify or terminate the DSU. A number of informal consultations have been held at the WTO Dispute Settlement Body (DSB) for this purpose, but no consensus has emerged so far regarding whether or, if at all, to what extent the current DSU should be modified.

This paper is an attempt to analyse problems that have been encountered by developing countries in relation to the operation of the DSU. It is important to note however, that the analysis of substantive issues, raised and decided upon in the context of disputes that have been brought to the WTO dispute settlement mechanism so far, is beyond the scope of this paper. While the focus of the present paper is on issues of process related to the operation of the DSU, this should not diminish the importance of the issues of substance addressed in the panel/Appellate Body decisions which may be the subject of a follow-up paper in the future.

Before engaging in the analysis of the current DSU, it is useful to review the experience of developing countries under GATT 1947 in respect of the dispute settlement system, in order to highlight the difference and similarities between the past and the present situations.

 click here to download