The WTO Dispute Settlement System: Proposals for R
Wu Ge
【全文】
The WTO Dispute Settlement System: Proposals for Reform
Ge Wu
I. Introduction
On 1 January 1995, the most fundamental change occurred during the Uruguay Round, which regulated the rules of the new dispute settlement mechanism, named the Understanding on the Rules and Procedures Governing the Settlement of Disputes (“Dispute Settlement Understanding” or “DSU”), under Articles XXII and XXIII of the GATT (General Agreement on Tariffs and Trade). The DSU has been widely regarded as a big success in its creativity and necessity of effective service to resolve disputes between the 142 states and separate customs territories that are currently members of the World Trade Organization (“WTO”). In addition, the DSU is highly praised as “the central pillar of the multilateral trading system and the WTO’s most individual contribution to the stability of the global economy.”[1]
During the six-year operation of the DSU “constitution”,[2] the experience has shown us that the DSU has changed the nature of the dispute settlement process different from the practices of the previous GATT 1947 system in many ways. The changes made the system from “a diplomatic to a legalized process and from a power-based to a more rule-based procedure.”[3] Under the DSU, the dispute settlement process consists of three major stages, namely, “(1) bilateral or multilateral consultations, (2) adjudicative process before a panel, subject to appellate review, (3) implementation and enforcement under surveillance by the Dispute Settlement Body (DSB).”[4] A series of features have been introduced to deal with the trading problems in the new dispute settlement mechanism. The consultation is a first step before the establishment of panel. Panel reports are adopted unless there is a consensus in the DSB to the contrary. In addition, the DSB introduced strict deadlines to settle disputes within a time-frame which is acceptable to the business community. Further, a standing Appellate Body is empowered to review the panel report to ensure the legal consistency of the reports and of the jurisprudence in general. Finally, the implementation or enforcement of the recommendations or rulings from the panel or the Appellate Body is underpinned by the right of retaliate of the winning party.
Generally speaking, the DSU created a legalized, predictable, and reliable system for dispute settlement. But at first the negotiators of the DSU dared not assume the success.[5] So the Ministers meeting at Marrakech in April 1994 regulated an insurance policy to guarantee the success. They invited the Ministerial Conference of the WTO to complete a full review to WTO dispute settlement rules and procedures within four years after the WTO agreement entered into effect, and “to take a decision… whether to continue, modify or terminate such dispute settlement rules and procedures.”[6] The review was scheduled for competition in 31 December 1998, but because of the numerous proposals submitted, the deadline for the review was extended until the end of July 1999.[7] Among the numerous proposals submitted by the WTO members, it is the common point that is their satisfaction with the dispute settlement system. They praised the DSU’s role in strengthening the credibility and predictability of the multilateral trading system, the impartial and objective manner in which disputes are settled, and the positive and satisfactory solutions found. Consequently, they emphasised that there is no need to change the dispute settlement system as a whole. But behind the common agreement, lots of complaints regarding the dispute settlement procedures and the WTO institution weakness arose from the developing countries, non-governmental organizations (NGOs) and some developed countries. This paper will firstly overlook the dispute settlement procedure, and then try to examine the points in relation to the dispute settlement process and the institutional weakness on the base of all kinds of review proposals.
