WTO dispute settlement system and democracy. Some issues to ponder
| Date | 10 June 2014 |
| Pages | 185-196 |
| DOI | https://doi.org/10.1108/JITLP-09-2013-0025 |
| Published date | 10 June 2014 |
| Author | Sheela Rai |
| Subject Matter | Strategy,International business,International business law |
WTO dispute settlement system
and democracy
Some issues to ponder
Sheela Rai
National Law University Odisha, Cuttack, Odisha, India
Abstract
Purpose – The purpose of this paper is to analyse the current proposals for reform of the World Trade
Organization (WTO) dispute settlement system. Two areas of proposed reforms have been chosen: one
is regarding democratic control over the WTO dispute settlement body and the other is regarding
structural balance within the WTO.
Design/methodology/approach – It is a theoretical study based on decided cases, opinions and
writing of other writers.
Findings – Democratizing a judicial body from within is not the most desirable method to control it.
Separation of powers and checks and balances which is termed as institutional balance in WTO is a
better way to rein in the judicial organ of the WTO.
Originality/value – Most of the work on WTO judicial reforms have either concentrated on technical
aspects. Some writers have written about the dispute settlement system from a political point of view.
Most of the writings seem to be shy of pointing towards obvious developments in the WTO dispute
settlement system, e.g. the precedent system. The work analyses the proposed reforms from two
perspectives and presents writer’s opinion on them which is clearly and openly stated.
Keywords WTO, Amicus curiae, Democratization, Institutional balance
Paper type Research paper
It can be hoped that the Doha Development Round, which probably started too early,
would come to a successful conclusion in not too distant a future. One of the important
issues on the development agenda is amendment of the Dispute Settlement
Understanding (DSU). Dispute settlement process and its amendment would have
signicant bearing on the functioning of the World Trade Organization (WTO). The
success and inuence of the WTO has motivated some writers to discuss the
organization and its organs in terms of constitutionalization (Cass, 2005;Kill, 2011;
Howse and Nicolaidis, 2003;Dunoff, 2006;Trachtman, 2006;Elsig, 2007). Dispute
settlement system of the WTO is largely accredited for pushing towards
constitutionalization of the system established by the WTO (Schloemann and Ohlhoff,
1999;Nicholas, 1996;Howse, 2001). Some writers have contested these assertions (Cass,
2005), but what is interesting is that such impression is being created in the mind of
some, and it signies the importance which the WTO dispute settlement system has
gained in the international trade regime. It has to be remembered, however, that the
dispute settlement system had started acquiring importance since the General
Agreement on Trade and Tariffs (GATT) era itself because of its better efcacy, even
though at that time many panel reports remained unadopted due to the practice of
positive consensus. The WTO dispute settlement understanding brought about further
The current issue and full text archive of this journal is available at
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WTO dispute
settlement
system
185
Received 15 September 2013
Revised 25 March 2014
Accepted 13 April 2014
Journal of International Trade Law
and Policy
Vol. 13 No. 2, 2014
pp. 185-196
© Emerald Group Publishing Limited
1477-0024
DOI 10.1108/JITLP-09-2013-0025
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