Introduction

Is the dispute settlement mechanism of the World Trade Organization (WTO) a court? It is easy to imagine the first members of the Appellate Body asking themselves this question and contemplating their degree of latitude and discretion. International economic law is traditionally considered not to be amenable to the judicial settlement of disputes, and this might even be considered one of its distinguishing features. From this standpoint, the advent of a genuine court would indicate a process of evolution and indeed its consecration as ‘real’ law (expounded and sanctioned by a judge). It would also support and validate the thesis of rejection of the ‘clinical isolation’ of WTO law, particularly as the hypothesis of movement towards a judicial system is not specific to the settlement of trade disputes but applies to international law as a whole. Thus, there may be a sort of dialectic according to which the settlement of trade disputes is affected by this general trend insofar as it participates in and nourishes that trend. The approach is all the more tempting in that ‘judicialization’ has its own intrinsic value. Indeed, it is often viewed as a remedy for the traditional ailments or primitiveness of international law.

Although the dispute settlement mechanism may, in the course of only a few years, have developed a judicial structure and in so doing displayed a readiness to model itself on the jurisprudence of other international courts, especially in terms of procedure, various analysts prefer to use the convenient term ‘quasi-judicial’.