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10 - The evolving WTO dispute settlement system

from PART II - Accomplishments and Future Prospects of the WTO Dispute Settlement System

Published online by Cambridge University Press:  05 March 2012

Alan Yanovich
Affiliation:
Georgetown University
Yasuhei Taniguchi
Affiliation:
Keizai University, Tokyo and Member, WTO Appellate Body
Alan Yanovich
Affiliation:
WTO Appellate Body Secretariat
Jan Bohanes
Affiliation:
Sidley Austin LLP
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Summary

The dispute settlement system of the World Trade Organization (WTO) is generally regarded as a big success. Most commentators agree that the system has worked remarkably well in its first ten years. Many factors explain the system's success. In this chapter, I focus on one factor that, in my view, helps explain this success: the WTO dispute settlement system's ability to evolve. Indeed, the WTO dispute settlement system has not remained static. Rather, the system has been evolving as each case raises new issues and poses new challenges.

Negotiations to reform the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) have been ongoing for several years. Some of the proposals that have been tabled seek to address perceived deficiencies in the system. Other proposals are more ambitious and would change the nature of the system. While the negotiations have not advanced as rapidly as initially hoped, this does not seem to pose a threat to the functioning of the system. The system has been able to overcome, in practice, some of the deficiencies that have been identified. At the same time, the system continues to evolve in such a way that new solutions could be found for issues that may arise in the future.

The WTO dispute settlement system has been able to evolve because DSU rules provide a degree of flexibility to WTO Members. The ability to evolve is also linked to the fact that the DSU leaves the WTO adjudicative bodies – that is, panels and the Appellate Body – some discretion in adopting their own working procedures.

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Information
The WTO in the Twenty-first Century
Dispute Settlement, Negotiations, and Regionalism in Asia
, pp. 248 - 258
Publisher: Cambridge University Press
Print publication year: 2007

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