Addressing the Development Objective in Settling Trade Disputes

In the preceding chapters we have examined development in the context of the rules, the implementation, the challenges, and the initiatives adopted by the WTO. But the issue has not been left out of the dispute settlement process of the WTO. Particularly in the course of judicial review, the concept and how it is interpreted, indeed to what extent it is acknowledged, is fundamental to the perception of the WTO as an Organisation for development through trade.

Some developing country Member States have not been entirely satisfied that the dispute settlement process has furthered the development objective. They are not convinced that the DSB has always interpreted developing country domestic policies from a development perspective. They have expressed the view that ‘the Panels and Appellate Body have displayed an excessively sanitised concern with legalisms, often to the detriment of the evolution of a development-friendly jurisprudence’. To counter this perception, Qureshi first engaged in a careful study of several disputes which have centred on the development question. He subsequently opined that the development question ‘needs to be factored in at the level of drafting WTO Agreements; institutionalised in the very process of interpreting WTO Agreements; engineered in actual interpretations of WTO Agreements; and facilitated through the introduction of development friendly material in the judicial process’.

Some efforts have been undertaken at Secretarial level to facilitate developing country utilisation of the dispute settlement mechanism. The WTO Legal Affairs Division engages in training and technical assistance programmes designed to assist developing countries in their participation at WTO dispute settlement. Also, the ACWL established in July 2001 as an independent body created by an Agreement separate from the WTO Agreement provides assistance to developing countries in this area. It provides free advice on WTO law and requests a nominal charge to represent developing countries at the DSB. In particular, LDCs are granted fee exemptions at the ACWL.

The ACWL provides free advice on WTO matters to its developing country members and to all LDCs who are members of the WTO or who are in the process of accession. For a small fee, it represents these countries in WTO dispute settlement proceedings.