The negotiations on the review and amendments of the WTO Dispute Settlement Understanding, started at the 2001 Doha Conference, have reached a crucial point. Initially based on proposals made by individual Members or groups of Members and, at a later stage, on the Chairman’s Text of 2003, the negotiations are now evolving on the basis of the July 2008 Legal Draft. This latter covers many issues, such as third party rights, panel composition, remand authority, mutually agreed solutions, strictly confidential information, sequencing, post-retaliation, transparency and amicus curiae briefs, timeframes, developing country interests, including special and differential treatment, flexibility and Member control and effective compliance. Some proposals address the relationship among the different organs vested with the resolution of disputes and point towards a more influential role for the Dispute Settlement Body whose powers seem to have progressively weakened vis-à-vis those of the Appellate Body. In this context, both the amendments proposed and an Additional Guidance for WTO adjudicative bodies proposed by the DSB merit attention and seem to project an involution of the system rather than an improvement. The WTO dispute settlement mechanism constitutes, in fact, a precious component of the new multilateral trading system. In this context, AB case law has opened the doors of WTO system to international law, in order to fill the interpretative gap left by WTO law; then to apply precise procedural principles, such as due process, the burden of proof, etc.; then to deal with new issues, for example, the participation of civil society, like many other international tribunals. This has avoided the implosion of the system in itself, as a “self-contained regime”, and has given the role which the WTO system can play in the context of evolution of international law. So, while the DSU practice has revealed a certain number of flaws, the mechanism has generally worked well. It would be better to intervene with few but important changes which could really improve the DSU system, regarding the implementation stage and the position of developing countries.

The WTO Dispute Settlement Understanding Review:What Future for the Appellate Stage?

DISTEFANO, Marcella
2013-01-01

Abstract

The negotiations on the review and amendments of the WTO Dispute Settlement Understanding, started at the 2001 Doha Conference, have reached a crucial point. Initially based on proposals made by individual Members or groups of Members and, at a later stage, on the Chairman’s Text of 2003, the negotiations are now evolving on the basis of the July 2008 Legal Draft. This latter covers many issues, such as third party rights, panel composition, remand authority, mutually agreed solutions, strictly confidential information, sequencing, post-retaliation, transparency and amicus curiae briefs, timeframes, developing country interests, including special and differential treatment, flexibility and Member control and effective compliance. Some proposals address the relationship among the different organs vested with the resolution of disputes and point towards a more influential role for the Dispute Settlement Body whose powers seem to have progressively weakened vis-à-vis those of the Appellate Body. In this context, both the amendments proposed and an Additional Guidance for WTO adjudicative bodies proposed by the DSB merit attention and seem to project an involution of the system rather than an improvement. The WTO dispute settlement mechanism constitutes, in fact, a precious component of the new multilateral trading system. In this context, AB case law has opened the doors of WTO system to international law, in order to fill the interpretative gap left by WTO law; then to apply precise procedural principles, such as due process, the burden of proof, etc.; then to deal with new issues, for example, the participation of civil society, like many other international tribunals. This has avoided the implosion of the system in itself, as a “self-contained regime”, and has given the role which the WTO system can play in the context of evolution of international law. So, while the DSU practice has revealed a certain number of flaws, the mechanism has generally worked well. It would be better to intervene with few but important changes which could really improve the DSU system, regarding the implementation stage and the position of developing countries.
2013
9789067048934
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11570/1944415
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