1st March 2003
Towards a Development-Supportive Dispute Settlement System in the WTO
In the recent past, there has been an explosion of scholarship around the theme of developing countries and the multilateral trading system. Whereas much of this scholarship has dwelt on the issues that developing countries have been perennially concerned with since the days of the old General Agreement on Tariffs and Trade (GATT), increasingly, a spotlight has been cast on the dispute settlement system, its role in enhancing security and predictability to the system, and to much less extent, its shortcomings especially from the perspective of developing countries. As endeavours in academic discourse, this scholarship is well thought out and coherently presented. However, to the delegate or country representative, negotiating a bewildering array of issues in the on-going Doha Round, such works are of minimal help, as they are either too dense and academic, are rendered in a language that is not readily accessible or are simply out of touch with the timbre of the options available in the negotiations. The collection of essays which ICTSD offers here seeks to make a modest contribution in filling this void. As usual, ICTSD hopes to contribute to enhancing the trade-policy formulation process by making this collection widely available to delegates, civil society and the wider public.
ICTSD’s conviction that fashioning a dispute settlement system that is responsive to the sustainable development goals of societies in developing and least developed countries in the WTO is strongly shared and articulated by the writers. The WTO cannot and should not avoid being a forum through which developing and least developed countries can push their development goals forward, and a fortiori, neither should its dispute settlement process. Simply put, it would have failed if it does. By thinking through some of the fundamental reasons that contribute to the “rational decision” not to initiate disputes through the WTO, Professor Gregory Shaffer raises and proposes a set of responses to some of the most debilitating problems that confront developing and least developed countries. He assesses a number of strategies that some developing countries have used, and others could consider, to mobilize legal resources and overcome at least some of the challenges that they face. He also explains how WTO remedies are structured in favour of large developed countries, and how remedies could be modified so that the WTO legal system might better promote developing country participation, which, in turn, would better promote their development interests. Mr. Victor Mosoti’s paper looks at some of the issues that African countries have been concerned with. It answers, in the affirmative the question whether Africa indeed does need the WTO dispute settlement system. He asserts that this is so because, the system is not simply or solely about disputes, it is also about the steady evolution of a corpus of important international trade law principles whose effects and applicability will continue long into the future. The system is also a key element in the international architectural framework whose decisions have momentous, if potentially negative, development implications. This paper, while augmenting the views in the previous paper by Professor Gregory Shaffer, urges that African countries should therefore be at the forefront in the on going review of the system and should be more vigorously involved as third parties in various disputes that may be of interest to them. Finally Professor Asif Qureshi’s paper addresses the development dimension in the interpretation of the WTO Agreements. He asserts that this has hitherto neither been sufficiently articulated, nor coherently structured in the architecture of international trade agreements. Developing members have expressed dissatisfaction with the record of interpretation thus far in the jurisprudence of the WTO. The dissatisfaction has focused on the results of interpretation, the approaches to interpretation, the methodology involved in interpretation and the participants engaged in interpretation. Prof. Qureshi discusses the various ways in which the development objectives could be factored into the interpretive analysis.
It is not in doubt that the importance of the WTO dispute settlement system will grow, as more and more Members begin to engage in the process. There is a definite need to ensure that the sustainable development aspirations of the poorer Members are not smothered by an unsupportive and daunting legal system. This should be the objective of Members, whichever of the recommendations on the table for the review of the Dispute Settlement Understanding that they find favourable. In producing this collection, we have worked with the authors towards this objective, with roundtable discussions and conferences with various stakeholders. We at ICTSD look forward to the opportunity to further contribute to the capacity pool by bringing to the fore the often diminutive voices of sustainable development.