Legitimacy and Transparency of the WTO Dispute Settlement Procedures: An analysis of the present state of the DSU negotiations using private-interest/public-interest models

Author Name KOBAYASHI Kenichi  (Consulting Fellow, RIETI)
Creation Date/NO. February 2008 08-J-002
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This paper examines the differences among member countries of the World Trade Organization (WTO) in their stances on the Dispute Settlement Understanding (DSU) negotiations concerning the transparency of the dispute settlement system, focusing on the underlying perception gaps about the WTO dispute settlement mechanism. Chapter II provides an overview of the traditional pragmatism versus legalism debate concerning the dispute settlement procedures under the WTO and the General Agreement on Tariffs and Trade (GATT), introducing a private/public interest model employed as an analytical framework in this paper. Chapter III examines key WTO member states' proposals and positions in the DSU negotiations by applying the private-interest/public-interest models. In doing so, each country's proposals are clarified from three viewpoints: 1) open hearings of WTO panel and Appellate Body proceedings, 2) submission of amicus curiae briefs, and 3) public access to dispute settlement documents. Lastly, chapter IV compares key WTO members' views on the transparency of dispute settlement procedures under free trade agreements (FTAs) with those on the transparency of the WTO dispute settlement procedures, and presents reasons why their stance on transparency in their own FTAs often contradicts their respective stances in the WTO. Through a series of analyses, some countries, typically the United States and Canada, are found to strongly support increasing the transparency of the WTO dispute settlement procedures and these countries make proposals focusing on the role of the WTO as a public-interest organization. At the same time, however, the European Communities (prior to the Doha Mandate) and many developing countries are found to have taken or continue to take a cautious stance on reforming the WTO dispute settlement procedures in a way that increases transparency, and they tend to stress the nature of the WTO as a public-interest organization.

The EC and many developing countries are particularly concerned that nongovernment organizations (NGOs) might be given greater say in the WTO dispute settlement procedures than WTO members not party to the dispute, and thus, they call attention to the WTO's status as an intergovernmental organization. Such arguments of the EC and developing countries are, in other words, based on the traditional idea of defining the WTO as a private-interest organization comprised of member states. However, the scope of issues subject to the WTO rules is fast expanding into new areas and so is the jurisdiction of the WTO dispute settlement body. As revealed by the 1999 ministerial meeting in Seattle, the rapid transformation of the WTO has drawn greater public attention and, at the same time, has made it difficult to continue to treat the WTO as a private-interest organization. Expectations toward the WTO are no longer limited to providing a framework for settling disputes between member states. Rather, the questions faced by the WTO are how to obtain civil society's endorsement of the legitimacy of WTO decision-making, including dispute settlements, and how to manage, on top of its original task of liberalizing trade, the task of addressing environmental issues and other diverse values (that are potentially in a trade-off with free trade) and have it fit in the practical operations of the WTO.