WTO dispute settlement, various means other than panel procedures continuity & change

Résumé du document

The aim of the GATT procedures has always been to resolve disputes, whenever possible, through agreement between the parties, rather than by seeking to identify treaty violations . With this sentence, Professor Merrills clearly referred to the two possible methods (the diplomatic-political manner and the legal manner) for resolving an international trade dispute between two member states to the World Trade Organization (WTO). A dispute is a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion by one party is met with refusal, counter-claim or denial by another.

Extraits

[...] The new system incorporates many features of the existing GATT procedures. It confers a greater position to the panel procedure, introducing important innovations such as the creation of a new organ, the Dispute Settlement Body with an Appellate Body[21]. The Understanding confers also a privileged place to the political and diplomatic methods of Dispute Settlement. The Understanding contains a large range of various ways to settle disputes out of legal proceedings. The most important (consultations, good offices, conciliation and mediation) are contained in Articles 4 and 5. [...]

[...] Thus, before 1994, more than twenty instances have involved a third party in the consultation process. Otherwise, if a request to join is refused, the third party can always seek separate bilateral consultations under Article 4(3). As of October 1998, there have been some 148 consultation requests and most of them were successful. This record shows that most international trade disputes are resolved in the consultation stage. Furthermore, far more dispute have been settled by consultations than by panels, this being in fact the method by which most disputes are resolved in practice. [...]

[...] The diplomatic means of dispute settlement are also characterized by the parties' control of the dispute. They can choose the third body and are free to accept or refuse its proposals. Thus, the parties to the disputes have a primordial role characterized by the voluntaristic nature of the dispute settlement system of the old GATT. The result of the dispute depends on the consent and initiative of the protagonists. It is only when consultations and the other methods fail, that the disputes enter in the more legal stage of the panel procedure. [...]

[...] The WTO Dispute Settlement Body is not a court but rather a high diplomatic organ in charge as far as possible to reach a politically flexible remedy in trade disputes. To sum up, the Understanding employs what could be defined as a vertical system. To settle international trade dispute peacefully, the Understanding uses first various diplomatic methods, which are available successively. Then, the contracting parties could refer to the panel or Appellate Body procedures, in accordance with a strict timetable, until a solution is achieved. [...]

[...] Weiler, Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement”, Harvard Jean Monnet Working Paper, 9/00. Ibid. See E.U.Petersmann International Trade Law and The GATT/WTO Dispute Settlement System. Studies International Transnational Economic Law. Kluwer Law International (1997). M.J. Trebilcock & R. Howse, The Regulation of International Trade, Routeledge (1999). For a concise overview see A.F. Lowenfeld, “Remedies along with rights: Institutional reform in the new (1994) 88 AJIL p Cf. [...]