The WTO permanent panel body: A bridge too far?

Journal of International Economic Law

Volumn 6, Issue 1, 2003, Pages 187-202

  Cottier, Thomas ^a  

^a NONE

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[No Author keywords available]

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EID: 0037232938     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/6.1.187     Document Type: Review

References (22)

1. Doha Ministerial Declaration, para 30, Dispute Settlement Understanding: 'We agree to negotiations on improvements and clarifications of the Dispute Settlement Understanding. The negotiations should be based on the work done thus far as well as any additional proposals by members, and aim to agree on improvements and clarifications not later than May 2003, at which time we will take steps to ensure that the results enter into force as soon as possible thereafter'. Results do not form part of a single-undertaking, id, para 47, rather they aspire to bring about early-harvest results.
2. William J. Davey, 'A Permanent Panel Body for WTO Dispute Settlement: Desirable or Practical?', in Daniel L. M. Kennedy and James D. Southwick (eds), The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec (Cambridge: Cambridge University Press 2002) 496-527. The paper offers statistical data and an extensive discussion of the issue.
3. John H. Jackson, 'Governmental Disputes in International Trade Relations: AProposal in the Context of GATT', 13 Journal of World Trade Law 1-21 (1979) (proposing a panel list of 20 persons).
4. Trade Policies for a Better Future, March 1985, recommendation 12 ('In support of improved and strengthened rules, GATT dispute settlement procedures should be reinforced by building up a permanent roster of non-governmental experts to examine disputes, and by improving the implementation of panel recommendations').
5. Commission of the European Communities, Discussion Paper: Review of the Dispute Settlement Understanding, 21 October 1998, issue 9.
6. Robert E. Hudec, 'The New WTO Dispute Settlement Procedures. An Overview of the First Three Years', 8 Minn Journal of Global Trade 1, 38-39 (1999).
7. Davey, above n 2, at 527 ('While the WTO dispute settlement works reasonably well, it can and should be improved. The implementation of the Panel Body system would speed panel selection, improve the operation of panels and increase the expertise of panelists and the quality of their work product. In the long run, the achievement of such improvements is essential for the credibility of the WTO dispute settlement system'). Davey suggests building a permanent panel body of preferably 20-25 persons working half-time. See also Davey, 'The Case for a Permanent Panel Body', at page 177, supporting a body of 15 permanent panelists.
8. Davey, above n 2, at 527 ('While the WTO dispute settlement works reasonably well, it can and should be improved. The implementation of the Panel Body system would speed panel selection, improve the operation of panels and increase the expertise of panelists and the quality of their work product. In the long run, the achievement of such improvements is essential for the credibility of the WTO dispute settlement system'). Davey suggests building a permanent panel body of preferably 20-25 persons working half-time. See also Davey, 'The Case for a Permanent Panel Body', at page 177, supporting a body of 15 permanent panelists.
9. John Kingery, 'Operation of Dispute Settlement Panels', 2000 (at 7: 'In light of all this, it must be concluded that a standing Panel Body would contribute to the neutrality, efficiency and effectiveness of gathering evidence and making consistent procedural rulings'), (http://www.law.georgetown.edu/journals/lpib/symp00/kingery.pdf, visited Sept 2002).
10. James C. Hecht (Chief Counsel for Senate Majority Leader Trent Lott), 'Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform' (undated, http://www.law.georgetown.edu/joumals/lpib/symp00/hecht.pdf, visited Sept 2002). See also the overall reluctant attitude expressed by Claude E. Barfield, Free Trade, Sovereignty and Democracy: The Future of the World Trade Organization (Washington, DC: AEI Press, American Enterprise Institute 2001), whose aim it was to 'turn the clock back to GATT 1947 levels of adjudication and compensation' rather than to promote law enforcement.
11. James C. Hecht (Chief Counsel for Senate Majority Leader Trent Lott), 'Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform' (undated, http://www.law.georgetown.edu/joumals/lpib/symp00/hecht.pdf, visited Sept 2002). See also the overall reluctant attitude expressed by Claude E. Barfield, Free Trade, Sovereignty and Democracy: The Future of the World Trade Organization (Washington, DC: AEI Press, American Enterprise Institute 2001), whose aim it was to 'turn the clock back to GATT 1947 levels of adjudication and compensation' rather than to promote law enforcement.
12. Terence P. Stewart and Amy Ann Kapel, 'Review of the Dispute Settlement Understanding: Operation of Panels', paper presented at The First Five Years, American Bar Association, 20-21 January 2000, Georgetown, Washington, DC. (http://www.law.georgetown.edu/journals/lpib/symp00/stewart.pdf, visited Sept 2002).
13. Quoted from Washington Trade Daily, vol 11, no 194, September 2002, in 'Senator Baucus Blasts WTO Dispute System', Trade Reports International Group, Washington, DC 2002.
14. European Communities, 'Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding') TN/DS/W/1 (13 March 2002) [hereinafter EC proposal]. In answering questions submitted by India, additional explanations were provided, cf. 'European Communities' Reply to India's Questions', TN/DS/W/1 (30 May 2002) [hereinafter EC reply].
15. EC proposal, above, at 3
16. EC reply, above n 12, question 6.
17. Davey, above n 2, at 502.
18. Davey reports (up to mid 2000), above n 2, at 500: 'The 119 individuals who have filled the 186 panelist positions come from a wide range of WTO Members - 41 to date. The principal sources of panelists are Switzerland - 19 positions filled; New Zealand - 17; Australia - 12; Brazil - 11; Hong Kong - 11; South Africa - 9; Canada - 7; Czech Republic - 6; Poland - 6; Chile - 5; Egypt - 5; Germany - 5; India - 5; Norway - 5; Sweden - 6; and Thailand - 5. Nationals of the so-called Quad members have filled positions as follows: EC - 26 positions, Canada - 7, US - 4 and Japan - 2, or 39 in all (21%). Overall, 73 positions have been filled by developing country panelists (39%) and 17 by East European panelists (9%). Geographically, the developing country panelists have come from Africa (14), Asia (28), Indian Ocean (1) and Latin America (30). Of the panel positions, 20 have been filled by women (11%, a percentage that has been growing in recent years).' (footnotes omitted)
19. See Matthias Oesch, 'Standards of Review in WTO Law', PhD, Berne (forthcoming).
20. Davey, above n 2, at 508 n 53.
21. This topic has been recently discussed at the 2002 World Trade Forum held at the WTI in Berne. It was held to be of crucial importance to the rebalancing of dispute settlement and political process, see Thomas Cottier, 'WTO Dispute Settlement and Multilateral Trade Negotiations: Is There a Need for Inter-Round Negotiations' (World Trade Forum, Berne August 15-16 2002, forthcoming).
22. Such are the calculations by Davey, above n 2, at 516.