Abstract
The rule-oriented dispute settlement system of the World Trade Organization (WTO) is a remarkable achievement in international economic regulations in which law has a major role. Trade law, among all international legal systems, is the most advanced and used one. Bearing this in mind, this article approaches the main users of the system over the years—with a significant increase in developing countries’ participation—the advantages of using the system for all WTO Members (and whether the system works for developing economies), and how changes in the dispute settlement system’s rules could facilitate small and developing countries’ ability to pursue legal claims. This chapter is aimed at showing that even with the difficulties imposed by the system itself for developing economies’ participation, it normally provides for a safer and long-lasting solution than a purely political settlement.
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Notes
- 1.
Updated until January 10, 2017.
- 2.
Busch and Reinhardt (2004).
- 3.
Numbers available at the WTO website.
- 4.
Hoekman and Mavroidis (2000).
- 5.
See Baptista (2007), p. 16.
- 6.
Considering the possible problems of a legalistic system, William J. Davey mentions that critics claimed that it would promote conflict and contentiousness in the organization and that the wrong cases would be broken to the organization, undermining the GATT system. Davey et al. (2002), pp. 247–251. Also, Robert Hudec indicates the possibility of wrong cases being presented before the DSB, diminishing the prestige of the GATT and its rules. Hudec (1980), p. 159.
- 7.
Davey (2003), p. 5. See also Davey (2005). The general high rate of compliance with WTO recommendations does not interfere in the importance of the presentations for three basic reasons: (1) in not guaranteeing 100% of implementation of its decisions, the WTO dispute settlement system has problems that must be reviewed; (2) every decision not implemented might cause considerable economic and social trouble to members involved in the disputes—and perhaps to the multilateral trade system as a whole and; (3) the rate of 83% is general and does not reflect the rate of compliance/implementation when the claimant is a much smaller economy than the defendant.
- 8.
There are, to date, 60 disputes involving only developing countries since the dispute settlement mechanism was created. For instance, in 1995, the Philippines filled a complaint against Brazil concerning measures affecting desiccated coconut (DS22); and other disputes such as: DS23, 60, 112, 123, 156, 168, 181, 182, 185, 188, 190, 191, 201, 205, 207, 208, 211, 216, 220, 226, 227, 228, 229, 230, 232, 233, 237, 238, 241, 255, 261, 272, 278, 284, 288, 298, 300, 302, 303, 306, 327, 329, 331, 333, 348, 351, 355, 356, 366, 371, 374, 393, 410, 415, 416, 417, 418, 428, 439, 446, 453, 457, 461, 470, 484, 500, 506, 507, 513. As for the criteria used to select these cases, for simplification purposes China, Chinese Taipei and the East Europe countries were not considered developing countries.
- 9.
Busch and Reinhardt (2004), p. 3.
- 10.
See Busch and Reinhardt (2004), p. 5.
- 11.
WTO, TN/DS/25.
- 12.
See Plasai (2007), p. 6. The author also addresses the exception of Article 4.6 of the Agreement on Subsidies and Countervailing Measures. The Article indicates that when the measure at issue is found to be a prohibited subsidy, the panel must recommend that the subsidizing member withdraws the subsidy without delay. Ibid.
- 13.
WTO, TN/DS/W/23.
- 14.
WTO, TN/DS/W/15.
- 15.
WTO, TN/DS/W/9.
- 16.
WTO, TN/DS/W/33.
- 17.
WTO, TN/DS/W/42.
- 18.
WTO, TN/DS/W/19.
- 19.
WTO, TN/DS/W/47.
- 20.
Matsuchita et al. (2003), p. 94.
- 21.
Ibid.
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Amaral, R.V., Barral, W. (2019). Developing Countries: Whether Legal (and Costly) Settlement of Disputes Is Better Than Political Settlement. In: do Amaral Júnior, A., de Oliveira Sá Pires, L.M., Lucena Carneiro, C. (eds) The WTO Dispute Settlement Mechanism. Springer, Cham. https://doi.org/10.1007/978-3-030-03263-0_5
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