Introduction
Dispute Resolution or DSS is considered by the World Trade Organization (WTO) as a key pillar of the international trade system and as a unique contribution to the organization in strengthening the global economy. Conflict arises when a one-member country adopts a trade policy process or takes certain actions when one or more parties deem it to violate the WTO agreements or to fail to comply with the obligations. By joining the WTO, member states have agreed that if they believe that some members violate trade rules, they will use the international dispute resolution system instead of taking unconventional actions – including compliance with agreed procedures – Understanding Development Controversy – and respecting decisions, especially the Dispute Settlement Board ( DSB), the WTO unit responsible for dispute resolution.
The world trading system has seen a proliferation of Regional Trade Agreements (RTAs) since the early 1990s. Many of the RTAs negotiated in recent times are equipped with a sophisticated dispute settlement mechanism (DSMs) clause. It is believed that these RTA-DSMs have the potential to affect WTO-DSM reliability.
1) the nature of the WTO-DSM power;
2) the issue of ‘selection of the right forum’ for resolving trade disputes given the overlapping and conflicting positions between the RTA-DSMs and the WTO-DSM;
3) the legal value of the decisions of the RTA-DSMs in the WTO-DSM;
4) the principles of international law that can be used to deal with conflict of interest between the RTA-DSM and the WTO-DSM; and
5) provisions within the WTO that can be used to link the RTAs and DSMs of the WTO. This note suggests that there is no sixth rule to answer the complex question of lawmaking and that each overlap or conflict of management between RTA-DSMs and WTO-DSM needs to be considered. However, the credibility of the WTO should not be compromised in any given situation.
WTO Appellate body[1]
The WTO Appellate Body for judges was first established in 1995. While the total collection consists of seven judges, Appellate Body can listen to at least three appeals. The full term of the Appellate Body judge’s appointment takes four years and is likely to be re-appointed.
By July 2018, there were only four judges remaining, as some had completed their 4-year term and one of the judges ended by the end of 2018. According to a statement made by Waterloo, Ontario’s independent Centre for International Governance Innovation (CIGI) – backed by the Canadian government, the US Attorney’s Office, which is seeking WTO reform, has blocked any re-appointment.
The nature of the jurisdiction of the WTO- DSM
The Appellate Body is designated with a level of authority, relating to procedural issues. Appellate Body has come under heavy criticism, as it is said to have the power to threaten balance and relieve existing imbalances. Appellate Body made a few important changes; expanding access to third parties in grievance procedures, opened the door for submissions filed by amicus curiae by private individuals, and allowed private counselling to represent governments.
The type of understanding of the laws and procedures governing problem settlement (DSU) is very different. Section 23 of the DSU states that the WTO-DSM has the exclusive authority to resolve disputes arising out of breach of agreements covered by the WTO (covered agreements). In addition, Article 3.8 provides that the power of the WTO-DSM is compulsory and automatic, meaning that when presenting a claim to the WTO-DSM, the Member challenging the dispute is not required to prove the specific economic or legal interest of the dispute, or evidence of any adverse commercial effects. caused by the opposing measure.
In addition, the Responsible Member cannot participate in the dispute process. The issue of ‘proper forum selection’ arises when there are disputes or legal disputes. For example, overpopulation may occur When trade disputes arise between RTA entities, which are WTO members and, such overlap may occur if the obligation entered into the RTA is the same or similar to a covered agreement.
WTO Bodies involved in the dispute settlement process[2]
Under DSU, the “players” in the dispute resolution process are subject to certain rules designed to ensure due process and decisions that can be taken. Persons invited to participate in the dispute resolution process such as panellists, Appellate Body members or mediators must perform their duties in an impartial and independent manner. There should be no existing communication (the panel does not have the right to communicate with individuals other than the party of another party or groups) between the parties and the panel or members of the Appeal Tribunal in relation to matters under its control. DSU).[3]
Specifically, the DSB has adopted the DSU1 Code of Ethics, which aims to ensure the integrity, impartiality and confidentiality of the dispute resolution process. This Code of Conduct applies to all “covered persons” including panel members, Appellate Body members, panel assistants, arbitrators, Textile Monitoring Body members, and (WTO) Secretary and Secretariat Body staff.
Under the Code of Conduct, “covered persons” are required to be independent and impartial, to avoid direct or indirect conflict, and to respect the privacy of dispute resolution measures. In particular, any nominated person must disclose the existence or development of any interest, relationship or matter which he or she may reasonably be expected to know and is likely to affect, or provide reasonable doubt about that person’s independence or impartiality. Such disclosures should include financial, technical and other applicable information as well as revised statements of public opinion and employment or family interests.
A violation of any of these requirements by the covered person gives the parties in that dispute the right to challenge that person’s participation in the dispute resolution process and to request the party’s involvement in the process. In the case of Secretariat staff, the challenge is addressed to the Director-General.
Functions and composition of Panel[4]
The panel is a powerful judicial body which, in the form of courts, is responsible for judging disputes between Members in the first place. They are usually made up of three, and in contrast to the five, the experts selected for the ad hoc ad on the basis. This means that there is no permanent panel at (WTO); rather, a separate panel is created for each argument. Anyone who is properly qualified and independent (Articles 8.1 and 8.2 of DSU) may serve as a panel. Section 8 of the DSU cites as examples of persons who have served or filed a complaint with the panel, served as a Member of the Covenant, or as a representative of the Council or the Committee of the Covenant or its Pre-Agreement, or who worked for the Secretary of the Book, taught or published the law or trade policy. international, or they serve as a member of the member’s executive trading policy.
The WTO Secretariat maintains a list of public and non-governmental names, where bodies can be drawn (Section 8.4 of the DSU). WTO members always propose names to be included in that list, and, when done, the DSB always approves their submissions without any objections. It is not necessary to be on that list to be listed as a member of a party in a particular dispute. Although some people have worked for more than one panel, most work only for one panel. So, there is no institutional continuity for employees between different ad panels. Any person appointed as a panel operates independently and individually, and not as a representative of the government or a representative of any organization (Section 8,9 of the DSU).
The panel prepared for the specific dispute should review the factual and legal aspects of the case and submit a report to the DSB in which it expresses its conclusions whether the plaintiff’s allegations are well-founded and the conflicting methods and actions are WTO-compliant. If the panel finds that the claim is well-formed and that there is a violation of the WTO’s obligations, it recommends using the respondent (Articles 11 and 19 of the DSU).
CONCLUSION[5]
The WTO Secretariat is responsible for managing the dispute resolution processes, as well as assisting the parties in the legal issues and procedures of the dispute (Article 27.1 of the DSU). This means that, on the other hand, dealing with the arrangements of boards, ie organizing the movement of panels in Geneva where panel meetings take place, preparing letters calling for meetings in meetings with panels, receiving submissions and passing them on the other hand, auxiliary panels also providing them with legal support by advising on legal issues that arise in dispute, which includes the control of the previous panel and the Appellate Body.
Because the panels are not permanent bodies, the Secretariat acts as an institutional memory to provide a certain consistency and consistency between the panels, which are needed to achieve DSU’s goal of providing security and predictability in a multilateral trading system (Article 3.2 of the DSU). Secretariat staff on the panel usually have at least one secretary and one judicial officer. Usually, one of these is in the Secretariat’s section dealing with the covered agreement, and the other is in the Legal Branch. Legislative Section staff assisted panellists with trade dispute resolution.
An increase in RTAs[6] with DSM built-in has given Members the opportunity to access various forums to resolve their disputes, but the choice of choosing one forum over another remains a challenging member. Reasons for the Members’ selection of the forum from the disputes or overlaps between the WTO and the RTA, the analysis of the cost of economic activity and political costs, on the performance of a particular DSM. Ultimately, it is the legitimacy of the methodology that drives the process of choosing a challenging Member.
The ever-increasing number of disputes at the WTO, where about 25% of cases would have been handled in the RTA-DSM, indicate that Members continue to rely more on the WMA’s WMA rather than on RTA-DSMs. The proliferation of RTAs has never interfered with the integrity of the WTO-DSM and is unlikely to have an impact on it in the future. It seems difficult to determine how the RTA can predict the use of WTO-DSM in violation of WTO provision unless WTO Members decide to do so in the context of DSU.
[1] https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s4p1_e.htm
[2]https://wrlcgwalaw.primo.exlibrisgroup.com/discovery/fulldisplay?context=L&vid=01WRLC_GWALAW:PrimoTaskForceVersion&tab=LibraryCatalog&docid=alma991005766579704112
[3] https://cadmus.eui.eu/bitstream/handle/1814/47045/LAW_2017_11.pdf?sequence=1
[4] Essentials of WTO Law Paperback by Peter Van den Bossche
[5] http://law.gwu.libguides.com/wto
[6] http://www.qil-qdi.org/the-primacy-of-the-wto-dispute-settlement-system/
This Article is Authored by Tanushri Sharma 3rd Year B.A LLB Hons Student at VIPS, Guru Gobind Singh Indraprastha University, Delhi.
Also Read – Development of WTO Dispute Settlement System: How It Came Into Play?
