Expediting the Panel Process in WTO Dispute Settlement - Chapter 27 - WTO: Governance, Dispute Settlement & Developing Countries

Originally from: The WTO: Governance, Dispute Settlement & Developing Countries

The WTO: Governance, Dispute Settlement & Developing Countries-Electronic

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Expediting the Panel Process in WTO Dispute Settlement

William Davey

The dispute settlement system of the WTO is commonly considered to have been a great success. Its success can be seen in its frequent use by a wide variety of Members of the WTO and by the results that it has produced in terms of settlements arising from consultations and implementation of the decisions of panels and the Appellate Body. For the most part, these results have been achieved relatively quickly compared to the time it takes to achieve results in other State-to-State dispute settlement systems, such as the ICJ, and in national courts. Nonetheless, there has been considerable concern about excessive delays in the system that has been raised in the 1998–1999 review of the DSU and more recently in the ongoing negotiations on DSU reform. This chapter examines the results of the system as of September 2006, with a particular focus on how long various stages of the system take to complete. In light of the fact that the system seems to take much longer than intended to resolve contested cases, the chapter then considers ways in which the WTO dispute settlement process (and, in particular, the panel process) could be expedited. In examining this question, it will become apparent that one basic structural change—the creation and use of a Permanent Panel Body, from which all (or at least most) panel members would be selected—offers the prospect of very considerable time savings. Consequently, the chapter separately examines in some detail the likely consequences and desirability of that structural change.

At the outset, one basic question should be addressed. Simply put: do delays matter? In considering how the dispute settlement process unfolds, it becomes clear that complainants typically do not push as aggressively as they could under the DSU.1 For example, they decide when to request a panel and whether and how quickly to request the Director-General to compose a panel and have a major say in the briefing and hearing schedule.

Table of Contents

Foreword

Acknowledgments

Introduction and Overview

Abbreviations

PART I UNDERSTANDING THE WORLD TRADE ORGANIZATION TODAY AND ITS HISTORY

SECTION I
The World Trade Organization: The Challenges Ahead

1. The WTO Doha Development Agenda: Working for a Fairer Global Trading System
- Pascal Lamy

2. Doha: Our Generation’s Opportunity to Promote Economic Growth and Development
- Susan Schwab

3. The Politics of the World Trade Organization in Its Second Decade
- Peter Mandelson

4. Managing the Future Challenges Facing the World Trade Organization: A European Perspective
- Christine Lagarde

SECTION II
The Uruguay Round and the Doha Development Agenda: What Have We Achieved?

5. Leadership and Vision: Some Lessons from the Uruguay Round
- Peter Sutherland

6. The World Trade Organization’s Biggest Problem at Ten: Surviving the Doha Round
- Ernesto Zedillo

7. The Doha Round: Salvageable? Or a Lost Cause?
- Clayton Yeutter

8. The Uruguay Round: Its Lessons for Doha
- Jagdish Bhagwat

9. The Doha Round: Has It Now Expired?
- Albert Fishlow

10. Why the Prospects for a Doha Deal Are Not Bleak
- Arvind Panagariya

11. OPENING DINNER ROUNDTABLE A World Leaders Forum Event The Uruguay Round and the Doha Development; Agenda: What Have We Achieved?
- Lee C. Bollinger, Merit E. Janow, Carla Hills, Clayton Yeutter, Peter Sutherland, Jagdish Bhagwati

SECTION III
The World Trade Organization and Developing Countries

12. The World Trade Organization and Developing Countries: An Indonesian Perspective
- Mari Elka Pangestu

13. How Can the World Trade Organization and the Multilateral Trading System Support the Development Goals of Low income Countries?
- Ngozi Okonjo-Iweala

14. A Progressive Tariff Reduction Scheme
- Joseph Stiglitz and Andrew Charlton

15. Developing Countries and the World Trade Organization: What Are the Issues?
- Patrick Low

SECTION IV
Decision-making in the World Trade Organization: An Analysis of a Member-driven Organization

16. Decision-making in the World Trade Organization
- Sun Zhenyu

17. Great Expectations, Hard Times: Dickensian Decision-making at the World Trade Organization?
- Stuart Harbinson

18. PANEL DISCUSSION Decision-making at the World Trade Organization: An Analysis of a Member-driven Organization
- Merit E. Janow, Stuart Harbinson, Hyun-Chong Kim, Amina Mohamed, Mary Robinson, Sun Zhenyu

SECTION V
Reflections on the World Trade Organization in the Context of Economic Globalization

19. Dangers to the Trading System: The Real, The Hyped, and The Possibly Serendipitous
- Paul Blustein.

20. WTO Negotiations Under the Impact of Globalization: The Opportunity and Challenge of Multilateralism inthe Twenty-first Century
- Seiichi Kondo

21. PANEL DISCUSSION Reflections on the World Trade Organization in the Context of EconomicGlobalization
- Grant Aldonas, Martin Wolf, Seiichi Kondo, Paul Blustein, Keith Rockwell, John Jackson

PART II THE DISPUTE SETTLEMENT SYSTEM

SECTION VI
Examining the Dispute Settlement System: How Has It Performed?

22. The First Years of the Appellate Body and the WTO Dispute Settlement System: A Historical Perspective
- Julio Lacarte Muro

23. The Scope of WTO Law Enforced Through WTO Dispute Settlement Procedure
- Frieder Roessler

24. Legal Eagles? The WTO Appellate Body’s First Ten Years
- Petros Mavroidis

25. Features of the Appellate Body That Have Defined Its Performance
- Werner Zdouc

26. PANEL DISCUSSION Examining the Dispute Settlement System: How Has It Performed?
- Yasuhei Taniguchi, John Jackson, Julio Lacarte Muro, Petros Mavroidis, George Bermann, Frieder Roessler, Werner Zdouc

SECTION VII
Lessons from Experience: Operation of the Panel Process and Appellate Review

27. Expediting the Panel Process in WTO Dispute Settlement
- William Davey

28. The Strengths, Weaknesses, and Future of WTO Appellate Review
- Valerie Hughes

29. A Review of Major WTO Jurisprudence
- Mitsuo Matsushita

30. Enhancing the Operation of the WTO Panel Process and Appellate Review: Lessons from Experience and a Focus on Transparency
- Andrew Stoler

31. The Burden of Proof in WTO Dispute Settlemen
- David Unterhalter

32. Understanding the Concept of Prima Facie Proof in WTO Dispute Settlement
- Yasuhei Taniguchi

33. PANEL DISCUSSION Lessons from Experience: Operation of the Panel Process and Appellate Review
- Luiz O. Baptista, William Davey, Valerie Hughes, Mitsuo Matsushita, Andrew Stoler, John Weekes

SECTION VIII
WTO Case Law in the International Law Context

34. WTO Law and the "Fragmentation" of International Law: Specificity, Integration, Conflicts
- Giorgio Sacerdoti

35. The Factors Driving and Constraining the Incorporation of International Law in WTO Adjudication
- Jose Alvarez

36. The Use and Abuse of International Law in WTO Trade/Environment Litigation
- Robert Howse

37. An Outsider’s Look at the WTO Appellate Body
- Patricia Wald

38. Does the World Trade Organization Prohibit Retorsions and Reprisals? Legitimate "Contracting Out" or "Clinical Isolation" Again?
- Pieter-Jan Kuijper

39. PANEL DISCUSSION WTO Case Law in an International Law Context
- Georges Abi-Saab, Jose Alvarez, Florentino Feliciano, Martti Koskenniemi, Pieter-Jan Kuijper, Patricia Wald

SECTION IX
Considering Remedies

40. Remedies in the World Trade Organization: An Economic Perspective
- Kyle Bagwell

41. A Comment on Compliance with WTO Dispute Settlement Decisions
- Gary Horlick and Judith Coleman

42. Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings
- Bruce Wilson.

43. Remedy in WTO Dispute Settlement
- Alan Wolff

44. PANEL DISCUSSION Considering Remedies
- Kyle Bagwell, Gary Horlick, Robert Lawrence, Bruce Wilson, Alan Wolff

SECTION X
The WTO Dispute Settlement System in the Next Ten Years

45. The WTO Dispute Settlement System in the Next Ten Years
- David Palmeter

46. Mapping the Law of WTO Accession
- Steve Charnovitz

47. PANEL DISCUSSION The Dispute Settlement System in the Next Ten Years
- Julio Lacarte Muro, Jane Bradley, Steve Charnovitz, Robert Howse, David Palmeter.

SECTION XI
Implementation of WTO Rulings: The Role of the Courts and Legislatures in the United States and Other Jurisdictions

48. US Implementation of WTO Decisions
- Sharyn O’Halloran

49. Multi-level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System
- Ernst-Ulrich Petersmann

50. Reconciling the International and the Domestic: The Reasonable Period of Time under Article 21.3 of the DSU
- Robin Hansen and Donald McRae.

51. PANEL DISCUSSION Implementation of WTO Rulings: The Role of Courts and Legislatures in the United States and Other Jurisdictions
- Giorgio Sacerdoti, Thomas Aquilino, Jr, George Bermann, Donald McRae, Sharyn O’Halloran,Ernst-Ulrich Jetersmann.

Biographical Notes

Table of Cases

Index