The dispute settlement in the World Trade Organization (WTO) is a mechanism whereby a member state that was injured when a benefit was offset by another Member State, can initiate proceedings before the Settlement of Disputes in order to restore the balance upset by the cancellation. This mechanism is an alternative mechanism provided in the Memorandum of Understanding on the Settlement of Disputes. The effectiveness of the dispute settlement mechanism is to be sought through a perspective of the dispute settlement procedures applied under the GATT 1947. Indeed, the dispute settlement mechanism under GATT 1947 did not lead to binding decisions that parties should comply with. As far as the panels were used to declare the law, the State had the disadvantage of preventing the adoption of panel report and it was unanimous for adoption. Hence, the panels never gave binding decisions.
The disputes between parties could last for decades, particularly between the European Communities and the United States, where litigation could last for 15 years, without giving any satisfactory results. There is thus a blocking mechanism and lack of effectiveness of the reports made by the GATT 1947. It failed because it could not fulfill the basic function of \"strengthening the international trading system.\" The mechanism of GATT 1947 could not overcome its structural weaknesses, as we have seen from the point of view of the adoption of reports which required consensus where there was enough for one voice to reject the report. Each Contracting Party had a right of veto. It also reflected the low level mechanism of procedures that were poorly defined. Moreover, the mechanism of the GATT 1947 had not adapted to the rapidly changing international economic relations. Thus, the Ministerial Declaration of Punta Del Este of 20 September 1986 marked the start of the Uruguay Round dispute settlement. It was considered to be one of the major topics of future negotiations: the frustration was such that all sides unexpectedly had negotiated a binding dispute settlement mechanism for improving and strengthening the rules and disciplines to become more effective and binding.
Tags: World Trade Organization, GATT, Ministerial Declaration, Settlement of Disputes
[...] Without spread on the technical elements, we still see procedural delays that are much more stringent, the more automatic introduced in particular by the quasi-automatic adoption of panel reports and Appellate Body in the Dispute Settlement Body, even if it is a political body.This consensus unquestionably reversed strengthens security and predictability of the international trading system. Ultimately, the will of the parties is still the theme of the whole procedure. And where it was in fact the greatest weakness of the former mechanism, it is now the basis for success of all procedures available. States still retain a great deal of freedom, but they must be well-defined. II. [...]
[...] The problem of implementation of the reports remains a concern. The Hormones case is thus indicative of the idea of grandfathering: the fifteen members of the European Union does not authorize the import of U.S. and Canadian beef hormones, and the compensation offered is temporary. This position can be had only against the precautionary principle, but certainly contrary to the original spirit of the Agreement, "the retaliation or financial compensation must therefore be the ultimate goal to return to the negotiated balance doing that in this perspective, the use of such measures could be effective. [...]
[...] In addition, the mechanism of the GATT 1947 had not adapted to the rapidly changing international economic relations. Thus, the Ministerial Declaration of Punta Del Este September marking the start of the Uruguay Round singled dispute resolution as one of the major issues for future negotiations: such was the exasperation on all sides that unexpectedly, we negotiated a binding dispute settlement, because the current mechanism should be improved and strengthened through "rules and disciplines . more effective and binding." The Memorandum of Understanding somehow synthesizes the practice resulting from the application of former Articles XXII and XXIII of GATT 1947 and the structural changes that could be made, including the decision of the GATT Council of 12 April 1989 on improvements in rules and procedures of the GATT dispute settlement. [...]
[...] Finally, the mechanism of dispute settlement prohibits the use of provisional measures, seen as the exercise of private justice. The disputed measure remains in effect until the dispute settlement body makes its decision and the member goes into compliance. Of course, the aggrieved member is in an unequal position, and that, sometimes for a long time, and that the effects of such cancellation shall not be suspended, you can still see a certain concern for respect for authority as in a national court which will make its decision after an adversarial procedure, and that the mechanism of dispute resolution tends to apply because it is not enough to have a cause of action or claim a violation be given to repair. [...]
[...] Mechanism is therefore much less effective than the mechanism for dispute resolution. In the Shrimp, one can still see the position of the panel and the Appellate Body has changed for amicus curie- private individuals who can give opinions that may be considered in a case by panel, but, totally discretionary.In this case, the panel could accept the submissions of amicus curia if they had been endorsed by the U.S. government. However, the panel itself did not have this requirement of endorsement, as in this case, there were five papers, four NGOs and one from a private person. [...]
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