Dispute Settlement Procedures and the World Trade Organization: A Move Towards an Adjudicative Model
Date of Award
The core of the dispute settlement mechanism under the General Agreement on Tariffs and Trade (GATT) is the panel procedure. Initially this was a third party adjudication procedure which operated more as an advisory report procedure since the report required agreement of the parties before it was adopted. This procedure developed out of a series of customary practices based on the principles set out in Articles XXII and XXIII of the GATT. These focused more on peacefully resolving the particular problem between states party than on an evaluation as to whether the actions taken were contrary to the GATT. This approach which has been called a "diplomatic model", of conflict resolution has proved to be unsatisfactory for a number of states, particularly as the membership of the GATT increased. Over the course of negotiating the terms of the GATT, which has included reconsidering the dispute settlement procedures, there has been a gradual move away from the diplomatic model which makes use of negotiated settlement towards a rule-oriented approach which makes use of adjudicative panels. The panel decisions and arguments increasingly focus on interpretation and compliance with the GATT rules, in addition to seeking to achieve a resolution of the immediate trade problem. It seems clear that the adjudicative model prevailed in the Uruguay Round, the latest round of trade negotiations which created the World Trade Organization (WTO). The creation of the WTO also included revised dispute settlement procedures involving an Appellate Body and significantly, an ability to adopt findings of the adjudicative panel without total agreement of the parties. This thesis examines these changes and concludes that the changes agreed to in the Uruguay Round of GATT will strengthen the conflict resolution mechanisms under the WTO and will lead to more compliance with the GATT.
Seema Monga, Dispute Settlement Procedures and the World Trade Organization: A Move Towards an Adjudicative Model (LLM Thesis, Dalhousie University, 1995) [unpublished].