I. INTRODUCTION AND BACKGROUND
The evolving jurisprudence of the World Trade Organization (WTO) is a fascinating phenomenon still in its early stages. That it exists is testament to a recognition by the WTO's Member States that a substantial ceding of national sovereignty to the WTO is necessary, or at least advisable, in order to support an international mechanism designed to facilitate and maintain orderly trade in goods and services across national boundaries. This partial relinquishment of jurisdiction, however, understandably has been accompanied by certain misgivings and hedging by Member States individually and particularly by the United States.
The boldness and tension underlying the political leap of faith involved here are evident in the structure and working of the WTO's dispute settlement system. Since its inception in 1947 the General Agreement on Tariffs and Trade (GATT) has provided for dispute settlement under Articles XXII and XXIII.(1) Experience with this system over almost five decades, however, revealed a number of structural flaws that eroded its utility and effectiveness. To one degree or another, these shortcomings reflected an unwillingness by the GATT's Contracting Parties more fully to empower the GATT as an international organization.
By the time of the Uruguay Round, almost half a century removed from World War II, the situation had changed significantly. With global trade burgeoning, largely due to successive reductions in tariffs under the GATT's auspices, the Uruguay Round's negotiations in mid-April 1994 yielded an agreement establishing the WTO and a slew of far-reaching and detailed multilateral trade agreements to bolster open markets and curtail protectionism. To enforce and give vitality to this expanded legal regime, a Dispute Settlement Understanding (DSU) was crafted.(2)
Building on and improving the GATT's system for settling disputes, the DSU exhibits a greater resolve than previously by the Member States to address dispositively conflicts arising from interpretation and implementation of the WTO's many new, substantive rules and requirements that entered into force for most of the world's countries on January 1, 1995. Thus, for example, the DSU includes strict time limits to move the process along; provides for review by an Appellate Body of panels' decisions on legal questions; replaces the ability of the losing party to block the GATT as a whole from adopting a panel's report with automatic adoption of reports by panels and the Appellate Body unless there is a consensus of the Member States against doing so; and sets guidelines for prevailing parties to retaliate in the event of either non-compliance with recommendations by a panel (or the Appellate Body) or of no mutually satisfactory resolution.(3)
These features of the DSU have been instrumental in encouraging more frequent resort to dispute settlement under the WTO than was true under the GATT. In the abstract, the DSU gives promise of decisions carefully rendered and meaningfully carried out within a reasonable timeframe. On the other hand, whether this potential is realized depends to a considerable degree upon the soundness and integrity of the legal reasoning expressed in each decision reached under the DSU. Both to assist in this regard and to guard against poorly considered opinions adversely affecting the United States, the legislation executing the Uruguay Round's agreements as U.S. domestic law contains various provisions that call for Congress and the President to take a number of steps.(4) These provisions require, for example:
(a) annual reports from the United States Trade Representative (USTR) to Congress on the status of completed and pending dispute settlement proceedings;(5)
(b) consultations by USTR with the appropriate congressional committees (principally the House Ways & Means Committee and the Senate Finance Committee)(6) during …