The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

17
A permanent panel body for WTO dispute settlement:
Desirable or practical?*
WILLIAM J. DAVEY

The dispute settlement systems of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) have generally been viewed as relatively successful examples of state-to-state dispute settlement.1 Yet despite this success, for many years there has been a degree of dissatisfaction with the decision-makers in the systems–the ad hoc panelists–particularly in respect of the manner in which they are selected and their expertise (or lack thereof). This essay first outlines the GATT procedures for panel selection. It then describes the WTO procedures and the current problems facing panel selection in the WTO. It then considers the advantages and disadvantages that might result from changing to a system relying on a small body of professional panelists to staff all WTO panels. In addition, the paper examines the practical aspects of implementing such a system.


I
The selection of panelists in the GATT dispute
settlement system

Starting in 1952, disputes between GATT contracting parties that were submitted under GATT Article XXIII to the GATT CONTRACTING PARTIES for investigation and recommendations or rulings were in the first instance referred to panels of neutral individuals.2 Such panels heard the arguments of the disputants

____________________
*
I would like to thank conference participants and particularly Amy Porges and Petros Mavroidis for comments on the initial draft of this paper. The data cited in this paper has been updated through October 31, 2000. More information about the dispute settlement cases referred to in this paper may be found at the WTO website: www.wto.org. For ease of finding such additional information, the basic WTO document number has been provided for each case. Searching for documents bearing this number will result in a list of all public documents in a case. Documents containing an “R” are reports and those also containing an “AB” are Appellate Body reports.
1
See generally Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (1993) (comprehensive analysis of GATT dispute settlement through 1980s).
2
Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, adopted Nov. 28, 1979, BISD 26S/210 [hereinafter 1979 Understanding], including the Annex on Agreed Description of Customary Practice of the GATT in the Field of Dispute Settlement (Article XXIII:2) [hereinafter 1979 Annex on Customary Practice], point 6(ii), BISD 26Sat 217.

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