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

COMMENT
Step by step to an international trade court*
AMELIA PORGES

When they negotiated dispute settlement rules for the newWTO, the dispute settlement negotiators in the Uruguay Round agreed that those rules would need to be reviewed after some years' experience, and they provided in a separate Ministerial Decision for a thorough reviewto be completed within four years after the entry into force of the WTO Agreement.1 In the “DSU Review, ” conducted in 1998–99, many delegations tabled proposals large and small; by far the most ambitious and far-reaching was the European Community's proposal of October 1998 to do away with current panel selection procedures and substitute a standing panel body of fifteen to twenty-four members.

In the EC proposal, the panel body members would serve for a fixed period, like the WTO Appellate Body. They would form groups of three in rotation to handle newcases, avoiding any selection of panelists by the parties to a dispute. The panel body would set up standard panel rules of procedure (perhaps in consultation with the Appellate Body or the WTO Dispute Settlement Body) for issues such as preliminary rulings, evidence, fact-finding and technical advice. A clear majority of the panel body would have a background in trade law, the members would be geographically balanced, and the members would be independent.2 The paper reflected EC litigators' and policy-makers' concerns about the difficulty of the panel selection process, the lack of transparency of the role of the Secretariat, and the lack of formal rules of procedure. Other delegations posed objections, for tactical and other reasons. While the EC presented no concrete specifics on howthe panel body concept would work in practice, it was clear that the EC would continue to pursue the idea in the medium and long term after the Review.

The Revieweventually gave birth to a text tabled by a number of delegations, codifying the changes to the DSU that had wide support as of 1999.3 Virtually the same

____________________
*
The remarks beloware personal and not to be attributed to any present or past employer.
1
Decision on the Application and Reviewof the Understanding on Rules and Procedures Governing the Settlement of Disputes, agreed at Marrakesh April 15, 1994.
2
EC paper tabled October 19, 1998;see Inside U. S. Trade, October 30, 1998.
3
Proposed Amendment of the Dispute Settlement Understanding, Communication from Canada, Costa Rica, Czech Republic, Ecuador, the European Communities and its member States, Hungary, Japan, Korea, New Zealand, Norway, Peru, Slovenia, Switzerland, Thailand and Venezuela, WTO doc. WT/MIN/8 (dated Nov. 22, 1999), with corrigendum WT/MIN/8/Corr.1 (dated Nov. 23, 1999).

-528-

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