Résumé
On 1 January 1995, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) entered into force. During its first ten years, the DSU has since been applied to 324 complaints - more cases than dispute settlement under the GATT 1947 had dealt with in nearly five decades. The system is perceived, both by practitioners and in academic literature, to work generally well. However, it has also revealed some flaws. Negotiations to review and reform the DSU have been taking place since 1997 ("DSU review"), however, without yielding any result so far. In the meantime, WTO Members and adjudicating bodies managed to develop the system further through evolving practice. While this approach may remedy some practical shortcomings of the DSU text, the more profound imbalance between relatively efficient judicial decision-making in the WTO (as incorporated in the DSU) and nearly blocked political decision-making evolves into a serious challenge to the sustainability of the system. This article provides an overview of the first ten years of DSU practice, the on-going DSU review negotiations, and the challenges to the dispute settlement system.
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Extrait
Wto Dispute Settlement at Ten: Evolution, Experiences, and Evaluation
1 Introduction
Trade agreements on the basis of reciprocity are instruments used by governments to achieve trade liberalisation. The reciprocal exchange of market access rights which occurs through such agreements amounts to an international exchange of domestic political support between governments that helps policymakers to overcome the protectionist bias of uncoordinated trade policies. In order to protect the negotiated balance of rights and obligations from eroding - i.e. by trade restrictions which one government may introduce in violation of the trade agreement in order to enhance its political support from import-competing interests - trade agreements usually include dispute settlement mechanisms based on diplomatic and/or adjudicative procedures.Such a dispute settlement mechanism is also included in the multilateral trading system. Based on the rudimentary provisions of two articles in the General Agreement on Tariffs and Trade (GATT) 1947, i.e. Article XXII on Consultations and Article XXIII on Nullification or Impairment of Benefits, dispute settlement developed gradually through evolving practice and occasional codifications thereof. With the exception of an anti-legalist phase in the 1960s, the trend went from an initially diplomacy-oriented mechanism towards a more adjudication-oriented one.The conclusion of the Uruguay Round of Multilateral Trade Negotiations brought the establishment of the World Trade Organisation (WTO) on 1 January 1995. According to Article III.3 of the WTO Agreement, dispute settlement is one of the key functions of the WTO. The rules of the mechanism are laid down in detail in the Understanding on Rules and Procedures Governing the Settlement of Disputes (in short: Dispute Settlement Understanding; DSU) in Annex 2 of the WTO Agreement. The DSU has both incorporated the inherited concept of GATT dispute settlement, and it has codified the practices that had evolved previously into a consolidated text. In addition, it has brought important innovations (see below).The mechanism has been used actively by Members in the first ten years of its existence. At the same time, it has been a topic of much academic interest and debate. Moreover, Members have been involved in negotiations to review and reform the mechanism since late 1997, however, without coming to an agreement so far.This article gives an overview of the WTO dispute settlement mechanism ten years after it entered into force. Chapter 2 briefly presents the structure o...Voir le contenu complet de ce document
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