Article: Going Beyond Stereotypes: Participation of Developing Countries in WTO Dispute Settlement, 4(1) Trade, L. & Dev. 45 (2012) [available here]
Authors: Jan Bohanes & Fernanda Garza
Reviewer: Henry Gao
Introduction to the Article, by Shreya Munoth
Dispute Settlement is, undisputedly, one of the most outstanding features of the World Trade Organization. Not only is it the most frequently used system of dispute settlement as compared to other international fora, it is also one of the few inter-governmental dispute settlement system credited with being successful. With the transition of international trade from GATT into the precincts of the World Trade Organization, an effort has been made to move away from a power-oriented system and toward a rule-oriented system. However, questions and concerns have frequently been raised as to whether the WTO dispute settlement system is well-suited to serve the interests of developing and least-developed countries.
In this comprehensive article, the authors have undertaken to address most of these concerns and allay fears that the dispute settlement system unfairly prejudices developing countries. The authors provide insight into a very interesting aspect of how most studies which talk about the WTO dispute settlement system fail to take into account the wide disparity amongst the countries which fall within the “developing countries” bracket. This coupled with the difference in the economic size and share of global trade of the developing countries, the authors highlight, needs to be considered while examining how the WTO dispute settlement system has worked for the developing countries. The authors go on to examine the constraints that are most commonly identified as the faults of the dispute settlement system, inter- alia the politicization of disputes, lack of sufficient retaliatory power, duration and complexity of WTO proceedings and conclude that these play a negligible role in influencing developing country participation in WTO litigation. On the other hand, the authors identify numerous internal constraints, such as lack of legal capacity, lack of co-ordination between the trade community and the governments, lack of institutional capacity, among other issues of domestic governance, which preclude the developing countries from actively participating in WTO litigation. The authors also lucidly highlight the role of the ACWL in assisting developing countries participate in WTO litigation. The authors conclude by noting that these constraints need to be addressed internally at the domestic level by developing countries themselves, rather than by the World Trade Organization.
Hailing from a developing country himself, Prof. Gao’s comment raises interesting questions pertaining to the authors’ study. All in all, the article and the comment provide a thorough analysis of developing country participation in the WTO dispute settlement system thus making it a must read for policy makers, legal practitioners and scholars with a deep interest in developing country participation in the WTO dispute settlement mechanism.