Towards a development-supportive dispute settlement system in the WTO

The WTO’s dispute settlement system is not a neutral technocratic process in its structure and operation. This resource paper examines how it may become more supportive of the sustainable development goals of developing countries. Three sections examine:

How to make the WTO dispute settlement system work for developing countries: some proactive developing country strategiesGregory Shaffer.
This section examines three central challenges that developing countries face if they are to participate in WTO dispute settlement, including: relative lack of legal expertise, relative lack of finances, and extra-legal constraints on account of power imbalances. It finds that developing countries can employ three strategies to confront these challenges:

• develop better coordination with the private sector to assist in bringing cases to their attention and in developing factual and legal arguments
• developing countries could make better use of the Advisory Centre on WTO Law. As a repeat player in WTO litigation, the Advisory Centre can develop expertise and defend developing country interests more cost-effectively. Developing countries could explore expanding the Advisory Centre, or pooling their resources through regional WTO centres that could complement it
• developing countries and the Advisory Centre could forge alliances with constituencies within developed countries, such as northern consumer and other non-governmental groups. These developed country constituencies could assist them through wielding domestic political pressure (as they have done to counter U.S. and EC pressure over pharmaceutical patent protection) and through providing free assistance in developing factual and legal arguments in WTO cases (as done in the EC-sardines litigation)

Does Africa need the WTO dispute settlement system?Victor Mosoti
This section examines some of the issues that African countries have been concerned with. It argues that Africa does need the WTO dispute settlement system because the system is not solely about disputes but is also about the steady evolution of a corpus of important international trade law principles whose effects and applicability will continue long into the future. It is also a key element in the international architectural framework whose decisions have momentous development implications. The author recommends that African countries should be at the forefront in the on going review of the system and should be more vigorously involved as third parties in various disputes that may be of interest to them.

Interpreting WTO agreements for the development objectiveAsif Qureshi
This section addresses the development dimension in the interpretation of the WTO Agreements, and argues that this has hitherto neither been sufficiently articulated, nor coherently structured in the architecture of international trade agreements. Developing members have expressed dissatisfaction with the record of interpretation thus far in the jurisprudence of the WTO, which has focused on a) the results of interpretation, b) the approaches to interpretation, c) the methodology involved in interpretation and d) the participants engaged in interpretation. The paper recommends that there are various ways in which development objectives could be factored into interpreting WTO Agreements, including factoring in:

• development as an objective
• the “condition of development” in the interpretation and application of WTO Agreements
• the specific characteristics of development
• the textual approach in rein
• the option of a teleological approach
• “good governance” in the process of interpretation
• “relevant rules of International law” that facilitate development
• an appropriate approach to interpreting SDT terms

[adapted from the author]