AN ANALYSIS OF THE DISPUTE SETTLEMENT BODY OF THE WORLD TRADE ORGANISATION

ABSTRACT
 
The World Trade Organization (WTO) was established with the primary function of ensuring the smooth and free flow of trade and services. At the heart of the WTO, is the Dispute Settlement System that ensures that disputes are resolved as soon as possible. This research aims at analyzing the role of the WTO and its Dispute Settlement body in settling trade disputes. This research specifically examines the WTO Dispute Settlement System; identities the objectives of the system and whether or not the system allows for the actualization of these objectives. The research also evaluates its performance and makes recommendations based on research findings.The essence of the research is how the system can be made more effective and accessible to developing and least developed member nations especially Africa. In undertaking this task, the research employs the doctrinal research method. Trade disputes in the WTO usually arisewhen a member state or states take a measure or measures that the WTO considers to be inconsistent with the obligations set out in the WTO agreements. Settling trade disputes in a timely and structured manner is important in order to realize the practical value of the commitments of the member states. The central objective of the WTO Dispute Settlement System is to provide quick and accessible dispute resolution to the multilateral trade system. In addition, the system is to preserve and clarify the rights and obligations of the members under the WTO Agreements, as well as ensure that disputes are settled promptly. In carrying out its mandate, the WTO Dispute Settlement System has decided several disputes among member nations of the WTO, covering diverse areas of the WTO agreements. In fact, the performance of the WTO Dispute Settlement System has been generally described as an ongoing institution that needs a lot of reforms. The Dispute Settlement System has many challenges, obstacles and problems, which make it impossible for it to achieve its set out goal perfectly. Thus, the objectives of the system have not been satisfactorily met due to implementation problems, inadequate funding, lack of transparency and access to the system, ad hoc nature of panels, as well as lacuna in the DSB. Considering the importance of the WTO’s role of settling trade disputes to the stability of the global economy, adequate attention ought to have given to the system. Accordingly, the DSB should be adequately funded that would meet the increased workload of the DSB. The lacuna in the DSU should be corrected and the system made more transparent and accessible to the public. Furthermore, the system aught adopt adequate panelist that can meet the increased complexity of the substance of cases presented before panels. The Research will explore how the DSB can better serve the interest of third world countries and Africa.
TABLE OF CONTENTS
Title Page i
Declaration ii
Certification iii
Dedication iv
Acknowledgement v
Abstract vi
Table of Cases vii
Table of Statutes xv
List of Abbreviations xxi Table of Contents
xxii
CHAPTER ONE
1.0 GENERAL INTRODUCTION
1.1 Background to the Study 1
1.2 Statement of the Research problem 4
1.3 Aim and Objectives of the Research 5
1.4 Research methodology 5
1.5 Scope of the Research 6
1.6 Literature Review 6
1.7 Organizational Layout 9
CHAPTER TWO
2.0 INTERNATIONAL TRADE AND WORLD TRADE ORGANISATION
2.1 Introduction 10
2.2 International Trade and Globalization 11
2.3 Establishment of the World Trade Organisation 14
2.4 Objectives, Functions, Scope and Status of the World Trade Organisation. 16
2.4.1 Objectives 16
2.4.2 Functions 18
2.4.3 Scope and Status of the World Trade Organisation 20
2.5 Judicial Independence in the World Trade Organisation 22
2.5.1 The World Trade Organisation Judiciary and Its Independence 23
CHAPTER THREE
3.0 TRADE DISPUTES WITHIN THE WORLD TRADE ORGANISATION.
3.1 Introduction 33
3.2 Legal Basis for a dispute in the World Trade Organisation Dispute
Settlement System. 34
3.2.1 The Covered Agreements (Legal Framework for Trade Disputes) 40
3.3 Possible Objects of a complaint to the World Trade Organization 43
CHAPTER FOUR
4.0 DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANISATION
4.1 Introduction
4.2 Dispute Settlement System of the World Trade Organisation 48
4.3 Functions, Objectives and key features of the System 54
xix
4.3.1 Functions 52
4.3.2 Objectives 56
4.3.3 Key Features 58
4.4 Scope and importance of the System 60
4.5 Applicable Laws to Legal Interpretations of World Trade Organisation
Agreements within the System 62
4.6 World Trade Organisation‘s Agencies Involved in the Dispute
Settlement Process. 64
4.6.1 Panels 64
4.6.2 Appellate Body 66
4.6.3 The Director-General of the World Trade Organisation Secretariat 68
4.6.4 Arbitrators 69
4.6.5 Experts 70
4.7 Composition of the Dispute Settlement Body of the World Trade
Organization. 71
CHAPTER FIVE
5.0 DISPUTE SETTLEMENT PROCEEDINGS IN THE WORLD TRADE
ORGANISATION
5.0 Introduction 74
5.1 The Stages for settling dispute in the World Trade Organisation
Dispute Settlement System 75
5.1.1 Consultation 76
5.1.2 Panel Stages 80
5.1.3 Composition of Panel 91
xx
5.1.4 Appellate Stage 97
5.1.4 Implementation Stage 99
5.2 Legal Effects of Dispute Settlement Body‘s Recommendation / Ruling. 103
5.3 Participation in the Proceedings 106
5.3.1 Legal Representation 106
5.3.2 Amicus Curiae Submissions 107
5.4 Legal Issues Arising in the proceedings 110
5.4.1 Right to bring Claim/Invoke Exceptions 112
5.4.2 Judicial Economy and Standard of Review 111
5.4.3 Burden of Proof 114
5.4.4 The Panel‘s Right to seek information 116
CHAPTER SIX
6.0 SUMMARY AND CONCLUSION
6.1 Summary 121
6.2 Findings 123
6.3 Recommendations 126
6.3 Conclusions 128
Bibliography. 130