The effectiveness of the dispute settlement system in the World Trade Organization (WTO) and its role in the process of globalization and constitutionalization

Abstract

The purpose of this report is to classify the dispute settlement system (DSS) of the World Trade Organization (WTO) in the process of globalization of jurisdiction and in the process of constitutionalization of international organizations and DSSs. Therefore, these processes and their consequences for the WTO DSS will be analysed. The WTO DSS is a product of the globalization of jurisdiction in various ways. It represents the conceptual shift from domestic jurisdiction to global jurisdiction playing an important role in the global community of courts as it interacts with various national and international courts. It effectively promotes the unification of law by providing a permanent adjudicatory body and the necessary institutional structures. The WTO DSS is a good example in a global economy of how to deal with the problem of restraining discretionary foreign policy-making in order to promote free trade, democratic legitimacy and consumer welfare. The progressive constitutionalization of the WTO and its DSS ends in a compulsory and mandatory DSS, which forces national member governments to focus their policies on free trade, rather than on national interest groups. Thus, it constrains discretionary national policy powers and promotes trade liberalization through a system, which is based on the rule of law in contrast to its predecessor, the GATT DSS, which primarily settled disputes by diplomatic means. Therefore, this thesis recommends the WTO DSS as a model for other international organizations. In the second part the effectiveness of the WTO DSS will be analysed. This is done by giving an overall survey of the procedures covering the proceedings, the jurisdiction, the sources of law, the different kind of complaints and the remedies. Specific objectives are the panels' terms of reference, the standard of review, the participation by amicus curiae briefs, the requirement of a standing and the legitimate function of the non-violation complaint. The report concludes that the WTO DSS is an effective dispute settlement mechanism that has reached a sophisticated level of constitutionalization and that promotes the rule of law in an international trading system. If the WTO implements the proposal of amendments to the DSU and the DSS in general, the WTO and its DSS can become a key pillar in global governance and a model for other international organizations.