Analysis Of The Drawbacks Of WTO Dispute Settlement Mechanism

WTO dispute settlement mechanism carries forward and develops the dispute settlement mechanism of GATT. It is playing a more and more important role in the settlement of dispute, safeguarding the legal interests of the parties of the dispute, and guaranteeing the development of international economic and trade order. Compared to GATT dispute settlement mechanism, WTO dispute settlement mechanism is more compulsory, regulatory, and rational. Since the establishment of WTO, its dispute settlement mechanism has been recognized universally. Quite a few experts published research papers to speak highly of it. Generally speaking, it gets more praise than criticism. Although it has more obvious judicial characteristics, more rigid procedures, and more efficient, it has some drawbacks inevitably. The writer has done brief research into it.This article probes into the drawbacks of WTO dispute settlement in six respects, involving appellate procedure, negative consensus, system of evidence, report of dispute settlement, non-violation, and the protection for the developing countries.Appellate procedure is the most important feature of WTO dispute settlement mechanism, but it has no review system of the rationality of appeal case. This drawback leads to the abusive use of appeal and thus prolongs the settlement of the dispute. Besides, appellate body has not enough members, especially, technical experts who are needed badly. The scope of review of appellate body obviously exceeds the provisions of DSU. Appellate body not only review the question of law stated in the panel report, but also review the question of law beyond the panel report, and even review the question of facts which is regarded as question of law. Negative consensus, a compulsory means, is, in fact, an extreme means of decision-making. The procedures of the establishment of a panel, the acceptance of the panel report and the appellate report, the supervision of the enforcement of ruling and recommendation, the authorization of sanction are virtually automatic without any bargains. It is a bit unfair and thus leads to indifference to the ruling of DSB. The writer suggests adopting majority consensus. It will be more reasonable and just.DSU has no provisions about evidence. In the case of deciding the dispute, whether the "prima facie evidence" is sufficient is regarded as the standard. However, it is difficult to determine whether the "prima facie evidence" is sufficient. At the same time, the panel has to determine the validity of the evidence presented by both parties to the dispute. It is not reasonable. On the other hand, one party can't challenge the evidence presented by the other party. It is questionable.The fourth chapter discusses the legal status of dispute settlement report and its subsequent practice. The legal status of dispute settlement report needs strengthening. The report has no formal stare decisis, but it is cited frequently in practice. The means of cross-sanction against the party for its not enforcing the report is seldom employed because of its drawbacks.DSU provides non-violation claims. This provision itself is ambiguity and thus leads to practical problems. Its application is restricted and uncommon.Although WTO dispute settlement mechanism has special provisions for the developing country in order to protect their interests, its protection is limited. It has unfavorable elements. The writer puts forward the recommendation for the settlement of this question in order to virtually guarantee the interests of the developing country.WTO dispute settlement mechanism has other drawbacks which are not discussed here, such as "delegate of government" and "transparency". The writer believes that these drawbacks will be overcome inevitably in the practice of WTO dispute settlement mechanism, and that this mechanism will be more perfect, rational and effective.