A Reasearch On Some Legal Issues Of WTO Dispute Settlment Jurisdiction

On the foundation of WTO, its dispute settlement mechanism has been appraised bypracticioners and scholars. The decision-making mechanism through negative consensus hasestablished a de facto "compulsory jurisdiction", which is one of the most eminentcharacteristics of the dispute settlement mechanism.So far, there is a lack of systematic and overall researches on the issues of jurisdiction inWTO dispute settlement. Some scholars only focus on one specific aspect of the issues ofjurisdiction or just discuss those from a certain angle without a overall study. Some list allrelative contents about this jurisdiction failing to categorize them on certain standards, evenconfusing contents from different levels. For instance, some scholars hold the position thatjurisdiction in the implemention of recommendations is on the same level where jurisdictionratione materiae, jurisdiction ratione personae and jurisdiction ratione temporis. However theissues of jurisdiction are of both academic and practical importance. First of all, issues ofjurisdiction are the prime ones that people who take part in the dispute settlement mechanismsthrough judicial or arbitration process have to deal with, and also the precondition on which atribunal or arbitral body accept and hear a case. In the WTO dispute settlement jurisdiction isa panel and the Appellate Body’s start line of hearing a case, and limit the scope of the matterspanels and the Appellate Body can solve and the law they can apply. Secondly, issues ofjurisdiction relates to what judicial powers panels and the Appellate Body have and also to theMembers’ economic sovereignty. Furthermore, as the proliferation of international judicialbodies, the overlaps of jurisdiction between WTO dispute mechanism and other internationaljudicial bodies should also draw our attention. Finally, from the point of international rule oflaw, the jurisdiction of WTO dispute settlement is an eminent creation made by WTO whichhas great effects on the other international judicial bodies. On the basis of relative researchesand analyzing cases, this article focuses on some important academic and practical issues. Onone hand, this article tries to generalize and summarize the meaning and the contents of WTOdispute settlement jurisdiction. On the other hand, this article also summarizes how panelsand the Appellate Body resolve the jurisdictional issues the confront during the disputesettlement procedures, which is of great importance for China’s participation in them. Thisarticle is divided into six part:The introduction summrizes and analyzes recent researches on the issues of jurisdiction in the WTO dispute settlement denoting the lack of systematic research on those issues.Part I analyzes the background in which the WTO settlement jurisdiction took shape andthe legal sources of it. This article turns to the concept of legalization from internationalrelations theory instead of describing how the GATT\WTO regime evolved. From the angle oflegalization, the WTO dispute settlement mechanism including its jurisdiction is the result ofthe process of legalization in the international economic relations. Moreover, this article alsosummarizes all the articles in WTO covered agreements about jurisdiction which are the legalsources of the jurisdiction.Part II analyzes the nature of WTO dispute settlement jurisdiction which is a compulsoryjudicial power in the meaning of international law to hear a case and make decisions. It isimportant to point out that this article discerns the compulsoriness of this jurisdiction. Fromthe end of20th century, there is a substantial transformation from consensual paradigm tocompulsory paradigm in the field of international justice. The aim of WTO’ s negotiators wasto established a dispute mechanism with compulsory jurisdiction.Part III discusses the basic contents of WTO dispute settlement mechanism according torelative the Appellate Body’s reports and categorizes it into jurisdiction ratione materiae,jurisdiction ratione personae and jurisdiction ratione temporis. Specifically the jurisdictionratione materiae consists of jurisdiction over claims, jurisdiction over natures of disputes andjurisdiction over specific measures at issue. The jurisdiction ratione personae is only restrictedto WTO Members, at the same time facing the new changes brought by issues like amicuscuriae. The jurisdiction ratione temporis shows that the WTO dispute settlement mechanismcan only solve disputes which would happen after the foundation of WTO.Part IV analyzes how WTO panels and the Appellate Body dealt with jurisdictionalissues. As a result of flaws of DSU, panels and the Appellate Body had to discern theseunclear articles, which help to complete the jurisdiction system of WTO dispute settlement.Part V discusses the developing trends of WTO dispute settlement jurisdiction andprovides some proposals about completing the jurisdiction system of WTO dispute settlement.