Doha retreating? - Bhagwati and the future of dispute settlement

Jagdish Bhagwati writing in The American Interest narrates the reasons for the failure of the Doha round of multilateral trade negotiations inspire of more than a decade of sustained deliberations. While the reasons for the failure are many, Bhagwati narrates the various options that countries had in terms of concluding the Doha round and the main causes for the impasse. 

"Where does that leave us, however? There is great complacency that the fall of Doha is no cause for lament and that the WTO as the apex institution for trade will survive intact. It is as if loss of faith in Catholicism will not affect the Vatican. Doha has three legs: multilateral liberalization; framing of trading rules; and the Dispute Settlement Mechanism. The first is now broken. In turn, it cannot but break the other two."

This raises many concerns for the Dispute Settlement mechanism. It is considered the crown jewel of the WTO. However, what impact does the failure of the Doha round have on the existing judicial process. Some believe that the DSM would be unaffected and would continue to do what it does best - judicially interpret existing texts and adjudicate disputes systematically. Others, like Bhagwati, believe that it would have a negative impact on the DSM. When the political side of the multilateral system fails to change with changing times, the pressure is on the judicial wing to address new realities as well as address new concerns. This puts a lot of pressure on treaty interpretation as well as the judicial system. It can also lead to "judicial activism" wherein the adjudicatory bodies overstep their limits to address inadequacies of existing rules. While judicial activism in the national context is accepted by different institutions as inevitable and constitutionally mandated, how would a strong, forceful and often "judicially active" panel and Appellate Body be viewed by member countries/ Would it lead to increased compliance to international trade law or a growing discontent and non-compliance? Will the DSM be able to withstand the pressure of such non-compliance?

Another danger that is predicted with the failure of Doha is the rise of PTAs and their impact on the DSM. Bhagwati notes:

"In the absence of MTNs like Doha, these PTAs will also become the arrangements where rules such as anti-dumping and subsidies codes will be set and will then be muscled into WTO at Geneva. Similarly, the Dispute Settlement Mechanism at the WTO, a proud achievement in 1995, will also be in danger of falling into disuse as bilateral and regional dispute settlement arrangements will take over: and where the hegemons will expect that this asymmetric power will get them more favourable adjudication. None of this is cause for celebration; rather it calls for lamentation."

Thus, this would lead to the DSM gradually becoming irrelevant in multilateral trade relations. What would be the future of the DSM in the absence of a renewed successful negotiation in the coming years? Would it be strengthened or wither away into oblivion? Would it remain the crown jewel or just a disused bracelet?  Time, as usual, will tell.