Saturday, December 8, 2012

Dispute settlement, developing countries interests and reforms

Andrea Ewart has, in the context of an impending dispute over rum between Caribbean Islands and the US, highlighted the need for reforms in the WTO dispute settlement process in this blogpost in the IntLawGrrls here. I have blogged about a probable rum dispute at the WTO here in the context of export subsidies and the violation of the ASCM.

The above post concludes on the dispute thus:
"Strengthen the requirement that the countries enter into consultations before launching the dispute: establish terms of reference that incorporate the developing country’s special development concerns in the issue;impose minimum meeting time requirements to allow the terms of reference to be addressed; and require the intervention of the Director-General before determining that consultations have failed. 
Add procedural guidelines to the panel & appeal processestablish terms of reference that incorporate the WTO S&D provisions; and strengthen the role of the WTO Dispute Settlement Body (DSB) to ensure that the policy intentions of S&D provisions are met. 
Have the DSB ensure that the policy intentions of the S&D provisions are incorporated into its rulingsrequire that the DSB confirm that the S&D issues in the terms of reference have been addressed prior to adopting the panel or Appellate Body report; and develop procedures to guide intervention by the DSB at the implementation phase as required by WTO S&D provisions."
Is the dispute settlement process tilted against developing countries and least developed countries? Apart from a lack of legal capacity and litigation capacity, is the process undeniably burdensome for developing countries? Is there a need to reform the process to address developing countries needs? Are the rules though the same for all parties, in effect, favoring the developed world? Is the long period for adjudication and compliance against developing countries interests? How should the S&D provisions be complied with and what impact do they have on legal principles of national treatment, subsidies and most favored nation treatment? Are S & D principles a coherent set of implementable principles or theoretical concepts?

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