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The purpose of this paper is to analyse the current proposals for reform of the World Trade Organization (WTO) dispute settlement system. Two areas of proposed reforms have been chosen: one is regarding democratic control over the WTO dispute settlement body and the other is regarding structural balance within the WTO.

It is a theoretical study based on decided cases, opinions and writing of other writers.

Democratizing a judicial body from within is not the most desirable method to control it. Separation of powers and checks and balances which is termed as institutional balance in WTO is a better way to rein in the judicial organ of the WTO.

Most of the work on WTO judicial reforms have either concentrated on technical aspects. Some writers have written about the dispute settlement system from a political point of view. Most of the writings seem to be shy of pointing towards obvious developments in the WTO dispute settlement system, e.g. the precedent system. The work analyses the proposed reforms from two perspectives and presents writer’s opinion on them which is clearly and openly stated.

We first discuss what fairness may mean in the context of the dispute settlement process, noting the crucial relation between fairness in dispute settlement and the functioning of the trading system as a whole. We explore this relation further through an analysis of three main groups of dispute settlement cases. These are cases that turn around the question of defining fair competition; cases that arise from the use of contingency measures; and cases that draw the boundaries between domestic regulatory measures and the trade-related norms and rules of the WTO. There follows an analysis of experience with compliance and with the use of countermeasures in various cases. Finally, taking together the rulings of the Dispute Settlement Body and the procedures for compliance and the use of countermeasures, we conclude that while the present dispute settlement process serves to protect the fairness of the trading system as a whole, there are some aspects of dispute settlement that remain problematic from the standpoint of fairness.

Previous research on the success of the WTO dispute-settlement system may miscalculate the true benefits of the dispute process due to the nature of the datasets used. Approximately 33 percent of all disputes filed at the WTO are classified as pending or inactive and thus omitted from most studies. Further investigation reveals that many of these inactive cases were actually settled by the countries involved or considered in a similar WTO dispute, and, as a result, no further WTO action was taken. This suggests that the WTO dispute settlement process may be more effective in resolving disputes than otherwise thought. For those disputes not successfully resolved, I empirically estimate why countries may choose to initiate WTO dispute settlement action but fail to follow through, thus allowing the offending party to continue with the alleged WTO illegal activities. The results suggest that developing countries are less likely to resolve their complaints in the WTO dispute settlement system, a troubling implication for the equity of the system.

The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism.

The paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard.

The DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim.

The paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

The purpose of this paper is to examine the critical issue of legal interpretation on the “development question” as they arise before WTO panels and Appellate Body, in view of the benefits inherent in a more‐rounded consideration of the development needs and concerns of WTO developing country Member States.

The introduction sets out the background to the challenges of developing countries in utilising the dispute settlement process effectively and using existing support. By analysing relevant cases, Section 2 analyses the “development question” and how it has been so far considered in legal interpretation. Section 3 addresses WTO jurisprudence on development, examining situations wherein “development” arises in the course of WTO dispute settlement. An examination as to how this aspect of WTO jurisprudence may be revisited including the potential aid of trade policy review mechanisms, and procedures for enforcement is then undertaken. It concludes on the position that the WTO judicial review process can work better by providing the much‐needed balance between binding global trade rules and the domestic progress of its developing country membership at the level of dispute settlement.

This paper establishes the importance of recognising and addressing the fact that core challenges and concerns facing developing countries can and should be factored into the legal interpretation of issues in dispute settlement.

A decisive enquiry into WTO development jurisprudence, this paper addresses developing country capacity to pursue the legal opportunities promised by the WTO dispute settlement mechanism, and how this can be redressed.

The appropriateness of retaliatory trade measures in the World Trade Organization dispute settlement process have increasingly come under scrutiny in recent years. Several Members and commentators alike have recommended large-scale amendments to the Dispute Settlement Understanding (DSU) to provide alternatives to retaliatory measures, with the most notable including compensation, collective retaliation, and increased special and differential treatment for developing countries and/or widespread loss of privileges for non-conforming respondents.

Unfortunately, many of the proposals failed to first identify the aims and objectives of the retaliatory phase, or even of dispute settlement more generally. This chapter takes a more holistic approach in its analysis of whether any of the current proposals will improve (or harm) the system. In doing so, this chapter will first assess the effectiveness and appropriateness of retaliatory trade measures by evaluating the goals and objectives in which it is designed to achieve. It will then evaluate some of the more prominent proposals for amending the DSU under the same framework. Taking such an approach will allow for a more comprehensive review and will reveal not only the problems with retaliatory trade measures, but also its positive aspects, and not only the positive aspects of the suggested alternatives but also where they may be detrimental to the system.

World Trade Organisation Judges, that is those who sit on the Panels and Appellate Body of the World Trade Organisation (WTO) Dispute Settlement Body (DSB), have been increasingly dogged by criticisms of “judicial activism” in their decisions. Legal jurisprudence invites consideration of this issue. First, for the sake of academic examination, to question the viability of cloaking with compulsory jurisdiction, a dispute settlement body faced with the task of resolving matters which hinge on questions of national economic sovereignty. Second, for a practical assessment and review of this attempt by national representatives gathered under the political umbrella of a trade‐negotiating organisation to replicate the judicial style dispute settlement process of modern legal systems. The problems giving rise to threats of “judicial activism” are broadly two‐fold: (a) the increased complexities in trade disputes, and (b) the procedural teething worries of a still‐evolving judicial dispute organ. This paper examines these factors.

The WTO dispute settlement process is an improvement to the original GATT dispute settlement mechanism. However, it fails to assure a timely implementation and enforcement of the dispute settlement body (DSB) recommendations. To this date, the issue of mandatory enforcement is still open to interpretation. The number of ‘matters’ that have been subject to WTO dispute settlement stands at 266 over the 1995–2006 period. The number of implementation disputes has increased since 1998 and stand at 34 as of January 1, 2007. This chapter reviews the process of dispute settlements and enforcements since 1995 and to argue for the interpretation of ‘WTO agreements’ as ‘binding contracts’ whose breach must be evaluated as either ‘efficient’ or ‘non-efficient’ when discussing enforcement. In this context the non-compliance issue may be viewed as an ‘efficient breach’ where the only efficient remedy is a ‘fine’ rather than the usual practice of ‘suspension of concessions or other obligations’ to the Respondent. What sets our approach apart from earlier discussion is that it does not view ‘suspension of concessions’ as a sufficiently burdensome and efficient sanction. A ‘fine’ on the other hand may serve as a ‘buy out’ of a Respondents WTO obligations, and can be transferred to the negatively affected domestic producers in the Complainant's market as compensation for losses.

The paper is prompted by the US–China trade war and its implications for the sustenance of the multilateral trading system. The two rivals resorted to “self-help” without recourse to the World Trade Organization (WTO) dispute settlement system, flouting the WTO as an adjudicator in trade disputes. This paper aims to analyze the drawbacks in the settlement system and examines the urgent need for a retroactive remedy.

This paper adopts desk-review and jurisprudential analysis of the relevant rulings of the WTO dispute settlement body. Using desk-review, primary sources such as the relevant domestic legislations invoked by the USA and China to trigger the trade war were discussed and critically analyzed.

This paper finds that the unilateral and protectionist actions that characterize the trade war can be linked to the loss of confidence in WTO remedies to redress members’ retroactive economic losses. This finding is useful in arguing for the incorporation of a retrospective monetary remedy to forestall the reoccurrence of a similar trade war and save the WTO from being dysfunctional.

Although, whether there should be retroactive remedies in the settlement system has been long debated, this paper makes a significant contribution by highlighting why the drawbacks in the settlement system have become so prominent in the context of this trade war. This paper strengthens the urgent need for WTO dispute settlement reform to prevent a reoccurrence of another global distortion of trade.

The purpose of this study is to focus on the influence of domestic legal traditions on dispute behavior, which has been widely examined in the conflict literature, within the World Trade Organization (WTO). States with a civil legal tradition hold treaties and agreements in high esteem. Therefore, they will be more likely to file trade complaints and pursue adjudication when compared to states with common or mixed legal traditions.

The hypotheses in this study have been tested using a quantitative test with data from the WTO regarding trade disputes.

While civil law states are more likely to file complaints, they are less likely to pursue adjudication over a negotiated settlement.

This study brings to light how domestic legal systems affect state behavior within an international legal body.