Deliberative Engagement within the World Trade Organization: A Functional Substitute for Authoritative Interpretations

Research output: Working paperResearchpeer-review

The transition from the General Agreement on Tariffs and Trade dispute settlement proceedings to the Dispute Settlement Mechanism (DSM) of the World Trade Organization represented a notable instance of judicialization within international economic governance, in that it significantly increased the independence of the DSM from direct government control. Since they began ruling on trade conflicts in 1995, the WTO’s adjudicative bodies have enjoyed a greater degree of interpretive autonomy than initially intended by states parties. This development largely stems from deadlock within the political organs of the Organization resulting in non-use of one of the primary means of legislative response—authoritative interpretations. This creates a predicament not only for the Organization’s political organs. The ineffective nature of this existing mechanism also deprives the DSM of constructive normative guidance from its primary constituents: the member governments of the WTO. This article proposes a functional substitute for the mechanism of authoritative interpretations, namely an increase in governments’ expression of views prior to adoption the dispute settlement rulings. We argue that such an increase would better enable the DSM to consider the interpretive preferences of the WTO membership as a whole, thus enabling it to better fulfill its fiduciary duties, and its responsibility of deliberative engagement with Members in particular. We specify how the proposal would work in practice and address potential limitations and obstacles to its implementation.
Original languageEnglish
Place of PublicationCopenhagen
PublisherDet Juridiske Fakultet
EditioniCourts Working Paper Series no. 9
Number of pages32
Publication statusPublished - 30 Sep 2014

ID: 124441149