Can The Wto Appellate Settlement Mechanism Offer A Solution To The Global Disputes?

Background to the WTO's Dispute Settlement Understanding:

1.1. Background The WTO's Dispute Settlement Understanding was introduced in 1995 in an attempt to give members of the WTO particularly developing members, a mechanism through which they can enforce the terms of any WTO instrument should they feel that another member State is acting contrary to their Treaty obligations. The dispute settlement system which existed under the GATT, while successful in many respects, was legally uncertain, overly complex, and, as a result of the fact that decisions could only be binding with the consent of all of the Member States of the GATT. Lisa Toohey also mention the presence certain exceptions that enabled the developing member states to act within the flexibilities of the GATT. This was evident in the publication case against China by United States.

1.2. Introduction A. Alavi the attributes the generally weak basis of the GATT to its emphasis on diplomacy, positive consensus and negotiation. Furthermore the GATT dispute settlement system had some systematic shortcomings. Jackson suggested that any party to a dispute could at any stage block the process. There were no deadlines for the settlement process, for example on how long consultations should last. The binding nature of the rulings could be disputed and their quality was often considered inadequate. Finally, eight of the GATT's nine 'Codes' had their own system of dispute settlement. "

The new Dispute Settlement Understanding is, in many respects, the corner-stone of the WTO for without an effective dispute settlement mechanism through which enforcement can be achieved, the WTO would have little hope of achieving its mission of promulgating fair trade between its members. Dispute settlement is an essential prerequisite for the axis of any multi-lateral trading system. The absence of this essential prerequisite would signal the commencement of abject disorder; its absence would latently give efficacy to a system where the cogent rules of multi-lateral trading exists but cannot be enforced.

The GATT Treaty of 1947, the predecessor of the WTO briefly dealt with dispute resolution under Articles 22 and 23 of that Treaty provided for a process of consultation, a rudimentary form of international mediation and it was the shortcomings of this procedure that ultimately led to the adoption of the Dispute Settlement Understandings in 1995 . The Dispute Settlement Understanding introduced, for the first time in the history of the GATT, the appellate review system for the settlement of international disputes. The result was the judicialization of international trade dispute settlement. It might be rightly mentioned that this marked the generation of a more complex case law or jurisprudence on the settlement international trade disputes . It is imperatives to note that the Dispute Settlement Board (DSB) plays and instrumental roles in the resolving and handing the arbitration matters.

"That having been said, the WTO Understanding does not revoke the process of consultation. Article 4 of the Understanding makes it clear that the process of consultation plays an important role in the dispute settlement process; namely, as a 'without prejudice' mechanism for encouraging pre-trial disclosure and, ideally, settlement "

The WTO Dispute Settlement establishes the Dispute Settlement Board, which is the General Assembly of the WTO, but meeting the specific purpose of discharging its obligations under the above understanding.