Dispute Settlement Mechanism Of WTO: A Study Of Constitutional Constraints (By Kailash Kumar Sharma)

Journal IJLRA

ISSN 2582-6433

Published 2022/04/15

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The intention of designing this chapter was to provide a critical insight as to how far the developing nation has fared under WTO Dispute Settlement System. It provides evidence that the participation in WTO dispute settlement system is way more impressive than that of GATT regime. In general terms, the DSU has substituted a more ‘legalised’ system of dispute settlement, with new procedural requirements, over the more ‘political’ system of GATT. In doing so, it has created both opportunities and challenges for developing countries. In one hand, it has helped to level the playing field between weaker and stronger WTO members, while on the other hand, it has raised the bar in terms of resources both human and financial which is required to use the system effectively.

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Dispute Settlement Mechanism Of WTO: A Study Of Constitutional Constraints (By Kailash Kumar Sharma)

Author Name: Kailash Kumar Sharma

Title: Dispute Settlement Mechanism Of Wto: A Study Of Constitutional Constraints

DOI Link :: https://www.doi-ds.org/doilink/04.2022-15682313/ijlra/v2i6/April2022

Email Id: kailashs009@gmail.com

Journal IJLRA
ISSN 2582-6433
Published 2022/04/15

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International Journal for Legal Research and Analysis

Abbreviation IJLRA
ISSN 2582-6433
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[1] William J. Davey, “The WTO Dispute Settlement Mechanism”, (2003) (Research paper No 03-08, University of Illinois, College of Law).

[1] Magda Shahin, “WTO Dispute Settlement for a middle-income developing country: the situation of Egypt” in Gregory Shaffer, Manfred Elsig. (eds.), The Law and Politics of WTO Dispute Settlement, 275-276 (oxford University press, California, Irvine, ed. 2016).

[1] Gregory Shaffer “The challenges of WTO law – strategies for developing country adaptation” World Trade Review 177 (2006).

[1] James HeadenPfitzer and Sheila Sabune, “Burden of Proof in WTO Dispute Settlement: Contemplating Preponderance of the Evidence” 9 International Centre for Trade and Sustainable Development, p.5-6(2009).

[1] Ross Becfroft, The Standard of Review in WTO Dispute Settlement: Critique and Contention, (Edward Elgar Publishing Ltd., ed. 2012).

[1] Stefan Zleptnig, “The Standard of Review in WTO Law: An Analysis of Law, Legitimacy and the Distribution of Legal and Political Authority” Vol. 6 European Integration online Papers (EIoP), p.6,13. (2002). Available online,

http://eiop.or.at/eiop/texte/2002-017a.htm, visited on 10^th Oct, 17

[1] Matthias Oesch, “Standards of Review in WTO Dispute Resolution”, 6 J. INT'L ECON. L. P.637-39 (2003)

[1] De nova has a literal English translation of ‘ Anew’. See Concise Law Dictionary, Sweet and Maxwell, (2005)

[1] William Wade, Administrative Law, 309-10(Oxford University Press, 10^th ed. 2009)

[1] See Appellate Body Report , Japan-Alcoholic Beverage II, 13-14.

[1] The function of panels is to assist the DSB in discharging its responsibilities under this understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements and make such other findings as well to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreement.

[1] Holgar Spamann, “Standard of Review for World Trade Organisation Panels in Trade Remedy Cases: A Critical Analysis”, 38(3) Journal of World Trade, p. 540(2004)

[1] Catherine Button, The Power to Protect: Trade Health and Uncertainty in the WTO, p.168, (Hart publishing, 2004)

[1] Panel Report, United States-Measure Affecting Import of Woven Wool Shirt and Blouses from India, WT/DS33/R, adopted 23 May 1997, as upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, 343.

[1]See, Appellate Body Report Japan-Agricultural product II, WT/DS7/R, adopted 19^th March 1999, as modified by Appellate Body Report WT/DS7/AB/R, DSR 1999:I, 315.

[1] See,Appellate Body Report, United States-Anti Dumping Measures on Certain Hot-Rolled Steel products from Japan, WT/DS184/AB/R adopted 23 August 2001, DSR2001: X, 4697.

[1] See, Appellate Body Report US-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan. WT/DS192/AB/R, adopted 5^th nov 2001: XII, 6027.

[1] See, Appellate Body Report, Argentina-Safeguard Measures on Import of Footwear Footwear(EC), WT/DS121/AB/R, adopted 12^th Jan 2000, DSR2000:I,515.

[1] See, Appellate Body Report, United States-Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19^th Jan 2001, DSR2001:II 717.

[1] See, Appellate Body Report, United States-Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R, DSR2007:I,3.

[1] See, Article 11 of Dispute Settlement Understanding, which provides that the function of the panel is to assist the Dispute Settlement Body in discharging it responsibility under this understanding. Panel should make an objective assessment of the matter before it, including an objective assessment of the fact of the case and the applicability of the conformity with the relevant covered agreements, and make other such findings as will assist the DSB in making the recommendation or in giving the ruling provided in the covered agreement.

complaint has been brought shall be asked to present its point of view. The DSU also permits the parties to settle their disputes at any stage during panel or Appellate Body proceedings, and complaints may withdraw complaint at any time.

[1] Holgar Spamann, “Standard of Review for World Trade Organisation Panels in Trade Remedy Cases: A Critical Analysis”, 38(3) Journal of World Trade, p. 551(2004)

[1] See Appellate Body Report, EC-Hormones (Para 133.)

[1] Andrew D. Mitchell, ‘Good Faith in WTO Dispute Settlement’, 7(2) Melbourne Journal of International Law, 339 (2006).

[1] Ross .Becroft, ‘The Standard of Review Strikes Back: the US-Korea DRAMS Appeal’ 9(1) Journal of International Economic Law, p. 207(2006)

[1] Matthias Oesch, Standard of Review in WTO Dispute Resolution, p.42(Oxford University Press, 2003).

[1] D.M. McRae, “The WTO in International Law: Tradition Continued or New Frontier?” 3(27) Journal of International Economic Law, pp. 32-33 (2000).

[1] A. Das and J. Raghuram, ‘One Too Many: Significant Contributions of India to the WTO Dispute Settlement Jurisprudence’, in A. Das and J.J. Nedumpara (eds.), WTO Dispute Settlement at Twenty,75 (Springer Nature, Singapore, 2016).

[1] John J. Barceló III, ‘Burden of Proof, Prima Facie Case and Presumption in WTO Dispute Settlement’, Cornell Law Faculty Publications. Paper 119, (2009).

[1] H. Richard, Gaskin, Burdens of Proof in Modern Discourse, p.4 (Yale, 1992).

[1] D. Petko Kantchevski, The Differences Between the Panel Procedures of the GATT and the WTO: The Role of GATT and WTO Panels in Trade Dispute Settlement, 3 BYU Int’l L. & Mgmt. Rev. 79, 97 (2006).

[1] Appellate Body Report on United States—Measures Affecting Imports of Woven Wool Shirts and Blouses

[1] See Appellate Body Report, Japan – Apples, para. 166; and Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 82.

[1] See, Appellate Body Report, United States – Laws, Regulations and Methodology For Calculating Dumping Margins (“Zeroing”), WT/DS294/AB/R (18 April 2006) Para. 220.

Dispute Settlement Mechanism Of WTO: A Study Of Constitutional Constraints (By Kailash Kumar Sharma)

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Dispute Settlement Mechanism Of WTO: A Study Of Constitutional Constraints (By Kailash Kumar Sharma)

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