Dispute Settlement Mechanisms - Improvement, Evolution, and Change since GATT 1947 - Essay Example

Outline: Introduction: I: The 1947 Dispute Framework A: Analysis and Discussion B: Reference of Drawbacks and Weaknesses C: The Requirement for Consensus D: The Need of Adjudication and Impartiality III: Changes in Response to These Challenges A: Designating the Council Chairman as Final Arbitrary B: Designating Working Groups for Preliminary Recommendations C: The Changing Role of the Disputants D: Working Groups Seeking to Compromise Instead of Adjudicate E: Disputants Leveraging Existing Disputes as a Means of Bargaining F: Subsequent and Required Changes to Address These Issues Name Date Professor’s Name Course Section/# Title: Dispute Settlement Mechanisms: Improvement, Evolution, and Change Since GATT 1947 The General Agreement on Tariffs and Trade was a multinational agreement that sought to create a basis, legal norm, and general consensus understanding on acceptable practices within the realm of economics and trade for member signatories. Ushered into existence shortly after the conclusion of the Second World War, this agreement soon engaged more and more signatories and came to form the basic framework for how economic development, trade, and integration would be formulated throughout much of the next half century. First and foremost among the interesting aspects of how this particular agreement impacted upon stakeholders is the manner through which disputes were resolved. Although it might be convenient to understand that the provisions for dispute that were set forward when GATT was initiated, in October of 1947, were resolute and immutable, the fact of the matter is that these dispute resolution mechanisms evolved and changed greatly over the course of time. Ultimately, the formation of the WHO, from the Uruguay round, drew upon the slow and progressive changes that the GATT experienced; due in part to the fact that ongoing debates, disputes, and the adjudication of these required the stakeholders within the GATT to find more actionable and affective means of engaging these disputes and remediating them. The GATT 1947 Framework of Dispute Settlement: As a function of seeking to understand this, the following analysis will be concentric upon discussing the improvements that took place with respect to the dispute settlement mechanisms from 1947 up until the Uruguay round was completed in 1989. It is the further hope of this author that such a level of discussion will be useful with regard to providing the reader a more informed and actionable representation of how the GATT responded to the external and internal pressures that it experienced in the intervening years. At the outset, disputes that were raised within the GATT were originally ruled upon by the Chairman of the GATT council. However, recognizing that this particular approach limited itself to a degree of potential favoritism and/or bias, the rules for adjudicating disputes soon began to shift responsibility from the chairman of the GATT Council towards working parties that were composed of all interested stakeholders. This group of interested stakeholders soon came to include those individuals or groups that were disputing the issue to begin with. However, this particular approach also experience a level of drawback due to the fact that the decisions that were made by these working parties were required to be unanimous in order for the situation itself to be considered as settled and/or adjudicated. As can be readily noted, the difficulty in coming to a consensus with respect to infinitely complex disputes involving a number of different stakeholders was profound (Jackson, 1998). Seeing this is a fundamental failure that is limited further progress and the closure of many disputes, it was determined that a panel of between three and five experts should instead be convened as a means of adjudicating the process. However, these three to five individuals did not have the final say with regard to whether or not a specific dispute could be adjudicated in a particular manner. Instead, these individuals would merely listen to the dispute, ask salient questions, and then compile their findings in separate opinions that were in turn referred to the GATT Council. Upon reading these findings, it was then the role of the Council to determine whether or not the dispute would be adjudicated and in what particular manner. At such a point in time as the GATT Council did indeed adjudicate these disputes, the ruling was considered as legally binding and served as a precedent for future decisions/rulings that would be handed down in the immediate future. What is essential to note is the fact that even though the judicial system of different nations throughout the world has evolved over hundreds, often times thousands of years, the judiciary process that the GATT developed evolved over a much shorter time span. As such, it is only reasonable to understand that shortcomings, failures, drawbacks, and other problems were corrected, modified, and ultimately changed as a means of making this particular body more functional, fair, and ethical. A fundamental shortcoming still existed within the framework that has thus far been defined. Namely, a consensus vote was required in order for any particular dispute to be adjudicated. Accordingly, and as can readily be noted, the requirement of a consensus severely constrained the overall potential for a dispute to be rapidly settled. Not surprisingly, the positive consensus required that there was not a single objection from any parties with respect to the resolution that was to be determined (Ministerial Conference, 1996). Owing to the very nature of these disputes, it was very rare indeed that each and every party was satisfied entirely with the results of the manner through which a particular issue might have been adjudicated. Contrary to what one might assume, the system that has thus far been defined did not result in a high number of cases in which a majority consensus was not reached. Owing to the unique nature and culture that the GATT was able to foster, a broad majority of the disputes were able to be settled on consensus understanding alone (WTO, 2012). Changes to the GATT Dispute Framework and Proscriptive Change: A fundamental shortcoming that was eventually recognized had to do with the way in which the consensus vote and the working panel operated in tandem with one another. Accordingly, prior to the Tokyo round, it was determined that the GATT Council was somewhat discouraged from ruling based upon the legal merits of a case alone. Instead, the information that they were receiving ultimately derived from the working group of 3 to 5 individuals that were responsible for categorizing the case and defining it. In such a manner, these individuals were understood to be affected by their desire to create and amenable environment for a “diplomatic” resolution to a particular situation. As such, the way in which the information they crafted was presented and retained for the GATT Council somewhat negated the non-biased nature that was originally striven for. Yet, rather than understanding that each and every one of the weaknesses and subsequent changes that have been discussed thus far existed as separate entities and were otherwise unrelated to one another, a more actionable and effective interpretation would be to realize that many of the claimants to these disputes found themselves in a situation that they were regularly availing themselves of the process and therefore leverage under this system began to shift. What was eventually noted was a situation in which many contracting parties works to leverage trade-offs with respect to disputes that were ongoing and matters that were being negotiated (WTO, 1996). Naturally, the system was never established as a means of quid pro quo with respect to ongoing claims and disputes that were being adjudicated by the GATT. Yet, realizing that this was indeed taking place, the Uruguay round found it necessary to increase the level of unilateral action as a means of reducing the bargaining power that contracting parties were leveraging within the system. As the Uruguay round began, the subsequent changes and dynamics of international trade encouraged stakeholders to understand that the GATT was not effective as it could be in seeking to adjudicate the ongoing disputes that continued to define the system. One of the resolutions that was engaged during the Uruguay round was concentric upon encouraging a renewed level of negotiations between disputants prior to initiating a formal dispute within the GATT. By formulating this procedure and requiring contracting parties to abide by a new set of terms and conditions, the underlying goal was to create a situation through which a greatly reduced level of cases would be brought before the GATT (Jia, 2013). Yet, it should not be understood of the Uruguay round concluded any and all discussions of the means through which the procedural engagement of dispute remediation would take place. Instead, the weaknesses were still exhibited host Uruguay. One of the most notable was with regard to the fact that the adoption of panel reports that were provided by working groups still had no clear and resolute determination. As these shortcomings continue to linger, the reader can adequately note that the process of improvement and procedural effectiveness was still ongoing; both long before and long after the initiation of the Uruguay round. Bibliography Jackson, J 1998, ‘Dispute Settlement in the WTO: Policy and Jurisprudential Considerations’, Research Seminar in International Economics’ School of Public Policy at the University of Michigan, 419, pp. 1-24, Academic Search Complete, EBSCOhost, viewed 9 April 2014. Jia, H 2013, Entangled Relationship between Article 2.1 of the TBT Agreement and Certain Other WTO Provisions, Chinese Journal Of International Law, 12, 4, pp. 723-769, Academic Search Complete, EBSCOhost, viewed 9 April 2014. Ministerial Conference, 1996, The Singapore Ministerial Conference, GATT, 30, 1, pp. 1-8, Business Source Complete, EBSCOhost, viewed 10 April 2014. World Trade Organization 1996, ‘Focus Newsletter’ WTO, 3, pp. 2-12, Academic Search Complete, EBSCOhost, viewed 9 April 2014. World Trade Organization 2012. ‘WTO Dispute Settlement: One-Page Case Summaries 1995-2012’ WTO, 1, pp. 1-213, Academic Search Complete, EBSCOhost, viewed 9 April 2014. Read More