Chapter 4: Negotiation or Litigation? The Curiously Evolving Governance of the WTO
Kamala Dawar and Peter Holmes INTRODUCTION Within five years of the creation of the WTO it was already becoming apparent that the institution’s stability was at risk because of an emerging imbalance in its constitution (Holmes 2001). The political decision-making capacity of the WTO was in paralysis while the judicial element in the form of the Dispute Settlement Body (DSB) was proving to be remarkably successful. Within this set up were contained the seeds of major problems: an international body making decisions over some of the most sensitive international economic and political issues, including literally some life and death issues, with no political element, is a recipe for crisis. The 2001 Doha Round of negotiations was supposed to rectify this imbalance, but as is well known the talks have progressed extremely slowly. While there has been substantial progress on one area, TRIPS,1 the overall slow pace of WTO negotiations forms the backdrop to this paper. Jackson (2006: 4) observed ‘I think the [Dispute Settlement Body] is the most powerful of all the economic organizations that exist. A tension has developed between this dispute settlement system and the rest of the organization.’ This chapter continues to focus on this particular tension by examining how the DSB has reacted to its position within this imbalance – which is even more exposed than in 2001. The chapter argues that the Appellate Body has reacted politically, in a style intended to defuse some of the controversy it has generated. The thesis of this chapter...
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