Monday, July 9, 2018

Paine: The Functions of the WTO's Dispute Settlement Body: A Distinctive Voice Mechanism

Joshua Paine (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) has posted The Functions of the WTO's Dispute Settlement Body: A Distinctive Voice Mechanism. Here's the abstract:
This paper analyses the functions performed by the WTO’s Dispute Settlement Body (DSB), that is, the diplomatic body, consisting of representatives of all WTO members, which administers the dispute settlement system, including by establishing panels, adopting panel and Appellate Body reports, monitoring implementation of rulings, and authorising the suspension of concessions. Of course, because the reverse consensus rule applies to these decisions, their outcome is in practice a foregone conclusion. However, it would be wrong for this reason to treat the DSB as a formality, not worthy of further analysis. Instead, this paper suggests that having the DSB may serve a number of important functions within the wider legal and political processes of the WTO. Specifically, the paper focuses on three functions performed by the DSB. First, the paper analyses the DSB’s role as a crucial ‘voice’ mechanism which provides WTO members with a centralized forum for expressing (dis)satisfaction with the performance of adjudicators. This section draws on the framework of ‘exit, voice and loyalty’, originally developed by Hirschman as a way of conceptualizing member dissatisfaction with an organization’s performance. This section analyses the two most striking episodes of the DSB operating as a voice mechanism in the WTO’s history: the widespread member backlash over amicus curiae briefs a generation ago, and the United States’ blocking of Appellate Body (re)appointments from 2016 to present. Second, the paper considers the DSB’s compliance-monitoring function. On its face, this is a key respect in which WTO dispute settlement differs from many international courts and tribunals, where there is often no centralized mechanism for monitoring post-judgment compliance. Third, the paper analyses the DSB’s function as a mechanism for socializing members into the complex field of WTO dispute settlement, alongside other avenues for learning such as third party participation in disputes.