Developing Country Use of the WTO Dispute Settlement System:Why it Matters, the Barriers Posed, and its Impact on Bargaining
by Gregory Shaffer
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The legalized dispute settlement system of the World Trade Organization (WTO) has been hailed as a new development in international economic relations in which law, more than power, might reign. Nowhere has the international “rule of law” advanced more than in trade law. And yet, such declarations beckon the question of who predominantly uses this legal system, who prevails, and how does it affect bargaining in the system’s shadow? Can the legal system work for smaller countries, and, in particular, small developing countries? To what extent has legal capacity– the ability to mobilize legal resources to prepare and litigate a WTO case–replaced the premium provided by market power? What steps could smaller and poorer countries take to mobilize legal resources to participate more effectively? How could changes in the dispute settlement system’s rules, or in the application of WTO rules by the system’s judicial bodies, facilitate small countries’ ability to pursue legal claims? These are the questions, and implicit within them, the challenges, that this paper raises. The paper examines not trade barriers as we conventionally conceive of them, but rather the barriers posed for smaller and poorer WTO members to challenge or even recognize trade barriers in the first place.
Soon to be published in the book “Field Guide on Issues, Challenges and Experiences of Developing Countries with the DSU”.
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