Access to justice in the World Trade Organization: a case for a small claims procedure?

Abstract

AbstractThe current dispute settlement system of the World Trade Organization (WTO) creates a particular challenge for WTO Members with limited exports since litigation costs are more or less independent of the commercial stakes involved in a dispute. Small Members with small trade stakes may therefore find it too costly to pursue legitimate claims. Reviewing the aims and practices of small claims procedures at the national and supranational level, we analyse whether a similar institution could be introduced at the WTO. While a strong empirical case can be made for such an innovation, the legal and political challenges should not be underestimated. As an initial step, we make a prima facie case that the current dispute settlement system effectively discriminates against small claims and hence owners of small claims, and thus, in particular, against least developed countries, small island economies and low income developing countries. This empirical task is carried out in Part 2. In Part 3 we explain what small claims procedures are at the national level, what purpose they serve, how they are organized in different jurisdictions involving alternative design features, and what challenges they have faced. Part 4 explores the issues raised by adding a small claims procedure in the WTO context, and indicates specific design features that could address them.