Cracks in the 'Crown Jewel' – Whither 'Prompt Settlement' of WTO Disputes?

Abstract

In a span of just two decades, the World Trade Organisation (WTO) has issued a remarkable number of two hundred plus panel reports and 140 plus appellate reports. Members’ compliance pursuant to these decisions, though not perfect, has also been commendable. For such reasons, the dispute settlement mechanism (DSM) has rightly been hailed as the WTO’s ‘crown jewel’. However, in the recent past, the DSM’s mandate of promptly settling disputes within the stipulated timeframes has come under tremendous pressure, resulting in major delays. Such delays present a serious systemic issue and undermine the objective of the DSM to promptly settle disputes. This paper undertakes a detailed analysis of the delays being faced at the panel and appellate stage. It analyses the delays in issuing/circulating panel and appellate reports right from 1995 till June 2018. Apart from this, it also discusses suggestions for remedying the systemic delays, such as restructuring the panels and the Appellate Body; revising the DSU timelines; and considering retrospective and provisional remedies. The preliminary conclusions of this paper are that while there is no denying that the DSM is under significant pressure, the situation has not yet reached a full-blown crisis. In fact, delays are common across all dispute settlement mechanisms, whether domestic or international. The DSM could, however, benefit from much-needed reforms given that the demands placed on it have outgrown its original design, structure, and capacity, all of which need to be attuned to meet today’s requirements.