Fairness, Promptness and Effectiveness: How the Openness of Good Faith Limits the Flexibility of the DSU

Abstract

AbstractThe World Trade Organization Appellate Body has drawn from international legal principles to intensify the normative impact of good faith duties vaguely described in Articles 3(10) and 4(3) of the Dispute Settlement Understanding. In the context of the Appellate Body's repeated rejection of good faith principles in the “substantive” WTO law of the General Agreement on Tariffs and Trade, the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights, the development of “procedural” good faith adjudication stands out. Relating procedural good faith adjudication to the level of fairness, the WTO judiciary thus relegates to the past power-oriented, diplomacy-based structures of WTO dispute settlement.This article will show how the general good faith principle served to reduce the flexibility remaining in the WTO's Member-driven dispute settlement procedure, often abused by powerful WTO Members to draw out disputes at the expense of developing country Members. One will also describe how the Appellate Body derived a due process standard, the one of requiring a “fair, prompt and effective” resolution of WTO trade disputes from the good faith obligation in Article 3(10) DSU, while keeping due process distinct from good faith duties.This due process standard enables the Appellate Body to review (and restrict) the use of procedural rights by WTO Members even when the exercise of these rights appears – on its face – consistent with DSU norms.The article finds that the due process standard is a first-time judicial assertion in Appellate Body practice of a broader enforceability of good faith.