Resolving or Exacerbating Disputes? The WTO's New Dispute Resolution System

Abstract

In 1995 the dispute resolution system of the WTO was transformed to make it more effective in enforcing WTO rules. Ironically, the improvements in the system have contributed directly to greater conflict in the WTO. How can improving a system to resolve disputes actually exacerbate conflict? This article identifies a number of conflict-enhancing consequences of the change in the dispute resolution mechanism. Conflict is not bad per se. Indeed, if the outcome of this conflict is that governments must better justify participation in the WTO, then conflict is good. But there is a danger that international courts are more likely than not to generate conflict, while the international legal and political system is less adept at weathering controversy and addressing valid public concerns. Left unaddressed, conflicts generated by international legal bodies can erode support for the international legal system and multilateral strategies in general. This article suggests solutions designed to build into internationally legalized processes political safety valves, greater political sensitivity, and improved accountability, as well as legitimacy enhancing devices. Demonstrated here in the case of the WTO, the analysis described applies to international legal systems generally.