The Power of the Weak in the WTO How David Overcome Goliath

Abstract

It is undoubtedly accurate that there is a lack of parity in the WTO dispute system. Although the system has been lauded as being a rule-based adjudication system, developing country members and least-developed countries (LDCs) have to go to great lengths to protect their interests against a formidable trade partner. Remarkably, a few of them have successfully turned the tables with clever approaches in trade disputes against more resourceful and powerful members of the WTO. This paper adopts an exploratory qualitative research method using an in-depth analysis of six case studies of trade disputes between economies classified as “weak” against economies classified as “strong” members of the WTO. A total of 391 cases that were filed between 1995 and 2021 were first examined. Subsequently, out of 100 cases where developing countries participated in the WTO litigation as complainants, a total of 10 cases in which “the weak” member prevailed. Six cases were chosen because they explicitly illustrate how the “weak” WTO members harness their resources and unique winning tactics to overcome the “strong” WTO members’ ample supply of resources and aggressive tactics. The paper shows that governance effectiveness, influential alliances, public-private partnerships, government-NGO collaboration, engagement of academics and experts, effective use of the Advisory Centre on WTO Law (ACWL) coupled with effective leadership and clear plans were crucial for weak members' successful legal challenge at the WTO. These findings present promising tactics that WTO members could use to prevail in their trade disputes against a “stronger” WTO member. They should, at best, inspire “weak” members to overcome their hesitance to use the WTO judicial process to protect their interests either as parties or marginally as third parties. Indeed, the developing country members and LDCs have a variety of tools they can put to work when filing a dispute to help maximize the benefits and lower litigation costs. Chief among them is the AWCL. Our case analysis shows that ACWL's low cost has relatively attenuated “weak” members' legal and financial stakes associated with a trade dispute.