Trade decisions devoid of judicial activism: “too much too soon” for the dispute settlement body?

Abstract

World Trade Organisation Judges, that is those who sit on the Panels and Appellate Body of the World Trade Organisation (WTO) Dispute Settlement Body (DSB), have been increasingly dogged by criticisms of “judicial activism” in their decisions. Legal jurisprudence invites consideration of this issue. First, for the sake of academic examination, to question the viability of cloaking with compulsory jurisdiction, a dispute settlement body faced with the task of resolving matters which hinge on questions of national economic sovereignty. Second, for a practical assessment and review of this attempt by national representatives gathered under the political umbrella of a trade‐negotiating organisation to replicate the judicial style dispute settlement process of modern legal systems. The problems giving rise to threats of “judicial activism” are broadly two‐fold: (a) the increased complexities in trade disputes, and (b) the procedural teething worries of a still‐evolving judicial dispute organ. This paper examines these factors.