Trend towards “Judicialization”: A Rule-oriented Dispute Settlement System
刘成伟
【关键词】Chapter I
【全文】
Over decades of years past, many countries have come to recognize the crucial role that dispute settlement mechanism plays for any treaty system. This is particularly the case for a treaty system designed to address the myriad of complex economic questions of international relations today and to facilitate the cooperation among nations that is essential to the peaceful and welfare-enhancing role of those relations. Dispute settlement procedure assists in making rules effective, thereby adding an essential measure of predictability and effectiveness for the operation of a rule-oriented system in the otherwise relatively weak realm of international norms.
The Uruguay Round result, including the Agreement establishing the World Trade Organization (‘the WTO Agreement’), is one important effort to face up to some of the problems associated with interdependent international economic activity. Central and vital to the WTO institutional structure is the dispute settlement procedure derived from decades of experiment and practice in the GATT, but now elaborately set forth, as part of the WTO Agreement, in the new treaty text of the Dispute Settlement Understanding (‘the DSU’).
The entry into force of the WTO Agreement on 1 January 1995, including the new DSU, creates an improved system of rules and procedures for settling international trade disputes. According to Art. II:2 of the WTO Agreement, the DSU in Annex 2 to it is an “integral part of this Agreement, binding on all Members”. Art. 23 of the DSU under the heading “Strengthening of the Multilateral System” emphasizes the legal primacy and exclusive character of the WTO dispute settlement system vis-à-vis alternative dispute settlement systems outside the WTO. Art. 23.1 requires, in part: “When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.”
