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

Abstract

The WTO 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 (DSU). In the context of the Appellate Body's repeated rejection of good faith principles in the 'substantive' WTO law of GATT, GATS and TRIPS, the development of 'procedural' good faith adjudication stands out.

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 and often abused by powerful WTO Members to draw out disputes at the expense of developing country Members. One will describe how the Appellate Body derived and distinguished from good faith in Article 3.10 DSU a due process standard of cumulatively requiring a fair, prompt and effective dispute resolution.

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 good faith's enforceability. 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.

Keywords: WTO dispute settlement, public international law, good faith principle, equity, fairness, standard of review, litigation techniques, consultations, fruitful disputes