They Fought for Trade But Did Trade Win?: An Analysis of the Trends Among Trade Disputes Brought by WTO Member States Before the WTO Dispute Resolution Body
Alexandra R. Harrington
Global Institute for Health and Human Rights; Albany Law School
Michigan State Journal of International Law, Vol. 16, p. 315, 2007
Much has been made of the common assumption that crime and bad conduct does not pay, particularly on the level of international crimes and criminal conduct. However, the field of bad conduct in international trade is not as frequently discussed. What does a study of the outcomes of complaints brought before the WTO's dispute resolution body tell us about the uses of that entity for the promotion of trade and the deterrence of improper conduct in the trading arena? What do the records of individual WTO member states in terms of WTO initiated disputes tell us about who uses the WTO, when, with whom, and to what result? This article explores these questions by examining WTO dispute resolution data in several ways. Part II of this article provides background on the WTO's dispute resolution body, its jurisdiction, and its basic procedure. Part III of this article examines the outcomes of cases brought before the WTO for dispute resolution. This Part finds that, quite surprisingly, the majority of cases brought before the WTO never come to fruition. Of those cases that do go further, the majority ate settled through a mutually agreed settlement either before or after judicial proceedings. Interestingly, the incidents of cases which are decided on the merits of the issues presented and conclude at that point are quite low. This Part concludes that the overall record of cases brought to the WTO for dispute resolution is such that this action is possibly more of a bargaining mechanism than a true hope for a positive outcome. Part IV examines the occurrence of disputes at the WTO by country. Each member country which has brought a complaint before the WTO is analyzed separately for total number of complaints, complaints by subject areas, times when the complainant collaborates with other countries, and countries against which complaints are brought. Part IV also examines the number of times that member countries have been brought before the WTO dispute resolution body as respondents. Finally, Part V of this article examines the trends and lessons from the previous parts and concludes that there are import lessons to be learned from the data presented regarding not only the past and current use of the WTO's dispute resolution mechanism, but also its future use by established and newly entering member states. The ultimate conclusion reached by this article is that when WTO member states fight for trade, trade does not always win, but at least there is a strong legal structure in which to fight for trade.
Number of Pages in PDF File: 39
JEL Classification: K33
Date posted: November 12, 2008 ; Last revised: November 17, 2008