Revisiting the Idea of Provisional Measures in the WTO Dispute Settlement Mechanism
26 Pages Posted: 2 Jan 2015
Date Written: September 12, 2013
The continued reliance on the WTO’s dispute settlement mechanism to settle disputes amongst WTO members is testimony to its strength. However, with the DSM getting bogged down by delays and other shortcomings, the current system of prospective remedies may not fully serve the needs of the Members. It is in this context that I revisit the idea of provisional measures in the DSM. In furtherance of Mexico’s proposal, I provide three justifications for incorporating provisional measures in the DSM. First, given the systemic delays in the final resolution of a WTO dispute, provisional measures would strengthen the security and predictability of the WTO’s DSM. Second, even though it is states who are parties to the WTO and the driving force behind it, the ultimate beneficiaries are the private parties. It is they who stand to lose out the most in case of an inefficient dispute settlement mechanism. Provisional measures would benefit the private sector the most. Third, the DSM is akin to a world (trade) court, like other world courts. To be an effective adjudicative mechanism, a system of provisional measures would greatly benefit the DSM. To further substantiate my arguments, I cite the disputes of the Norway-Trondheim and EU-Seizure of Generic Medicines. Even though provisional measures are off the table for now in the DSU review, it is hoped that there could be another opportunity to reconsider it.
Keywords: WTO; Dispute Settlement ; Provisional Measures
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