Published 29 November 2017
[Addendum 29 November 2017 - English translation of the Spanish contribution to this Special Issue] The WTO Dispute Settlement System (DSS) is the international dispute settlement system relying most heavily on the work of trade experts with no prior formal legal training. This article explores three aspects that are considered essential in the understanding of why non-legal actors play such a major role in the system.
The article firstly reviews the historical development of DSS panels in the context of the WTO institutional system. It demonstrates how between the post-1947 development of the GATT system and the 1995 adoption of the WTO, both the DSS and its panels became increasingly rule-oriented, thus adding weight to the underlying legal system. However, due to the design of the WTO institutional system (a member-driven organisation), the DSS continues to rely heavily on the input of non-legal trade experts. Their involvement is justified not only by the responsibilities of the DSS (conflict negotiation) and its panels (fact determination) but also by the type of issues typically addressed in WTO Agreements (i.e. sanitary and phytosanitary measures, technical barriers to trade, financial services etc.).
Secondly, the role of the WTO Secretariat is reviewed, focusing on the support that it provides to the panels to compensate for potential shortcomings in members' legal training and their application of the WTO rule-oriented system. The Secretariat provides sufficient legal support to make up for any legal knowledge that trade experts on the panels may lack.
Thirdly, the article analyses how the Appellate Body (AB) exerts its influence on the panels' work. The AB contains more experts with legal training because its purpose is to review the proper application of the rules without involving itself in the fact-finding work associated with the issues under dispute.
The article concludes that the involvement of non-legal trading experts as panellists is one of the checks and balances that maintain a state of equilibrium in the WTO institutional system. This explains and allows for the lack of legal training of many panellists, even though the WTO DSS is a rule-oriented system, unlike the 1947 GATT.
Note November 2017:
English version is available here https://www.transnational-dispute-management.com/article.asp?key=2504
Spanish version is available here https://www.transnational-dispute-management.com/article.asp?key=2465