The Arbitration System In The Wto Dispute Settlement Mechanism Research

The dissertation focuses on arbitration within the WTO dispute settlement system. Provided by the DSU and other WTO agreements, arbitration is an important legal means of dispute settlement which can facilitate the solution of certain international trade disputes among WTO members. However, it has not been valued and studied well. The WTO arbitration practices have raised numerous legal questions that remain to be clarified and resolved. In future negotiations on improvements of the DSU rules, the WTO arbitration mechanism should be refined, the compatibility of arbitration within the WTO multilateral system should be improved and the use of arbitration by members should also be encouraged.To this end, a comprehensive examination of the current WTO arbitration mechanism is necessary.The dissertation is of six chapters. Chapter I is a general introduction.Firstly, it defines some fundamental concepts such as international arbitration and the WTO arbitration. It also provides a brief description of the historical development of international arbitration including how it evolved during the proceedings of the WTO multilateral trade regime. In addition, it presents a comprehensive introduction of the WTO dispute settlement system and the WTO arbitration mechanism. Based on this introduction, Chapter II, Chapter III, Chapter IV and Chapter V delve into arbitration under Article25of the DSU, arbitration on "reasonable period of time" under Article21.3(c) of the DSU, arbitration on "retaliation" under Article22.6of the DSU and arbitration on some specific WTO issues under other provisions respectively. By interpreting the relevant provisions, examining the origins of rules and analyzing relevant arbitration practices and typical cases, the Chapters state some explorations and thoughts on main legal questions concerning each type of the WTO arbitration. Finally, Chapter VI offers a comparative analysis of the WTO arbitration and some other international arbitration mechanisms such as arbitration in The1949Revised Geneva Act for the Pacific Settlement of International Disputes, arbitration in the United Nations Convention on the Law of the Sea and arbitration in the Energy Chapter Treaty. In doing so, it points out the main features and shortcomings of the current WTO arbitration; it also provides an introduction to the proposals on the improvements of the WTO arbitration in the new Round negotiations and makes some recommendations to improve the current WTO arbitration mechanism and encourage its future utilization. Last but not the least, the dissesrtation also gives an outlook of the potential utility of arbitration for China to resolve international trade disputes in the future.The WTO arbitration has developed from arbitration within GATT. At present, it is a unique international arbitration system. Prescribed by different provisions, the WTO arbitration can be divided into two categories-"arbitration within the DSU" and "arbitration outside the DSU"."Arbitration within the DSU" mainly includes arbitration under Article25of the DSU, arbitration on "reasonable period of time" under Article21.3(c) of the DSU and arbitration on "retaliation" under Article22.6of the DSU, while "arbitration outside the DSU" refers to the arbitration provided by other WTO agreements outside the scope of the agreements covered by the DSU. This new institutionalized WTO arbitration system, however, has not resulted in more frequent use of arbitration to resolve international trade disputes among the WTO members. At the moment, panel procedures and procedures for appellate review are the main-stream procedures within the WTO dispute settlement system, the WTO members rarely recourse to arbitration, in particular, to arbitration under Article25of the DSU.In view of this phenomenon, examining of the WTO panel procedures, appellate review procedures and the provisions and practices of all types of the WTO arbitration, the dissertation holds that arbitration under Article25of the DSU has institutional defects-the provisions are too vague and the pattern of arbitration has its limitations, therefore it can not be an effective alternative means of panel (or panel and appellate review) procedures within the WTO, though Article25of the DSU provides expeditious arbitration within WTO as an alternative means of dispute settlement. Secondly, Article21.3(c) of the DSU and Article22.6of the DSU both constitute "exceptions" which is provided by Article25.2of the DSU. In other words, arbitration on "reasonable period of time" and arbitration on "retaliation" are exceptional arbitrations while arbitration under Article25of DSU is a general arbitration within the WTO. Furthermore, arbitration under Article21.3(c) of the DSU and arbitration under Article22.6of the DSU are both reformations of arbitration under Article25of the DSU. As the WTO mandatory arbitration, they have been more frequently used by WTO members. However, past arbitral practices have raised various legal questions that remain to be clarified and resolved. Moreover, the recent new "arbitration outside the DSU" enriches the connotation of the WTO arbitration mechanism and enlightens the future utilization of WTO arbitration. In sum, the WTO arbitration is a public international arbitration between states and has fundamental features of international arbitration. The bilateral nature of the arbitration seems be reduced by multilateral character of the WTO, however, the WTO has not set the unified standard arbitration procedures for the WTO arbitration according to its features.In the new Round negotiations on improvements and clarifications of the DSU, many proposals have been submitted by members to improve the WTO dispute settlement system including the WTO arbitration. These proposals are worth further studying. With its growing economy and international trade, it is probable that China would face various trade disputes in the future. As a party or a third party, China could use WTO arbitration to settle certain trade disputes. Therefore, further research should be carried out into arbitration within the WTO dispute settlement system.