On Judicial Restraint In GATT/WTO Dispute Settlement

The WTO Dispute Settlement Mechanism (WDSM) is the most important part of the WTO law system, and the final result of the GATT Dispute Settlement Mechanism (GWSM) changed from power orientation to rule orientation. The distinct difference between WDSM and GWSM is that the status of using legalism method or judicial way to settle international trade disputes has been firmly set up in WDSM. But, the history shows that judicial restraint originated from GATT dispute settlement has been preserved and obtains a new characteristic in WTO. As the important "cushion" and "lubricating oil" of GWSM/WDSM evolved from power orientation to rule orientation, judicial restraint exists in all stages of GWSM/ WDSM of rule orientation, and plays the role gamed with judicial orientation in the way to solve disputes systematically. It is predicted that judicial restraint will never die way, even if WDSM would changed into international trade court, for the reason of the country sovereign worth, particularity of multilateral trade system etc. Although it is more fair and pragmatic for WDSM to keep judicial restraint in dispute settlement, there stand some conflicting elements between judicial restraint and rule orientation. Only are the negative factors eliminated, and judicial restraint and rule orientation well balanced, WDSM can work more effectively. As a member of WTO, China should gain an illumination in the field to perform WDSM perfectly, so as to serve its foreign trade.