On "Judicial Activism" In WTO Dispute Settlement Practice

The transition from "power-orientation" to "rule-orientation" indicates the "judicialization" of the dispute settlement mechanism of WTO. It not only settles the trade dispute between the WTO members effectively, but also promotes the stability of the world multilateral trade system.In the practice, due to the vagueness and uncertainty of the clauses of the WTO agreements and emergence of "social problems" under the economic globalization background, DSB often feels lack of concrete rules in handling these trade disputes. In order to cope with the increasing litigation pressure, under the guide of "judicial activism", DSB has developed the WTO rules evolutionarily by using its treaty interpretation power granted by the article 3.2 of DSU. Its active interpretations of WTO treaties have been considered to be "Judicial Activism" of DSB and many scholars have expressed their worry about this judicial trend of DSB.However, it is known to all that "judicial activism" is the common character of the legal culture around world. The appearance of "judicial activism" in WTO jurisprudence is also an inevitable result of the "rule-orientation" transition of DSM. Although the active justice has not destroyed the political foundation of WTO by the root, according to the present old and unjust international political economic order, excessive "judicial activism" of DSB will not only threaten the stability of the DSM itself, but also destroy the legitimacy foundation of the world trade system leaded by WTO. Therefore, in order to keep the stability of the multilateral trade system, "moderate judicial activism" should be the historical choice of WTO jurisprudence. Only like this, can WTO help the multilateral trade system develop forward healthily and consolidate its legitimacy foundation.