A Study On WTO Judicial Activism

The WTO dispute settlement system, referred to as the 'jewel in the crown 'of the WTO, is one of the proudest achievements in the Uruguay Round. The negative consensus adopted by the Dispute Settlement Body and the rule-oriented practice of the panel and Appellate Body based on the WTO Dispute Settlement Understanding have made the WTO dispute settlement system become more and more legal in nature. Since the establishment of the WTO in 1995, the dispute settlement system has played a large role in settling international trade and economic disputes. But in recent years, it has been accused of 'judicial activism' for the panel and Appellate Body declare in quite a few cases that they have the right to take unsolicited amicus briefs into account, and they even try to overstep their authority to decide some cases inherently appropriate for resolution in political process. In order to prevent the so-called 'judicial activism' from intruding into the Members' sovereignty, some scholars even called for the abandonment of the judicialized WTO dispute settlement system and a return to the more diplomatic methods of dispute settlement current under the old GATT system. In the light of this context, it is undoubtedly of great importance to make a research on how the judicial activism comes about, what manifests it, how it influences the Members and what kind of suggestions we can make to restrict it in a reasonable way through the ongoing DSU modification negotiations.This thesis is divided into three parts. Part I analyzes the connotation of the WTO judicial activism and how it comes about;Part II focuses on the manifestation of the WTO judicial activism, including,(1) the amicus curae takes part in dispute settlement proceedings;(2) some controversial issues, inherently appropriate for resolution in political process, decided by the DSB, namely, casesinvolving politically sensitive issues, cases where the law is indeterminate as well as cases involving questions of 'institutional balance'. Based on these analyses, the author finds out that the unclear and ambiguous provisions of the DSU force the DSB to exercise judicial activism so as to settle the disputes in time. Part III gives the WTO judicial activism careful consideration. First it evaluates the positive and negative effects of the WTO judicial activism, then makes some suggestions to restrict it in a reasonable way through the ongoing DSU modification negotiations, finally puts forward some related countermeasures in response to its possible impact on our country.