Study On Judicial Activism In The WTO Dispute Settlement

Since the establishment of the World Trade Organization (hereinafter WTO), the Dispute Settlement Body has played an important role in solving dispute. But its function has fueled criticisms that expansive judicial lawmaking is shifting the balance of rights and responsibilities established by trade negotiators and embodied in WTO agreements. This paper puts forward the problem of judicial activism in the WTO dispute settlement. Through analyzing and ascertaining, this paper suggest that treating judicial activism in the WTO dispute settlement dialectally.Besides Preface, the article is divided into four parts.Chapter 1 introduces the general concept of judicial activism in the internal level. On this basis, it explains the meaning of judicial activism in the WTO dispute settlement. And then, it notes that the two different concept of judicial activism and judicial activity.Chapter 2 analyses comparatively the expansiveness of judicial activism in the WTO versus GATT, then construes judicial activism in the practices of WTO from different aspect. Lastly it anatomies the reasons of the expansiveness of judicial activism in the WTO . The analysis shows that WTO legal discourse is intrinsically elastic, permitting restrained or expansive judicial activism.Chapter 3 offers a positive framework to explain the emergence and limits of expansive judicial activism at the WTO. The Appellate Body's strategic space is conceptualized here as potentially bounded by three nested factors: WTO legal discourse, which could be constrained by constitutional rules, both of which are constrained by politics. Lastly, it concludes by speculating on the potential for long-term changes in the political parameters that currently operate as the most important constraint on judicial activism at the WTO. These parameters seem unlikely to change anytime soon. Hence, the capacity of powerful members to assert political control should diminish concerns about the expansive judicial activism.Chapter 4 poses the view that we should treat judicial activism dialectically. It should never attach too much important on judicial activism nor on judicial restrained . And we should try to seek balance between them.