Discussions On Issues Of Establishing The Permanent Panels In WTO Dispute Settlement System

The panel procedure in WTO dispute settlement system is a huge success which solved many international economic dispute. The limitation of the system, in particular, such as delayed composition and establishment of panels and workload, has been exploded. It is more and more difficult for the neutrality of panelists that the ad hoc panel can not be able to operate fairly and promptly. Since the establishment of the WTO, the proposal of upbuilding the permanent panel has been frequently brought about. There is a proposal has been come up from the EU that in the wake of appellate body, we should establish a permanent panel which is composed of 15-24 panelists who is well qualified, represent the geographical diversity and work full-timely and periodically. in this thesis, which is centered on the discussions whether or not to establish the permanent panel, I would like to introduce and comment on the potential advantages and disadvantages ,and weigh them for a conclusion.In regard of the matters discussed above, this thesis is divided into four parts:Chapter one: general situation of ad hoc panel procedure in WTO dispute settlement system;.In chapter one the author emphasize the rules of procedure relevant to ad hoc panel, which betray the shortcomings that will be discussed in the next chapter, including the initiation of the panel, qualification of panelists, selection of panelist and composition of panel.Chapter two: the problem existed in the current ad hoc panel system;. In chapter two, the author introduced and assessed the problems of delayed composition and establishment of panels and workload. In fact, there are there reasons why it is more and more difficult for the parties to the dispute to agree on the panelists. First, increased complexity of disputes and shortage of experienced panelists. Second, conflict of schedule due to geographic discrepancy and insufficient devotion of part-time panelists. Third, which is the essential one, adoption of reverse consensus principle, equal to quasi-automatical passage, make parties to put all of their eggs in one basket, which meant to be the selection of panelist, hoping the panelist whom they selected will make the rules prefer their interests. The heavy workload of panels is obvious to be observed. Although the establishment of permanent panel would not directly alleviate the workload, accumulative experience of full-time panelists will indirectly improve the situation over times. In regard to the problems of ad hoc panels, the EU put forward the proposal to establish a permanent panel on the basis of success of appellate body. The proposal to establish a permanent panel from EU, which is not the first time to be brought about, got the serious consideration and severely debate of academics, government officials and the WTO officials who experienced. in chapter three, which is the main part of the thesis, the author introduced and assess the potential advantages and disadvantages of the establishment of permanent panel, and made a conclusion that it is time to take some reforms in the end on the basis of weighting the pros and cons. At the first part of this chapter, there is six advantages to be discussed. First is the time saving, avoiding the retardation of composition of panels due to conflicts of schedule. While increasing reliance on the Director-General to appoint panels could result in time savings, it does undermine party control (to the extent that is an advantage), and, much more seriously, it could compromise his essential role as an honest broker in negotiations if some WTO Members become upset at his panelist selections. Second, more experienced panelists and fewer reversals. Professor Davey argued that a permanent panel body would ensure a greater level of expertise since its members would over time serve on many panels and thus be better able to deal with the increased complexity of WTO dispute settlement. Moreover, it is likely that such a body because of frequent interaction would be able to standardize panel working procedures. Because of this added experience, it is likely that the panel process and the reports themselves would be improved. Third, procedural innovations. One important consequence of having a standing body of panelists is that the implementation of a number of desirable procedural innovations would be much more practicable. Forth, the EC argues that a permanent panel body would lead to an increase in the perceived legitimacy and credibility of panels. This would result from a decrease in conflicts of interest. those conflicts are perceived mainly because panelists are typically government officials whose governments may have some interest in the outcome of a case. Nevertheless, the author argued that this issue of perceived conflicts is a serious one. In fact, the parties are usually quite careful to try to exclude panelists that might have such conflicts, although occasionally such conflicts are alleged, however, that most permanent panel body members will likely have had past governmental affiliations, and those inclined to see conflicts may not be persuaded that a retired official does not still have biases. Fifth, another advantage seen by the EC is that it would enable more developing countries and certain major players in the WTO dispute settlement system to supply panelists, whereas their nationals are largely not now utilized on panels. Professor Davey argued that the EC stresses the underrepresentation of developing country panelists (35 percent), even though that is roughly the percentage of developing country involvement in WTO dispute settlement. His concern that it is essential that the panel body members appointed be qualified. If the appointment process, which obviously will take place in a political context, becomes totally political where concerns other than qualifications for effective service predominate, then the adoption of a permanent panel body system would be unwise. Sixth, some people thought that it does help however to ensure that the panel has all the necessary information and has considered all the angles. The role of the Secretariat therefore needs to be re-discussed. The Secretariat would operate as a third party in disputes, expressing long-term and systemic legal arguments and interests. It is contended that all Members would benefit from these contributions, as opinions and rulings would be better informed. The perception that the Secretariat does and should not have any views of its own is outdated. In weighing the purported advantages of a permanent panel body, the author think that the first three discussed above are the most salient. The other advantages discussed above would probably accrue, but I find them to be much less significant.Chapter there: introduction and assessment of the potential advantages and disadvantages; In this part of the thesis, the author discussed the potential disadvantages. First of it , as to the loss of party control, such control is manifested mainly through the parties' involvement in the selection of panelists for individual panels. While the parties no longer retain 'control' over the selection process, they still are able to exercise a fair amount of influence on the process. It has often been the case that, when the Director-General steps in, the parties have already agreed on one or two candidates, and only required the Director-General to complete the panel composition. In another cases, control might be precisely what a government party wishes to avoid. Furthermore, the second concern is that a small panel body of 15-20 individuals will not have the expertise to handle the myriad variety of claims that can now be brought to WTO dispute settlement. However, the author would expect that a panel body could be selected with a relatively broad range of expertise in the basic areas covered by WTO agreements, and that the gaps could be easily filled, either through consultations with experts or simply through exposure over time to the wide range of WTO issues. Last, concern that has been raised in respect of the permanent panel body proposal is that it would deprive the WTO of a particularly useful 'socialization' device that has played an important role in inculcating GATT and now WTO values in GATT/WTO members.Chapter four: assessment of potential alternatives.In chapter four, the author assessed the alternatives, such as the college of appointed panelists, permanent chairperson and so on.On balance, the question is whether the concerns of some possible loss of expertise and the loss of the socialization function offset the benefits noted above, or at least raise questions about the wisdom of changing the system given the inherent uncertainties of change. While such an assessment is not capable of precise quantification and comparison, in the end, the permanent panel body proposal does have sufficient benefits to make it worth going forward. In essence, the EC has made a good proposal and, in doing so, it is implicitly indicating its view that a further step towards strengthening the judicial side of dispute settlement is now in order。If a permanent panel can produce benefits exceeding the costs incurred from the current ad hoc system plus some transition costs, the WTO Members should consider such an option favourable.