Research On Judicial Activism In WTO Dispute Settlement

The dispute settlement mechanism of World Trade Organization (hereinafter referred to as "WTO"), conforming with the trend of judicial settlement of international disputes, has completed the transition from "power-oriented" to "rule-oriented". Independent judicial mechanism resolve trade disputes between member parties timely and effectively. It also promotes the stability and predictability to the world multilateral trading system. The dispute settlement mechanism, referred as "the jewel in the crown of the WTO", is one of the proudest achievements in the Uruguay Round. However, early days'glory has gone. The dispute settlement mechanism of WTO is accepted lots of criticism. Some of the Panel and Appellate Body reports have raised the concerns of WTO members and scholars who opined that the Panel and Appellate Body, in some cases, engaged in filling gaps through interpretation; in some cases exerted undue restrictions on WTO Members as a result of broad interpretation of WTO provisions; sometimes usurped the authority which should have been exercised by WTO political organs and decision-making bodies. In sum, the Panel and Appellate Body was accused of being engaged in judicial activism. As judicial activism of the Panel and Appellate Body might damage the balance of WTO members'rights and obligations, the author deems it necessary to conduct a research on it through the analysis of the Panel and Appellate Body'jurisprudence.This paper takes a positive study approach. It builds on masses of WTO cases, complemented by the claims of the disputing parties and the panel and the reports of tthe Panel and Appellate Body are examined concerning the fact finding and legal reasoning. Including the introduction and conclusion, the paper is divided into six parts:In the introduction, the author introduces the context of the research and the significance of the research.The second part introduces the basic theory of judicial activism in WTO dispute settlement mechanism. First, the author analyzes the dispute settlement development from the General Agreement on Tariffs and Trade (hereinafter referred to as "GATT") to WTO. Then defines judicial activism in the domestic context, on this basis makes the definition of WTO judicial activism. Further points out that the de facto precedential effect of the Panel and Appellate Body's makes Members more alert to judicial activism.The third part analyzes the three incentive of the existing of judicial activism in WTO dispute settlement mechanism:the ambiguity, uncertainty, complexity of the WTO rules, and non-complete self-sufficiency of the systerm; The relevant design of the system caused by weakness of the WTO decision-making body but a strong judiciary, the legislature can not interfere with justice in a timely manner. When the Panel and Appellate Body members adjudicating cases, their values will inevitably be affected.The fourth part discusses performance of judicial activism in the world's trade dispute settlement mechanism. The Panel and Appellate Body have developed many new rules in the procedural and substantive aspects. In this article, the author only selects the most representative points to analysis, for example, the problem of amicus curiae and the introduction of non-trade values. Ultimately concludes the panel and Appellate Body indeed engaged in judicial activism in certain cases, usurpping the power of decision-making body and administrative agency.Part V considers the constraints of the development of judicial activism in WTO dispute settlement mechanism and the reacts to judicial activism. First, although judicial activism has dangers to break the balance of rights and obligations of members, we can not draw extreme conclusions. We should note that the development of judicial activism has many constraints, such as political factors. Finally, introduces the reacts of national and scholars to judicial activism, and makes a brief assessment. On the basis put forward the author's proposals.Part VI concludes the paper's main content and reiterates the arguments.