While I was abroad I had a class at the WTO in
Geneva, Switzerland. Here, I met with
WTO employees and listened to a lecture on the Dispute Settlement Body. The lecture sparked debate on the issue of
the Dispute Settlement Mechanism (DSM) disadvantaging developing nations. The link above is a report analyzing the
problems developing countries have in accessing WTO dispute settlements. The report is 71 pages long, however, the
introduction summarizes the author’s arguments adequately.
On paper, WTO negotiators intended for the DSM
to be used by developing and developed nations equally because the system does
not treat countries differently based on power and influence. It was meant to encourage developing countries, rather than disadvantage them. However, just because the system is equal,
does not mean it is equitable. Developing
countries with smaller economies (I say smaller economies because India is
considered a developing country, however, they have a large GDP and have
utilized the DSM frequently) tend not to bring disputes to the WTO for many
reasons. This report states three main
reasons why developing states do not participate: lack of resources, lack of
institutional capacity, and lack of political will. Essentially, court cases require money,
resources, and time. A major part of
dispute settlements is fact-finding, which costs a lot of money and relies on complex legal capacity. Developed
nations have the capacity to take on dispute settlement cases, whereas
least-developed nations do not. According
to this study (the link), only one least-developed nation, as defined by the
United Nations, has ever initiated a complaint.
Additionally, developed nations are the minority within the WTO, yet
they account for more than 80% of all disputes.
This is a very telling fact about the systematic disadvantages of the
DSM.
In class we discussed the issue of
legitimacy. Developed countries,
specifically the United States, comply with DSM rulings because it strengthens
the legitimacy of the WTO in addition to maintaining a liberal world
order. This report highlights a
different side of the issue of legitimacy.
If there is systematically unequal access to dispute settlements, then
that too threatens legitimacy (Bohl). The statistics in the Bruce Wilson piece “Compliance
by WTO Members with Adverse WTO Dispute Settlement Rulings: the Record to Date”
do show that the DSM can be helpful for many nations, however, it does not
touch on the fact that for many developing nations dispute settlements are not
an option financially.