บทความทางว ชาการ เร องท 1

บทความทางว ชาการ เร องท 1 STRENGTHS AND WEAKNESSES OF THE WORLD TRADE ORGANISATION DISPUTE SETTLEMENT SYSTEM โดย นายเมธา จ นทร ช น ผ พ พากษาศาลจ งหว ดฝาง STRENGTHS AND WEAKNESSES OF THE WORLD TRADE ORGANISATION DISPUTE SETTLEMENT SYSTEM I INTRODUCTION

The Uruguay Round of Negotiation is deemed to be a key multilateral trade negotiation which has caused an important change in international trade. 1 Members of the General Agreement on Tariffs and Trade ( GATT ), participating in this negotiation, agreed to transform the GATT, an international trade agreement, to an international trade organisation by establishing the World Trade Organisation ( WTO ) to govern and control international trade. 2 In order to improve ineffective dispute settlement mechanisms under GATT, the WTO dispute settlement system was embodied in the Understanding on Rules and Procedures Governing the Settlement of Disputes, referred to as the Dispute Settlement Understanding ( DSU ), was established to govern disputes arising under the Covered Agreements of the Final Act of the Uruguay Round in the WTO. 3 Although the dispute settlement system of the WTO is widely regarded as a more successful mechanism than GATT s, it still has some defects. This essay will examine the strengths and weaknesses of the WTO dispute settlement system. It will also suggest ways to strengthen the effectiveness of this system. II STRENGTHS AND WEAKNESSES OF THE WTO DISPUTE SETTLEMENT SYSTEM 1 R ajbhala, International Trade Law: Theory and Practice, (Lexis Nexis, 2 nd ed, 2001) pp 125. 2 Bhala, above n 1. 3 International Economic Study Centre, The Dispute Resolution Mechanism (2014) <http://internationalecon.com/wto/ch2.php>. 1

A Dispute Timetable The dispute timetable was developed to avoid delays and it is one of the strengths of the WTO disputes settlement system. 4 To illustrate, only approximately one year timeframe is set for a Panel s ruling and eighteen months in case of the Appellate Body s ruling. 5 In case of urgency, even less time should be taken for the consideration of the case. 6 This means that the parties can be assured that their dispute would be resolved without delay. B Request for Consultation A dispute is formally initiated by a request for consultation triggering the application of the DSU and the commencement of a time table. 7 As this request is a compulsory event for dispute parties, it provides wide opportunities for those parties to make an agreement without any ruling on the dispute by the Dispute Settlement Body ( DSB ). The goal of the system is to settle disputes through a mutually acceptable agreement not adjudication. 8 Thus, both parties can achieve this goal by resolving their problem from an agreement without any winners or losers. 4 Peter Gallagher, Guide to Dispute Settlement (Kluwer Law International, 2002) 4. 5 World Trade Organisation, Dispute Settlement System Training Module:Chapter 1 (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c1s3p3_e.htm> 6 World Trade Organisation, above n 5. 7 World Trade Organisation, Dispute Settlement System Training Module:Chapter 6 (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s2p1_e.htm>. 8 World Trade Organisation, above n 5. 2

Dispute parties can request a process of conciliation or mediation which good offices are offered by the Director-General of the WTO to resolve their disputes. 9 This support by the Director-General, improves the effectiveness of the consultation process. It is worth noting that the majority of disputes are mutually agreed by the parties on solution. 10 The success of the consultation stage is one effective measure of the WTO dispute settlement system. C The Panel Process An establishment of a Panel may be requested by the complaining party to adjudicate the disputewhen the dispute has failed to be settled in the consultation. 11 A recommendation for a decision, including a suggestion measure, is made by the Panel to support the DSB. 12 Normally an ad hoc Panel has three experts, in exceptional circumstances it has five, is established in order that the facts of the case can be assessed for each complaint. 13 Three individual panelists, whose nationality is not of the countries in dispute unless agreed by the disputants otherwise are expertise in trade policy, law or economics are comprised of a Panel. 14 The Secretariat nominates a panelist from a roster of persons contributed by Members. 15 These nominees may be challenged by disputants and if disputants cannot reach agreement on three panelists 9 World Trade Organisation, Dispute Settlement System Training Module:The Director-General and The WTO Secretariat (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s2p1_e.htm>. 10 Gallagher, above n 4, 8. 11 World Trade Organisation, Dispute Settlement System Training Module:The Panel Stage (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p1_e.htm>. 12 Gallagher, above n 4, 7. 13 World Trade Organisation, Dispute Settlement System Training Module: Panels (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s3p1_e.htm> 14 World Trade Organisation, above n 13. 15 Ibid. 3

within twenty days, the Director-General of the WTO is entitled to make the final decision. 16 This is strength of the WTO dispute settlement system, as panelists who are middle men, are expert in trade policy issues, can be appointed without delay. Evidence from the Parties may be accepted by the Panels in confidence and further disclosure of such evidence would be protected. 17 By doing this, the Panel, also the Appellate Body, may adopt special procedures in order to protect confidential business information. 18 This is a further strength of the WTO dispute settlement system as the disputants are encouraged to submit all evidence relevant to the case as they have faith in the system. The credibility and legitimacy of the WTO is undermined by an inadequate transparency mechanism. 19 Under the DSU provisions, no permission to attend a Panel proceeding is allowed to any individuals who are neither parties, nor third parties, and no written copy of the proceeding is available. 20 The close hearing results in transparency which might affect the credibility of the WTO dispute settlement system. Every allegation in the complaint or argument in a rebuttal does not need to be considered by a Panel. 21 The Panel has been encouraged to exercise judicial economy by the Appellate Body in United States -Shirt and Blouses 22, when they declared that only claims relevant to 16 World Trade Organisation, above n 9. 17 Gallagher, above n 4, 29. 18 Ibid. 19 Bryan Mercurio, Improving Dispute Settlement in the World Trade Organisation: The Dispute Settlement Understanding Review - Making it Work? (2004) 38 (5) Journal of World Trade 795, 806. 20 Mercurio, above n 19, 800. 21 Gallagher, above n 4, 29. 22 United States -Measures Affecting Imports of Woven Wool Shirts and Blouses from India,WTO Doc WT/DS33/AB/R, ( United states-shirts and Blouse ). 4

resolving the matter in a dispute needs to be addressed by a Panel. 23 The judicial economy concept strengthens the efficiency of the WTO dispute settlement system as this concept supports the Panel and the Appellate Body, in deciding the case without delay. Under art 7 of the DSU, the terms of reference of the Panel establish the jurisdiction of the Panel by defining the precise claims at issue in the dispute. 24 To illustrate, only the claims based on the written request submitted by the complainant towards the end of the consultation period not at the Panel meeting, is authorised by the Panel to consider. 25 The Panel can focus on limited facts covered by the terms of reference without needing to examine the facts not in the term of reference. The term of reference increase the effectiveness of the WTO dispute settlement system. In addition, the DSB adopted the Rules of Conduct for disputes which the standard behaviourof panelists, the Appellate Body, Arbitrators, and experts advised a Panel, is set. To illustrate26, independence and impartiality are required for these persons in order that direct or indirect conflict of interests be avoided, and the dispute settlement proceedings be respected with confidentiality. 27 The Rules of Conduct can assure that those people will act in good faith and the utmost attempt in order to resolve the dispute. 23 ; Gallagher, above n 4, 29. 24 Ibid, 31. 25 Ibid, 32. 26 World Trade Organisation, Dispute Settlement System Training Module: Rules of Conduct (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s7p1_e.htm>. 27 Ibid. 5

Under art 12(8) of the DSU, the final report should be issued by the Panel within a six month period from the date of composition or within three months in urgent circumstances. 28 Such a short period is another important factor increasing the effectiveness of the WTO dispute settlement system. It is important to note that, under art 13.2 of the DSU when scientific or other technical matters are raised by a party, an expert review group may be appointed by the Panel in order that an advisory report is provided. 29 This authority helps the Panel to make the correct decision based on the advice of such an expert. A Member government may delegate any person to represent them before a Panel, such as government officers, lawyers, representative of NGOs and lobbyists. However, other persons30 are barred from attending the hearing as an observer. 31 Some commentators argued that the dispute settlement system should not bar such persons from attending. 32 The DSB is required to adopt the Panel reports within sixty days of circulation, unless either complainant or respondent notifies that it would appeal against the Panel decision. 33 The finding and recommendations of the Panel may be rejected by the DSB only if a negative consensus is reached. This limited time of adoption, and the difficulty to get a negative consensus34, increases the effectiveness of the WTO dispute settlement system. 28 Gallagher, above n 4, 33. 29 World Trade Organisation, Dispute Settlement System Training Module:Experts(2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s6p1_e.htm>. 30 Gallagher, above n 4, 34. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid, 7. 6

D The Appellate Body The most visible institutional development in the WTO dispute settlement system is the Appeal process, as this process does not occur under the GATT system. 35 The complainant has the right to appeal against the Panel rulings before a decision on the case is taken by the DSB to the Appellate Body, which is composed of seven persons who are experts in law, trade policy and economics, appointed by the DSB. 36 This is one of the strengths of the system, as the Appellate Body panels are expertise in such fields which can assure the parties that the legal issues in their appeals would be examined from an expert s viewpoint. Under art 17.1 and 17.6 of the DSU, it is not necessary for the Appellate Body to examine the facts of the case assessed by the panel unless an objective assessment of the facts fails to make by the Panel under art 11 of the DSU, or due process which fails to satisfy a ty. 37 Under art 17.13 of the DSU, each of issues, which are appealed by the parties, shall be addressedby the Appellate Body. 38 Where a Panel s legal conclusion has been reversed by the Appellate Body, on some occasions, the Appellate Body has considered to complete the legal analysis such as in the United States - Shrimp. 39 The complete analysis is a further strength of the WTO dispute settlement system as the Appellate Body can make the decision on the legal issues in an appeal without delay. 35 Ibid, 36. 36 World Trade Organisation, Dispute Settlement System Training Module: Appellate Body (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s4p1_e.htm>. 37 Gallagher, above n 4, 36. 38 Ibid, 38. 39 Ibid; United States Measures Relating to Shrimp from Thailand, WT/DS345/AB/R, ( United States-Shrimp ). 7

It is important to note that duties, responsibilities and rules of conduct of Appellate Body members are contained in the Working Procedures for Appellate Review. 40 In addition, under art 17 of the DSU, the Appellate Body shall circulate its report, not exceeding 60 days from the date of when the appealing party has formally lodge their notification. This short period increases the effectiveness of the system. A set of procedures for non-government bodies was established by the Appellate Body s interpretation in order that amicus-curiae ( friends of court ) briefs are able to be submitted for its consideration. 41 This is a weakness of the WTO dispute settlement system, as all facts should be submitted in the Panel process in order not to allow any evidence which might conflict with each parties, be examined by the Appellate Body. It is interesting to note that no further appeals against the Appellate Body decision are allowedas its decision is final. In addition, under art 14 of the DSU, the DSB shall adopt the Appellate42 Body report within 30 days after circulation to the Member unless the DSB reach a consensus not to adopt such report. 43 It is automatic to adopt a decision in the absence of a negative consensus. This further enhances the WTO dispute settlement system as a negative consensus44 could not be reached if the winning party disagrees. 40 Ibid, 39. 41 World Trade Organisation, above n 5. 42 Gallagher, above n 4, 41. 43 Ibid. 44 Ibid, 45. 8

E Implementation After the DSB adopts the report of the Panel and the Appellate Body, the losing party is addressed by a recommendation and ruling by the DSB to adapt its measures to comply with the WTO Agreement in terms of violation complaint or to look for a mutually satisfactory adjustment in the case of a non-violation complaint. 45 The WTO dispute settlement system does not hand out punishment as this system is aimed at resolving disputes between Members not at punishment even when some compensation or retaliation is authorised by the DSB which is equal to the harm caused by the alleged action, and no punitive measures influencing future action is contained. 46 Only regulations or practices can be changed by a Member. This is one of the strengths of the system as all Members can continue their trade after receiving the ruling or recommendation of the Panel or the Appellate Body. Punishment such as fines will destroy trade relationship of the parties in dispute. Moreover, such punishmentswould cause a large burden for loosing parties, in particular developing countries, resulting in economic problem for those countries. Under art 21.3 of the DSU, if the losing party is not able to immediately comply with the recommendation and ruling, the losing party has to achieve compliance within a reasonable period of time. 47 During this period, any foreseeable consequences by the DSU in case of non-implementation; namely to compensation or retaliation, would not be borne by the losing party. 48 The losing party has to change the policies or regulations in order to reduce benefits 45 World Trade Organisation, Dispute Settlement System Training Module: Chapter 6 (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s7p1_e.htm>. 46 Gallagher, above n 4, 14. 47 World Trade Organisation, above n 45. 48 Ibid. 9

of the WTO Agreement to other Members within a reasonable period of time. 49 This time-period can be approved by the consensus by the DSB from the propose time frame of the losing member, agreed between the complainant and the respondent, or determined by an arbitrator appointed by the DSB. 50 If a Member s proposal has not been approved, and no agreement on this time-period between both parties has been settled, an arbitration may be resorted by the parties. 51 Not exceeding fifteen months from the date that the DSB adopted the reports is the guideline for an arbitrator. 52 The limitation of times set by the DSU is one factor in ensuring that the losing party implements the ruling without delay. Implementation can be simply if the manner and timing are agreed on by the parties, otherwise the problem arise. 53 If the respondent does not provide such conformity or the complainant is not satisfied, a second Panel may be established by the DSB in order to develop a recommendation on implementation. 54 The procedure under the second Panel is unclear in several matters. 55 For example, there is an unclear issue whether a second Panel s decision could be appealed against on the legal issues. 56 This problem is relevant to the relationship between appointing a second Panel under art 21.5 of the DSU and the retaliation procedures under art 22 of the DSU. 57 49 Gallagher, above n 4, 8. 50 World Trade Organisation, above n 45. 51 Ibid. 52 Ibid. 53 Gallagher, above n 4, 47. 54 Ibid. 55 Ibid. 56 Gallagher, above n 4, 47. 57 Ibid. 10

1 Compensation Under art 22 of the DSU, where the recommendations and rulings of the DSB fail to be implemented within the reasonable period of time, compensation or suspension of concessions, retaliation may be authorised by the DSB. 58 Compensation in the context of art 22 of the DSU is not a monetary payment but a benefit such as a tariff reduction equivalent to nullified or impaired benefits should be offered by the respondent. 59 If the respondent does not agree with the compensation within twenty days after the reasonable period of time has expired, the suspending, concessions or other obligations under the covered agreements may be authorised by the DSB with regard to the complainant s request. 60 2 Retaliation Countermeasures inconsistent with the WTO Agreement, informally called retaliation or sanction, may be allowed to impose by the complainant when an agreement on satisfactory compensation could not be reached. 61 The form of punitive tariffs on respondent s decided product is usually applied to the respondent. 62 Under art 22.4 of the DSU, an equal level between the nullification or impairment which the complainant suffered from the inconsistent measures with the WTO Agreement of the respondent and the suspended concession, is required 63 However, when the level of equivalent retal- 58 Ibid, 48. 59 World Trade Organisation, Dispute Settlement System Training Module: Chapter 6: 6.9 Compensation (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s9p1_e.htm>. 60 Ibid. 61 Ibid. 62 Gallagher, above n 4, 48. 63 Ibid. 11

iation cannot be reached by the agreement of the parties, arbitration is provided by art 22.7 and 22.8 of the DSU. 64 The sequence of procedures relevant to the request for retaliation of the complainant is ambitiousunder art 21.5 and 22.6 of the DSU. The problem is whether the compliance proceeding under65 art 21.5 of the DSU, or the suspension of obligation under art 22.6 of the DSU, has priority. 66 To illustrate, under art 21.5 of the DSU, any disagreement relevant to implementing measures would be decided by the original Panel within ninety days from the date of referral of the matter to it. 67 In contrast, under art 22.6 of the DSU, arbitrators should issue an award within sixty days from the date of the reasonable period of time expired. 68 The time provided by art 22.6 is not sufficient to complete the compliance review under art 21.5 of the DSU, 69resulting in a sequencing problem occurring in several issues. For example, the DSU is silent on whether the authorisation of retaliation may be requested before the examination of the implementing measures consistency. In addition, it is also silent on whether the decision of the Panel under art 21.5 could be appealed. These ambiguities in a sequencing problem is one of the weakness of the WTO dispute settlement system. It is important to note that suspensions of obligations and concessions provision under art 22.3 is one of the strengths of the WTO dispute settlement system compared to the GATT s system, as this provision allows the complainant to apply cross-sector retaliation. However, 64 Ibid. 65 Ibid. 66 World Trade Organisation, Dispute Settlement System Training Module: Chapter 6: 6.10 Countermeasures by the Prevailing Member (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s10p1_e.htm>. 67 Gallagher, above n 4, 48. 68 Ibid. 69 World Trade Organisation, above n 66. 12

this cross-sector retaliation may be impractical or ineffective for developing countries against developed countries as the retaliation in new sectors might jeopardise the developing countries development plan. 70 Although the DSB authorised the complainant to suspend obligation, the authorisation may be used as a bargaining tool by the complainant instead of proceeding with the suspension with the losing party. 71 It is noteworthy that an agreement on implementation may be reached between the disputants on the reasonable period of time for implementation and on other relevant issues. 72 This allowance is an advantage one of the WTO dispute settlement system as it benefits the disputants to continue their trade relationship although the Panel report is circulated. FThe Dispute Settlement Body The DSB is empowered to appoint panelists and adopt a term of reference for the Panels. In addition, a recommendation of a Panel or the Appellate Body could be adopted or rejected by the DSB. 73 Moreover, the surveillance of the implementation of recommendations could be maintained by the DSB. The DSB is also empowered to appoint arbitrators in order to er74and decide a reasonable period of time. A second Panel for implementation to make recombination on measures to restore conformity with Agreements could be appointed 70 Gallagher, above n 4, 50. 71 World Trade Organisation, above n 66. 72 Ibid. 73 Gallagher, above n 4, 44. 74 Ibid. 13

and the suspension of concessions or obligation could be authorised by the DSB. 75 This power of the DSB is a highlight of the WTO dispute settlement system as they imply that Members retain the main powers in the process of the WTO dispute settlement system. G Developing Country Provision There are several provisions in the DSU specifically provided for developing countries. For example, under art 21.8 of the DSU, when the case is raised by developing countries, the impact on their economy must be considered by the DSB. 76 In addition, under art 24 of the DSU, due restraint for the least-developed member must be used by Members and thedirector-general is urged to use the good office to settle dispute by consultation for the interest of the least-developed countries. 77 Moreover under art 8.10 of the DSU, at least one panelist from a developing country Member shall be included when a developing country and a developed country are party to dispute. 78 These special arrangements would assure that a developing country is sufficiently protected under the WTO dispute settlement system. It is possible that it will cost several million dollars for a plaintiff government over theprocess until complete implementation, if all costs are accounted for. To illustrate, the79 representative of a participant in a case is needed at several stages of the process such as the consultation phase, at the DSB meeting, and the implementation phase. In addition,80 although Member governments are able to represent themselves without needing a lawyer, parties in 75 Ibid. 76 Gallagher, above n 4, 52. 77 Ibid, 53. 78 World Trade Organisation, Dispute Settlement System Training Module: The Panel Stage (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p1_e.htm>. 79 Gallagher, above n 4, 14. 80 Ibid, 15. 14

dispute may authorise government lawyers or private advisors as their delegates.81 The dispute parties have to be responsible for their own costs and there are no costs against the respondent. 82 Therefore, some developing countries might be reluctant to bring the case to the WTO as they cannot bear the cost which is another weakness of the WTO dispute settlement system. III STRENGTHEN THE EFFECTIVENESS OF THE WTO DISPUTE SETTLEMENT SYSTEM AAmicus Curiae Submission In order to increase access into the WTO, with the hope that the rights and interests of people would be represented by the decision of the WTO, unsolicited amicus curiae was submitted to the Panels and the Appellate Body by NGOs in US Shrimp/Turtle. 83 The Appellate Body revised the Panel s decision with the reason as although the DSU does not provide any rights to the NGO to submit an amicus curiae brief, a Panel can choose to consider it as a result of the broad authority of a Panel. 84 However, the decision of the Appellate Body was significantly criticised, as unsolicited amicus curiae brief should be decided based on a substantive rule through negotiation of all Members, not from a judicial decision. 85 In order to avoid such criticism, Members should negotiate and create substantive rules in order for an amicus curia brief to the Panel. Although some critics fear that the Panels, and the Appellate Body, will be swamped by many legal opinions and arguments from well-sponsored NGOs 86, the author suggests that the case by case consideration by the Panel and the Appellate Body, to accept an amicus submission as they deemed appropriate, would be a good alternative. B Open Hearing 81 Ibid. 82 Gallagher, above n 4, 15. 83 Mercurio, above n 19, 800. 84 Ibid. 85 Ibid, 803. 86 Ibid, 805. 15

It would help to improve civil society s understanding of the WTO if the Panel hearings were open. 87 The benefit from more transparency in allowing a public hearing at the Panel and Appellate proceedings will result in more credibility and participation of the public on the WTO dispute settlement system under the WTO. However, a party should be empowered to request to the Panel and the Appellate Body for a closed hearing when it is deemed appropriate. C Interim Conjunction Although the dispute settlement procedure takes approximately eighteen months before the Appellate Body circulates its report, some complaints may require interim injunction, such as the complainant is the least developing country, which significantly suffers from the developed country s measure. Therefore, a temporary injunction may be required in some circumstances in order to control, and limit, the amount of damage for such parties. D Special and Different Treatment for Developing Countries The African group demands that developing countries be supported by a permanent fund of Members in order to permit developing nations to participate in the DSU or access a permanent fund on a more equal level. 88 Mercurio suggests that the biggest problems facing developing countries, in terms of the DSU, are their lack of experience in both the substantial and procedural aspects of the WTO, and the problems they face in enforcing rulings against larger nations. 89 The author agrees that trust is important to provide developing countries more opportunities to engage in the DSU proceedings as the costs for these mechanisms is extreme. As a result, 87 Gallagher, above n 4, 34. 88 Mercurio, above n 19, 821. 89 Ibid, 823. 16

some developing countries are reluctant to bring the dispute to the DSU as the cost forproceeding the case, such as hiring lawyer, is very expensive. The trust will help developing countries to engage in the WTO dispute settlement system. E Implementation Issues There have been several conflicts with regard to sequencing problem under art 21.5 and 22 of the DSU. 90 In Canada-Dairy 91 and US-FSC 92, the parties can agree with the sequence of art 21.5 and 22.6 while in EC-Bananas 93, the Appellate Body interpreted these provisions before an ad hoc agreement were reached. 94 The lack of clarity of the sequencing order, under art 21.5 and 22 of the DSU regarding authoritative interpretation or amendment of the DSU, remains unresolved. 95 Therefore, WTO Members should reach an agreement to amend the DSU provisions relevant to the sequencing problem. IV CONCLUSION Although the WTO dispute settlement is seemed to be more efficient mechanism than the GATT dispute settlement system, it would be prudent to reduce its weaknesses. To achieve this goal, the NGOs should be allowed to submit amicus curiae brief to the Panel proceeding, provided that the Panel and deemed appropriate. In addition, the hearing under the WTO 90 World Trade Organisation, above n 66. 91 Appellate Body Report, Canada -Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO Doc WT/DS103/AB/RW2, (20 December 2002) ( Canada -Dairy ). 92 Appellate Body Report, United States - Tax Treatment for Foreign Sales Corporations, WTO Doc WT/DS108/AB/RW2, (15 February 2006) ( US-FSC ). 93 Appellate Body Report, European Communities Regime for the Importation, Sale and Distribution of Bananas, WTO Doc WT/DS27/AB/RW/USA, (15 February 2006) ( EC-BananaIII ). 94 World Trade Organisation, above n 66. 95 Ibid. 17

dispute settlement system should be open to the public as the DSU should provide more transparency in order that all members including public, but members should obtain the right to request for a closed hearing in some circumstances. Moreover, an interim injunction may be required for developing countries in some circumstances. Furthermore, more specialarrangements, such as a fund or trust for proceeding the case, should be provided to thedeveloping member to resolve the problems relevant to the disparity of economic power. Importantly, an ambiguity in art 21.5 and 22.6 of the DSU should be clarified by the negotiation of the Members instead of the interpretation of the Appellate Body. BIBLIOGRAPHY 18

AArticles/Books/Reports Gallagher, Peter Guide to Dispute Settlement( Kluwer Law International, 2002) Mercurio, Bryan Improving Dispute Settlement in the World Trade Organisation: The Dispute Settlement Understanding Review - Making it Work? (2004) 38 (5) Journal of World Trade Raj Bhala, International Trade Law: Theory and Practice, (Lexis Nexis, 2 nd ed, 2001) Williams, Frances WTO Minnows Cry Foul on Mediation, Financial Times, 24 October 2002 B Cases Canada -Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO Doc WT/DS103/AB/RW2, (20 December 2002) ( Canada -Dairy ) United states Import Prohibition of Certain Shrimp and Shrimp Product,WTO Doc WT/DS58/R, ( US Shrimp/Turtle ) United States -Measures Affecting Imports of Woven Wool Shirts and Blouses from India,WTO Doc WT/DS33/AB/R, ( United states-shirts and Blouse ) Canada -Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO Doc WT/DS103/AB/RW2, (20 December 2002) ( Canada -Dairy ) United States - Tax Treatment for Foreign Sales Corporations, WTO Doc WT/DS108/AB/RW2, (15 February 2006) ( US-FSC ) United states Import Prohibition of Certain Shrimp and Shrimp Product,WTO Doc WT/DS58/R, ( US Shrimp/Turtle ) CLegislation DTreaties E Others International Economic Study Centre, The Dispute Resolution Mechanism (2014) <http://internationalecon.com/wto/ch2.php> World Trade Organisation, Dispute Settlement System Training Module:Chapter 6 (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s2p1_e.htm> World Trade Organisation, Dispute Settlement System Training Module: Chapter 6: 6.9 Compensation (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s9p1_e.htm> World Trade Organisation, Dispute Settlement System Training Module: The Panel Stage (2014) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p1_e.htm> 19