LGBT rights interpreted by Judiciary “Lesbian, Gay, Bisexual, and Transgender”

How Indian Judiciary is interpreted the social stigma in regards to LGBT rights?



It would be problematic to fix a gigantic moment of change from invisibility to visibility in the context of queer citizenship in India. From last few years it could be follow in film industry when the producer introduced new social behavior in the movie like Fire[1]. It argued that the Fire performed an important turn in public perceptions of queer visibility. On the other hand, another movie called “My Brother Nikhil”, the protagonist, Nikhil, is a homosexual man suffering from HIV/AIDS[2] He is detained by the government under the Goa Public Health Act, 1985, which empowers the State government to isolate persons living with HIV/AIDS by confining them in wards and institutions for extended periods.


After few years of Fire controversy, a less sensational, but equally epistemic event informed the burgeoning LGBT activism in India. In December 2002, NAZ[3] involved with activism and HIV awareness among the gay and MSM[4] community, filed a Public Interest Litigation in the Delhi High Court in an attempt to read down[5] Section 377’s criminalization of private consensual sexual acts that went “against the order of nature.” Passed in 1861 while India was still under British rule, the law criminalizes any sexual activity that goes “against the order of nature.”


The SLP has field against Delhi High Court’s Judgment[6] before Supreme Court by the petitioner who raised the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The court, while issuing notice to the Central government for representation and said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.


In response form the Government, the Ministry of Law and Justice had argued that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in “the interest of public safety and the protection of health and morals”[7]. The government claimed that Section 377 was used in cases of assault and deleting the section could2


“open the floodgates of delinquent behavior”[8]. The government said that Section 377 was needed to deal with cases of child sexual abuse.


The framers framed the sec 377 IPC in such a way that it criminalization of private consensual sexual act that went “against the order of nature”. The law specifically stated that whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.


Basically this section is intended to punish the offense of sodomy, buggery and bestiality[9]. The offense consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with women or by a man or woman in any manner with an animal. Consent of the parties here is immaterial and the party consenting is equally liable as an abettor.


But Delhi High Court has taken into account the voluntary act when they framed their interpretation of decriminalized of sec377. They interpreted section 377 as more private concern. They brought consensual sexual acts of the adults in private who should exclude form the purview of the sec377 because it is the violation of article 21, 14 and 15 of the Indian Constitution.[10]


The attempt to repeal sec377 was introduced by great LGBT political activism in India in late 90’s. The conflict cultural meaning-making and legal intervention has addressed a complex considerable relationship between state and non-state centered activism in the context of sexual orientation. The rapid increase in the number of Indians who become effected by AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas the state and the judicial process[11].




Main object of this section provides general understanding to “sodomy” which denotes intercourse per anum by a man with a man or with a woman or with a child or with an animal. Therefore, sex and age is immaterial in the concern of that act. And this section is wide enough to include child and women also.


If we look at the case laws we can indentified that whether this section is relevant or not in concern society. In Brother John Anthony v State of Tamil Naddu[12], the petitioner, warder of a boarding house was found to have committed on the inmates of the Boarding School following unnatural offences,viz,


1) Inserted the penis into the mouth of the victim and did the act of in carnal intercourse leading to ejaculation of semen into the month; and


2) Holding the penis in the hand of the victim making the manipulated movements of penis and withdrawal up to the point of ejaculation of semen.


The petitioner held liable under sec 377, IPC for committing unnatural offence by the court.


Not only had this, in 1974, the Supreme Court of India upheld an earlier sessions court verdict acquitting two policemen who raped a 16 year old tribal girl in the compound of the Desai Ganj Police Station in Maharashtra. The decision was informed by the horrifically dubious logic that since Mathura was ‘habituated to sexual intercourse’ to begin with and since she had passively submitted to their advances, the act could not be considered as non-consensual. Therefore, eventually activist from the women’s groups to change definitions of “consent”, culminating in the criminal law Amendment Act, 1983, which insisted that the burden of prove consent must be on the accused.


In India and the most of the Asian countries homosexual practices with or without consent is illegal and punishable. The British drafted personal law on homosexuality under the section 377 in the Victorian era when homosexuality was consider as an aberration that needed to be rectified by the State by criminalizing all forms of sexual behavior other than penile-veginal.[13]


Historically it has been proved that homosexual ‘erotic ‘acts occur in all cultures and in all societies in all periods. In India there exist sufficient documentary, archaeological and anthropological evidences to suggest that same sex ties especially among men, were not only culturally, but dignified and revered by attributing similar traits to religious deities. The Kama sutra has a chapter on same sex love. The apparent acceptance of boy lovers in Mogul and lesbianism in the confines of harems are well known facts of State approval and recognition of homosexuality[14].


In Europe the colonial masters had two sets of morality in respect of sexual behavior. The countries with Napoleonic Code did not identify the same sex acts for criminal sanction, whether as common law did criminalize homosexuality act and carried it to India and others parts of the colonies.


Even same sex marriage in China, Canada and other places got approval and state sanction. A recent case from Kerala, where the judicial Magistrate has allowed two young nurses to live “together for ever”[15] and they have decided to solemnize their relationship in marriage soon in an example of judicial approval of same sex relationship.


However, in twentieth century due to recognition of rights to life and liberty, as a basic human right, interference of law in private life of an individual is consider as invasion on an individual’s private life and bedroom. Perhaps it is to safeguard the individual’s right to privacy that England decriminalized homosexuality acts on private between consenting parties in 1967. Canada and Australia followed England. In the United State it is considered in appropriate to regard homosexuality relations as blameworthy for assigning criminal sanction and the US constitution does not require the state to do so.[16]


There is the rapid changing jurisprudence and other law related practice that identities a significant application of Human rights law with regard to people of diverse sexual orientations and gender identities. This development can be seen at the international level, especially in the form of practice related to the United Nations Human Rights treaties as well as Europeans convention of Human Rights. The sexual orientation and gender identity related human right legal doctrine can be categorized as follows:


a) Non discrimination


b) Protection of private rights and


c) The ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.[17]


On March 26th, 2007, the scholars of human Rights have invented a new principal, known as Yogyakarta Principles[18]. It applies of human rights in relation to sexual orientation and gender identity. The objective of this principle is that comprehensive identification of obligation of sate to respect, protect and fulfill the human right of all persons regardless of their sexual orientation or gender identity. It has define sexual orientation in the way that it refers to each person’s capacity for profound emotional, affection and sexual attrition to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.[19]


In the view of recognition or right to freedom as a fundamental human right, it is considered world over that criminalization of homosexuality acts is a clear violation of right to privacy. Naz Foundation has challenged specially for in two grounds:


1) Section 377 of IPC was violation of Article 14,15 and 19(1)(a-d) and 21 of constitution to the extent it penalizes sexual acts between consenting adults and that


2) There exist no compelling State interest to justify the curtailment of such an important element in the fundamental right to life and liberty.


Consenting the validity of section 377, Naz stated “it creates an arbitrary and unreasonable classification between natural (penile-vaginal) and unnatural (penile-non-vaginal) sexual acts which is violated of right protection before and under the law provided in Article 14”.


Social-scientific evidence has been also suggested that the prohibition acts are indeed not unnatural. Sec 377 is a discriminatory legislation because it criminalizes the pre-dominantly homosexual acts and imposes traditional gender stereotypes of natural sexual roles for men and women upon the sexual minority.




The judgment has very limited placed which covered by the legal history of section 377. However, that is an incomplete for the judgment omits a critical paragraph in the writ petition which has been presented by Naz foundation. This paragraph basically explained how the introduction of sec377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime”. It is unclear why judges prefer to ignore the paragraph borrowed from an important collection of essays on same sex attraction. Perhaps, they felt that this issue would take them down to interpreting religious and spiritual sources. It would have required the judges to accept, deny or at least comment on the petitioner’s submission that section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by Historical evidence, could have made the judgment appears unnecessarily divisive. 6


It has observed that Naz Foundation discussion on sec 377’s case-law incomplete. Although the judgment refers to several leading cases, it does not provide that whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting section 377 have changed from “the non procreative to imitative to sexual perversity”.


The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited. In order to analyze whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction. The first theory that can be used in the analysis is the original intention theory.


In this it can be look at the Original intent in other words what framers intended. There are two strands of this, semantic original based on what the framers intended to say, and what they intended to do[20].Naz foundation judgment is clearly wrong as when framers spoke of article 15 for understanding of sexual orientation, if they had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.


Sometimes it is possible for some special cases a statute may have to be historically interpreted “as if one were interpreting it the day after it was passed”. [21] Generally statute always speaking variety of law and the court is liberty to put the current application of the statute in respective of present perspective. There are two kinds of principle which covered the circumstances. The first principle is that court must apply a statute to the world as it exist today and the second principle is that the statute must be interpreted in the light of the legal system as it exist today[22]. Reference to the circumstances existing at the time of the passing of the statute does not mean that the language used, at any rate, in a modern statute, should be held to be applicable to social, political and economical developments or to scientific inventions not known at the time of the passing of the statute[23]. Therefore a statute may be interpreted to include at the time of enactment of the statute.7


Apparently a question can be arising as what was the intention of the law framer. Whether their intention intend as originality approach like the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intends as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally supports the dynamic construction but it also has limitation. Statute can not be constructed in such a way that the original concept will be affected. [24]


In the case of Royal College of Nursing of the UK V Dept of Health and Social Security[25], Lord Wilberforce said: “ In interpreting an Act of Parliament it is proper and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention.”[26]


Lord Bridge also affirmed “When a change in social condition produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a prior assumption that the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply.” [27]


Therefore the new trend of homosexuality brings new dynamic interpretation by court in the Naz foundation judgment. . The social change in attitude towards homosexuality, two person of the same sex cohabiting and living together for a long time with mutual degree of interdependence have been apprehended as constituting a family[28]. Though they can stay together, but they shall not be qualified as a husband and wife because in Hindu Marriage Act, 1955[29] and Special Marriage Act[30], under the condition of marriage, statute has defined the age bar of bride and bridegroom. But now, the international convention of Human Rights Act, 1998 in England which introduced sexual orientation under Art 14 of European Convention on Human Rights in 2000 as an impermissible ground of discrimination. The same statute has been constructed to regard even same sex partners living together as husband and wife to avoid incompatibility with human rights.[31]


The present population of homosexuality in India is 25 lacks rather than one or two person which is a considerable change in social attitudes. Therefore, it is required to change the interpretation of section 377 of IPC as a decriminalization nature.




The Victorian laws of sec 377 of IPC, their inherent rights are blatantly squelched down. It stands out as a deviance in the basic structure of the Indian constitution because it impairs the justice, liberty and equality of these unfriendly neighbors. Not only this, it also prevents a bundle of fundamental rights viz Articles 14, 15, 19(1) (a-d), 21 of the Constitution of India, which they as a citizen of India have lawful claim on. The biggest vice of this section is that it equates consensual sex with non consensual sex by categorizing them as the same penal offence.


Socio scientific evidences have also suggested that the prohibited acts are indeed not unnatural. Moreover it is to be understood that the import of the word ‘unnatural’ is dynamic and contingent to the societal sensitivity and appearance. The order of nature as purported by the section is ‘sex for procreation’. If this is the grand norm then by its strict interpretation all sex done for pleasure today should be prosecuted and penalized, abortions be prohibited and contraceptives and the like family planning measures be criminalized. The justification to retain section 377 is marinated by a religious and cultural veneer. It is also debated that the culture of homosexuality is essentially borrowed from the west. In stark contrast to this stereotype historically evidences secure that it had been practiced in all cultures at all times.


By strict literal interpretation, section 377 does not purport to prohibit homosexual relations; it only restricts certain sexual acts. Such acts may be practiced by heterosexuals also but homosexuals being more vulnerable fall as susceptible targets of the state and the patent victims of human rights violation. Thus, this section has matured into a potent tool of oppression employed by the venal police to further victimize these people[32].9


The crux of penal laws is protection of individual and society from unlawful wrongs and injustice, to ensure comfort rather than ensuing discomfort. It is not there to lay down autocratic standards for morality and immorality. The present is a multicultural society, with different inclinations and social, religious and moral affirmations. These co-exist in harmony. As a democratic state lacks authority to impose a particular religion, similarly it cannot bind the people with certain entrenched sexual norms. It cannot deprive an individual’s individuality, his own being.


Bibliography: 10




  • H Robinson Paul, “Criminal Law”, Aspen publishers, 1997
  • G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition, 2010
  • Dworkin G., “ODGERS’Constrution of Deeds and Statutes”, Universal Law Publishing Co Pvt, 5th Edition, 2nd India Print, 1998
  • Binda N.S,Rao M.N and Amita Dhanda, “Interpretation of statute”,10th edition, Lexis Nexis, Butterworths,2007



  • Narrain Siddharth , A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,
  • Joseph Jesmin, Territorial Application of High Court Decision, NUJS Law review, rev 471, July- September, 2009
  • Shahani Nishant, Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009
  • Rao Ashok, Should homosexuality be legalized?, Times of India,29th June,2002
  • Ramesh Babu, Court nod for lesbians in Kerala, Hindustan Times, 29th October, 2002

[1] In1997 Fire was introduced. Even while inadequately locating lesbian desire only in the context of failed heterosexuality, the film’s representation of same-sex attachments between middle-class Indian women forced queer sexual politics in India into the national imaginary in an unprecedented, and at times, violent fashion. If homosexuality was not part of “Indian” culture, as some state officials claimed, the film successfully fore grounded that homosexuality was not an import of western decadence, and in fact was quite commensurable with indigenous identity formations.

[2] Human immunodeficiency virus/Acquired Immune Deficiency Syndrome.

[3] A Delhi based NGO (Non-governmental Organization)

[4] men who have sex with men)

[5] as opposed to a complete repeal

[6] Suresh Kumar Kaushal v Naz Foundation, SLP(C) No. 15436/2009 The SLP was heard by Justices Y.K. Sabharwal and P.P. Naolekar.,

[7] Siddharth Narrain, A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,

[8] See supra note 7

[9] Indian Penal Code, Chap. XVI, Sec. 377, Qted. In Bhaskaran, 15)

[10] Jesmin Joseph, Territorial Application of High Court Decision,NUJS Law review, rev 471, July- September, 2009

[11] Nishant Shahani,Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009

[12] 1992 Cr. LJ 1352

[13] Ashok Rao, Should homosexuality be legalized?, Times of India,29th June,2002,page 6

[14]Manusmriti,Chapter 8 Verse 370

[15] Ramesh Babu,Court nod for lesbians in kerala, Hindustan Times,29th October,2002,page 13

[16] Paul H Robinson, Criminal Law,(1997) Aspen publishers, Inc, pp-766-767

[17] Para42 pag36 of Naz Foundation Judgment

[18] See Supra note 18,Para 43 page 36

[19] See Supra note 18,Para 44 page 37

[20] This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this.

[21] G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition,2010

[22] See supra note15,pp250

[23] See supra note 15,pp250

[24] See supra note 15,pp-251

[25]See supra note 15, pp-251(1981)1 ALL ER 545,pp-564,565

[26] See supra note 15, pp251.

[27] See supra note 19,

[28] Fitzpatrick v Streling Housing Association Ltd,(1999)4 All ER 705(HL)

[29] Hindu Marriage Act, 1955, sec 5(iii) stated that the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage.

[30] Special Marriage Act, 1957, sec4(c) also defines the male has completed the age of twenty-one years and the female the age of eighteen years.

[31] G.P.Singh, Principle of Statutory Interpretation, 9th Edition, 2004, pp-231Ghaidan v Mendoze, (2002),4 All ER 1162(CA).

[32] As per the PUCL report 2003, it gives unbridled license to the lower executive strata for the rampant extortion of money. Such cases do not come to the limelight as homosexuals never file FIRs due to the social stigma attached to their being. They are abused sexually, verbally and detained for varying period of time which stretches from overnight to a few days imprisonment. No FIRs are filed by the police nor are any documentary evidences maintained resulting in excessive dolor void of any recourse. These people are discriminated at the workplace, abused by all and sundry or forced to marry against their will in hope of changing their cardinal self. Not to forget the younger ones who are evicted out of their own homes owing to the prejudice and social apprehensions. Since FIRs are scarcely filed, cases do not go to the court. Out of the few cases which do reach its footsteps the judiciary, owing to the delicacy of circumstances, reverts to a liberal stand

World Trade Law


“Prompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.”

—-World Trade Organization, Article 21.1 of the DSU

In 1994, the WTO members agreed on the Understanding on Rules and Procedures Governing the Settlement of Disputes or Dispute Settlement Understanding (DSU) (annexed to the “Final Act” signed in Marrakesh in 1994)[1]. Pursuant to the rules detailed in the DSU, member states can engage in consultations to resolve trade disputes pertaining to a “covered agreement” or, if unsuccessful, have a WTO panel hear the case[2]. The priority, however, is to settle disputes, through consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the full panel process.

The operation of the WTO dispute settlement process involves the parties and third parties to a case and may also involve the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts, and several specialized institutions[3]. The General Council discharges its responsibilities under the DSU through the Dispute Settlement Body (DSB)[4]. Like the General Council, the DSB is composed of representatives of all WTO Members. The DSB is responsible for administering the DSU, i.e. for overseeing the entire dispute settlement process. It also has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize the suspension of obligations under the covered agreements.[5] The DSB meets as often as necessary to adhere to the timeframes provided for in the DSU[6].

Since 1 January 1995 to 1 March 2007 of the extent to which WTO Members have complied with adverse WTO dispute settlement rulings rendered both by dispute settlement panels and the Appellate Body. The record indicates that, generally speaking, WTO Members found in violation of their WTO obligations in dispute settlement proceedings have done a reasonably good job in taking steps to correct these violations within a reasonable period of time. While there have been some cases where compliance has been delayed or where full compliance has yet to be achieved, this should not detract from the fact that the overall compliance record of WTO Members has been quite positive, which in turn has contributed significantly to the effectiveness of the WTO dispute settlement system as a whole.

It is to be recalled that Article 3.7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) clearly states that the preferred remedy under the WTO dispute settlement system is the withdrawal of any WTO-inconsistent measure. If and only if this is not possible on a timely basis are alternative remedies to be pursued. These alternative remedies are (i) the granting of compensation by the responding Member to the complaining Member consisting of trade liberalization measures with respect to a volume of trade comparable to that adversely affected by the WTO-inconsistent measures; and (ii) if compensation is not possible and as a last resort, retaliation by the complaining Member consisting of trade-restrictive measures of a proportionate nature against the trade of the responding Member[7].

Up until 1 March 2007, there have been panel or panel/Appellate Body reports adopted by the WTO Dispute Settlement Body (DSB) in 109[8] cases excluding reports from so-called Article 21.5 of the DSU compliance proceedings, which have occurred in roughly one out of every five cases where WTO violations have been found in the original WTO litigation proceedings[9]. Of the 109 adopted panel or panel/Appellate Body reports, in nearly 90% of these cases the panel and/or the Appellate Body have found WTO violations.

Only 17 WTO Members—counting the European Communities as 1 Member rather than as 27 Members—or about 30% of all 150 WTO Members—counting the European Communities in this calculation as 27 Members—have ever been the object of adverse or partially adverse rulings by WTO panels and/or the Appellate Body for which compliance was required. Seven of these 17 WTO Members have been the object of only one adverse or partially adverse ruling. These seven Members are Brazil, the Dominican Republic, Egypt, Guatemala, Indonesia, Thailand, and Turkey.

Ten WTO Members have had multiple adverse or partially adverse rulings in WTO litigation proceedings. These 10 Members are (with the number of cases in which violations against them were found in parentheses) the United States (33), European Communities (16), Canada (8), Argentina (6), India (4), Mexico (4), Korea (5), Japan (4), Chile (2), and Australia (2).


As has been widely acknowledged by WTO Members themselves, the overall compliance record of WTO Members with adverse WTO dispute settlement rulings has generally been quite good in the cases to date in which WTO violations have been found. In virtually every one of these cases, the WTO Member found in violation of its WTO obligations has indicated its intention to bring itself into compliance and in most cases has already done so.

The record has also shown that compliance has usually been more rapid where WTO violations could be corrected through administrative action under the control of the Executive as opposed to legislative action. This outcome is not surprising since legislative action involves more complicated political processes; the enactment of corrective remedies through changes to national statutes usually takes a longer period of time in most national systems. As will be seen further, the experience of the United States in this regard is instructive.

The use of compensation as a transitional remedy until full compliance could be achieved has only occurred in one case[10]. Thus, the WTO dispute settlement model in practice has been a ‘compliance-retaliation’ model rather than a ‘compliance-compensation-retaliation’ model.

As for the resort to retaliation, out of the 109 cases where a panel or panel/Appellate Body report was adopted, retaliation has been requested in only 18 instances of which 9 have gone through the arbitration process under Article 22.6 of the DSU to establish the proper level of retaliation. The DSB granted authorization to retaliate in only eight cases. In one case (US1916 Act), the WTO-inconsistent measure was withdrawn soon after the arbitration was completed, thus obviating the need for final DSB authorization of retaliation. More will be said on retaliation in the final section subsequently.

Compliance Problems in WTO Dispute Settlement:

This Comment surveys the problems of compliance facing the World Trade Organization (WTO) dispute settlement system and considers reforms that might improve compliance. In general, the WTO dispute settlement system has an excellent compliance record. A recent examination of the implementation record of WTO decisions for the first ten years of WTO dispute settlement found a compliance rate of 83%[11]. Although new problem cases continue to arise, several of the ten problem cases outstanding at the time of the study have since been resolved[12]. This compliance rate is very good for an international state-to-state dispute settlement system[13].Moreover; the success rate of consultations in WTO cases that do not result in either adopted panel or Appellate Body reports is impressive[14]. The picture, however, is not so rosy if one looks beyond general statistics and considers the quality and timeliness of compliance actions.

Timeliness also encompasses inquiries into whether the time taken by the panel and appellate processes has met the standards specified in the WTO Dispute Settlement Understanding (DSU)[15].

An examination of the quality and timeliness of compliance in the first ten years of the WTO dispute settlement system reveals some interesting patterns. General Agreement on Tariffs and Trade (GATT) and Trade- Related Aspects of Intellectual Property Rights (TRIPS) cases typically result in the timely withdrawal of the contested measure[16]. The two TRIPS cases brought against the United States[17] and the European Communities –Bananas[18] case are the main exceptions to this trend[19]. In other words, the desired result has generally been achieved in GATT and TRIPS cases. There have also typically been timely withdrawals of the contested measures in safeguard and textiles cases; however, the contested measures in these cases were often in place for all or most of the initially intended period of effectiveness[20]. Thus, compliance was timely in terms of respecting the reasonable period of time for implementation set by the WTO dispute settlement process, but the overall WTO process took so long that implementation was not very meaningful in practical terms[21].


Finally, with respect to the overall timeliness of the panel and appellate process, a detailed examination of the time taken by panels to issue their reports shows that panels typically exceed the targets set in the DSU by many months, especially in Article 21.5 compliance proceedings[22].While the Appellate Body usually issues its report within ninety days of an appeal[23], the overall time taken by the process— especially when the “reasonable” periods of time for implementation are taken into account— is quite long[24]. This Comment will not further consider the problem of the length of proceedings, except to note that reforms are both needed and feasible[25].

Taken together, the foregoing suggests that although the WTO dispute settlement system may have an admirable record overall, considerable room for improving the quality and timeliness of compliance exists. Indeed, businesses have expressed concerns about non-compliance and delays as reasons not to use the WTO dispute settlement system, which raises serious concerns for the future[26]. Thus, it is appropriate to consider the question of what changes might be made to the system to address these problems. It has been considered that the changes in compensation and retaliation rules could resolve the dispute settlement system more perfect.


The United States and the European Communities are the two WTO Members that have by far not only initiated the greatest number of WTO litigation proceedings against other WTO Members but that have also had the most number of litigation proceedings initiated against them. Thus, it is particularly instructive to review the compliance record of the United States and the European Communities, since together they have been the object of about one half of all adverse WTO rulings.

The United States has been the object of adverse or partially adverse rulings as a respondent in 33 cases. In four other cases, no WTO violations were found and the United States was fully exonerated. Of the 33 cases where violations were established, the United States has been able to comply or is in the process of complying solely through administrative actions in 26 cases. Sixteen of these were either anti-dumping or subsidy cases, three were textile cases, four were safeguard cases and three involved other WTO violations. As of 1 March 2007, the steps taken by the United States to implement the rulings and recommendations of the DSB in USUpland Cotton, USOil Country Tubular Goods Sunset Reviews, and USGambling were in compliance proceedings under Article 21.5 of the DSU. In seven cases[27] legislative action has been or is necessary to bring the United States into compliance. In four out of these seven cases, the US Congress has already passed remedial legislation[28]. Indeed, these legislative acts to comply by the US Congress, all taken since late 2004, have been among the most noteworthy and positive developments for the WTO dispute settlement system, given the previous harsh criticism of the system emanating from certain members of the US Congress, particularly with respect to trade remedy cases. There are some transitional problems in the USOffset Act (Byrd Amendment) case since the legislation repealing the Byrd Amendment does not take effect until 1 October 2007 and remedial legislative action is still required in the other three cases. Nonetheless, recent congressional actions to implement adverse WTO panel and Appellate Body reports have been significant and their importance for maintaining the legitimacy of the WTO dispute settlement system should not be underestimated.

As for the European Communities, it has been the object of adverse or partially adverse rulings in 16 of the 19 completed cases in which it was the responding party. In addition, the European Communities settled the matter prior to the issuance of the final panel report in three instances. In all 16 cases where the European Communities was found to be in violation of certain of its WTO obligations, the European Communities committed to bring itself fully into compliance with the adverse panel and Appellate Body reports. Its actual compliance record has also been good, although the administrative and legislative processes which must be observed to implement a decision are of course quite different from those used in the United States[29]. While the United States and the European Communities have been the WTO Members with the most extensive compliance experience, other WTO Members, both developed and developing, have also had to comply with adverse WTO rulings and, for the most part, have done so in a satisfactory fashion. As for other developed country WTO Members, Canada has taken actions to comply in six cases[30]. Canada has yet to comply in the two regional aircraft subsidy cases successfully brought against it by Brazil. For its part, Japan has taken actions to comply in three cases[31] where WTO violations were found and settled the matter prior to the adoption of the final panel report in one instance.[32] Finally, Australia has taken actions to comply in the two cases where WTO violations were found.[33]

A problem with the implementation of WTO dispute settlement recommendations and rulings is the lack of guidance over what exactly a losing party must do to comply. The tendency has been for the losing party to take minimal steps and declare itself in full compliance. The winning party often disagrees. One solution is to refer the matter to a compliance panel under art 21.5 of the DSU.In EC—Bananas III (Ecuador) and EC—Bananas III (US)[34], the DSB authorized retaliation for both Ecuador and the United States against the European Communities. However, only the United States actually imposed retaliatory measures against $115 million of its trade with the European Communities. These measures were subsequently withdrawn after a bilateral settlement and are no longer in effect.

In EC—Hormones (Canada) and EC—Hormones (US)[35], the DSB authorized retaliation for both Canada and the United States against the European Communities and both imposed retaliatory measures—the United States against $130 million of trade and Canada against some $20 million of trade. Despite claims by the European Communities that it has brought itself into compliance with the original panel and Appellate Body reports, these retaliatory measures currently remain in place. The European Communities has initiated dispute settlement proceedings against Canada and the United States seeking their removal[36].

In US—Offset Act (Byrd Amendment)[37], the DSB authorized retaliation by the eight original complaining parties against the United States, with the amount of the retaliation to be directly tied to the amount of the anti-dumping and countervailing duties actually refunded to US petitioners under the WTO-inconsistent statute. To date, only the European Communities, Canada, Japan, and Mexico have actually imposed retaliatory measures against US trade. Following a recent US court ruling that the Byrd Amendment does not apply to Canada and Mexico by virtue of certain NAFTA provisions, Canada and Mexico withdrew their retaliatory measures. However, the European Communities and Japan have indicated that their retaliatory measures will remain in place as long as anti-dumping and countervailing duties assessed against their exports to the United States continue to be distributed to domestic producers under the Byrd Amendment. This distribution of duties assessed may continue to occur with respect to certain existing orders even after the repeal of the Byrd Amendment becomes effective on 1 October 2007.

Finally, in the regional aircraft subsidy cases (Canada—Aircraft Credits and Guarantees and Brazil—Aircraft)[38] brought by Canada and Brazil against each other, the DSB authorized retaliation for each side against the other, but retaliatory measures have never been imposed as the two sides continue to seek a negotiated settlement to the dispute.

Implications for Panel Reform

Consideration of how the WTO dispute resolution process is perceived and the criticisms to which it has been subjected may provide useful information to policy makers in assessing how the panel process might be improved.

A. General Principles for Reform[39]

In light of the concerns discussed above, we should arguably focus panel reform on a few central issues, such as: (i) the need for panels to exercise restraint and refrain from moving into areas where negotiated rules are unclear, (ii) the need to focus on compliance in cases where the rules are clear and there has been a violation, and (iii) the need to ensure that the capabilities of the system are realistically portrayed and appreciated by Parties.

Encouraging panelists to exercise restraint may be pursued simply through recognition of the dangers inherent in “activism” and “law making,” and in creating a culture among the community of practitioners, WTO officials, and potential panelists that reflects the importance of closely adhering to the terms of relevant agreements and applicable standards of review. More radical proposals – such as altering the negative consensus rule to allow some percentage of DSB Members to block a panel decision – would obviously be much more controversial. In terms of compliance, the Parties to the DSB have already begun consideration of ways to streamline and clarify procedures after a panel has rendered an opinion. Finally, ensuring that the capabilities of the system are realistically assessed may suggest that we should go slowly in pursuing a more “adjudicative” structure for panels – a structure that could inappropriately downplay the continued need for negotiation and diplomatic interchange to achieve resolution of disputes.

B. Specific Proposals for Reform[40]

Concerns such as those set out above may also have implications for specific reform proposals that have been offered to increase the efficiency, consistency and transparency of panels. A few specific proposals are discussed below.

1. Permanent Body of Panelists: One proposal for panel reform that has received quite a bit of attention is the notion of establishing a permanent system of panelists, similar to that existing in the Appellate Body[41]. In light of the challenges facing the overall dispute settlement system, however, there are other considerations that could be brought to bear on the issue.

First, are there not benefits to the current system, whereby countries play an active role in the selection of panelists?[42]4 Since parties to a dispute arguably bear some responsibility for the composition of panels, they may be less inclined to criticize particular panelists for bias, lack of qualifications to hear a particular matter, etc. Certainly, such criticisms would be deflected to some degree to the extent Parties participate in the selection process.

Second, would a permanent body of panelists “put a face” on the panel system that is easier to attack by opponents. Under the current system, there is likely to be a greater diversity of panelists in terms of background, outlook, and experience as parties to a dispute seek to have panelists uniquely appropriate for their particular case, and perhaps favorable to a particular country’s outlook. While this may lead to less consistency, it may also create a less definable target for opponents who want to paint the system as dominated by “international bureaucrats” set on undermining national sovereignty.

Finally, would a permanent system of panelists not raise its own questions as to the ideological bent of panelists? A permanent body might give rise to fewer concerns about the bias of individual panelists against a particular country. While this may be true, a permanent body might be perceived as more ideological and more given to developing the predispositions – whatever they may be – of professional trade officials. Arguably, an expert body might feel more comfortable, and more qualified, than ad hoc panels in venturing into ambiguous areas that are better left to negotiations – exacerbating concerns that panels are “making law.”[43] This is not meant to suggest that these considerations are decisive or would outweigh the arguments in favor of more consistency and professionalism – only that they should be part of the mix in considering reforms[44].

2. Transparency

Many proposals for panel reform have focused on transparency and in some sense these reforms seem obvious. Making the system more open and less mysterious would seem to have obvious benefits, if for no other reason than that it would deprive critics of a powerful argument about democracy and fairness. While the fundamental benefit of transparency seems clear, looking at the issue with an eye toward the challenges facing the dispute resolution system in general does raise some additional considerations. Undoubtedly, many of the groups and individuals that have sought greater access to the WTO have done so out of a legitimate desire to work constructively within the system. The disruption seen at Seattle, however, raises the prospect that certain groups are interested more in destroying than improving the WTO[45].

This fact has implications for reform. Transparency in the context of the dispute resolution process is arguably best focused on two goals: (i) to allow interested groups and individuals to better follow and understand the workings of the system, and (ii) to the extent practicable, to allow greater input that will help elucidate the proper scope and application of WTO agreements. On the other hand, to the extent proposals for reform would heighten opportunities for activists to politicize cases or put extraneous pressure on panelists, the implications for the system may be far less positive.


The incentive for governments to negotiate and abide by international trade agreements depends in part on the effectiveness of enforcement provisions. Effective enforcement is particularly important for developing countries, as they will rarely be able to exert credible threats against large trading entities that do not abide by the negotiated rules of the game and often will not appear on the ‘radar screen’ of the WTO.

Domestic enforcement is a vital dimension in enhancing the relevance of multilateral commitments to domestic stakeholders (importers, exporters, consumer groups). In most countries, including high income nations, domestic interests are restricted in their ability to contest actions by national government agencies that violate WTO commitments. Civil society has a strong interest in seeking to maximize the extent to which international treaty obligations can be invoked in national legal systems. This will remove a number of layers of uncertainty and complexity associated with bringing cases to the WTO. Strengthening national enforcement mechanisms can help make the WTO a more relevant instrument from an economic development perspective by increasing the ownership of negotiated commitments. It also relaxes the constraint of having to convince one’s government to bring a case to the WTO and will reduce the burden of DSP at the WTO level. The easiest way of making WTO commitments enforceable nationally is to expand on the type of challenge mechanisms that have been introduced in the GPA.

The private sector must play a much greater role in enforcement. In part this can be achieved by

designing domestic legal mechanisms that increase the incentive for them to collect, compile and transmit information on the measures that are being applied by governments, both their own and foreign. Thus, there is a close link to our first point — giving private interests standing in domestic fora (via a general challenge procedure) can be expected to be a great motivator for greater involvement in both the development and enforcement of multilateral disciplines. But greater private sector participation is also vital in order to ensure that developing countries can defend their rights at the WTO level. This upstream dimension of DSP at the WTO is as important as the efficacy of the downstream panel and Appellate Body process.

Developing countries have an interest in re-negotiating the existing legal framework for remedies.

Remedies in the WTO do not guarantee paritas armis among the various players and unless corrective action is taken, developing countries might have even less incentive to submit cases. On this particular issue we side with Bhagwati’s (1999) proposal to opt for re-negotiation of concessions (instead of keeping it as an option) any time a developing country’s claim prevails before the WTO but implementation raises serious political problems.

Finally, we argued in favor of a formal amendment of the DSU with respect to notification of bilateral agreements to the effect that no such agreement will be applied unless previously cleared through the DSB. The reason for this proposal is twofold: when developing countries participate in such deals along with developed countries, because of the inequality of power between the two, they might be forced to non WTO-compatible solutions. On the other hand, when they do not (which is the vast majority of cases) they might see their rights under the WTO contract diminished since the parties to such deals hardly have the incentive to respect MFN.



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Prof Raj Bhala;” A treatise on the General Agreement of Tariffs & Trade”; International Trade Law Series; Pub: Thomson Sweets & Maxwell, 2005,

William J. Davey, “Expediting the Panel Process in WTO Dispute Settlement, in The WTO: Governance, Dispute Settlement & Development Countries”; Pub: Thomson Sweets & Maxwell, 3rd Edition 2008

Marion Panizzon, Nicole Pohl and Pierre Sauvé (Edited by);“GATT & the Regulation of International Trade in Services World Trade Forum”; Pub: Cambridge University Press;1st Publication,2008

Anne O Krueger; “The WTO as an International Organization”; Oxford Indian Paperbacks, 1998

David Pal meter & Petros C. Mavroidis; “Dispute Settlement in the WTO Practice and procedure”; 2nd Edition; Cambridge, 2004

Petros C Mavroidis; “The General Agreement on Tariffs & Trade- a Commentary”; Pub: The Oxford Commentaries on the GATT/WTO Agreement; 1st Publication; 2005


Jeanne J. Grimmett, “Dispute Settlement in the World Trade Organization (WTO): An Overview”; September 7, 2010 CRS Report for Congress Prepared for Members and Committees of Congress.

William J. Davey, “The WTO Dispute Settlement System: The First Ten Years”, 8 J. INT’L ECON. L. 17, 46– 48 (2005)

Tom Ginsburg & Richard H. McAdams, “Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution”, 45 WM. & MARY L. REV. 1229, 1308– 12 (2004)

James C. Hecht ; “Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform”; Presented at The First Five Years of the WTO American Bar Association Section of International Law and Practice ; January 20-21, 2000 Georgetown University Law Center.

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[1] Stewart-Dawyer, The WTO Dispute Settlement System, 7 ;World Trade Organization, accessed December 1, 2010



[2] A list of covered agreements is included in Appendix 1 to the DSU



[3] WTO Bodies involved in the dispute settlement process, World Trade Organization, Jeanne J. Grimmett, “ Dispute Settlement in the World Trade Organization (WTO): An Overview”;September 7, 2010 CRS Report for Congress Prepared for Members and Committees of Congress



[4] Article IV:3 of the WTO Agreement



[5] Article 2.1 of the DSU



[6] Article 2.3 of the DSU

[7] See Article 22.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).

[8] This number refers to the number of panel or panel/Appellate Body reports issued and adopted. Accordingly, cases such as EC—Hormones where two separate panel reports were issued—one for the complaints brought by Canada, EC—Hormones (Canada), and another for the complaints brought by the United States, EC—Hormones (US)—constitute two entries, while cases with multiple complainants such as US—Offset Act (Byrd Amendment) where only one panel report was issued constitute one entry. Mitsuo Matsushita, Thomas J Schoenbaun and Petros C. Mavroidis, “ The World Trade Organization Law, Practice & Policy;Pub: Oxford University Press,2nd Edition;2005,pp1150-1161

[9] Idib,There have been 22 panel reports and 12 Appellate Body reports circulated in compliance proceedings under Article 21.5 of the DSU.




[10] US—Section 110(5) Copyright Act.



[11] William J. Davey, The WTO Dispute Settlement System: The First Ten Years, 8 J. INT’L ECON. L. 17, 46– 48 (2005) [hereinafter The First Ten Years]






[13] Even though the WTO system has faced more challenging cases, the success rate is comparable to the success rate of the GATT dispute settlement system. The First Ten Years, supra note 1, at 48; see ROBERT E. HUDEC, ENFORCING INTERNATIONAL TRADE LAW: THE EVOLUTION OF THE MODERN GATT LEGAL SYSTEM 344– 51 (1991). The success rate in the WTO system is clearly better than the success rate in the International Court of Justice. See, e.g., Tom Ginsburg & Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution, 45 WM. & MARY L. REV. 1229, 1308– 12 (2004) (finding a 68% compliance rate, as defined by the authors, for a sample of cases before the International Court of Justice).



[14] William J. Davey, Evaluating WTO Dispute Settlement: What Results Have Been Achieved Through Consultations and Implementation of Panel Reports?, in THE WTO IN THETWENTY-FIRST CENTURY: DISPUTE SETTLEMENT, NEGOTIATIONS, AND REGIONALISM IN ASIA 98, 102– 07 (Yasuhei Taniguchi et al. eds., 2007) [hereinafter Evaluating WTO Dispute



[15] See Understanding on Rules and Procedures Governing the Settlement of Disputes arts. 12, 16.4, 17.5, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments— Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].



[16] Evaluating WTO Dispute Settlement, at 114– 15, 139– 40.



[17] Appellate Body Report, United States— Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R (Jan. 2, 2002) [hereinafter US— Section 211 Appropriations Act]; Panel Report, United States—  Section 110(5) of the US Copyright Act, WT/DS160/R (June15, 2000) (adopted July 27, 2000) [hereinafter US— Section 110(5) Copyright Act].



[18] Appellate Body Report, European Communities— Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (Sept. 9, 1997).



[19] Evaluating WTO Dispute Settlement, supra note 4, at 115, 140. The two cases in which the United States has been found to have violated the TRIPS Agreement required Congressional action for implementation, which has not been forthcoming. Id. at 115. The prevailing party in the two cases, the European Union, has never sought authority to retaliate, perhaps because the cases involve a relatively limited amount of trade.



[20] Idib. at 110.



[21] Idib. at 113– 14



[22] William J. Davey, Expediting the Panel Process in WTO Dispute Settlement, in THE WTO: GOVERNANCE, DISPUTE SETTLEMENT & DEVELOPING COUNTRIES 409, 415– 18, 420– 21 (Merit E. Janow, Victoria Donaldson & Alan Yanovich eds., 2008) [Expeditingthe Panel Process].



[23] Idib. at 418



[24] Idib. at 419– 20



[25] Idib. at 421– 30



[26] See, e.g., Gary G. Yerkey, U.S. Poultry Producers Do Not Plan to Urge U.S. to File Case at WTO over EU Import Ban, INT’L TRADE DAILY (BNA), June 9, 2008 (noting EU failure to comply in the Hormones case). In the DSU reform negotiations, Mexico has been particularly critical of what it calls the “‘fundamental problem’ of the WTO dispute settlement system, namely the ‘period of time which a WTO-inconsistent measure can be in place without the slightest consequences’ to the offending party.” Daniel Pruzin, Mexico Presents ‘Radical’ Proposal for WTO Dispute Resolution Reform, 19 INT’L TRADE REP. (BNA) 1984, 1984 (2002).



[27] US—FSC, US—Offset Act(Byrd Amendment), US—Section 211 Appropriations Act, US—1916 Act, US—Section 110(5) Copyright Act, US—Upland Cotton, US—Hot-Rolled Steel.



[28] US—FSC, US—Offset Act(Byrd Amendment), US—Upland Cotton, US—1916 Act.



[29] Some notable cases where the European Communities has taken significant actions to comply include ECBed Linen, ECTariff Preferences, ECSardines, ECTrademarks and Geographical Indications, and ECExport Subsidies on Sugar. Like the United States, there have been several cases, most notably ECBananas and ECHormones, where the European Communities has experienced residual compliance problems as a result of dissatisfaction by other WTO Members with the actions taken to comply.



[30] Canada—Periodicals, Canada—Dairy, Canada—Autos, Canada—Pharmaceutical Patents, Canada—Patent Term, and Canada—Wheat Exports and Grain Imports.



[31] Japan—Alcoholic Beverages II, Japan—Agricultural Products II, and Japan—Apples.



[32] Japan—Quotas on Laver., Modern GATT Law:; Prof Raj Bhala;” A treatise on the General Agreement of Tariffs & Trade” ; International Trade Law Series; Pub: Thomson Sweets & Maxwell,2005,pp 123- 139



[33] Australia—Salmon and Australia—Automotive Leather II. As noted previously, a number of developing country WTO Members have also had to comply with adverse or partially adverse rulings in a number of WTO cases and, like their developed country counterparts, have successfully done so in most instances. For example, Argentina has taken action to comply in five cases. Korea has taken actions to comply in five cases, although in one of those cases (Korea – Certain Paper) the steps Korea took to comply were in compliance proceedings under Article 21.5 of the DSU as of 1 March 2007. India has taken action to comply in three cases. Mexico has also taken action to comply in several cases, most notably Mexico—Telecoms, Mexico—Corn Syrup, and Mexico—Anti-Dumping Measures on Rice. Chile, Turkey, Indonesia, and Thailand are other developing countries that have taken actions to comply with adverse WTO rulings. On the other hand, Brazil has still failed to comply with adverse WTO rulings in its long-running dispute with Canada over both countries’ subsidization of their manufacturers of regional aircraft.



[34] Art 21.5 Panel Report European Communities-Bananas, Recourse to Article 21.5 by Ecuador, WT/DS27/RW/ECU,12 April 1999. No presumption of consistency with WTO  agreements attaches to revised measures under  Article 21.5 Panel Report, European Communities- Bananas-Recourse to Article 21.5 by the European Communities, WT/D27.RW/EEC,12 April 1999



[35] EC- Harmones, Report of the Appellate Body, 13th February 1998, WT/DS26/AB/R;WT/DS/48/R,PARA.104



[36] United States—Continued Suspension of Obligations in the EC—Hormones Dispute, Request for the Establishment of a Panel by the European Communities, WT/DS320/6, 14 January 2005; Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, Request for the Establishment of a Panel by the European Communities, WT/DS321/6, 14 January 2005.



[37] United States-Anti-dumping Measure on certain Hot-Rolled Products from Japan, Report of the Appellate Body, 23 August 2001, WT/DS184/AB/R.



[38] Canada-Measure Affecting the Export of Civilian Aircraft, Report of the Appellate Body (AB-1999),2 August 1999,WT/DS70/AB/R,para 203



[39] James C. Hecht ; “Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform”; Presented at The First Five Years of the WTO American Bar Association Section of International Law and Practice ; January 20-21, 2000 Georgetown University Law Center



[40] Idib



[42] Under the DSU, parties to a dispute have the right to object to panelists suggested by the Secretariat. DSU Article 8.6. In cases where the parties cannot agree on the composition of a panel within 20 days, the Director-General determines its composition. Id. at Article 8.7. It has become increasingly common for the parties to fail to reach agreement on a panel’s composition, which, if the trend continues, will to some degree undermine any benefits arising from party participation in the selection process.

[43] In fairness, such concerns would presumably apply equally to the Appellate Body, and it is questionable whether that body has exhibited any particular predisposition, as compared to panels, up until now.

[44] Joost Pauwelyn; “Enforcement and Countermeasures in the the WTO: The Rules and Rules-Toward a More Collective Approach”, The American Journal of International Law, Volume 94, Issue 2;Apr. ,2000,335-347.

[45] Idib