A Balancing Act: Using WTO Dispute Settlement to Resolve Regional Trade Agreement Disputes

Abstract

This note outlines a proposal for creating and maintaining a strong and balanced international trade law framework. The author argues that the institutional balance between the judicial and legislative arms of the international trade law system has been tipped. In the World Trade Organization (WTO), as the rule-making body remains in a decade-long deadlock, the specter of judicial activism is raised as the WTO dispute settlement system (WTO DSS) attempts to adequately address the evolving needs of its Members. In contrast, although most Bilateral and Regional Trade Agreements (RTAs) include dispute resolution mechanisms, it appears the parties are largely continuing to rely on the WTO DSS to provide a judicial check. In order to address these issues and restore equilibrium, this note proposes that disputes under RTAs are referred to the WTO DSS for resolution. If implemented, this proposal would provide the WTO DSS with an expanded mandate to consider emerging issues in international trade law, and provide RTAs with access to a robust judicial mechanism to resolve disputes. This proposal encourages increased engagement and interaction between the two systems and in doing so, creates a path for de facto convergence in trade law jurisprudence. The key strengths of both systems—a robust judicial mechanism provided by the WTO and a dynamic source of international trade law provided by the everexpanding network of RTAs—are aligned.