Going Beyond Stereotypes: Participation of Developing Countries in WTO Dispute Settlement

Abstract

The WTO dispute settlement system is the most successful and widely-used intergovernmental dispute settlement system. However, it is often alleged that, because of capacity and other constraints, developing country Members of the WTO are either downright unable to use this mechanism or that they do not bring all cases that could be commercially meaningful to them. This article examines the full range of real and alleged constraints on developing country participation in WTO litigation and concludes that, although smaller and developing country Members are at a relative disadvantage in a number of respects, many of the constraints typically identified play a much smaller role than usually alleged. We begin by highlighting two important background issues – first, the great disparity amongst developing countries and, second, the way in which economic size and share of global trade drive participation in the WTO dispute settlement system. We then examine and assess the role of a range of factors commonly identified as constraints on developing country participation in WTO litigation: legal capacity, domestic governance and the lack of a domestic trade policy community, insufficient retaliatory power, the duration and complexity of WTO proceedings, the fact that many developing countries trade under preferential trade arrangements, and the threat of political “retaliation” by a defendant. We conclude that the greatest constraints today on developing country participation in WTO dispute settlement are situated at the domestic, rather than at the multilateral level, and thus requires, first and foremost, action by developing country governments themselves.