Rights of action for private non-state actors in the WTO dispute settlement system.

I. INTRODUCTION

The WTO's Dispute Settlement Understanding (DSU), (1) and the multi-tiered dispute settlement system it governs have been heralded as lasting triumphs of the Uruguay Round. (2) Indeed, the WTO's dispute settlement system avoids many of the political pitfalls that weakened the dispute settlement system under the original GATT. (3) The WTO's dispute settlement system has also been praised as an innovation in the ability of member states, whether economic key players or much less influential members, to challenge violations of international trade law in ways that may not be practicable through pure negotiation and consultation. (4)

In spite of many positive qualities attributed to the contemporary dispute settlement system, commentators argue that developing countries find themselves at a disadvantage when it comes to effectively litigating trade disputes before dispute settlement panels and securing remedies against developed WTO member states. This article proposes and examines an alternative method of resolving disputes under the DSU. The alternative method is a proposal to give non-state actors in developing member states opportunities to initiate complaints against WTO member states. The WTO dispute settlement system would provide the framework to enable non-state actors to seek remedies for violations of international trade law through arbitration with WTO member states. The heart of the proposal is simple: private non-state actors such as firms, industrial associations, and organizations comprised of business entities of various sizes would play an important role in ensuring greater equality in the WTO dispute settlement system.

The alternative method proposed in this article deviates from dispute settlement procedures in the DSU in that, at present, only member states may initiate complaints against other member states. This proposal has the potential to radically alter the landscape of jurisprudence relating to international trade disputes, not to mention the commonplace operation of the WTO dispute settlement system. It is also an opportunity to bolster the credibility of the WTO following the collapse of the Doha Round and improve benefits available to developing countries in the global trading system.

This article will provide a brief overview of the current dispute settlement system of the WTO in Part II. The proposal allowing non-state actors to arbitrate alleged violations of international trade law under the WTO dispute settlement system will be explained in Part III. In Part IV, a case study involving the garment export industry in Vietnam will be examined to demonstrate why rights of action for non-state actors would improve the contemporary dispute settlement system and help the WTO promote international trade between developed and developing countries. (5) Benefits of the proposal and counterarguments are discussed in Part V, with brief concluding statements in Part VI.

II. CURRENT METHODS FOR SETTLING TRADE DISPUTES UNDER THE DSU

A. Contemporary dispute settlement by WTO member states