Manchester Journal of International Economic Law
Vol. 4, Issue 3, 2007,
Communication Flows in International Economic Law
Professor Asif H Qureshi, University of Manchester, Law School, UK
Negotiations on the reform of the WTO dispute settlement continue with the mantra in Geneva that the system on the whole works well --- hence the relative shortage of imaginative proposals seriously being considered currently in the Doha negotiations. This situation is symptomatic of the serious divide between legal scholarship in international trade law and the member driven institution that the national representatives to the WTO in Geneva have turned the institution into. The gulf between legal scholarship and the officialdom in Geneva springs from the lack of appreciation in Geneva of the vast discourse that has been taking place in legal scholarship on the reform of the DSU; and the lack of an appropriate effective interface between academe and Geneva. Thus, there have been numerous refereed articles, monographs, doctoral works, and symposiums solely focussed on dispute settlement. This lack of appreciation of legal scholarship arises from the general Geneva culture amongst trade diplomats of a lack of engagement with legal scholarship. This may well be informed by a preoccupation with other necessary priorities but equally it may be attributed to a general pragmatic civil service culture; the experiences in developing countries of the condition of scholarship; the calibre of trade diplomats; a lack of understanding of what good scholarship entails; and a questionable sense of real politic. Moreover, it does need to be observed that the dividing line between discourse that legitimately reflects the wishes of the membership and discourse that is informed by a member crazed organisation is not clear.
In the context of dispute settlement also of note is the recent Taiwanese objection to the appointment of the proposed Member by China to the Appellate Body, selected by the duly appointed selection committee of the WTO. Whatever may be the merits or demerits of the objections raised by Taiwan, what the incident which finally got resolved in China favour illustrates, is the weaknesses in the process of accountability in decision making with respect to the selection process once a decision has been made by the selection committee. Indeed, the criteria for appointment to the Appellate Body set out in the DSU are not susceptible in practice to effective objective interpretation, implementation and redress. By the same token the Taiwanese objection also highlighted the possibility of an effective political check in the process of selection of Members of the Appellate Body.