Asif H. Qureshi

Participation of Developing Countries in the WTO Dispute Settlement System

In this article, a brief statistical account of the participation of developing members in the WTO dispute settlement system is given. This account is set against a consideration of the criteria for measuring the participation of developing members in the WTO dispute settlement system. This is followed by a focus on how the “developing condition” has been argued and taken into consideration in the dispute settlement practice of the WTO. Finally, some of the principal problems involved in participation, along with suggested reforms, which relate to the participation of developing members in the WTO dispute settlement system, are considered.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process. 1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES. 2 The US prohibition arose from section 609 of Public Law 101–162 3 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panels report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report. 4

A Necessity Paradigm of ‘Necessity’ in International Economic Law

This article focuses on the management of circumstances of calamity generally in IEL, as well as calamity as a necessity in international economic relations in the framework of State Responsibility. The focus on calamity as a necessity defence to State Responsibility is however from a ‘necessity paradigm’—i.e., from the view point of responding effectively to circumstances of calamity, which call for a necessary response, wherein the calamity is the centre of focus. This is in contrast to the stand-point of State Responsibility wherein honouring State Responsibility is central and informs the response to the necessity circumstance (the ‘State Responsibility paradigm’). The necessity paradigm of calamity is grounded mainly on justice and development imperatives, along with the conclusion that the State Responsibility paradigm can be incomplete in its response to the calamity; as well as incoherent from the perspective of the world economic order as a whole. The general focus on calamity in International Economic Law adopted here is with specific reference to its key spheres viz., international monetary and financial law within the framework of the IMF; international trade in the context of the WTO; International Development Law, particularly with reference to international investment practice; and finally with an examination of global economic crisis management.