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Citation: 3 Currents Int'l Trade L.J. 25 1994

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 RN
*NU A MOESABL
TRADNGEVIROMEN
ments that is part of the Uru-
guay Round of the General
Agreement on Tariffs and Trade
ne of the most
(GATT)' ambitious
concerns agree-
a massive re-
vision of the rules and procedures that
the GATT member states will use to
resolve their trading disputes. The new
dispute settlement system promises to be
more effective and predictable, helping
to ensure the future success of the multi-
lateral trading system.
Before the Uruguay Round, the dis-
pute settlement process was based on a
cumbersome, unreliable process of ad
hoc panels and consensus that was fur-
ther strained by political tensions be-
tween the member states. While the
consensus-based system was effective
during the first several years of the GATT,
by the 1970s there was growing dissatis-
faction with GATT dispute settlement
procedures. 2 For example, the United
States complained that the system pre-
vented it from enforcing its rights under
GATT because the dispute settlement
process was more political than impar-
tial. This led to the enactment of laws
such as Section 301 of the Trade Act of
1974, 4 which allows the President to take
unilateral action to remedy, among other
things, violations of trade agreements.
Subsequent amendments to the act were
expressly passed, in part to promote an
international dispute settlement system
that would produce binding results on all
participating parties.5 While this new
dispute settlement system was backed by
the United States during the Uruguay
Round negotiations, it was controversial
because some feared that it would result
in a loss of sovereignty. 6 Despite these
fears, the new dispute settlement system
promises to better protect U.S. rights
within the GATT framework.
AN
I. GATT DISPUTE SETTLEMENT BEFORE
THE URUGUAY ROUND
No analysis of the Uruguay Round's
dispute settlement mechanism would be
complete without the proper historical
context. Under Article XXIII of the
GATT of 1947, the most basic and fun-
damental method of dispute settlement
was direct negotiations between the dis-
puting parties. 7 The original agreement,
however, did not provide for any specific
procedures to be used in the dispute settle-
ment process. Necessity required the
development of certain procedures8 that
were formalized in a Tokyo Round agree-
ment on the interpretation and applica-
tion of the GATT dispute settlement
procedures. 9
Under the prior dispute settlement
system, when negotiations between the
parties failed to settle a trade dispute, the
parties could file a request for the GATT
Council to form a three to five person
panel to hear the dispute.'0 Such requests
were customarily granted even though
there was no right to have a panel."
Panel members were selected by the chair-
man of the GATT Council, with the
consent of the parties. There was a pref-
erence for including governmental em-
ployees of nations not parties to the dis-
pute,12 but the overriding goal was to
seat an independent group of panelists
with diverse backgrounds. 3 The panel's
goal was to make findings of both fact
and law that would assist the disputing
parties in reaching a solution, but these
findings carried no force until the GATT
Council ratified them by consensus.4 If
the Council found a nullification or im-
pairment of GATT obligations and ben-
efits, it would recommend the halting of
the offending practice, compensation, or
authorization of retaliation against the
PREICTBL
offending country.,, In practice, retalia-
tion in the form of GATT authorized
suspension of obligations only occurred
once. 6 Unauthorized retaliation was
more common, typically a party taking
unilateral action when offending party
blocked the adoption of a panel report.17
This blocking of panel reports by the
losing party made the Couhcil's review
and adoption of the panel report a slow,
diplomatic process. Blocking a panel
report was an easy tactic because the
Council was made up of the full mem-
bership of the GATT, and Council deci-
sions were made by consensus of all the
parties. 8 The predictable result of this
was that several panel reports were never
implemented, depriving the complain-
ing party of any protection against the
offending practice, unless it wanted to
violate GATT principles and take unilat-
eral action.' 9 Because of the risk of a
blocked panel report, bringing a country
into compliance with a panel report gen-
erally consisted of the application of dip-
lomatic pressure rather than enforcement
in the judicial sense.
To the extent that panel reports have
been adopted by the GATT Council, the
GATT dispute settlement system has de-
veloped a body of GATT law and en-
couraged reform of domestic laws that
2
were found to violate GATT principles.
However, the ability to veto the adop-
tion of panel reports was not the only
criticism of the old GATT dispute settle-
ment process. Some of the other criti-
cisms of the dispute settlement system
included:
• delays, especially at the end of the
process where panel reports were
2
adopted and implemented; '
" non-compliance by the losing par-
22
ties;
CURRENTs FALL 1994
 " ambiguity of GATT rules that en-
abled governments to avoid their ob-
ligations;23
" weakness in the panel process due to
questionable impartiality and poorly
24
drafted decisions;
" lack of use of the dispute settlement
25
system to resolve trade disputes.
One of the disputes that prompted
arguments for changes in the dispute
settlement system was the controversy
involving the provision in the United
States' tax law allowing exporters to cre-
ate Domestic International Sales Corpo-
rations (DISCs).2 6 The DISC legislation
allowed U.S. exporters to shelter income
from export sales in a DISC and defer the
payment of income taxes.2 7 DISCs were
deemed to be an export subsidy by a
GATT dispute settlement panel.28 While
this led to an overhaul of the United
States' export incentive program in the
1984 Tax Reform Act, 29 the DISC case
exposed several weaknesses in the GATT
dispute settlement process. The case took
twelve years to be resolved, and it was
not until 1981 that the United States
agreed to accept GATT's decision. 0
Other problems of the DISC case were
the result of incoherent GATT legal rea-
soning as well as deep political divisions
over GATT policies on subsidies.3 The
DISC case also highlighted the problem
of the parties not having the political will
2 request for consultations or if the re-
to abide by dispute settlement decisions .
II. GATT DISPUTE SETTLEMENT AFTER
THE URUGUAY ROUND
The Uruguay Round dispute
settlement system builds upon the
foundation and principles of the prior
system,33 but it should be more efficient
in discouraging violations of the GATT
and in enforcing GATT law.34 In creating
the new dispute settlement system, the
negotiators relied upon the following
basic principles:
" the dispute settlement system must
provide security and predictability;3 5
" the dispute settlement system must
preserve the rights and obligations of
36
the member nations;
" the prompt settlement of disputes is
essential to prevent unnecessary harm
to the trading system;37 and
" the preferred resolution of a dispute is
CuRRENTs FALL 1994
one that is mutually acceptable to the A. CONSULTATIONS
38
disputing parties.
The dispute settlement process begins
The most significant structural differ-
when an aggrieved nation makes a writ-
ence in the new dispute settlement sys-
ten request to the DSB for consultation
tem is the replacement of the consensus
with the offending party(s). The com-
vote in the GATT Council with the broad
plaint must state the reasons for the re-
oversight authority of a permanent com-
quest, the GATT measures at issue, and
mittee, known as the Dispute Settlement
the legal basis for the complaint. 46 The
Body (DSB), which is part of the World
purpose of consultations is to encourage
Trade Organization (WTO).39 Rather
the parties to reach a mutually satisfac-
than being an independent authority or
tory resolution of the dispute before re-
committee, the DSB is simply the WTO
sorting to the formal dispute settlement
General Council acting in its dispute
procedures involving the DSB, panels,
settlement role. 40 The DSB's role is to
"establish panels, adopt panel and Ap- and the Appellate Body. Consultations
have always been the preferred method
pellate Body reports, maintain surveil- 47
for dispute settlement under the GATT,
lance of implementation of rulings and
but the major distinction in the new sys-
recommendations, and authorize suspen-
tem is the fact that the DSB must be kept
sion of concessions and other obliga-
informed of all progress.48 One of the
tions under the covered agreements." 4'
reasons for this mandatory reporting is
The ultimate makeup of the DSB and
to enforce the new time limits for each
procedural rules of the body are not clear
step of the dispute settlement process.
because the DSB must establish them
For example, the offending party must
during the organization of the new
respond to a request for consultations
W'TO. 42 The major procedural require-
within ten days, and negotiations must
ment in the Dispute Settlement Under-
begin within thirty days from the date of
standing is that DSB decisions must be
43 the request. The negotiations, however,
made by consensus.
must be entered with the good faith goal
The Uruguay Round's Dispute
of resolving the dispute rather than solely
Settlement Understanding, which sets
as a means of delay. 49 To avoid unneces-
forth the new dispute settlement system,
sary delay, the parties can go directly into
outlines specific time limits for each stage
the next stage of the dispute settlement
of the dispute settlement process in great
process within sixty days after the initial
detail. 44 This aspect of the new system
thus addresses one of the long-standing
spondent fails to enter into consultations
criticisms about GATT dispute
after thirty days.50
settlement.
If consultations fail, both parties still
The dispute settlement system under
have a way to arrive at a solution before
the WTO consists of the following stan-
moving to the next stage of the dispute
dardized steps for all types of GATT
settlement process by bringing the case
trade disputes:
before the WTO Director General who
* consultation among the member states;
will offer "good offices," mediation, or
* panel process to review a member
conciliation." If it would help settle the
state's complaint;
dispute, the Director General, as part of
" adoption of panel reports;
his official duties, may offer these tools
" appellate review; and
to the parties.52 Proceedings involving
* implementation.
good offices, conciliation, or mediation
Disputes involving anti-dumping
are confidential and cannot prejudice a
laws, technical barriers to trade, subsi-
party in later proceedings in the event
dies and countervailing measures, cus-
that no solution is reached. 3 Dispute
toms valuations, sanitary and
settlement by good offices, mediation, or
phytosanitary regulations, textiles, and
consultations may be requested and ter-
services have additional procedures that
minated at any time. 4 In keeping with
must be followed, and they are described
45 the goal of encouraging resolution of
in their respective agreements.
disputes through negotiations, this can
continue independently while the panel
process continues.5
M.TU

B. PANEL HEARINGS
If a dispute is not resolved through
consultations, the next stage is the panel
process, which is similar to the old sys-6
tem formalized in the Tokyo Round.
In the new system, the DSB exercises
significant control over the selection of
panelists and panel procedures. Requests
for a panel cannot be made until consul-
tations have had time to work. The
complaining party may unilaterally re-
quest a panel after sixty days from a
request for consultations, but the time
is shortened to twenty days in cases of
urgency. Cases of urgency typically
are those disputes involving perishable
goods.5 9 When the complaining party
requests that a panel be convened, the
DSB must act on it in a timely manner,
and it can only veto a request by consen-
sus of all of its members. 60 Both parties
may jointly request a panel during the
sixty day consultation period if the dis-
61
pute is not settled.
The panel is made up of three to five
independent people nominated by the
DSB who cannot be citizens of the dis-
puting states unless those nations give
their consent, 62 and the disputing parties
generally cannot oppose a nomination
except for a compelling reason. 63 If the
parties cannot agree on the panelists
within twenty days, the WTO Director
General must consult with the DSB and
then seat a panel.
64
The Dispute Settlement Understand-
ing leaves the creation of working proce-
dures up to the DSB, but it does address
some major areas of concern. For ex-
ample, panels meet in closed sessions,
their deliberations are confidential, and
panelists' individual opinions are anony-
mous. 65 This, however, does not mean
that a country is prohibited from ex-
pressing its position or the results of the
panel deliberations to the public. 66 The
parties to the dispute do not participate
in the panel process unless the panel in-
67
vites the parties to appear before it.
This will usually be at the first substan-
tive meeting of the panel, where both
68
parties are asked to present their cases,
and at the second substantive meeting,
where the parties are asked to present any
rebuttals.6 9
Time limits are strictly followed dur-
ing the panel process. Once a panel is
convened, the parties have six to eleven
weeks to file their written submissions
I
and present their cases to the panel. The
parties then have three to five weeks to
file and present their rebuttals. After
that, the panel will submit its findings of
fact to the parties within two to four
weeks. The parties then have two weeks
to petition the panel to change the find-
ings of fact. The panel will then issue its
interim report on conclusions of fact and
law, subject to review by the parties. The
panel can make additional considerations
based upon the parties' comments. All of
this must be done within five to seven
weeks. Finally, within the two weeks
following the release of the interim re-
port, the final report is submitted to the
parties and then to the DSB members
three weeks later.7 In the end, the panels
generally should produce a report within
six months, or three months in cases of
urgency," but they can extend the pe-
riod up to nine months upon approval by
the DSB.
One of the criticisms of the prior dis-
pute settlement system centered on the
bias or inexperience of panelists, which,
it was argued, frequently resulted in im-
proper decisions. 72 This concern is par-
tially rectified by a new set of rules con-
cerning the panel, 73 improved legal sup-
port by the secretariat, 74 and the estab-
lishment of a permanent Appellate
Body. 75 While most nations believed
that almost exclusive reliance on ad hoc
panels resulted in a lack of continuity in
the interpretation of GATT law, there
was disagreement on the best way to
resolve the problem. One school of
thought feared that a permanent panel of
experts would become too much of a
political body.76 On the other hand,
many contracting parties, including the
United States, pushed for a legalistic sys-
tem that would mimic national courts
and enforce strong interpretations of
GATTlaw.7 The creation of the perma-
nent Appellate Body appears to be a
good compromise in the face of these
competing philosophies on how to con-
trol the panels.
C. ADOPTION OF PANEL REPORTS
The third stage of GATT dispute
settlement under the new system is re-
view of the panel report by the DSB as
part of its oversight function. The panel's
final report is circulated among the mem-
CuRRENTs FALL 1994
 bers of the DSB, and those members who
object to the report must put their objec-
tions into writing and submit them to the
other DSB members ten days prior to the
DSB's consideration of the report.7 The
disputing parties have the right to par-
ticipate fully in the DSB's consideration
of the panel report. The DSB cannot
consider the adoption of a panel report
earlier than twenty days after being cir-
culated to its members. The DSB must
ratify the panel report within sixty days
of the issuance of the panel report unless
it decides by consensus not to ratify the
report or a party notifies the DSB of its
79
intention to appeal.
D. APPELLATE REVIEW
The fourth stage of the dispute pro-
cess is the possibility of appellate review
of the legal issues raised by the panel
report. At this stage, only issues of law
may be considered, as the panel and the
DSB will have resolved all factual dis-
putes.8 0 In an effort to address the criti-
cism that the panel process resulted in
inconsistent interpretations of GATT
law, the Appellate Body is composed of
seven officials, at least three of whom
must hear each individual case. The mem-
bers of the Appellate Body are appointed
by the DSB, and they may not serve for
more than two four-year terms. 1 The
requirements for those who will serve on
the Appellate Body are much stricter
than those for panel membership. A
person must not be a government official
and must demonstrate an expertise in
law, international trade, and the subject
matter of the covered agreements.82
Cases before the Appellate Body must
be resolved within the specified time lim-
its. A final decision must be made within
sixty days from the date of the filing of
the appeal; however, the Appellate Body
can petition the DSB for a single exten-
sion of no more than thirty days.83 Once
the Appellate Body issues its report, the
DSB again considers whether to adopt
the report. The DSB has thirty days from
the date of the report's issuance to ratify
the Appellate Body's decision. During
this time, the disputing parties can present
their cases before the DSB, but once the
DSB ratifies the report, the parties must
unconditionally accept the decision. The
only way a report can fail to become final
CURRENTS FALL 1994
is if the DSB decides by consensus not to
adopt the Appellate Body's report.84
E. IMPLEMENTATION
After the DSB adopts a panel report
or an Appellate Body report, the losing
WTO member state has a reasonable
amount of time to begin compliance un-
der the DSB's supervision.85 The DSB's
supervision begins when the losing mem-
ber state informs the DSB of how it will
comply with the decision. This must be
done within thirty days of the adoption
of the panel or Appellate Body report.8 6
Ideally, a country should immediately
begin complying with the decision; how-
ever, there can be a reasonable delay if
immediate compliance would be imprac-
ticable. 7 In any event, implementation
of any dispute settlement report should
not exceed fifteen months, or eighteen
months on agreement of the parties to
the dispute. 8
Compliance generally requires the
changing of national laws, regulations,
and policies though the national legal
process. When a member state refuses to
begin compliance within a reasonable
time, the country may be ordered, on a
temporary basis, to pay compensation,
have privileges under GATT suspended
on a temporary basis, or face some sort of
retaliation by the complaining country
such as a higher tariff or a quota on
imports of certain goods.89 The suspen-
sion of privileges or retaliation should be
used sparingly because such relief en-
titles the "winning" state to violate the
fundamental GATT principle of most
favored nation treatment.9" Clearly, the
best solution is for all member states to
agree to comply with DSB decisions or
to compensate the "winning" state if they
refuse to comply because the alternative
of widespread retaliation could destroy
the progress GATT has made in lower-
ing trade barriers.
Ill. IMPACT OF THE IMPROVED DISPUTE
SETTLEMENT PROCESS
These fundamental changes in the dis-
pute settlement process promise to make
the GATT a more effective vehicle for
resolving trade disputes, which is an im-
portant step in lowering trade barriers.
Because the improved dispute settlement
system will be more stable and predict-
able, implementation of GATT dispute
settlement decisions should be easier;
however, this aspect of the new system
remains tempered by the fact that no
decision can be enforced on the losing
party without taking political risks. The
WTO will function at its best when the
member states cooperate with each other
to lower trade barriers. This cooperation
among the member states will lead to less
frequent use of unilateral measures to
redress trade grievances against other
countries.
A. IMPROVED IMPLEMENTATION OF
DISPUTE SETTLEMENT DECISIONS
While the Uruguay Round spells out
sweeping reforms for the dispute settle-
ment process, the prospects of its success
depend mostly on member nations' po-
litical commitment." GATT history
shows that the dispute settlement pro-
cess is most successful when a settlement
is reached through negotiations that take
place before the issuance of a panel re-
port.92 By making the process more
adjudicative in nature, the Uruguay
Round adds leverage to the process with
its institution of a permanent appellate
body. By making resistance to a settle-
ment more costly, it also makes compli-
ance more certain.
What makes the success of the new
dispute settlement process uncertain is
the danger that the member states will
not accept the results of the dispute
settlement system, which may undermine
the GATT. The problem of non-
compliance under the current system is
well known. Between 1947 and 1990,
there were a total of eighty-eight rulings
on 207 complaints filed with the GATT
for formal dispute settlement. 93 In the
sixty-eight cases where a violation was
found, the losing party complied either
by totally (37 cases) or partially (15 cases)
complying with the ruling, or achieved
the desired result for reasons independent
of the ruling (8 cases). In seven cases, the
94
losing party did not comply.
Enforcement power lies at the core of
the dispute settlement battle. The dis-
pute settlement measures under the new
system appear more powerful, requiring
nations to be more cooperative or risk
facing economic retribution. As interna-

tional trading systems, such as GATT,
peel back the layers of trade barriers and
regulations, governments will fight harder
for their parochial interests. Ironically,
the nations pushing the hardest for liber-
alized trade were also fighting the hard-
est to maintain protectionist internal poli-
cies. 95 Making the dispute settlement
system work depends on a state's will-
ingness to comply with the decision of
the DSB, even if it strikes at the heart of
a symbol of national pride. The toughest
hurdle facing the new dispute settlement
process may be altering the political atti-
tudes in various member nations.
The power of the new dispute settle-
ment process is tempered by the fact that
the GATT operates as a contract among
sovereign states to bind themselves to
more liberal trading rules, making the
function of the DSB, the panels, and the
Appellate Body more of an arbitral sys-
tem rather than a traditional court or
interpreter of laws.96 If GATT dispute
settlement decisions could bind all par-
ties, it would represent a delegation of
97
the member states' sovereign powers.
However, the dispute settlement system
is not intended to infringe on any nation's
sovereignty. For example, if the DSB
adopts a panel report that criticizes a U.S.
law, it cannot bind the United States.
Congress may decide to either change
the law or ignore the report. 98 If, how-
ever, the United States chooses not to
comply, under the terms of the GATT,
the United States is bound under the
terms of the Dispute Settlement Under-
standing to compensate the complaining
state in the form of a trade concession or
face retaliation in the form of trade bar-
riers against the export of similar U.S.
goods and services. 99 In theory, this is no
different than the current dispute settle-
ment system, except under the new sys-
tem, more disputes will reach the imple-
mentation stage, and the DSB will care-
fully supervise implementation. In the
end, it will be advantageous to comply
with adverse decisions because it will
make recovery more likely when the
United States brings a complaint against
another nation. Compliance with dis-
pute settlement decisions should foster a
greater commitment to working with all
WTO members to lower trade barriers.
B. SUCCESS DEPENDS UPON
COOPERATION
Uncertainty comes from the fact that
the member states may not be highly
committed to the dispute settlement sys-
tem and may be tempted to resort to
unilateral self-help remedies. Currently,
the member states with the greatest po-
litical influence on the GATT are the
most likely to resort to these tactics. 1
This is why the United States' promise to
aggressively use the improved dispute
settlement procedures under the Uru-
guay Round is critical to its ultimate
success.
101
Much of the lack of political will to
comply with GATT dispute settlement
decisions stems from a fundamental de-
bate over whether the dispute settlement
process should be legalistic and judicial
in nature or more informal and diplo-
matic in nature. 1°2 The legalistic ap-
proach views GATT as a code of conduct
that should be enforced by a court where
parties can expect timely adjudication of
claims and seek punishment for those
countries that do not honor their obliga-
tions.1i 3 Clearly, in the form of the Uru-
guay Round Dispute Settlement Under-
standing, the proponents of a legalistic
position have prevailed.'0 4 The effective-
ness of this "adjudicative process" re-
mains to be seen, because in a contractual
relationship such as the GATT, negotia-
tions may be the better way to achieve
effective compliance because multilat-
eral cooperation is inherently more pro-
ductive than an adversarial one.'
C. REDUCED NEED FOR UNILATERAL
MEASURES
With this promise of improved com-
pliance, the WTO members have com-
mitted themselves not to take unilateral
action against perceived violations of
trade rules. Instead, they committed
themselves to the dispute settlement sys-
tem. 1 6 Retaliatory tools available under
the United States' Section 301 and Super
301107 can only be used when the dispute
falls outside GATT's coverage.i" U.S.
Trade Representative, Mickey Kantor,
says that the Clinton Administration
plans to use Super 301 as a "strong mar-
ket-opening tool," 1 9 but only after ag-
gressively enforcing the trade agreements
aimed at opening markets."8
1
If the Uruguay Round produces an
effective dispute settlement system, the
need for unilateral strategies such as Su-
per 301 must decrease, and the use of
Super 301 could become counterproduc-
tive.111 Section 301, however, will re-
main important in its non-"super" form
because it provides the process by which
a private company can bring a request for
the United States to begin the dispute
112
settlement process on its behalf.
IV. NEEDED ADDITIONS
While on paper, the dispute settle-
ment system appears to be more struc-
tured and predictable, most operational
procedures will not be created until after
the Dispute Settlement Understanding is
in effect. These procedures should be
designed in light of the fact that GATT is
primarily a contractual agreement that
will be effective only if the member states
cooperate. To make the dispute settle-
ment system more attractive for resolv-
ing trade disputes, the operating proce-
dures should encourage quality control
and open participation in all dispute
settlement proceedings, and should in-
clude only selective review of national
policies.
A. QUALITY ASSURANCE
Because the Uruguay Round Dispute
Settlement Understanding creates a more
stable and predictable system, there is the
risk that there will be an increased num-
ber of complaints. The new system should
be more useful to nations with griev-
ances. This requires that the dispute
resolution bodies be adequately staffed
and funded to ensure quality decision
making, especially the permanent Ap-
pellate Body with its full-time staff. If
the WTO institutions do not produce
well-reasoned and independent results,
the whole dispute settlement system
could collapse." 3 Because of this, the
procedures to be developed by the DSB,
especially for the Appellate Body, must
have special safeguards.
One of the most effective measures to
ensure the overall quality of the deci-
sions would be to formalize the concept
of precedent with regard to the Appellate
Body's decisions and make them binding
on the panels. Currently, while panels
CURRENTs FALL 1994
 tend to consider prior panel decisions as
1 14
persuasive, they are not bound by them.
This tradition of using prior decisions
for guidance has developed to the point
where parties to disputes have begun
citing prior panel rulings in their argu-
ments before panels. ' Formally imple-
menting the concept of precedent would
provide additional predictability to the
system because it would provide con-
straints on the scope of the panels' deci-
sions. Throughout its existence, the
Figure A: WTO Dispute Settlement Flowchart
WTO Dispute Settlement Flow Chart from Focus No. 107
Cuiu mN'rs FALL 1994
GATT dispute settlement process has
been more diplomatic and political rather
than legalistic. With the move to a more
legalistic approach, following sound le-
gal reasoning established in earlier cases
would ensure better legitimacy in the
dispute settlement process.
Another effective quality control mea-
sure is to require high standards for those
who serve on the panels and on the Ap-
pellate Body and the DSB. The Uruguay
_ IC
Round lays the foundation for ensuring
the quality of individuals involved in the
process by putting panel selection under
the control of the DSB. Additionally,
the WTO Secretariat has the responsibil-
ity of assisting panels and providing tech-
nical support in the areas of law and
historical matters." 6 Members should
have good political judgment, because
the GATT institution is still more politi-
cal than judicial in nature, but they will
also have to display a certain degree of
independence as they shape GATT law." 7
B. U.S. CONCERNS
In response to these concerns over the
quality of the dispute settlement process,
U.S. legislators agreed to support the
Uruguay Round implementing legisla-
tion in return for the promise of admin-
istration support of a panel of five appel-
late judges, appointed by the President in
consultation with the Congressional lead-
ership, who would review all dispute
settlement decisions that are adverse to
the United States."' While the details of
the WTO Dispute Settlement Review
Commission's functions are not formal-
ized, it is agreed that if this panel finds
that the DSB exceeds its authority, Con-
gress could then introduce a joint resolu-
tion calling on the President to negotiate
new dispute settlement rules to relieve
the problem. Additionally, if the panel
makes three such determinations within
a five year period, Congress would be
able to introduce a joint resolution to
commence withdrawal from the
GATT." 9 This agreement is unneces-
sary in light of the review provisions in
the Uruguay Round implementing legis-
lation,' 2 but it does serve to put the
WTO on notice that the United States
will not accept any dispute settlement
decisions that are not well reasoned and
based on the principles of the GATT
agreements.
C. OPEN PROCEEDINGS
One of the major criticisms of the
WTO is that the proceedings are confi-
dential. Excessive secrecy has been harm-
ful to the GATT's current dispute settle-
ment system because it feeds suspicions
of those opposed to multilateral dispute
settlement. Even though GATT dispute
settlement is only open to sovereigns,

any effective judicial body needs to oper-
ate under public scrutiny. 2' Addition-
ally, it is suggested that parties not di-
rectly involved in the dispute, such as
companies and industries being harmed
by unfair trading practices, should be
able to participate in the panel process
rather than being relegated to the front
steps of the WTO headquarters. Non-
governmental organizations or experts
could provide useful advisory opinions
by presenting briefs on behalf of all WTO
members who may be impacted by the
panel decision. In addition, allowing
outside experts to give advisory opinions
would raise the expertise level of the
panel members who must deal with2 2a
multitude of highly technical matters.
D. REVIEW OF NATIONAL POLICIES NOT
IN DISPUTE
Because all GATT complaints are the
result of internal legislation and policies
of another WTO member state, there is
inherently a certain amount of reviewing
of national policies undertaken by the
panels. Even under the new dispute settle-
ment system, no procedures or guide-
lines exist governing the standard of re-
view. The United States has advocated
establishing clear guidelines for dealing
with the standard of review to be used by
the various dispute settlement bodies. Its
position is that on matters of fact, the
panel should not substitute its judgment
for that of the domestic institutions un-
less their judgment is clearly erroneous.
On matters of law, the panel should not
overturn a domestic regulation or policy
unless it clearly conflicts with a provi-
sion of the GATT. 12I This policy ac-
knowledges that panelists and Appellate
Body members are not the most quali-
fied judges of national matters, but it
does acknowledge their power over
GATT law which is limited due to its
contractual nature, "supported by only
the most shallow habits of legal obedi-
24
ence."1
V. CONCLUSION
While the Uruguay Round creates a
dispute settlement system that is more
legalistic and adjudicative in nature, it
I
adheres to the fundamental principles of
dispute settlement under the original
GATT. It encourages negotiations and
compromised solutions to trade disputes,
but the new understanding also adds a
permanent Appellate Body that will add
support to the panel system which should
make the entire process much more pre-
dictable when the parties cannot find an
amicable solution. The true effectiveness
of the dispute settlement system awaits
an indication of member states' willing-
ness to use it and to abide by its decisions.
Ultimately that will require political com-
mitment to the GATT concepts of free
trade. The WTO/GATT is still a work in
progress but with a high commitment to
the dispute settlement system, the WTO
member states can insure the procedures
will develop which ensure the success of
the multilateral trading system.
by William P. Haddock

ENNOE

1. See generally Final Act of the
Uruguay Round of Multilat-
eral Trade Negotiations,
opened for signature Apr. 15,
1994, 33 I.L.M. 11 (1994). The
agreement was signed on April
15, 1994 in Marrakesh, Mo-
rocco by representatives from
over 100 countries. The WTO
Is Born, GATT Focus, May
1994, at 1. President Clinton
signed the implementing legis-
lation to incorporate the Uru-
guay Round agreements into
U.S. law on December 8, 1994.
Uruguay Round Agreements
Act, Pub. L. No. 103-465, 108
Stat. 4809 (Dec. 8,1994). Pas-
sage of the Uruguay Round in
the United States cleared one
of the final hurdles before the
World Trade Organization
could come into being onJanu-
ary 1, 1995 because several
countries waited to see whether
the United States would adopt
the agreement.
2. William J. Davey, Dispute
Settlement in GATT, 11
FORDHAM INT'L L.J. 51, 61-64;
Julius L. Katz,GA TTis Threat-
ened by the Squeamish...,
WALL. ST. J., Aug. 30, 1994, at
A10. Much of this discontent
was based on a debate over the
fundamental nature of GATT
dispute settlement. As GATT
has evolved, some critics have
advocated that the dispute reso-
lution system should be more
judicial so it will generate more
precise opinions on the merits
of each dispute and the deci-
sions can be implemented more
easily. PIERRE PESCATORE ET
AL, HANDBOOK OF GATT Dis-
PUTE SETTLEMENT 75 (1994).
Developing countries also like
the legalistic approach, as they
see it as the most effective pro-
tector of their rights. On the
other hand, many countries
believe that the dispute resolu-
tion process should be used
only to the extent that it facili-
tates negotiated settlements of
trade disputes. Id. at 76. Ad-
vocates of this position include
the European Union andJapan
because they feel that a formal-
ized legal framework would un-
dermine the process of reach-
ing a consensus through nego-
tiations between sovereign
states. Id. at 75; R. Phan van
Phi, A European View of the
GA7T, 141NT'L BuS. LAW.,Feb.
1986, at 150, 151.
3. H.R. Rep. No. 571,93d Cong.,
1st Sess. 66-67 (1973),
microformed on CIS No. 73-
H783-21 (Congressional Info.
Serv.).
4. Pub. L. No. 93-618, 88 Stat.
1978, 2041-43 (1974) (codified
as amended at 19 U.S.C. 5 2411
(1988)).
5. Omnibus Trade and Competi-
tiveness Act of 1988, Pub. L.
No. 100-418, S 1101(b), 102
Stat. 1107, 1121 (1988) (codi-
fied as amended in scattered
sections of 19 U.S.C. (1988)).
One of the objectives of the
legislation was "to provide for
more effective and expeditious
dispute settlement mechanisms
and procedures; and to ensure
that such mechanisms within
the GATT and GATT agree-
ments provide for more effec-
tive and expeditious resolution
of disputes and enable better
enforcement of United States
rights." Id.
6. E.g., Documents Relatingto the
Clinton Administration's
Agreement With Sen. Robert
Dole (R-Kan) Concerning the
Uruguay Round Agreement,
Issued by the WhiteHouseNov.
23, 1994, 11 Int'l Trade Rep.
(BNA) 1865 (Nov. 30, 1994)
[hereinafter Dole Agreement].
7. General Agreement on Tariffs
and Trade, Oct. 30, 1947, art.
XXIII, 61 Stat. A5, A64, 55
U.N.T.S. 188, 266-68 [herein-
after GATT of 1947].
8. Id.; PESCATORE supra note 2, at
72.
9. Agreement on Interpretation
& Application of Articles VI,
XVI, & XXIII of the GATT,
Apr. 12, 1979, art. 18,31 U.S.T.
514, 540-42, [26 Supp.] GATT
BASIC INSTRUMENTS AND SE-
LECTED DOCUMENTS [B.I.S.D.],
56, 76-77 [hereinafter Agree-
ment of 1979]. This under-
standing from the Tokyo
Round did not completely si-
lence the criticisms of the dis-
pute settlement process, and
further attempts at reforms
were made in the 1980s. E.g.,
MinisterialDeclaration, GATT
Doc. L/5424,adoptedNov. 29,
1982, [29 Supp.] B.I.S.D. 9, 13-
15; Dispute Settlement Proce-
dures, GATT Doc. L5752, [31
Supp.] B.I.S.D. 9.
10. Agreement of 1979,supranote
9, 31 U.S.T. at 540-42, [26
Supp.] B.I.S.D. at 75-77;
Andreas F. Lowenfeld, Rem-

ME-
CURRENTS FALL 1994
 edies Along With Rights: Insti-
tutional Reform in the New
GATT, 88 AM. J. INT'L L. 477,
479 (1994).
11. Rosine Plank, An Unofficial
Description of How a GATT
Panel Works and Does Not, J.
INT'L ARB., Dec. 1987, at 53,
53.
12. Agreement of 1979, supranote
9, art. 18, 3,31 U.S.T. at 541,
[26 Supp.] B.I.S.D. at 77.
13. Id. art. 18,915,31 U.S.T. at 541,
[26 Supp.] B.I.S.D. at 77.
14. Seeld. 9,31 U.S.T.at542,[26
Supp.] B.I.S.D. at 77.
15. Plank, supranote 11, at 91-92.
16. Action Under Art. XXIII to
Suspend Obligations (Neth. v.
U.S.), [1 Supp.] B.I.S.D. 32-33,
62-64 (Nov. 8, 1952).
17. Plank, supra note 11, at 92.
18. Lowenfeld, supra note 10, at
479-80.
19. Plank, supra note 11, at 90.
20. Davey, supra note 2, at 79-80.
21. Id. at 91. For all GA'T panels
that were convened from
March 1988 to August 1992,
the median time from a request
for a panel until publication of
its completed report was 395
days. Gary N. Horlick & F.
Amanda DeBusk, Dispute
Resolution Under NAFTA:
Building on the U.S.-Canada
FTA, GATT and ICSID, J.
WORLD TRADE, Feb. 1993, at
21,36. After publication of the
report, the median time until
adoption by the GATI was
249 days. Id. These times are
more than twice the amount of
time allowed under chapter 20
of the North American Free
Trade Agreement. Id. at 36.
22. ROBERT E. HUDEC, ENFORCING
INTERNATIONAL TRADE LAW:
THE EVOLUTION OF THE MOD-
ERN GATT LEGAL SYSTEM 200
(1993). While under the prior
system, a country that did not
like an adverse ruling could uni-
laterally veto implementation
of the decision, the new dispute
resolution system remedies this
by requiring a consensus
against the establishment of
panels or the adoption of the
panel reports for these deci-
sions not to be made. The WTO
DisputeSettlement Mechanism,
GATT Focus, May 1994, at
12.
23. HUDEC, supra note 22, at 265-
67. One of the problems with
the dispute settlement system
was that the authority to estab-
lish panels, adopt panel reports,
enforce rulings, and authorize
retaliatory measures in cases of
non-implementation were frag-
mented between the GATT
Council and its various com-
mittees. See The WTO Dispute
Settlement Mechanism, supra
note 22, at 12. Additionally, no
CURRENTS FALL 1994
standard set of procedures gov-
erned the dispute resolution
process. This led to a system
that was easily abused and ma-
nipulated. John H. Jackson,
The Constitutional Structure
for InternationalCooperation
in Trade in Services and the
Uruguay Round of the GATT,
in THE MULTILATERAL TRAD-
ING SYSTEM: ANALYSIS & OP-
TIONS FOR CHANGE, 351, 372
(Robert M. Stern, ed., 1993).
24. Davey, supra note 2, at 88-89.
25. Id. at 81.
26. See generally Revenue Act of
1971, 55 501-07, Pub. L. No.
92-178, 85 Stat. 497, 535-53.
The DISC has been replaced
by legislation dealing with For-
eign Sales Corporations. I.R.C.
S 921-27 (1988 & West Supp.
1994).
27. Robert E. Hudec, Reforming
the GA TT Adjudication Pro-
cedures: The Lesson of the
DISC Case, 72 MINN. L. REv.
1443, 1446 (1988).
28. United States Tax Legislation
(EC v. U.S.), [23 Supp.] B.I.S.D.
98, 112-114 (Nov. 12, 1976).
29. See generally I.R.C. §5 921-27
(1988 & West Supp. 1994). One
of the major differences be-
tween the FSC and the DISC is
that the FSC provides for tax
exemptions while the DISC
only provided for tax deferrals.
David H. Culpepper & Steve
C. Wells, Tax Incentives for
Small Exporters, J. AccouN-
TANCY, October 1993, at 39.
30. Hudec, supra note 27, at 1481,
1500. Consultations did not
even begin until seven months
after the EC filed its complaint.
Id. at 1460. Once a panel was
established, it took three
months to establish panel pro-
cedures. Id. at 1461.
31. Id. at 1506.
32. Julia Chrisine Bliss,GA TTDis-
pute Settlement Reform in the
UruguayRound:Problemsand
Prospects,33 STAN. J. INT'L L.
31, 50 (1987).
33. Understanding on Rules and
Procedures Governing the
Settlement of Disputes,opened
for signature Apr. 15, 1994, S
3.1, 33 I.L.M. 112, 115 (1994)
[hereinafter DS Understand-
ing].
34. PESCATORE, supranote 2, at 77.
35. DS Understanding, supranote
33, 3.2, 33 I.L.M at 115.
36. Id.
37. Id. 53.3, 33 I.L.M. at 115.
38. Id. 53.4, 33 I.L.M. at 115.
39. Id. 2.1, 33 I.L.M. atl14. The
DSB operates under the Minis-
terial Conference and General
Council of the World Trade
Organization. Agreement Es-
tablishing the Multilateral
Trade Organization,openedfor
signature Apr. 15, 1994, art.
IV, 1, 3, 33 I.L.M. 15, 16
(1994) [hereinafter MTO
Agreement]. The WTO is also
created by the Uruguay Round
agreements. One of its several
express functions is to "admin-
ister the Understanding on
Rules and Procedures Govern-
ing the Settlement of Disputes."
Id. art III, 1 3, at 33 I.L.M. at
16. Details of the WTO's oper-
ating procedures are still unde-
fined, but the framework pro-
vided by the Uruguay Round
does give the WTO more power
than the current institutional
framework, especially in the
area of dispute settlement.
GATT and the Uruguay
Round, 11 Int'l Trade Rep.
(BNA) 102 (Jan. 19, 1994).
40. PESCATORE, supra note 2, at 72.
41. DS Understanding, supranote
33, S 2.1, 33 I.L.M. at 114.
42. MTO Agreement, supra note
39, art. IV, 3,33 I.L.M. at 16.
43. DS Understanding, supra note
33, § 2.4, 33 I.L.M. at 114. The
understanding defines a con-
sensus as an instance where no
memberpresent at a DSB meet-
ing formally objects to the pro-
posed decision. Id. § 2.4, n.1,
33 I.L.M. at 114.
44. E.g., id. 516.4,33 I.L.M. at 123
(mandating adoption of apanel
reports by the DSB within 60
days of their issuance).
45. Id. app. 2, 33 I.L.M. at 132.
46. Id. S 4.4,33 I.L.M. at 116.
47. GATT of 1947, supra note 7,
art. XXIII, 61 Stat. at A64, 55
U.N.T.S. at 266-68; Agreement
of 1979, supra note 9, arts. 3,
12,17,31 U.S.T. at 522-23,534,
540, [26 Supp.] B.I.S.D. at 60-
61, 71, 75-76.
48. See DS Understanding, supra
note 33, §4.3,33 I.L.M. at415-
16.
49. id.
50. Id.
51. Id. 5 5.1, 33 I.L.M. at 17; The
WTO Dispute Settlement
Mechanism, supra note 22, at
12. If good offices are used, the
Director General's office is used
as a mediator. See DS Under-
standing, supra note 33 S 5.1,
33 I.L.M. at 117; Agreement of
1979, supra note 9, art. 17, 31
U.S.T. at 540, [26 Supp.]
B.I.S.D. at 75-76; Plank, supra
note 11, at 61. In practice, re-
sort to good offices is rare.
Plank, supra note 11, at 62.
52. DS Understanding, supra note
33 §5.6,33 I.L.M. at 118.
53. Id. § 5.2, 33 I.L.M. at 117.
54. Id. § 5.3, 33 I.L.M. at 117.
55. Id. 5.5, 33 I.L.M. at 118.
56. See Agreement of 1979, supra
note 9, art. 18, 31 U.S.T. at
540-42, [26 Supp.] B.I.S.D. at
76-77.
57. DS Understanding, supranote
33, § 4.7, 33 I.L.M. at 117.
58. Id. § 4.8, 33 I.L.M. at 117.
59. Id.
60. Id. § 6.1, 33 I.L.M. at 118.
61. Id. § 4.7, 33 I.L.M. at 117.
62. Id. § 8.3,33 I.L.M. at 118. It is
suggested that this rule is not
persuasive when the panel
members are private individu-
als rather than government em-
ployees. Lowenfeldsupranote
10, at 483.
63. DS Understanding, supra note
33, § 8.6, 33 I.L.M. at 119.
64. Id. 5 8.7, 33 I.L.M. at 119.
65. Id. §§ 14.1,14.3, app. 3, 9 2-3,
33 I.L.M. at 122, 132.
66. Id. app. 3,913,33 I.L.M. at 132.
67. Id. 9 2, 33 I.L.M. at 132.
68. Id. 9 5, 33 I.L.M. at 133.
69. Id. 9 7, 33 I.L.M. at 133.
70. Id. 9112, 33 I.L.M. at 133-34.
71. Id. 9 12.8, 33 I.L.M. at 121.
72. Plank, supra note 11, at 96;
Davey, supra note 2, at 88-89.
73. DSUnderstanding, supranote
33, §§ 8.1-8.9, 33 I.L.M. at 118-
19. The overriding policy be-
hind the establishment of the
panels is that they should be
made up of "well-qualified gov-
ernmental and/or non-govern-
mental individuals, including
persons who have served on or
presented a case to a panel,
served as a representative of an
MTO Member or of a con-
tracting party to the GATT
1947." Id. § 8.1, 33 I.L.M. at
118. In addition, panelists
should have a "sufficiently di-
verse background and a wide
spectrum of experience." Id. S
8.2, 33 I.L.M. at 118. Most
importantly, members must
serve in their individual capaci-
ties and not in their capacities
as governmental representa-
tives or representatives of any
particular organization. Id. §
8.9, 33 I.L.M. at 119.
74. Id. § 27, 33 I.L.M. at 131.
75. Id. § 17.1-17.8, 33 I.L.M. at
123-24.
76. Plank, supra note 11, at 96-97.
77. See Bliss, supra note 32, at 50.
78. DS Understanding supra note
33, § 16.2, 33 I.L.M. at 122.
79. Id. § 16.4, 33 I.L.M. at 123.
80. Id. § 17.6, 33 I.L.M. at 123.
81. Id. S§ 17.1-17.2, 33 I.L.M. at
123. The Dispute Settlement
Understanding presumably
will allow a member of the Ap-
pellate Body to hear an appeal
when his country is one of the
parties to the dispute since there
is no express prohibition in the
agreement. Lowenfeld, supra
note 10, at 484.
82. DS Understanding, supra note
33, § 17.3, 33 I.L.M. at 123.
83. Id. § 17.5, 33 I.L.M. at 123.
84. Id. § 17.14, 33 I.L.M. at 123.
This automatic adoption pro-
cess eliminates the common
delay associated with the los-
ing nation blocking panel deci-
 sions before consenting to
adoption of a panel report.
PESCATORE, supra note 2, at 80.
85. DS Understanding, supranote
33, 21.5, 33 I.L.M. at 126.
86. Id. 5 21.3, 33 1.L.M. at 126.
87. Id. Reasonableness is defined
as either: (1) the period of time
approved by the DSB, (2) the
period of time mutually agreed
to by the parties within 45 days
following the adoption of the
decision, or (3) a period of time
determined through binding ar-
bitration within 90 days fol-
lowing the adoption of the de-
cision. Id.
88. Id. SS 21.3-21.4, 33 I.L.M. at
126.
89. Id. S 22.2, 33 I.L.M. at 126.
These measures are only tem-
porary and are intended to en-
courage compliance. Id. S22. 1,
33 I.L.M. at 126.
90. Lowenfeld, supra note 10, at
487.
91. HUDEC, supra note 22, at 364.
92. Id. at 361.
93. HUDEC, supra note 22, at 273,
278.
94. Id. at 278-79.
95. Erik R. Peterson,LoomingCol-
lision of Capitalisms?, WASH.
Q., Spring 1994, at 65.
96. James R. Cannon, Jr. & Karen
L. Bland, GATT Panels Need
RestrainingPrinciples,24 LAW
& PoL'Y INT'L Bus. 1167, 1169
(1993).
97. Id. at 1173.
98. Helene Cooper, World Trade
Organization Created by
GA TTIsn 't the Lion of Its Foes
or the Lamb of Its Backers,
WALL ST. J., July 14, 1994, at
A12 (quoting U.S. Trade Rep-
resentative, Mickey Kantor);
U.S. to Use GATT Dispute
Settlement 'Aggressively,' Of-
ficial Predicts, 11 Int'l Trade
Rep. (BNA) 30 (Jan. 5, 1994).
99. DS Understanding, supra note
33, 33 I.L.M. at 126-28.
100.1d. 33 I.L.M. at 365.
101. U.S. to Use GATT Dispute
Settlement 'Aggressively,'supra
note 98, at 30.
102. PESCATORE, supra note 2, at 75.
103. Id. The primary proponents of
the legalistic approach are the
United States, Canada, New
Zealand, Hong Kong, Austra-
lia, most non-European devel-
oped nations, and developing
nations. Id.; Bliss, supra note
32, at 50. The informal process
of dispute settlement is favored
by Japan and the EU.
PESCATORE, supra note 2, at 75.
104. Bliss, supra note 32, at 50.
Among the policies that the
proponents of the legalistic
view sought were: (1) strict time
limits, (2) full time panelists,
(3) exclusion of the disputing
parties from the decision mak-
ing process as it pertains to the
particular case, (4) greater in-
dependence of the dispute
settlement bodies. Id.
105. One of the first tests of the new
dispute resolution system could
be over the legality of the For-
eign Sales Corporation (FSC).
I.R.C. 55 921-27 (1988 &West
Supp. 1994). Boeing is making
much use of this device to help
finance the export sales of its
commercial jetliners. Trevor
French,FlyingFSCsAngerAir-
bus: Airbus Industrie on US
Aircraft Manufacturers'Use of
Foreign Sales Corporations,
AIRLINE BUSINESS, May 1993,
at 21, available in LEXIS,
NEWS Library, ASAPII File.
Airbus has accused Boeing of
benefiting from a direct tax sav-
ings of $85 million in 1992 from
its use of FSCs in the sale of
aircraft to both domestic and
foreign airlines. Id. The FSC is
no less controversial than the
DISC because, like the DISC,
they are largely paper corpora-
tions created to generate a tax
advantage. Congress, however,
believes they have enough for-
eign presence and economic
substance to meet GATT's re-
quirements to exempt foreign
export income. Chapter on
Revenues From Congressional
Budget Office Report, "Reduc-
ing the Deficit. Spending and
Revenue Options," Issued
March 21, 1994, [1994] Daily
Report for Executives (BNA)
124 (March 22, 1994), avail-
able inLEXIS, EXEC Library,
DREXEC File. U.S. aircraft
manufacturers can even receive
these benefits from sales of air-
craft to domestic airlines if the
aircraft spends at least half of
its operating time overseas.
French, supra, at 21.
106. The WTO Dispute Settlement
Mechanism, supra note 22, at
12.
107. 19 U.S.C. SS 2040(a)(1)(C),
2411 (1988).
108. See 15 C.F.R. 5 2006.6 (1994)
(requiring use of dispute settle-
ment proceedings in a trade
agreement).
109. Text of Kantor Statement on
Super 301, Reuters, Mar. 3,
1994, available in LEXIS,
NEWS Library, RENNA File;
Exec Order 12,901, 59 Fed.
Reg. 10,727 (1994) (extending
the life of Super 301 beyond its
expiration date).
110. U.S. Plans New Pressure on
Other Nations to Open Mar-
kets, U.S. Official Says, Int'l
Trade Daily (BNA), May 18,
1993, available in LEXIS,
ITRADE Library, BNAITD
File.
111. Alan 0. Sykes, Constructive
Unilateral Threats in Interna-
tional Commercial Relations:
The Limited Case for Section
301, 23LAW& POL'YINT'LBus.
263, 267 (1992). On the other
hand, actual experience shows
that Section 301 has been mod-
erately useful at opening mar-
kets. Id. at 268.
112. 19 U.S.C. 5 2419 (1988); 15
C.F.R. SS 2006.1-2006.2
(1994); U.S. to Use GA TTDis-
pute Settlement 'Aggressively',
supra note 96, at 30.
113. What's Neededfor the GATT
After the Uruguay Round, 86
AM. Soc'Y INT'L L. PROC. 69,
78 (1992).
114. See, e.g., Restrictions on Im-
ports of Dessert Apples (Chile
v. EC), [36 Supp.] B.I.S.D. 93
(June 22, 1989). Most recent
casespublished in B.I.S.D. con-
tain citations to prior cases
ratherthan "the earlierpractice
of trying to hide the common
law process by using cryptic
BISD citations (e.g.,'1 IS/188')
that only insiders could under-
stand." HUDEC, supra note 22,
at 265.
115. E.g., Payments and Subsidies
Paid to Processors and Pro-
ducers of Oilseeds (U.S. v. EC),
[37 Supp.] B.I.S.D. 86, 99 (Jan.
25,1990) (the United States cit-
ing prior decisions of GATT
panels in its argument before
the panel). Even though the
E.U. is comprised mostly of
civil law countries, it relied on
reasoning in the Chilean des-
sert apples case of 1989 in rep-
resenting its case. Id. at 118.
116. DS Understanding, supra note
33, 5 27.1, 33 I.L.M. at 131.
117. What's Neededfor the GA TT,
supra note 113, at 70.
118. Dole Agreement, supra note 6,
at 1865. This agreement has
been strongly criticized by
other GATT members as an
act to unilaterally rewrite the
terms of the agreement to suit
U.S. interests. U.S. Backing
Puts New Trade Era on Track
but Questions Still Remain,
Int'l Trade Daily (BNA), Dec.
5, 1994, available in LEXIS,
ITRADE Library, BNAITD
File.
119. Dole Agreement, supra note 6,
at 1865.
120. See Uruguay Round Agree-
ments Act, supranote 1, 5 125
(describing the procedures
Congress is to use to disap-
prove of U.S. participation in
the GATT).
121. See Timothy M. Reif, Coming
ofAge in Geneva: Guidingthe
GA TTDispute Settlement Sys-
tem ofReview ofAntidumping
and CountervailingDuty Pro-
ceedings, 24LAW& POL'Y INT'L
Bus. 1185, 1197 (1993). The
U.S. implementing legislation
requires the U.S. Trade Repre-
sentative to publish notice of
the initiation of dispute settle-
ment proceedings in the Fed-
eral Register. Uruguay Round
Agreements Act, supra note 1,
§ 127(b)(1). Additionally, the
U.S. Trade Representative must
make all documents used in dis-
pute settlement available to the
public except for those docu-
ments containing proprietary
information or information
treated as confidential by a for-
eign government. Id. S 127(c).
122. What's Needed for GATT,
supra note 113, at 78-79. Rep-
resentatives of all WTO mem-
bers will, of course, be able to
represent their countries when
the panel or Appellate Body
decision is adopted by the DSB.
See DS Understanding, supra
note 33, S 16, 33 I.L.M. at 122-
23; MTO Agreement, supra
note 39, art. I, 1, 3,33 I.1.M.
at 16.
123. Reif, supra note 121, at 1190.
124. HUDEC, supra note 22, at 358.
CURRENTS FALL 1994