World trade dispute resolution and developing countries : taking a development approach to fair adjudication in the context of WTO law
The founding of the World Trade Organization in 1995, was hailed as a new era in resolving global trade disputes, with many academicians espousing a constitutionalised vision of world trade law. The constitutional evolution of WTO law is founded, not only on the text of the WTO Covered Agreements, but is also buttressed exceedingly by precedence and norms that are generated through adjudication by the panels and the standing WTO Appellate Body. Today, as is with most mature legal systems, international lawyers and academics avidly critique WTO jurisprudence and the interpretive methodology of its adjudicators. However, there is a dearth of scholarship on the implications of WTO law interpretation on developing nations. This thesis fills this void in research by constructing a framework for analysing the jurisprudence of the WTO from the perspective of developing nations. Subsequently, it proceeds to evaluate three agreements which are important for developing nations, i.e., the DSU and due process rights, the TRIPS Agreement, and the Antidumping Agreement. To this end, the framework for analysis is termed "the development approach" to fair adjudication, which is grounded on established legal concepts of legitimacy, justice and ultimately fairness. The thesis demonstrates that a fair trading regime entails more than seemingly balanced treaty texts, but rather that adjudication of the treaties must include an approach, which recognises and accounts for the effects of interpretation on development. To this end, the adjudicators have to go beyond merely finding the literal meaning of the treaty text, but embrace an approach, which is guided by the context and purpose of WTO provisions. The analysis reveals that the adjudicators of the WTO have failed to recognise the nexus between interpretation and development and as such, have created a body of case law that harms the development ambitions of third world countries.