Frustration through futility: Least developed countries and the WTO’s settlement of disputes

Abstract

The lack of participation and engagement by Least Developed Countries (LDCs) in the WTO in general and in their use of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) in particular has been a continuing problem facing the WTO, tainting not only the organization as a whole but also tarnishing the crown jewels of the WTO namely the DSU. This article considers from a commercial viewpoint the many issues and barriers preventing LDCs usage of the DSU including capacity issues, costs, private sector involvement and others. Consideration is also given to specific provisional measures which are widely available and recognised within national legal regimen, have been adopted internationally by a plethora of divergent judicial, quasi-judicial and arbitral fora, and are recommended by the WTO and which are, significantly, missing from the DSU itself. The paper concludes that the addition of provisional measures to the DSU toolkit will enhance the effectiveness of the DSU by removing key structural obstacles, which hitherto have prevented LDCs from exercising their right to prosecute trade disputes with other WTO members.