ࡱ> %` Rbjbjٕ@΋%  8$f("fff'''''''$)h`, ()ff)) (T (9"9"9")N'9")'9"9"9" 0 _w 9"'6(0f(9",5!,9",9"f@9"44fff ( (!jffff())))  7.5 years with The WTO Dispute Settlement: Its Nature and Problems Yasuhei Taniguchi From 1959 I was teaching and researching in civil procedure and bankruptcy at Kyoto University. I did nothing in the field of public international law or international trade law. To my great surprise in the year 2000, however, I was invited to become a candidate for and eventually elected a member of the Appellate Body of the World Trade Organization (WTO) based in Geneva, Switzerland. It was a challenging experience in an environment which was very different from that of academic life. There are 7 members in the Appellate Body coming from various parts of the world all serving on the part-time basis. So, for seven and a half years I commuted to Geneva to work on the WTO law and taught civil procedure whenever I was back in Japan. Each Appellate Body member can serve maximum 2 terms and for 8 years. But I was appointed to fill the vacancy created by sudden death of a New Zealander member who had just started his second term. So, my first term was only 3.5 years. After a re-appointed for full four years, my term expired in December 10, 2007. I was glad to complete the second term alive because my colleague from Australia also passed away suddenly soon after he entered into his second term. Our contract with WTO requires us to fly to Geneva from respective places of residence at short notice. Under this contract, a New Zealander first prematurely passed away and an Australian followed. I thought there was a law: The longer you must fly to Geneva, the shorter will be your life. If this law applied, I would have been the next victim in order. Fortunately it did not happen. But I fell seriously ill, instead, last fall just when my second term was about to expire. Thanks to a good medical care I not only escaped from becoming the third victim but I can also be here today on the podium of Shanghai Jiao Tong University where my former student and long-time respected friend, Professor Ji Wei-dong is becoming the dean of the law faculty. Today, I would like to talk about the dispute settlement system of the WTO. I engaged in that part of activity of WTO fro seven and a half year. I dealt with the WTO law there while, at the same time, teaching civil procedure in Japan. These two areas may look very remote from each other but I did not become schizophrenic at all. I was rather fascinated by the procedural aspects of the WTO dispute settlement. WTO belongs to the public international law and civil procedure has very little to do with public international law. During my years in Geneva, I kept thinking about WTO dispute settlement system from my proceduralist eye. I would like to talk today about what I thought during my days in Geneva. I joined the Appellate Body without much knowledge about WTO. After several months, I thought it was like an ancient Greek village in which there was a primitive form of democracy but there was no central political power in the modern states. I do not know if such a village really existed in ancient Greece. This is just an imaginary village in my fantasy. This little village is inhabited by members of some 150 households. Each household includes a considerable number of family members. Every affair of the village is managed by an assembly attended by the heads of all households, each representing the interest of his family. Under the principle of complete autonomy and direct democracy, there is no separation of powers in this village. All legislative, administrative and judicial functions are exercised by the assembly itself. When there is a dispute, the head of household concerned can file a complaint with the assembly. Such a complaint is filed when there is alleged violation of a rule laid down by the founder of the village. The assembly being busy and lacking the necessary expertise employs a group of experts for hearing the complaint. A group of three experts called Panel is employed to hear both parties, examine evidence and make a report to the assembly about what the assembly should do. If the assembly adopts the recommendation, it becomes a binding decision by the assembly. If the losing househead does not want to accept the decision, he can appeal. For that purpose, the assembly permanently retains a group of seven experts called Appellate Body. I had the honor to become one of them. Therefore, let me explain the way we work there. Appellate Body functions by a Division of three out of 7 members by a secret system of rotation. Each Division is presided over by one of its three members. Although a division is responsible for hearing and deciding the assigned appeal, other four members are also consulted through a meeting called Exchange of Views which normally last for two full days. A Division must decide within maximum 90 days of the filing of appeal. First 30 days or more are taken by exchanges of submissions by the parties and the third party participants. The last two weeks are taken by translation of our final draft in English into two other official languages of WTO, French and Spanish. This leaves only some 45 days for a Division to work. Work of division include, first preliminary deliberation, secondly an oral hearing normally of one to two days, thirdly the Exchange of Views just mentioned, and lastly further deliberation and drafting of a report. The schedule is highly time constraint especially when more than one appeal are simultaneously pending. Its appellate review is limited to legal points. It was extremely hard when there were three appeals. I had to participate in two as a member of Division and participate in the Exchange of Views of the third. During my time in the Appellate Body I dealt with 53 appeals. Out of 53, I was a member of Division in 22 appeals and presiding member of Division in 7 appeals. This shows a roughly equal distribution of work among seven members. Now I go back to the general description of the system. The appellate review does not extend to a review of fact finding by the Panel below unless an error of fact is so egregious that it constitutes a legal error. Appellate Bodys recommendation must also be adopted by the assembly to become conclusive and binding as a decision of the assembly. In this village, there are two assemblies consisting of the same membership, one for general affairs called General Council and the other specializing in dispute settlement called Dispute Settlement Body (DSB). It is customary for the Appellate Body members to have a lunch or dinner with the chairperson of DSB who changes every year. The dispute settlement system of the WTO village I just described looks like far cry from the judicial function as we understand in modern democratic states. Original decision maker (Panel and Appellate Body) is not deciding cases independently from the assembly (DSB) because the latter reserves right to reject a recommendation submitted to it. In fact, according to the procedural rules called Dispute Settlement Understanding (DSU) laid down by the founder of the village, there is a theoretical possibility of rejection of a recommendation. But the practical likelihood of rejection is very slight because of the special negative consensus rule. Unless a consensus is formed against the adoption of a recommendation, it must be adopted. Such a negative consensus is difficult to form in practice because the winning party can easily prevent such a consensus from forming. Since 1995 when this village started functioning, there has been no rejection and 111 Panel reports and 84 Appellate Body reports have been adopted as of March 20, 2008. Thus, Panel and Appellate Body which in form look like a mere subcontractor subordinate to the Assembly (DSB) in practice appear to be an independent decision maker similar to the national court in modern states. There are also additional similarities. In modern states, the judges are bound by the rules of substantive law in making a decision. The founder of the WTO village also laid down substantive rules of conduct for the member households, that is, member states. These rules are themselves international treaties and collectively referred to as the covered agreement. The rules also bind DSB and therefore its subcontractors for dispute settlement (Panel and Appellate Body) in making a recommendation for settlement of disputes. The aforementioned procedural rules called DSU, which is itself one of the covered agreements, specifically provides that DSB cannot add to or diminish the rights and obligations provided in these rules. Panels and the Appellate Body being under DSB are of course subject to this restriction. This language reminds us of the classical theory of Montesquieu about the role of the judge in the 18th century. The judges are mouthpiece of the law. If such a strict adherence to the rules is a signature of the modern judiciary, DSB, Panel and Appellate Body are acting also judicially. Still another feature of the modern judiciary is that the court is obligated to decide a case once it is brought before it. This is because the people have the right of access to justice. Traditionally, in France, the principle was expressed by the prohibition of dni de justice. Under the principle, the court must give a final judgment even if facts are not clear or applicable law is not known. The same principle admittedly applies in the WTO dispute settlement system although the theoretical possibility of a decision of non-liquet cannot be denied. Therefore, in practice, once a complaint is brought to DSB, it must give a final resolution to the dispute as long as it is within the jurisdiction of DSB. Actual work is performed by using its subcontractor, Panel and Appellate Body. The burden of proof then becomes a indispensable doctrinal apparatus for Panels and the Appellate Body because the burden of proof enables a decision maker to reach a conclusion. Thus, in WTO dispute, the allocation of burden of proof and the required degree of proof to satisfy the burden often play a crucial role. All of the above mentioned features make the WTO dispute settlement process very much resemble the judicial process in a modern state. There is, however, one fundamental difference. That is in the enforcement of an adopted report. As mentioned before, in the WTO village all member households are equal. There is no single house-head or a group of them who is given an authority to coerce a resident of the village to do or not to do any specific act although each house-head has such a power within his own house. In short, there is no king in the village. Therefore, no enforcement of an adopted report of Panel or Appellate Body is possible in the same sense as that of a judgment of the state court. There are certain agreed methods of enforcement which are rather modest and not strong enough to cope with recalcitrant non-compliance. This decisive shortcoming, however, must be accepted as an ultimate limitation of the international society today. Even a mild indirect coercion permitted under DSU is regarded as remarkable innovation in the public international law. Probably the most effective measure of enforcement is a retaliatory action. But it requires a cumbersome procedure and is not always effective. Over all rate of compliance, however, is said to be not bad. In most of the cases, losing states have complied with a recommendation of DSB although there are several cases celebres in which compliance has not been obtained for years. The United States has a few such cases in which a federal law has been held inconsistent with a WTO agreement. In order to comply, the Congress must act but a political condition makes it difficult. It is ironical that the more democratic a country is the more difficult is compliance. Japan also took three years to comply by amending its alcohol tax law in famous Shochu cae. Despite a decisive difference in the enforcement aspect, the WTO dispute settlement process leading to a report of Panel or Appellate body is remarkably similar to that of civil litigation leading to a binding judgment in any national court. It involves adversary proceedings between the complaining party and the defending party with a neutral decision maker presiding over the proceedings. The complaining party must present a case and supporting legal arguments and evidence. The defending party is given a full opportunity to rebut. Accordingly, it is natural to expect to see in the WTO process many procedural issues which also commonly arise in national litigation. For example, the required degree of specificity in a complaint, issues relating to evidence such as burden of proof, treatment of confidential information, questions relating to fact and law, etc. These familiar issues may or may not be amenable to the same treatment as in national courts. On the other hand, there are also practices which are unknown or not common in national systems of litigation. I would like to pick up some of them and give some thoughts from a comparative point of view. I said from comparative point of view. But one may wonder whether a meaningful comparison can be made between the WTO dispute settlement and the national system of litigation in court. I answer that question in affirmative. As we have seen, the two systems are fundamentally different in the source of authority. WTO system is based on a multilateral agreement of the member states while the national system is based of the sovereignty of each state. One may argue that the national system is also based on an agreement called social contract. But the social contract is only a myth. The WTO system is based on a real agreement. In that sense it resembles the arbitration and differs from the national judicial system which rests on the sovereign power. Whatever is the basis for the authority of respective system of dispute settlement, there is a common feature among the three systems of dispute settlement, namely the WTO system, court litigation and arbitration. That is, in all these systems, generally speaking, a neutral third person gives a binding decision according to the preexisting substantive rules on the basis of allegations and evidence presented by the disputing parties although a considerable variety exists in details. This makes the requirement of independence of arbiter and due process very essential for the maintenance of legitimacy of the system. With this common core and a fundamental difference in mind, we can safely compare the WTO system with national civil justice systems and make a proposal or suggestion to improve the WTO system. In the following I shall list some of the points which interest me. As-Such Claim: WTO system allows a member state to attack a piece of legislation of other member state as such without waiting for its application against interest of the complaining state. This is definitely not allowed in the United States under the constitutional requirement of case and controversy. The same is true in Japan according to the Japanese Supreme Court. But in civil law countries, the constitutionality of law or regulation as such can be brought to the constitutional court or other organ (such as Conseil dEtat in France) for a declaratory relief. In Germany, it is called abstract norm control. European Court of Justice offers a similar possibility (action for annulment). There is an important difference, however. In the national system (also in the European system), if a provision of law is declared to be unconstitutional, such provision becomes null and void automatically. Such a self-executing effect can be recognized because the constitutional court and the legislature function within a single national system. The WTO system and a national system belong to two different legal spheres. Adopted report condemning a provision of law of a member states as incompatible with a WTO agreement can only obliges the defendant state to repeal or amend the provision through its own legislative process. This brings us back to the problem of enforcement of an adopted Panel or Appellate Body report as discussed before. The reason why an as-such claim is permitted requires further analysis. When a statute is being applied to a detriment of the complaining state, both the statutory provision as-such and its application can be challenged. If a statutory provision is not applied there is no actual harm yet. An as-such complaint in this situation has been allowed on the theory that there is already a chilling effect on the trade. There has also been an argument that a mandatory application of the provision in question under the national law is necessary for an as-such claim to be permitted. It seems that this line of argument is too influenced by the case and controversy requirement or similar doctrine in the national system to limit an access to the court. In my view, legal residents of the WTO village are only about 150 states which are closely united by the WTO agreements. Each of them has a systemic interest in a violation of the agreements by any other member whether or not there is a current trade relationship with it. Such a systemic interest has been considered sufficient for justifying a third party participation. Such a liberal interpretation would not increase the number of cases because no state would be willing to bear the burden of pursuing a case unless there is a good reason for doing so. Real Party in Interest: In all civil justice systems, whether common law or civil law, a plaintiff and a defendant in a lawsuit must be real parties in interest except for some special situations where, for example, a trustee can litigate on behalf of the beneficiary. In the WTO process, only a member state can become a party. It is normally not a state itself that does trade and suffers directly from the nullification of benefit by a WTO inconsistent action by another state. But a trading entity within a state cannot initiate a WTO process but must depend on the state. A state makes its own decision about whether to initiate a complaint and how to proceed in dispute settlement. Although it is true that the state has its own interest in trade, the mechanism through which the interest of the private sector is reflected has a great importance for the interest of particular private entities which would be directly affected by a measure of a foreign state. This is a matter of domestic system which varies country to country. In some countries like the United States, the government seems to responsive to the interest of private interest. In other countries, like Japan, the private sector does not seem to have an effective channel with the government. I do not know how much the WTO itself through its secretariat is involved in building up an appropriate national system in this respect. Improvement must be desired in many member states so that the real party in interest can better benefit from the WTO system. Role of Lawyers: In all national systems, the role of lawyers is divided into two fields, activities outside of the court and those in the court. This is true also in connection with the WTO law. Lawyers can serve private companies and even a government by advising them generally in the WTO law. They may be instrumental as in the United States to convey the need of private sector to the relevant government agency through formal and informal channels. Sound development of a group of specialist lawyers will be an important infrastructure of the WTO system. Members of such a trade bar may participate in the WTO dispute settlement in a variety of forms. In national litigation, a party has right to representation by a lawyer. In WTO disputes, there is no explicit provision for it. It seems assumed that the governments of member states represent themselves before a Panel or the Appellate Body. Presumably such a pro-se representation comes from of the idea that the dispute settlement process is simply a continuation of diplomatic activities. The issue whether an outside lawyer can represent a government in the WTO dispute settlement proceedings had come up before I joined the Appellate Body and had been solved by a compromise that a lawyer was able to participate in the proceedings as a member of the state delegation. Thus it is common to see a lawyer of a big American law firm arguing a case before the Panel and Appellate Body. Many countries are apparently consulting those expert lawyers in the process of preparation and drafting of necessary documents even though they may not appear in the hearing. At the first sight, this must be congratulated because it is a sign of advancement of the WTO law which has become a highly specialized area of law. A dark side of it is that because those specialist lawyers are expensive, poor countries cannot afford their service. In response, the Dutch government took an initiative to create a kind of public interest law firm in Geneva in 2001, the Advisory Centre on WTO Law (ACWL). The Centre is very active in receiving consultation and appearing often before Panels and the Appellate Body representing developing countries. All this makes the WTO dispute settlement process resemble litigation in any national courts. One serious problem still exists in this development. Outside lawyers tend to find more issues and produce more pages of submissions. This overly burdens the WTO dispute settlement mechanism which is required to dispose of each case within a limited time frame. I wonder how an appeal from a Panel report of more than one thousand pages involving hundreds of raised issues can be disposed of within 90 days as required by DSU. I think that something should be done in order to rescue the Panel and Appellate Body as well as respective secretariat from this development. Transparency of Proceedings: Proceedings in a national court is open to the public and the court records are also basically open. One of the attractions of arbitration is that it is clandestine to the parties and the arbitrator. The WTO dispute settlement process is intended to be clandestine presumably because of its diplomatic overtone. Hearing is not open to the public. Submissions to the Panel or the Appellate Body are treated confidential unless the submitting party chooses to make it open. The United States has been making its submissions available to the public. Recently, however, there is a new trend. The United States and EC have agreed in certain cases to make their Panel proceedings open to the public. When this particular case was appealed, the parties attempted to have the Appellate Body proceedings opened to the public. This happened after my retirement and the Appellate Body has decided for the first time to open its hearing to the interested general public. Another related problem has been the admissibility of amicus curiae briefs. This is a peculiarly American practice. Most civil law courts do not know it. Therefore, there has been a strong opposition in the WTO membership to accepting it. This was a big issue when the Appellate Body was dealing with the famous asbestos case in 2001. A great majority of the member states joined to oppose Appellate Bodys decision to lay down a set of rules for receiving amicus briefs. We gave up and returned the ball to the membership. Then nothing has happened ever since. In practice, amicus briefs are accepted de facto and the fact of acceptance is mentioned in reports. A great amount of amicus briefs are difficult to handle properly within the timeframe imposed upon us. Present situation is an anomaly. I believe there should be clear and reasonable rules for this. In short, I see some contradiction between the original design of the WTO dispute settlement as an extension of diplomatic negotiation and the todays reality of increasing judicialization. Measure, Claim, Arguments, Facts, Law and Remedy: WTO dispute settlement process has some peculiar features. For example, formal Panel proceedings must be preceded by a consultation. But this is not an anomaly even in national systems. There are examples of a mandatory conciliation before instituting a lawsuit in some national systems. Panel proceedings are commenced by a request for establishment of a Panel which is functional equivalent of a complaint in national litigation. After a panel has been constituted, the complaining state files a detailed submission. It is sometimes disputed whether a request has given sufficient information as required by DSU and the argument of defending states tends to be very technical. This reminds us of the technicalities of common law pleadings. Simplified approach like the American claim pleading adopted by the Federal Rules of Civil Procedure should be adopted as long as the essential requirement of due process is satisfied. My theory is that a request for establishment of Panel must show whether it is a tiger or elephant but need not show the number of stripes on the tiger. Because the WTO dispute settlement aims at removal of inconsistency with WTO agreements, the complaining state must first identify what measure taken by the defending state constitutes a violation Logic is the same as in national civil litigation in which the plaintiff must typically identify the act of tort or breach of a contract. In WTO cases, however, the identification of measure is sometimes difficult because of intricate nature of facts and law. The last appellate case I was engaged with was such a case (Brazil Tyres). In my view, the WTO cases can find a better parallel in the administrative litigation which, in civil law countries, is subject to the jurisdiction of special administrative court and a special procedural regulation. Despite certain peculiarities, the WTO dispute settlement process seems generally comparable with ordinary civil litigation. The complaining state must present a claim (identification of violated norm), argument (reasoning) with supporting facts which must be proven by evidence. If an argument does not as a matter of law justify the conclusion of inconsistency of the measure with the covered agreement, the case is lost. This is a motion to dismiss situation in civil litigation. Even if an argument makes sense by itself, the case is lost unless the supporting facts are proven. In response to a claim, a national civil court would order the defendant to do a specific act or to refrain from acting or, in a declaratory action, an appropriate declaration. WTO system is more modest. Panel or Appellate Body only recommends the losing state to bring the measure into conformity with the agreement. It may suggest specific way to implement such a recommendation, but it has been rarely done. The same kind of relief may happen in a national court in an environmental litigation. The court can order a polluting factory to reduce pollution to certain level (certain ppm, for example) without specifying a method for attaining the result. This is because there may be a variety of methods and the defendant is in a better position to select one of them. The same reasoning may apply to the WTO relief. But this has caused a prolonged dispute about the alleged attainment of the result. My advice is to use the possibility of specific relief more actively. In any event, a complaining state must formulate its claim on the basis of applicable substantive rules found in various WTO agreements, namely the basic GATT and many specific agreements for respective areas of trade and trade problems: Often relied upon are some basic provisions of GATT (I, III, XX etc.), Anti-dumping Agreement, Safeguard Agreement, Subsidy Agreement, Sanitary and Phytosanitary Agreement, Technical Barrier Agreement, etc. etc. I must confess that I was not enthusiastic about the draftsmanship of these agreements. Many provisions in these agreements are admittedly products of diplomatic compromises and often do not lend themselves to an unequivocal meaning. This poses both to us and to the parties a formidable interpretative task. The complaining party may face a great difficulty in formulating its claim and organizing its argument. Necessary evidence would vary accordingly. Responding state may rebut by saying that a particular provision should be interpreted differently. Panel and Appellate Body are bound by the provisions of DSU which says Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements. What would constitute adding or diminishing is a serious question. We often relied on the Vienna Convention for interpretation of treaties. But it was not always very helpful. We often heard criticisms that we had overstepped the limit. But the history in national courts in all advanced countries shows that a strict interpretative methodology prevalent in the early 19th century gave way to a more liberal trend by arrival of the 20th century. I hope and I am sure that the reaction of the membership will change in this respect in years to come. What struck me in the beginning of my life in the WTO was the fact that under the system of pro-se representation there was no clear distinction between a factual allegation and a proof of an alleged fact. What is said to a Panel by a delegation of the party state or written in a submission to a Panel can be taken as allegation of facts as well as its proof. In the national civil procedure, we distinguish operative facts or primary facts which are really relevant in determining application or non-application of certain provision of substantive law and therefore the allocation of burden of proof. This task is already difficult even in the national litigation unless you are suing on a routine cause of action. But it is a lot more difficult in the WTO cases due to a peculiar draftsmanship of the WTO agreements and the mixture of allegation and evidence. We often came across various mixed issues of law and fact. We have a similar problem in national litigation. For example, is negligence a fact? It can be said it is mixed fact and law. In my view, it is a legal conclusion based on the found facts which justify finding of negligence. In this area, there is certain confusion in the WTO jurisprudence. And I suspect that such confusion originates first in an imperfect nature of the WTO agreements and secondly in the form of presentation of facts and evidence at once. Ultimate solution must wait until an accumulation of precedents makes clear the operative facts necessary to be proven for establishing the violation of a particular WTO agreement or its provision. Rule and Remedy: Another striking aspect of the WTO dispute settlement for a national proceduralist is in the way a remedy is given for a violation of a WTO agreement. As already mentioned above, when a Panel or the Appellate Body finds a measure inconsistent with a WTO agreement and its report is adopted by DSB, the losing respondent state is only obliged to correct the violation for the future by complying with the recommendation and ruling and not responsible for whatever has been illegally done in the past. WTO relief cannot be given retroactively. Therefore, it suffices for a losing state to bring the measure into conformity with the WTO law even if the measure is found to have been inconsistent already for years. If you stole somebody elses bicycle and have used it for one year, only thing you have to do is to return the bicycle to the owner? It is incredible at least from the municipal laws point of view. This shows us a peculiar nature of the WTO substantive law. Violation of a norm set forth in this law only gives rise to a right to bring a complaint with the WTO dispute settlement mechanism but no right arises directly vis--vis the violating states. If such a right immediately arises as it does in municipal tort law or contract law, some sort of retroactive relief must be granted. I think this is an anomaly. I am not sure how we can characterize the nature of the WTO legal relationship among the member states in terms of the municipal law. If the members are bound by a contractual obligation under the WTO agreements, the obligation remains as an unenforceable moral obligation, which enables, however, an aggrieved member state to initiate a dispute settlement process. In the dispute settlement process, the provisions in the WTO agreements function as norms for adjudication for Panel and the Appellate Body. If a complaint is upheld, a moral obligation is elevated to a level of legal obligation because then it is allowed to enforce the decision through a sort of self-help in the form of a retaliatory measure which would otherwise be considered as violation of the WTO agreement. Conclusion: There are, of course, so many other topics I would like to discuss. Much has been discussed about judicialization of the WTO dispute settlement. Whatever its exact content may be, it is true that the WTO system has brought about a revolutionary change to the world trade. Under the WTO regime, some unprecedented incidents have taken place. A small country like Antigua can now sue such an economic and political giant as the United States and win. Likewise, Peru defeated EC. This reminds us of daily occurrences in our national courts where a small consumer sues a big company or the government and wins. This could not happen in the international community for a long time since the genesis of the human society. The power was the justice instead of the law. Rule of law has been finally brought to the international community. I was disappointed when I saw a recent speech by Mr. Pascal Lamy, the Director General of the WTO. In three pages of his speech, he used only one line to mention the dispute settlement. He was talking about the so-called Doha Development Round which was only slowly progressing despite his ardent effort and passion to push it forward. But I wonder how the WTO as a whole would be like if there were no dispute settlement system as it has been functioning since the establishment of the WTO in 1995. From then till now, request for consultation (the first stage of dispute settlement process) has numbered 373, number of Panels establishment 159 and appeals from a Panel report 86 out of which 84 have been decided, as of March 20, 2008, while nothing has happened to amend or to add in the body of the WTO agreements. The dispute settlement mechanism has been actively working despite a stalemate in the Doha Round. Mr. Lamy was too occupied by the stalemate, as he should be perhaps, to think about the current functioning of the organization. I ask myself how much centripetal force the WTO could have today without its dispute settlement system working soundly. The Doha Round, if successfully concluded, will add some more new agreements and amendments. But we have already sufficient body of the trade rules which are constantly alleged to have been violated and give rise to disputes which keep the WTO Panels and Appellate Body busy enough. The dispute settlement has often been regarded as the best working part of the WTO. It is the WTOs infrastructure which keeps the whole WTO system afloat and keeps its member states coherent with each other. WTO is necessary for its membership because of its well functioning dispute settlement mechanism. (End)  Prof. of Law, Senshu University Law School, Tokyo; Prof. Em. of Kyoto University. LL.B. 1957 Kyoto University; LL.M. 1963 University of California at Berkeley; J.S.D. 1964 Cornell. Member of the Appellate Body of the WTO 2000-2007.     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