21st International Conference on Diversity in Organizations, Communities & Nations

Abstract

In one of its most impressive successes, the WTO provides a unified dispute resolution regime in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The DSU expressly prohibits the “jungle rule” so a country does not take its rights into its own hands. Perhaps, it is fair to say that the dispute settlement mechanism under the WTO is the only rule-based body in the system. Article 17.3 of the DSU requires that the Appellate Body membership be broadly representative of the WTO membership. However, in practice, most panelists from other developed countries such as the U.S., New Zealand or Switzerland. There should be greater diversity of panelists. Diversity is a prerequisite to doing justice. It helps ensure that appropriate understandings of law and culture are brought to the matters under dispute. In the context of investment disputes, it ensures that adjudicators can interpret core legal concepts through a development lens, something we have rarely seen to date. That does not imply a lack of impartiality and independence; instead, it provides a means to bring fuller insights to bear on interpretation and adjudication. Diversity is also a prerequisite to confer legitimacy on a system that is widely viewed as biased to foreign investors and capital-exporting states. The paper analyzes the problem of diversity in the WTO settlement system. Reforms, especially a standing two-tier appellate system, can deliver diversity of adjudicatory appointments.