A comparison between the dispute settlement procedures in the international court of justice and the world trade organisation

Abstract

The International Court of Justice (ICJ) came into being due to a perceived need for international judicial settlement, whereas the World Trade Organisation (WTO) was created for the purpose of specifically promoting international trade by reducing tariffs and other barriers to trade. Alternative structures for each institution are also considered, as is the older dispute settlement process of arbitration, by means of cases. It is a voluntary submission by both parties to a dispute, when they have agreed on the issues, but need external assistance to proceed further. As a type of judicial settlement, it is binding, can permit third party or non-state involvement, and is a precursor of international tribunals.

In the WTO, one aim is to use cases to test conceptual points. The specific aspects of dispute settlement including the application of rules and procedures, and implementation and processes, will be discussed. The working procedures of the Appellate Body (AB) will be analysed in detail. Another aim is to compare with the ICJ, wherever possible. Legal concepts such as jurisdiction, judicial aspects of reasoning, the burden of proof, and the standard of proof will be discussed. The Appellate Body’s (AB’s) standard of review of panel recommendations and rulings will be analysed. Compliance and enforcement are compared between the two organisations. Economic and political considerations will also be touched on when relevant to this study.

In the ICJ, the application of concepts such as judicial restraint and activism will be assessed, including the degree of inconsistency found in different cases. The implications of the different types of agreements between states that can lead to or have led to the ICJ’s jurisdiction will be examined, and the impacts assessed. The ambiguity involving provisional measures will be studied in detail. The ICJ’s relationship to the UN Security Council will also be assessed. The lack of monitoring or enforcement, and of no stated compliance timeframe are considered. The thesis will end with various future recommendations.