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Trend towards “Judicialization”: A Rule-oriented Dispute Settlement System

 The new WTO dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” or so-called forum shopping. While the traditional panel system of settling disputes within the GATT remains the central feature of this system, the new mechanism indicates a distinctive trend towards “judicialization” within a change from power-oriented diplomatic methods of dispute settlement to rule-oriented legal ones. Henceforth, the emphasis of the DSU is upon “rule-orientated” rather than “power-orientated” interpretation and application of the WTO dispute settlement procedures, with the move towards a more judicial form of process that allows for review of decisions through an Appellate Body and the enforcement of panel and Appellate Body decisions. The DSU is in turn a key element of the legalization of the world trade system agreed in the Uruguay Round through the establishment of the WTO and the reinforcement of substantial rules of conduct.
 Besides “judicializing” or codifying former GATT practice, the DSU has an institutional dimension. The Agreement establishes a Dispute Settlement Body (‘DSB’) to administer the rules and procedures for panel proceedings, for appeal against panel decisions to the standing Appellate Body and for adopting panel and Appellate Body reports. Art. 2 of the DSU provides that the DSB has the “authority to establish panels, adopt panel and Appellate Body Reports, maintain surveillance and implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements”. More importantly, the DSU provides an integrated dispute settlement mechanism applicable to disputes arising under any of the “covered agreements” (including the WTO Agreement, the Agreements in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee of signatories has taken a decision to apply the DSU).
 Furthermore, the rule-oriented function and legal primacy of the WTO dispute settlement system are emphasized in Art. 3 of the DSU:


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