The Uruguay Round and Dispute Resolution: Building a Private-Interests System of Justice

Wednesday, January 1st, 1992 at 12:00 am by Kenneth W. Abbott
Kenneth W. Abbott, The Uruguay Round and Dispute Resolution: Building a Private-Interests System of Justice, 1992 Colum. Bus. L. Rev. 111

This article analyzes the highlights—and potential highlights—of the Uruguay Round of multilateral trade negotiations (the “Round”) in the area of dispute resolution. As this is written, near the end of 1991, the Round is entering what many hope to be its “final sprint.” [FN1] Whether the Round will ultimately succeed, however, is still very much in doubt: success will require high-level political compromises on agriculture and other substantive issues. Even in more technical areas important points of disagreement remain. For example, certain commitments on dispute resolution have been strategically linked to politically difficult pledges of restraint in the use of unilateral trade measures, a matter of special sensitivity to the United States. [FN2] A definitive analysis of the results of the Round, then, is not yet possible.

The negotiations on dispute resolution, however, have already borne fruit, in the form of a package of “improvements” put into effect “on a trial basis” following the December 1988 – April 1989 Midterm Review (the “Midterm Agreement”). [FN3] Even richer fruit lies within reach. Negotiators appended to the Draft Final Act, prepared for the unsuccessful ministerial meeting of the Trade Negotiations Committee in December 1990, a lengthy *112 draft Understanding on dispute resolution (the “Understanding”). [FN4] The Understanding would in several respects go well beyond the Midterm Agreement. Since negotiations began again in the spring of 1991, even further progress appears to have been made, including the elaboration of a consolidated dispute settlement text [FN5] and the development of a framework for an integrated dispute resolution system [FN6] that would cover most if not all of the agreements making up the “GATT-MTN system.” [FN7] If the major substantive issues in the Round can be successfully resolved, GATT is poised to implement a substantial reform of its dispute resolution procedures.

Meaningful analysis of matters like these requires a theoretical framework. The most common analytical framework in GATT scholarship is the contrast between “legalistic” procedures, on the one hand, and “pragmatic,” “diplomatic” or “political”*113 procedures, on the other. [FN8] John Jackson’s distinction between “rule-oriented” and “power-oriented” procedures and diplomacy reflects a similar dichotomy. [FN9] In a recent article, [FN10] however, I introduced a somewhat different, though complementary, theoretical framework: the dichotomy between institutions and procedures designed to serve private interests and those designed to serve the public interest. I believe this approach provides valuable insights, and I will utilize it here.

Author Information

Professor of Law, Northwestern University