In his paper, ‘The
Cobra Effects of the WTO Panel Selection Procedures’, Dr Frieder Roessler
identified three aspects of the World Trade Organization (WTO) dispute
settlement system that needed reform: the obligation to enter into
consultations before requesting the establishment of a panel; the use of ad hoc
panels; and the lack of transparency of hearings and submissions. He considered
that these three issues were remnants of the diplomatic-based General Agreement
on Tariffs and Trade (GATT) dispute settlement process, which were no longer
appropriate in the newly judicialized WTO dispute settlement system. He also
found that some of these procedures created perverse incentives for the
respondent to cause delays. Twenty years later, Dr Roessler’s observations
remain highly relevant: the WTO system is undergoing its worst crisis since its
creation, and efforts at reform are underway. This paper argues that the
current crisis in the WTO dispute settlement is largely due to an ideological
shift regarding the objectives of WTO dispute resolution, combined with an
inoperative decision-making system, and that reflecting on Dr Roessler’s ideas
could help guide us towards a resolution of the current crisis.