The Dispute Settlement Mechanism has often been referred to as World Trade Organization’s (WTO’s) ‘crown jewel’. But with its recurrent criticisms, this ‘crown jewel’ needs ‘polishing’. One such area of criticism of the working of this mechanism is third parties’ participation in disputes. While the Dispute Settlement Understanding (DSU) provides for such intervention, the threshold for a member to become a third party remains unsettled. Moreover, past jurisprudence as seen in Panel and Appellate Body Reports, indicates that third parties’ participation criteria is actually subjective and inconsistent. Through this paper, the authors argue for an objective criterion for allowing such participation The authors shall first explore the current determination standards including the 2011 DSU Reforms Special Session and address the issues of subjectivity thereon. The authors would further draw from the experiences of third-party intervention from other international law dispute settlement mechanisms. Specific comparisons would be made with the broad community-interest model under Article 63 of the International Court of Justice (ICJ) Statute and the narrowly tailored three-pronged test under Rule 37(2) of International Centre for Settlement of Investment Disputes (ICSID). The authors in the end propose an intermediate objective criterion for various stages of a WTO dispute drawing from these two international dispute settlement mechanisms and past WTO deliberations.
Ravishankar et al. (Thu,) studied this question.