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This paper examines the disadvantages in handling non-violation cases under the WTO dispute settlement system and proposes some alternatives to tackle the problems. Although during the half-century history of the GATT efforts have been made to overcome the inherent ambiguity and the risk of misuse of the non-violation provision, problems resulting from both the ambiguity and risk persist. Moreover, uncertainties surrounding the results of the WTO dispute settlement procedure will be exacerbated in the future when non-violation cases expand into the newly-emerging areas, such as trade in services and competition policies.
The main thesis of this paper is that the use of the non-violation provision should be restricted in order to enhance the predictability and transparency of the WTO system as a whole. To this end, this paper proposes that the current violation regime be fine-tuned, that some sensitive non-violation cases be removed from the domain of the WTO dispute settlement system, and that a panel process be instituted to allow direct access to a panel by disputing private parties on a selective basis.
* Visiting Scholar, East Asian Legal Studies Center, Harvard Law School; LL.B., Seoul National University, 1989; LL.M., University of Michigan, 1997. I am deeply grateful to Professor John H. Jackson for his unusual mentorship without which this article would not have come to light. I would also like to thank Professors William Alford, José Alvarez, Anne-Marie Slaughter and Joseph Weiler for their inspiration and encouragement. Finally, I dedicate this comment to my family whose love and support make me stand firm.