World Trade Review

Review Article

Seeking mutual understanding: a discourse-theoretical analysis of the WTO Dispute Settlement System

EMANUELA CEVAa1 c1 and ANDREA FRACASSOa2 c2

a1 Dipartimento di Studi Politici e Sociali, Università degli Studi di Pavia, Strada Nuova 65, 27100 Pavia, Italy

a2 Dipartimento di Economia, Università degli Studi di Trento, Via Inama 5, 38122 Trento, Italy

Abstract

The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas's discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures. We show that these latter are oriented primarily to put the parties in a position to reach mutual understanding. Such an orientation is no mere idiosyncrasy of the DSS but is the only one consistently conducive to the WTO's general aims, in response to the various types of disputes that may arise between its Members. Before closing, we bring our procedural considerations to bear on the reform proposals of the DSS.

Footnotes

An earlier version of this paper was included in the working paper series of the Laboratory of Comparative Politics and Public Philosophy of the ‘Einaudi’ Research Centre (1/2009) and presented at the Max Weber Programme Multidisciplinary Seminar (European University Institute, Florence). We are grateful to all workshop participants for fruitful discussions. We would like to thank also Marco Dani, Marco Faillo, Maurizio Ferrera, Giorgio Fodor, Marco Pertile and Federico Zuolo for their comments on earlier drafts of this paper. We are grateful to the Editor of the World Trade Review and to two anonymous referees for their insightful comments leading the present version of the article.