ABSTRACT
The WTO dispute settlement system1 constitutes a prima facie depar-
ture from the corresponding GATT system in that it provides for
compulsory third party adjudication and also introduces, for the first
time in the world trading system, a two instances-system of adjudica-
tion. The latter was a true innovation. Robert Hudec’s monumental
1993 study amply shows that WTO Members learned to live de facto
in a compulsory third party adjudication system: with the exception of
one instance, all requests for the establishment of a panel met an affirmative reaction; the overwhelming majority of all reports were
adopted; the majority of all reports adopted were implemented.2 Of
course, this study does not answer the question of how states would
have behaved if there had been de jure compulsory third party adju-
dication as early as 1948. It could, for instance, be argued that some
states, fearing a rejection, did not bother to request establishment of a
panel. Still, these types of arguments do not cast doubt on the validity
of Hudec’s overall conclusions: the very low costs, in the majority of cases, associated with a request to establish a panel cannot reasonably
act as a deterrent.
