Panel Selection in WTO Dispute Settlement Proceedings

If perception is reality, it is never more so than in the process in which WTO Members and the WTO Secretariat engage when selecting panelists to serve in dispute settlement proceedings. In the excellent paper that appears elsewhere in this volume, Professor Davey makes the case for a WTO permanent panel body. But, as the nursemaid Buttercup observes (rather defensively, as the plot of Pinafore develops), appearances can be deceiving. And notwithstanding the flaws fairly noted by Professor Davey, the flexibility of the current ad hoc selection system serves to address one of the key objectives of a party to a WTO panel proceeding -- to compose a panel that appears likely to rule in its favor -- better than would a permanent panel body. Although they may reform certain elements of the WTO dispute settlement mechanism as part of the Doha Development Agenda, Members should not be expected to discard this flexibility (what Professor Davey refers to as 'party control') easily. Panel composition under current procedures is a high-stakes game that, when played well, can benefit both sides of the dispute and the overall WTO system. What follows is a brief examination of the current practice, and a discussion of the case for preserving the flexibility of the current ad hoc system. Copyright Oxford University Press 2003, Oxford University Press.