O orgão de solução de controvérsias da Organização Mundial de Comércio: aspectos gerais sobre o procedimento quase judicial que regula o comércio internacional

Abstract

The need for the world economy reconstruction, at the post war period, took to the creation of the ITO – International Trade Organization at the Bretton Woods Meeting. It occurs that, on the ITO context, only the Chapter IV of the Havana Letter was rectified and has turned in to the GATT – General Agreement on Tariffs and Trade, whose initially purpose was the decreasing of the customs tariffs on the international trade. Although GATT was not an international organization, it worked as a large forum for negotiations and has established, on its articles XXII and XXIII, a procedure to settle conflicts related to its rules, by condemnation in case of nullification or reduction of the commercial advantages, the possibility of recommendations and suspension of the obligations before the other party, under the GATT rules. Notwithstanding, there was an increasing commercial deficit due the veto to panel’s decision, delay of the countries in reducing their tariffs and worrying in stopping the development countries unilateral application of sanctions, that took to the awareness to change the existing conflicts settlement. That was when the Uruguay Round happened, in 1995, and established the WTO – World Trade Organization, with a new dispute settlement procedure over its agreements ruled by the DSU – Dispute Settlement Understanding, applied by a specific sector, the DSS – Dispute Settlement System. The current system has as its fundamental characteristic the almost automaticity, through the nominated “reverse consensus” by which the procedure may only be interrupted by the consent of all Members. The DSS procedure is composed by consultations, panels, other alternative negotiation methods like the good offices, conciliation, mediation and arbitration, and the Appellate Body. When the panel and the Appellate Body decide that the act of a Member was in discordance with the WTO agreement, they do recommendations to adapt that measure to this agreement. If it doesn’t happen in a reasonable period of time, the parties shall negotiate a mutual grant necessary to establish the later juridical situation. In case of the Member default in accomplish the recommendations or the compensations; it can have, in last case, the suspension of the concessions or obligations previewed at the commercial agreement, imposed by the affected party before the defaulter. Notwithstanding the evaluation to a greater jurisdictional procedure, the DSS is still criticized due its lack of transparency, impossibility of citizens or non governmental entities direct access to its process, difficulty in imposing the sanctions to the development countries