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The Enhancing of the WTO Judiciary's Control over Disputes and Suggestions for the Exceptional Expansion of Such Control to Favour Developing and Least Developed Countries

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The WTO judiciary has enhanced its control over WTO disputes in order to better adjudicate trade controversies. The strengthening of this control is evidenced by the increasing fact-finding powers that the WTO judiciary enjoys today and in the freedom to develop legal argumentation apart from that exposed by parties. While these are the centerpieces of this project, there are also isolated attempts that, although they do not express a deliberate intention to expand such control over the complaining parties' right to set the terms of reference, have had the effect of attenuating this right by allowing the WTO judiciary to adjudicate disputes slightly beyond the terms of reference when to do so has been necessary in order to provide a proper resolution to the conflict. The article draws on these early attempts to suggest that the WTO judiciary could assume more control over disputes in which developing and least developed countries are complainants against developed ones in order to rule on claims not included in the terms of reference originally established.

Affiliations: 1: University of Ottawa, Partner Artifice Consulting Ltd.

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