oa Frustration through futility: Least developed countries and the WTO's settlement of disputes

The lack of participation and engagement by Least Developed Countries (LDCs) in the World Trade Organization (WTO) in general, and in their use of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) in particular, has been a continuing problem facing the WTO, tainting not only the organization as a whole but also the DSU, its crown jewel. This article considers—from a commercial viewpoint—the many issues and barriers preventing LDCs from using the DSU, including capacity issues, costs, private sector involvement, and others. The article also considers specific provisional measures that are widely available and recognised within the national legal regime; have been adopted internationally by a plethora of divergent judicial, quasi-judicial, and arbitral fora; and are recommended by the WTO—but which are, significantly, missing from the DSU itself. The paper concludes that the addition of provisional measures to the DSU toolkit will enhance the effectiveness of the DSU by removing key structural obstacles that have prevented LDCs from exercising their right to prosecute trade disputes with other WTO members.