The power-based influence within a rule-based system through “extended” interpretation in US-Shrimp: Is all lost for the WTO DSU

The notion of free trade supports efficiency in production which is thought to be achievable through large/unified market base. To further the ideals of free trade is the notion of fairness and that subsequent agreements are honored. This in turn is premised on a reliable rule based system. This rule based system will be operationalized within parameters accepted by all parties, after varying interests have been clarified through a negotiation process. This will then provide the clarity, certainty and predictably within the agreement that it regulates. The World Trade Organization (WTO) Dispute Settlement Understanding (DSU) is meant to diffuse the power differential between its members to provide a fair, certain, clear and to an extent timely settlement to disputes between its members arising from the relations that it is meant to regulate, therefore, what it cannot do is to work contrary to those expectations or seek to operate/apply outside its competence. The outcome of the US-Shrimp case is one that no dispute settlement mechanism should attempt. It has broken every protocol that can be reasonable expected from such a mechanism. This paper examines the US-Shrimp case outcome from not only what is ordinarily expected from a dispute settlement mechanism, but the outcome mapped against the objectives of the WTO DSU itself, to indicate that the final outcome to this case is grossly flawed.