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covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement”. [6] In reaching decisions about these matters, the AB “is beginning to develop a set of rules and principles which share some of the characteristics of constitutional law.” [7]

In Japan – Apples, the AB investigated a health and safety measure applied by Japan and ruled against it on the basis that the scientific evidence was insufficient to support it. [8] By assessing the legitimacy a desired risk level, the AB in Japan - Apples and other cases has shifted more towards making policy judgments about national laws. The WTO’s jurisprudence has increasingly inhibited the power of governments to exercise their discretion in this area. [9]

Additionally, the disproportionate weight of the DSU articles on rulings and recommendations of the adjudicative bodies, and the analogous lack of interest in the political decision-making of the WTO, creates a general opinion that the position of the adjudicating bodies tends to overshadow the political, negotiating character of the WTO.

II Brief introduction AND history of the DSU

This brief overview of the creation of the post-war GATT, its transformation into the WTO, and creation of the DSU will better explain how the DSB and associated jurisprudence is shifting away from the WTO’s objectives. The WTO’s DSB was established in order to improve GATT’s informal consensus method of dispute settlement. It is considered one of the central achievements of the Uruguay Round of negotiations.

On January 1, 1995, the Understanding on Rules and Procedures Governing the Settlement of Disputes, or the Dispute Settlement Understanding (DSU), entered into force. [10] The DSU defines rules and procedures for resolving disputes that arise between WTO members concerning the interpretation and application of the WTO Agreement. The members of the WTO, sitting as the Dispute Settlement Body (DSB), administer the rules and procedures of the DSU. The DSU provides for consultations, a panel process and an appeals process. The Panel is made of three or five “well-qualified governmental and/or non governemental individuals”, [11] while the Appellate Body is made of seven “persons of recognized authority, with demonstrated expertise in law, international trade, and the covered agreements, generally”. [12] There are time limits provided for each step of the dispute settlement process. Ruling adoption is automatic, unless a consensus of all contracting parties rejects it. The system of disputes is complaint-based.

A primary objective of Canada, along with many other countries, was to limit the use of unilateral action by the United States, permitted under its federal law. [13] Unilateral action was restrained by the WTO in several ways: Article XVI.4 of the Agreement Establishing the WTO requires that Members’ national laws comply with their obligations under the WTO; [14] and Appendix 1 of the DSU requires that Members abide by its rules and procedures. [15] On the other hand, the primary objectives of the United States were the adoption of automaticity, an expedited timetable for dispute resolution and cross-retaliation. [16] The negative consensus requirement means that the adoption of Panel Reports could no longer be blocked by losing respondents. A strict timetable for the dispute settlement process was provided in Article 2