More Can Be Done to Perfect the System?
C. Discussion
3. Dispute Resolution International Trade Law is public
The face of international trade law discussed in this matter is public international trade law which is a part of international law. It is admited that international law as a conflict resolution. For example, solving the conflict peacefully, solving the conflict by war, solving the confllict by diplomacy, solving the conflict by arbitrase, solving the conflict by international court, solving the conflict by PBB, solving the conflict by regional organization, solving the conflict by WTO.
One of the settlement of trade disputes that are subject to public law is the settlement of trade disputes through the World Trade Organization (WTO). At the present time there are approximately 151 countries listed as members of the WTO, both as developing countries and developed countries. Many experts argue that the WTO is a tool of the developed countries to suppress / woo developing countries to conform with the wishes of the developed world or in other words the WTO as a tool of colonialism of new models from developed
countries to developing countries So often in the sessions of the WTO dead lock occurs because each party the developing countries and developed countries cling to each establishment that is considered advantageous in accordance with the mission and national sovereignty.
Establishment of the WTO ultimate goal is to eliminate trade barriers between countries or in other words, is to accelerate the free trade. In the perspective of developing countries free trade would weaken the strength of the domestic economy so that developing countries tend to inhibit free trade by blocking the entry of goods and services from foreign countries (developed) in order to protect the domestic industry still in its infancy (inflant industry), strengthening national entrepreneurs and earn foreign exchange. Being on the other countries, advancing free trade requires that means no barriers of any kind and there is no discrimination of which the goods originated (domestic or foreign), because the emerging market potential is enormous.
Due to differences between developed and developing countries there are often a trade dispute occurs. Trade disputes occur because of several things:
1. A country sets trade policy that is contrary to the commitments in the WTO.
2. Taking trade policies that harm other countries.
3. Interested third countries expressed her desire to be a third party and receive compensation.
Settlement of a dispute between the parties that has the function of legal norms governing relations between members of the community can be observed. In other words it contains the function of supervision. In the national society, supervision is entrusted to an agency of the state, while the international community5, which has no central authority control handed over to the members themselves.6 Dispute settlement system (dispute settlement) is one important element in the WTO because it will determine the effectiveness and efficiency of the WTO made by consensus of its member countries are further contained in Annex 2 of the WTO Agreement on the understanding that rules and procedures governing the settlement of Disputes (Disputes settlemt understanding WTO).
The subject of this dispute resolution is limited only to the member states alone.
While the object of dispute resolution that can be brought to the WTO, among others, relating to the duties and protection of copyrights, trade in services and phytosanitary measures, customs duties and anti-dumping measures to protect public health.
There are several agencies involved in the WTO dispute settlement that is distinguished among political institutions.5 The Dispute Settlement Board (the
5 Adalah suatu kenyataan bahwa perdagangan internasional tidak semata-mata dikendalikan oleh kekuatan ekonomi akan tetapi juga politik. Jadi ekonomi dunia adalah ekonomi politis. Sebagaimana dinyatakan oleh Freiden dan Lake dimana dia menyatakan bahwa ekonomi adalah suatu sistim produksi, konsumsi dan distribusi
Dispute Settlement Body, and the two independent institutions that serve as a judicial institution that dispute settlement panel whose membership is largely ad hoc, and the Appellate Body (Board of Appeals) that its membership is permanent. Dispute Settlement Body is a Council consisting of all the countries members of the WTO dispute settlement system and organized and authorized to: establish a panel; endorsed the report of the Panel and Appellate Body recommendations and decisions which the report is valid and binding; oversee the implementation of the recommendations and decisions contained in the report of the Panel and Appellate Body; provide power to grant concessions and obligations contained in the provisions of the WTO if the member states involved do not implement the recommendations and decisions are legitimate. There are several stages of dispute settlement in the WTO:
1. Consultation, which is a stage of negotiations between the parties in order to find a solution to the dispute. The first stage in dispute resolution is usually in the form of informal or formal negotiations through diplomatic channels. If it fails, it can ask for help in writing the Director General of the WTO to mediate or help in other ways. Period of time available to the parties to resolve their disputes through consultation phase is 60 days. If this fails then the next stage of the dispute resolution memasiki the panel.
2. Panel, this phase is formed at the request of the state plaintiffs when the consultation stage have failed to find an agreement or in other words the formation Panel considered as a last resort when disputes bilaterally failed.
Panels can be formed even if only one party is willing and the request must be made in writing which inside contained a place and time of consultation;
identification of specific issues raised, and a summary of the legal basis of the disputed.
Period of time available for the formation of the panel 45 days and 6 months to produce a trial verdict. State defendant may attempt to hinder the formation of the panel. The right to hinder the formation of the panel by the defendant state is one. The main function of the Panel is membantuDispute Settlement Body (DSB) to enable the completion of objectively and to decide whether the subject or object case has violated the agreement as written in the (covered agreements) of the WTO as well as making a decision or recommendation is given to the parties within 6 months. As for the items that are easily destroyed (perishable goods) given time is 3 months. Each country has interest (substantial interest) can be a third party before the formation of the panel.
kekayaan, sedang politik sebagai seperengkat lembaga dan aturan yang mengatur berbagai interaksi sosial dan ekonomi. Menurut Robert Galphin aspek politik dari ekonomi internasional berasal dari muncul dan berfungsinya negara kebangsaan sebagai dasar utama organisasi politik dunia masa kini.Sifat politis ekonomi internasional muncul selama masa merkantalisme abad ke 17, ketika defisitperdagangan dianggap sebagai tanda- tanda kelemahan politik, dan autarki ekonomi dianggap sebagai tujuan politik luar negeri yang utama.Untuk alasan-alasan strategi, sosial dan politik negara campur tangan di bidang perekonomian. Hata, Op.Cit. hlm.28
3. Appellate (appeals). Stages of dispute resolution called the appeal are to be based on a legal interpretation of certain rules such as the above that there is an article in the WTO (Article 17, paragraph 6 Dispute settlemnent Understanding / DSU). Appeals can not be made to reexamine existing evidence or new evidence emerged. Appeal decision to modify, delay or reject the panel's decision within 60 days to a maximum of 90 days DSB must accept or reject the decision or appeal a report within a limited time (30 days) and this rejection is only possible through concensus. Based on the Article 17 paragraph 10 DSU, the Appellate Competitive claims are confidential and Appellate Body reports which are designed without the presence of the parties to the dispute.
steps of conflict resolution and the period that is reflected in as follows:6
6 Joko Priyono, Resesnsi Buku Perdagangan Barang Dalam GATT/WTO, UNDIP Semarang, 2011, hlm. 11.