Challenging Unwritten Measures in the World Trade Organization: The Need for Clear Legal Standards

ABSTRACT Disputes in the World Trade Organization (WTO) involving the challenge of unwritten measures have increased in recent years. This trend may have been encouraged by the successful challenge of Argentina’s ‘managed trade policy’ as an ‘overarching unwritten measure’ in Argentina—Import Measures. Advancing a claim against an unwritten measure, however, is not an easy undertaking. These measures are not embodied in any law, administrative regulation or judicial decision. Their very existence and precise contours are, therefore, uncertain and must be proven with evidence, which may not necessarily be readily available. The uncertain nature of unwritten measures makes the dispute settlement process significantly more complicated for the complainant, the respondent and the WTO adjudicators. Despite the difficulties in challenging, defending and adjudicating unwritten measures, relatively little has been written on this subject. This article discusses the types of trade concerns that could be challenged as ‘unwritten measures’, and the different legal characterizations (analytical tools) that have been used to challenge these trade concerns in the WTO. The article further explores the practical difficulties that have been encountered in challenges against unwritten measures and how these difficulties have sometimes, but not always, been overcome. The article concludes that there is a lack of clarity as to the correct legal standard that must be applied in the challenge of different types of unwritten measures. There is more work to be done to clarify the applicable legal standards and the types of evidence required to substantiate the existence of unwritten measures.