scholarly journals Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”

2015 ◽  
Vol 14 (3) ◽  
pp. 116-125 ◽  
Author(s):  
Andrew Lang
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Boundary Work ◽  
Case Law ◽  
Public International Law ◽  
Content Type ◽  
Appellate Body ◽  
Legal Method ◽  
Wto Dispute Settlement ◽  
Fragmentation Of International Law

Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of normative fragmentation. It provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to fragmentation, with particular focus on the use of general public international law in the context of the WTO dispute settlement. Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied to the case law of the WTO. Findings – The paper suggests that the Appellate Body’s approach has not been driven by the institutional myopia and normative closure of which they are sometimes accused, but rather a judicial sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint. Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing attention in particular to the importance of international lawyers and tribunals in contributing to fragmentation, not just responding to it. The fragmentation of international law is, in part, the product of ongoing boundary work, and the “fragmentation jurisprudence” of the Appellate Body has predictably involved boundary work of a particularly intense kind.

scholarly journals FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law

2017 ◽  
Vol 16 (2) ◽  
pp. 303-326 ◽  
Author(s):  
GREGORY SHAFFER ◽  
L. ALAN WINTERS
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Treaties ◽  
Public International Law ◽  
Trade Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Political Choices ◽  
Wto Appellate Body

AbstractThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision inPeru–Additional Duty on Imports of Certain Agricultural Productsis important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

Security and predictability under WTO law

2003 ◽  
Vol 2 (2) ◽  
pp. 183-219 ◽  
Author(s):  
WOLFGANG WEISS
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Legal Certainty ◽  
Public International Law ◽  
Application Of Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Treaty Law ◽  
Peremptory Norms ◽  
Wto Agreements

This article focuses on the interpretation and application of law in WTO dispute settlement from the angle of legal certainty and predictability. An analysis of the interpretation of WTO law shows that in general it does not differ from the interpretation of other public international law as interpretative rules well known in international law are applied. This together with the consistence provided by the respect of earlier panel and Appellate Body reports safeguard legal certainty. Furthermore, legal certainty and predictability requires clarity in the law applicable in WTO dispute settlement, in particular as regards non-WTO law. It will be shown that apart from peremptory norms of public international law (ius cogens), the relevance of international law outside WTO law is limited. Non-WTO treaty law must not be applied except if referred to by WTO law or incorporated therein. Apart from that international law of any kind can only be considered when interpreting WTO law. In certain circumstances this applies even to non-WTO treaty law to which not all WTO members are parties. Due to the as yet limited importance of non-WTO law, legal certainty and predictability also depend on the issue of conflict of norms, which also is relevant as far as the interrelationship of the different WTO agreements is concerned. In this regard predictability and legal certainty cannot be fully reached.

General Principles of Procedural Law in the Practice of the WTO Appellate Body

2021 ◽  
pp. 1-32
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Case Law ◽  
International Courts ◽  
Procedural Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
International Law Commission ◽  
Domestic Law

Abstract The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.

scholarly journals The Role of Public International Law in the WTO: How Far Can We Go?

2001 ◽  
Vol 95 (3) ◽  
pp. 535-578 ◽  
Author(s):  
Joost Pauwelyn
Keyword(s):  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
Public International Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Law ◽  
The Relationship

How does the World Trade Organization (WTO) relate to the wider corpus of public international law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these two difficult questions. No straightforward answers to them can be found in WTO rules. Yet answering them has major ramifications both for the WTO (is the WTO a largely “self-contained regime” or is it not?) and for international law (is the future of international law further fragmentation or increased unity?). This exercise will be conducted under the law as it stands today—that is, the law as it may be invoked at present before the WTO “judiciary” (panels and the Appellate Body). Of course, WTO members (viz., the WTO “legislator”) could clarify or change the relationship between WTO rules and other rules of international law. However, it is unlikely that such changes will occur any time soon. In part I, I examine the general relationship between public international law and WTO law. I then assess, more specifically, the role of public international law in WTO dispute settlement in part II and offer some conclusions in part III.

scholarly journals Global Governance: The World Trade Organization’s Contribution

2009 ◽  
Vol 46 (4) ◽  
pp. 1061
Author(s):  
Andrew D. Mitchell ◽  
Elizabeth Sheargold
Keyword(s):  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
Current System ◽  
Administrative Law ◽  
Administrative Practices ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Wto Agreements

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

When the Multilateral Meets the Regionals: Regional Trade Agreements at WTO Dispute Settlement

2018 ◽  
Vol 18 (1) ◽  
pp. 33-61 ◽  
Author(s):  
MICHELLE Q. ZANG
Keyword(s):  
Dispute Settlement ◽  
Trade Agreements ◽  
Case Law ◽  
Regional Trade Agreements ◽  
Regional Trade ◽  
Trading System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Multilateral Trading System ◽  
The One

AbstractInteraction between regional trade agreements (RTAs) and the multilateral trading system established by the World Trade Organization (WTO) is an issue of significance but nevertheless remains unsettled. This article aims to explore the influence RTAs have generated had on the WTO system, with particular focus on the approach adopted by the adjudicators when dealing with irreconcilable RTA–WTO conflicts. During the development of 20 years’ jurisprudence, WTO adjudicators offered responses to a number of critical questions. On the one hand, direct endorsement of RTA provisions with the effect of prevailing over the counterpart WTO rules appears to be very difficult, either through legal interpretation or application. On the other hand, unlike often being argued, a close review of WTO case law does not reveal a biased adjudicatory approach against regionalism, as compared to other sources of public international law. When dealing with RTA-related matters, the Appellate Body has been advocating an all-encompassing approach featured by the emphasis on the common intention during the interpretative exercise and the promotion for the WTO built-in mechanisms for valid modification. Such an approach is, to a certain extent, misleading in the RTA –WTO context and has led to certain ill-founded adjudicatory choice.

Resolution of international trade disputes in the WTO and other Fora

2015 ◽  
Vol 14 (3) ◽  
pp. 147-156 ◽  
Author(s):  
Giorgio Sacerdoti
Keyword(s):  
Dispute Settlement ◽  
World Trade Organisation ◽  
Settlement System ◽  
Trade Disputes ◽  
Content Type ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System ◽  
Trade And Investment

Purpose – The purpose of this paper is to assess the success of the world trade organisation (WTO) dispute settlement system and its transferability to other fora. Design/methodology/approach – The paper compares the design and case law of trade and investment law, and seeks lessons for the settlement of trade and investment disputes in other fora. Findings – It concludes that despite its shortcomings, the WTO Appellate Body provides vital stability regarding legal interpretations, something notably absent from other fora. Originality/value – The paper offers the perspective of a former Member and Chairman of the WTO Appellate Body on the success of the dispute settlement system.

scholarly journals The concept of necessity under the GATT and national regulatory autonomy

2016 ◽  
Vol 10 (2) ◽  
pp. 77
Author(s):  
Isabel Salinas Alcaraz
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
Case Law ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System ◽  
Gatt 1994

The intrusive effects of the WTO on Members regulatory freedom have been a growing concern since the establishment of the WTO Dispute Settlement System (DSS). An assessment of the WTO case law exposes that the Appellate Body (AB) has introduced some elements within the<br />necessity test under GATT (General Agreement on Tariffs and Trade) article XX which do not find support in the text of the agreement and are potentially invasive of countries regulatory autonomy. This paper examines the evolution of the WTO case law in relation to the necessity concept within GATT 1994. Finally, an adjustment in the application of the necessity test to make it more consistent with the GATT text and to achieve greater balance between free trade and WTO members’ regulatory autonomy is suggested.

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