Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information A DIGEST OF WTO JURISPRUDENCE ON PUBLIC INTERNATIONAL LAW CONCEPTS AND PRINCIPLES In its first twenty years, the WTO dispute settlement system generated over 350 decisions totalling more than 60,000 pages. These decisions contain many statements by WTO adjudicators regarding the law of treaties, state responsibility, international dispute settlement and other topics of general public international law. This book is a collection of nearly one thousand statements by WTO adjudicators relating to admissibility and jurisdiction; attribution of conduct to a State; breach of an obligation; conflicts between treaties; countermeasures; due process; evidence before international tribunals; good faith; judicial economy; municipal law; non-retroactivity; reasonableness; sources of international law; sovereignty; treaty interpretation; and words and phrases commonly used in treaties and other international legal instruments. This comprehensive digest presents summaries and extracts organized systematically under issue-specific sub-headings, making this jurisprudence easily accessible to students and practitioners working in any field of international law. graham cook is Counsellor with the Legal Affairs Division of the WTO Secretariat in Geneva. In that capacity, he has served as a legal advisor to numerous WTO dispute settlement panels. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information A DIGEST OF WTO JURISPRUDENCE ON PUBLIC INTERNATIONAL LAW CONCEPTS AND PRINCIPLES Graham Cook © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107102767 © Graham Cook 2015 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 Printed in the United Kingdom by TJ International Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library Library of Congress Cataloging in Publication data Cook, Graham, author. A digest of WTO jurisprudence on public international law concepts and principles/Graham Cook. pages cm ISBN 978-1-107-10276-7 (Hardback : alk. paper) 1. World Trade Organization. 2. International law. 3. Treaties. I. Title. K4610.C665 2015 343.080 7–dc23 2015003330 ISBN 978-1-107-10276-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information CONTENTS Foreword by Joost Pauwelyn Disclaimer Acknowledgments Preface Editorial conventions Glossary of commonly used terms Table of GATT/WTO cases 1 page xiii xx xxi xxiii xxix xxx xxxiii Admissibility and jurisdiction 1 1.1 Introduction 1 1.2 Admissibility of claims 1.2.1 Restrictions on admissibility not lightly inferred 1.2.2 Acquiescence, estoppel and waiver 1.2.3 Absence of legal interest/standing 1.2.4 Failure to implead an essential party 1.2.5 Failure to join cases 1.2.6 Failure to exhaust local remedies 1.2.7 Forum non conveniens 1.2.8 Res judicata 2 3 5 12 14 16 17 18 19 1.3 Jurisdiction over claims 1.3.1 The general rule governing claims outside of a tribunal’s subject-matter jurisdiction 1.3.2 Implied restrictions arising from overlapping jurisdictional competencies among different bodies 1.3.3 Tribunal’s duty to address jurisdictional issues proprio motu 20 20 22 25 v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents vi 1.3.4 Timeliness of jurisdictional objections 1.3.5 Jurisdictional issues versus issues going to the merits 2 3 4 28 28 Attribution of conduct 31 2.1 Introduction 31 2.2 Conduct of organs of a State 2.2.1 Responsibility for all State organs and branches of government 2.2.2 Executive organs 2.2.3 Legislative organs 2.2.4 Judicial organs 2.2.5 Individual government officials 2.2.6 State, provincial, and local governments 2.3 Entities exercising elements of governmental authority 32 32 33 33 33 35 36 37 2.4 Private parties 40 2.5 Conduct taken in the context of a customs union 2.5.1 General 2.5.2 Organs of the European Communities 43 43 46 Breach of an obligation 49 3.1 Introduction 49 3.2 Concept of a breach 49 3.3 Breaches arising from omissions 50 3.4 Breaches arising from legislation as such 51 3.5 Breaches arising from composite measures 53 3.6 Harmless error 55 Conflicts between treaties 59 4.1 Introduction 59 4.2 Conflict avoidance 4.2.1 The narrow definition of and presumption against ‘conflict’ in international law 4.2.2 Article 31(3)(c) of the Vienna Convention 4.2.3 Treaties as evidence of facts 60 © in this web service Cambridge University Press 60 65 82 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents 5 6 7 vii 4.3 Conflict resolution 4.3.1 Priority clauses 4.3.2 The lex specialis principle 4.3.3 Article 30 of the Vienna Convention 4.3.4 Article 41 of the Vienna Convention 86 86 86 90 93 Countermeasures 97 5.1 Introduction 97 5.2 Object and limits of countermeasures 98 5.3 Proportionality of countermeasures 101 5.4 Termination of countermeasures 104 Due process 107 6.1 Introduction 107 6.2 Due process in international dispute settlement proceedings 6.2.1 Nature of due process 6.2.2 The right of response 6.2.3 Compliance with established procedural requirements 6.2.4 Prompt and clear articulation of claims and defences 6.2.5 Impartiality in the decision-making process 6.2.6 Issuing reasoned decisions 107 108 111 6.3 Due process in the administration of domestic law 116 Evidence before international tribunals 121 7.1 Introduction 121 7.2 Burden of proof 7.2.1 General rule 7.2.2 Proving a negative 7.2.3 Admissions made by a party in a dispute settlement proceeding 7.2.4 Judicial notice of facts widely known 7.2.5 Evidence in the sole possession of one party: adverse inferences 7.2.6 Issues of law: jura novit curia 122 122 124 © in this web service Cambridge University Press 112 113 114 115 126 127 128 131 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents viii 8 9 7.3 Forms of evidence 7.3.1 The distinction between admissibility and weight 7.3.2 Inferences and circumstantial evidence 7.3.3 Statements against interest by government and/or company officials 7.3.4 Press reports 7.3.5 Affidavit evidence 7.3.6 Authenticity of evidence 133 134 134 7.4 The standard of proof 148 Good faith 153 8.1 Introduction 153 8.2 Good faith pending the entry into force of treaties 154 8.3 Good faith in the performance and interpretation of treaties 8.3.1 Reasonableness and abus de droit 8.3.2 Measures defeating the purpose of a treaty and/or expectations derived therefrom 8.3.3 The presumption that States act in good faith 8.3.4 Measures threatening prohibited conduct 8.3.5 Withdrawal/correction of measures based on errors 157 157 8.4 Good faith in international dispute settlement proceedings 170 Judicial economy 173 9.1 Introduction 173 9.2 Stricto sensu: alleged violations of multiple obligations arising out of the same measure 9.2.1 Generally 9.2.2 Judicial economy and transparency 9.2.3 False judicial economy 174 174 176 176 138 141 144 145 159 165 168 169 9.3 Judicial economy in a broader sense 9.3.1 Judicial economy in respect of arguments 9.3.2 Arguendo assumptions 9.3.3 Leaving the precise boundaries of certain legal concepts undefined 9.3.4 Declining to rule on issues rendered moot by other findings or developments 9.3.5 Issues in respect of which the parties agree 182 183 9.4 Judicial economy regarding procedural issues 184 © in this web service Cambridge University Press 177 178 178 181 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents 10 Municipal law ix 187 10.1 Introduction 187 10.2 Relevance of municipal law concepts and classifications to treaty interpretation 188 10.3 Respondent invoking municipal law as a justification for a failure to perform a treaty obligation 192 10.4 Alleged violations of municipal law 195 10.5 The interpretation of municipal law by international tribunals 196 10.6 Implementation of international obligations in municipal law 10.6.1 Obligations of result 10.6.2 The concept of direct effect 200 200 201 10.7 Representations made by a State regarding the operation of its municipal law 203 11 Non-retroactivity 207 11.1 Introduction 207 11.2 Non-retroactivity of treaties 207 11.3 Non-retroactive consequences of treaty termination 216 11.4 Other inter-temporal principles of international law 216 12 Reasonableness 221 12.1 Introduction 221 12.2 The meaning of the term ‘reasonable’ 12.2.1 Reasonable administration of laws 12.2.2 Reasonable period of time 12.2.3 Reasonable terms and conditions 221 221 222 224 12.3 Reasonableness as an unwritten legal test 12.3.1 Reasonable relationship tests 12.3.2 Reasonable expectations 12.3.3 Reasonableness as a standard of review 225 225 226 227 12.4 Reasonableness in treaty interpretation 12.4.1 Irrational distinctions 12.4.2 Inverted outcomes 229 230 231 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents x 13 Sources of international law 233 13.1 Introduction 233 13.2 Article 38(1) of the ICJ Statute 234 13.3 Customary international law 13.3.1 The concept(s) of ‘general’ and ‘customary’ international law 13.3.2 Establishing customary/general international law 13.3.3 The relationship between treaties and customary international law 234 235 235 13.4 General principles of law 13.4.1 ‘General principles of law’ 13.4.2 ‘General principles of international law’ 242 242 244 13.5 Judicial decisions 13.5.1 Precedents of other international tribunals on general issues 13.5.2 Precedents by the same body on questions of treaty interpretation 13.5.3 Res judicata 245 13.6 Teachings of the most highly qualified publicists 13.6.1 Generally 13.6.2 International Law Commission 14 Sovereignty 240 246 247 251 255 255 255 257 14.1 Introduction 257 14.2 Treaties as acts of sovereignty 258 14.3 Sovereignty and treaty interpretation: in dubio mitius 259 14.4 Sovereign right to regulate 261 14.5 Sovereignty and taxation 263 14.6 Sovereignty and extraterritoriality 265 14.7 Sovereignty over natural resources 269 14.8 Sovereign equality 272 14.9 The domestic jurisdiction 273 15 Treaty interpretation 15.1 Introduction © in this web service Cambridge University Press 275 275 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents xi 15.2 Good faith 276 15.3 Ordinary meaning 15.3.1 Text as the foundation of interpretation 15.3.2 Dictionaries 15.3.3 Special meaning 15.3.4 Evolutionary interpretation 276 277 278 279 280 15.4 Context: general principles 15.4.1 Harmonious interpretation 15.4.2 Different words, different meanings 281 282 283 15.5 Context: agreements and instruments under Article 31(2) 15.5.1 Generally 15.5.2 Agreements under Article 31(2)(a) 15.5.3 Instruments under Article 31(2)(b) 284 284 285 288 15.6 Object and purpose 291 15.7 Subsequent agreements 294 15.8 Subsequent practice 300 15.9 Relevant rules of international law 312 15.10 Supplementary means of interpretation 15.10.1 Generally 15.10.2 Preparatory work 15.10.3 Circumstances of the treaty’s conclusion 312 313 315 316 15.11 Treaties authenticated in two or more languages 320 16 Words and phrases considered 325 16.1 Introduction 325 16.2 Mandatory and discretionary terms 16.2.1 ‘Shall’, ‘should’ and ‘may’ 16.2.2 ‘Guidelines’ and ‘principles’ 16.2.3 ‘As far as possible’, ‘unless impracticable’, ‘normally’ 326 326 329 16.3 Obligations of conduct 332 16.4 Self-judging standards 333 16.5 Normative standards 16.5.1 ‘Appropriate’ 16.5.2 ‘Discrimination’ 16.5.3 ‘Fair’ 336 336 339 342 © in this web service Cambridge University Press 330 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Contents xii 16.5.4 ‘Legitimate’ 16.5.5 ‘Necessary’ 344 345 16.6 Timing language 16.6.1 ‘As soon as’ 16.6.2 ‘Immediately’ 16.6.3 ‘Promptly’ 16.6.4 ‘Reasonable period of time’ 16.6.5 ‘Without delay’ 347 347 347 348 349 349 16.7 Common English words 16.7.1 ‘A’, ‘the’, ‘any’ 16.7.2 ‘And’ versus ‘or’ 16.7.3 ‘Affecting’, ‘based on’, ‘governing’, ‘relating to’ 16.7.4 ‘Including’, ‘such as’, ‘i.e.’ 351 351 353 354 359 Index © in this web service Cambridge University Press 361 www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information FOREWORD The panther is a cat! But is it a leopard or a lion? Not too long ago, one could make waves by claiming that WTO rules are, after all, just treaty rules. They are, in biological terms, but a ‘genus’ of the broader ‘family’ of public international law, much like panthers are a genus of the broader cat family. Many GATT negotiators thought differently. They portrayed their agreement as special, a self-contained economic contract setting out a balance of concessions, rather than legally binding rules part of international law. In many ways, this remains the approach today in, for example, most of international financial regulation: highly technical, detailed rules, but not considered by their drafters as ‘binding’ or ‘international law’. Reading this digest, one realizes just how fast and comprehensively perceptions have changed. Graham Cook’s extraordinary work offers a structured overview of nearly one thousand statements by WTO panels and the WTO Appellate Body on topics of general public international law. To the extent they are still out there, this digest should silence those who continue to believe that WTO law is a self-contained regime, that WTO panels can only consider WTO covered agreements, or that one can be an effective WTO lawyer without knowing public international law. Yet, Mr Cook’s message goes beyond the idea that WTO law is part of public international law, i.e. that public international law plays a role also in WTO dispute settlement. His work demonstrates to specialists in other fields of international law (say, human rights or environmental lawyers) that they too can actually learn something about public international law by looking at WTO jurisprudence. It is, to come back to my biological metaphor above, not just that the panther, finally, realizes that it is part of the cat family; other cats (even domestic cats) can actually learn something about what it means to be a cat by observing the panther’s features, habits and behaviour. Changing metaphors, and contemplating this time the cover picture of this digest, within the four walls of the WTO building grew a surprisingly rich and vigorous tree of public international law; a tree that few insiders would have predicted when they constructed the WTO edifice in 1994. The tree has deep xiii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xiv Foreword and long roots that reach way beyond the WTO covered agreements. It is nurtured by customary international law, general principles of law and even non-WTO treaties. Given its size and strength today the tree should also inspire other fields of international law. The tree may have been hidden from sight. With this work, everyone is on notice. How can one summarize the WTO’s approach to general international law? In the 1990s, many public international law commentators lamented the proliferation of specialized international tribunals. They feared that these tribunals would develop their own rules of international law in an unstoppable process of fragmentation. The reality, at least when looking at WTO jurisprudence twenty years later, turned out differently. If anything, the WTO has taken a rather traditional, conservative view of general international law, following as much as it could statements by the International Court of Justice or the UN’s International Law Commission. No WTO-specific approach to general international law topics has really developed. Rather than distancing itself from general international law or giving general rules a trade-specific interpretation, WTO jurisprudence has used public international law as a centralizing or uniting factor, bringing (the panther of) WTO law closer to the broader (cat) family of public international law. If anything, what marks the WTO approach to, for example, treaty interpretation is an almost obsessive sticking to what the Vienna Convention provides for, not a liberal approach of adjusting rules of interpretation to the specifics of trade. As the author puts it (at paragraph 15.32), ‘WTO adjudicators have been wary of certain forms of reasoning by reference to object and purpose, and have generally been cautious about attaching too much weight to the object and purpose of a treaty as a basis for its interpretation.’ More WTO-specific may be the heavy reliance on a de facto rule of precedent of especially WTO Appellate Body rulings and a complete neglect in panel and Appellate Body reports of academic scholarship or ‘teachings of the most highly qualified publicists’ for anything other than general international law. General international law, as this digest demonstrates, fills the gaps left by treaties. It is the glue that binds the different sub-branches together. General international law ensures the existence of international law as a ‘legal system’. The fact that the WTO applies it is not trivial or meaningless. It confirms that the WTO treaty is part of ‘the family’. At the same time, so far, only one of the two core lessons have been drawn from the fact that the WTO is part of public international law. Today, WTO jurisprudence clearly confirms that the WTO treaty must be applied and interpreted in the broader context of general international law. This centralizing or uniting theme has given us ample and rich references to rules on burden and standard of proof, evidence, good faith, due process, attribution, jurisdiction, countermeasures and treaty interpretation. Features and insights common to the © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Foreword xv broader cat family have played their role in our assessment and analysis of the panther. But there is a second lesson to be drawn from the fact that WTO law is part of the system of international law. That is, its unavoidable interaction not just with general international law but also with other, non-WTO treaties and other sub-branches of international law, including free trade agreements between a sub-set of WTO Members. In other words, that the panther (genus panthera) is part of the cat family also unites it with other subfamilies or genera within the family such as the cougar, the cheetah or the domestic cat. What is more, also the panther is, in turn, but a genus that includes several species, in casu, the jaguar, leopard, lion and tiger, all four of which are panthera but after all quite distinct. The WTO may have found its place as part of the broader international law family; it is still struggling to learn from and find its place vis-à-vis other sub-branches of international law including sub-branches within its own field of international trade law, in particular free trade agreements. This second lesson or consequence of being part of the international law ‘system’ is not a centralizing or uniting theme (‘we are all cats’). It is a centrifugal or distinguishing force, calling for the recognition of the diversity between States and the contractual freedom of States to add to WTO rules or ‘change their minds’, waive or adapt pre-existing WTO rules and to decide for themselves to which treaty or norm they want to give preference. This second theme, still largely unresolved in the WTO today, is not a centralizing or uniting one, but a centrifugal one allowing for regional and State-to-State differences in legal relationships amongst WTO Members (‘as panthers we may all be cats, but some of us are lions, others jaguars, leopards or tigers’). With 160 WTO Members, including more recently China, Saudi Arabia and Russia, such inter se diversity is unavoidable. For WTO dispute settlement to impose the same one-size-fits-all straitjacket on all WTO Members is unrealistic. It does not correspond to reality (WTO Members are party to a panoply of very diverse trade and non-trade agreements) and is normatively undesirable (it denies the sovereign right of countries to consent to other treaties in fulfilment of their own, diverse preferences). At this juncture, the big question is how to combine the benefits of a multilateral treaty like the WTO with the undeniable existence of plurilateral, regional and bilateral agreements on trade and non-trade issues, in the WTO (e.g. bilateral settlement agreements or agreements to hold open hearings in deviation from the DSU) and outside the WTO (e.g. free trade agreements with WTO-plus and WTO-minus elements)? As the Appellate Body put it in one of its most recent statements on the issue (see paragraph 4.24 in this Digest): ‘In a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xvi Foreword individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.’ The Appellate Body left it at this, without providing its view on the issue of whether ‘relevant rules of international law applicable in the relations between the parties’ in Article 31.3(c) of the Vienna Convention allows WTO panels to refer only to non-WTO treaties binding on all WTO Members (in practice, almost impossible) or also to non-WTO agreements between a sub-set of WTO Members party to the dispute (in the case at hand, a bilateral EU–US agreement on aircraft subsidies). Three guiding principles should be followed to solve this dilemma. First, a WTO panel should normally refer to a non-WTO treaty only if both disputing parties have consented to this treaty (the principle of State consent). To interpret or apply the WTO treaty in a particular way with reference to a non-WTO treaty that one of the disputing parties never consented to can only be done with extreme caution (but see paragraphs 4.11, 4.17, 4.27–4.36 and 15.31 of this Digest, in each case giving meaning to the WTO treaty as it applies to all WTO Members with reference to a non-WTO treaty that is not binding on all WTO Members). Crucially, where the WTO treaty is interpreted or applied in a given way with reference to a non-WTO treaty binding on the disputing parties, this interpretation or application cannot affect other WTO Members, not party to the dispute, since they may not have consented to the non-WTO treaty nor were they party to the dispute. In other words, an EU–US bilateral agreement on aircraft, where it is relevant, may well influence the outcome of an EU–US dispute before the WTO; it cannot influence the outcome of a WTO dispute between any other pair of WTO Members. Not to give effect to the EU–US bilateral agreement, where it is relevant, would contravene the contractual freedom of States. As long as a WTO panel refers to the bilateral agreement for the purpose of deciding claims under WTO covered agreements, a WTO panel would then not ‘add to or diminish the rights and obligations provided in the covered agreements’ contrary to DSU Article 3.2; it was the EU and the US as sovereign States who did so. As Graham Cook points out (at paragraph 14.2, with reference in particular to the China – Raw Materials case), ‘panels and the Appellate Body emphasized that States may exercise their sovereignty by negotiating and entering into treaties. In this regard, there is support in WTO jurisprudence for the proposition that the right of entering into international engagements is an attribute of State sovereignty, such that restrictions on the exercise of sovereign rights that a State voluntarily accepts through a treaty cannot be considered as an infringement of its sovereignty.’ Countries genuinely worried about the Appellate Body ‘adding or diminishing’ their WTO rights should be concerned not so much about reference to nonWTO treaties they explicitly consented to, and more about the WTO’s de facto rule of precedent (where the Appellate Body, not WTO Members, is ‘making © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Foreword xvii law’) or reference to non-WTO treaties as facts or to general principles (such as good faith or due process) they never explicitly consented to. Second, a WTO panel should only refer to a non-WTO treaty if such treaty is both valid and legal. The treaty cannot violate jus cogens or be concluded by coercion, fraud or corruption or be based on error, nor can it be explicitly prohibited in the WTO treaty (such as voluntary export restraints prohibited in Article 11 of the Safeguards Agreement; in contrast, free trade agreements are explicitly permitted in GATT Article XXIV, GATS Article V and the Enabling Clause). The non-WTO treaty should also be legal in the sense that it does not affect the rights or obligations of third parties (the principle of pacta tertiis nec nocent nec prosunt): a bilateral agreement cannot exchange an exclusive concession in violation of the MFN rights of third parties unless it meets GATT Article XXIV; also a settlement agreement under the DSU must comply with MFN. Third, a non-WTO treaty can only disapply or prevail over a WTO provision if such non-WTO treaty amounts to a valid waiver of WTO rights or takes precedence over the WTO provision pursuant to conflict rules of international law. That a State can waive its WTO rights or consent to something that would otherwise constitute WTO breach (e.g. waive the DSU right to confidential Appellate Body proceedings as in US – Continued Suspension) is explicitly permitted in the ILC Articles on State Responsibility (Article 20 on consent as a circumstance precluding wrongfulness and Article 45(a) on waiver as loss of the right to invoke State responsibility) as well as the Vienna Convention (Article 41 on inter se modification of multilateral treaties). In both cases, they are subject to the pacta tertiis rule stated earlier: the waiver or modification cannot affect third-party rights. As discussed in paragraphs 15.44 and 15.45 of this Digest, the Appellate Body (in US – Clove Cigarettes and US – Tuna II (Mexico)) recognized that Article IX:2 of the WTO Agreement on authoritative interpretations is not the only way for WTO Members to further interpret or clarify the WTO treaty. They can also do so pursuant to simple ‘subsequent agreements between the parties’ as provided for in Article 31.3(a) of the Vienna Convention (as memorialized, for example, in the Doha Ministerial Declaration or a TBT Committee decision, neither of which refers to Article IX:2). Similarly, the fact that the WTO Agreement has specific rules on waiver or treaty amendment does not prevent WTO Members from waiving their rights unilaterally or by agreement, or from modifying the WTO treaty inter se as long as they do so in line with the relevant rules of general international law, especially the pacta tertiis rule (such waiver or modification agreement could then also be referred to as ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ under Article 31.3(a)). Conflict rules of international law, in turn, start from the assumption that all treaties are of the same hierarchical value but that the parties may explicitly agree on which treaty prevails (e.g. that an FTA prevails over the WTO or that an © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xviii Foreword FTA in violation of GATT Article XXIV remains subject to MFN in the WTO), in the absence of which principles such as lex posterior or lex specialis will decide on priority. So far WTO Members have been reluctant to invoke non-WTO treaties as self-standing defences against allegations of WTO breach. They have preferred to invoke such treaties to influence the interpretation of, for example, general exceptions in the GATT itself. To date these exceptions (GATT Article XX), allowing for unilateral deviations from the GATT with reference to health, environmental or public morals concerns, have been interpreted so broadly as to arguably cover most issues that WTO Members may mutually agree on in non-WTO treaties. More pressing is the question of whether the Appellate Body would be willing to defer to, for example, a forum exclusion clause in a free trade agreement such as NAFTA or the EU treaty (treaties explicitly allowed for under GATT Article XXIV) that prevents a State from filing a particular dispute to the WTO (e.g. because it was filed previously under the FTA). The Appellate Body has not directly answered this question. Yet, its jurisprudence, as listed in this Digest, shows the way. Firstly, WTO panels have exclusive subject-matter jurisdiction over WTO claims. This jurisdiction may be hard to contract-out from in another treaty. Yet, a WTO panel may have jurisdiction over a claim, but that claim may be inadmissible. As Graham Cook puts it (in footnote 4 of Chapter 1): ‘jurisdiction refers to the scope of the subject-matter that a complaining party can bring before a particular adjudicative body (which is constant and does not change from case to case), whereas inadmissibility concerns an alleged action or omission by a particular complaining party in a particular set of circumstances that may or must lead that adjudicative body to decline to examine a particular claim that otherwise falls within its subject-matter jurisdiction’. A forum exclusion clause in an FTA may not take away a WTO panel’s jurisdiction. However, it can still lead to the inadmissibility of a claim before the WTO. Second, the Appellate Body has confirmed that a restriction to a WTO Member’s ‘right to a WTO panel’ cannot be ‘lightly inferred’ and that ‘there should be a clear and unambiguous basis in the relevant legal instruments for concluding that such a restriction exists’ (paragraph 1.3 in this Digest, quoting US – FSC). At the same time, the Appellate Body acknowledged that there may be ‘a legal impediment to the exercise of a panel’s jurisdiction’ and that mutual understandings between WTO Members could preclude ‘complainants . . . from initiating Article 21.5 proceedings . . . if the parties to these Understandings had, either explicitly or by necessary implication, agreed to waive their right to have recourse to Article 21.5’ (paragraph 1.5, quoting Mexico – Taxes on Soft Drinks and EC – Bananas III (Article 21.5 – Ecuador II)). Since settlement understandings are outside ‘WTO covered agreements’ as much as FTAs are, a forum exclusion clause in an FTA could, therefore, be a ‘legal impediment’ to the © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Foreword xix exercise of a panel’s jurisdiction (i.e. can make a claim inadmissible) to the extent this clause expresses an agreement to waive specific WTO rights. In other words, the question is not whether an FTA clause can waive the right to a WTO panel (it can); the question is whether ‘the language’ in such clause ‘reveal[s] clearly that the parties intended to relinquish their rights’ (paragraph 1.5) and whether the waiver leaves third-party rights unaffected. As the Appellate Body found in US – Continued Suspension (Annex IV, paragraph 6), a WTO Member can waive its right to a closed Appellate Body hearing (even though DSU Article 17.10 mandates that Appellate Body proceedings ‘shall be’ confidential) for as long as ‘the right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated by the joint request’. These are core issues that remain to be decided in WTO dispute settlement. After 20 years, there can be no doubt that the panther is a cat. In the years ahead, we will know whether the WTO offers the flexibility for panthers to be jaguars, leopards, lions or tigers. Joost Pauwelyn Geneva, 2 December 2014. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information DISCLAIMER Any opinions expressed or implied in what follows reflect the author’s personal opinions and should not be attributed to the WTO Secretariat. xx © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information ACKNOWLEDGMENTS Work on this digest was greatly facilitated by the WTO Secretariat’s Analytical Index and Appellate Body Repertory (also published by Cambridge University Press), tradelawguide.com’s Article Citator, Jurisprudence Citator and Terms and Phrases tools, and worldtradelaw.net’s Case Law Index and Full Text Search function. I thank my colleagues in the Legal Affairs Division who found the time to make valuable comments on a draft, and Martin Goyette for conceiving and taking an inspired cover photo. xxi © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information PREFACE One would suspect that WTO jurisprudence contains at least a few useful statements relating to general public international law principles and concepts. But just how much useful material would one expect to find? After all, WTO adjudicators are tasked with examining alleged violations of the specific obligations contained in the WTO agreements. And, although Article 3.2 of the DSU expressly instructs adjudicators to clarify the WTO agreements ‘in accordance with customary rules of interpretation of public international law’, does that allow concepts and principles of public international law apart from those relating to treaty interpretation to be considered? And to what extent does any such consideration merely take the form of passing references,1 as distinguished from more significant and substantial clarification and application of public international law concepts and principles? Moreover, to what extent are any statements by WTO adjudicators concerning those concepts and principles capable of wider application, as opposed to being inextricably linked to the context of the underlying textual provisions of the WTO agreements? If WTO jurisprudence contained a very large number of statements relating to general public international law concepts and principles, one might expect to find numerous citations to WTO jurisprudence in public international law treatises, in the jurisprudence of other international courts and tribunals, and in the work of the International Law Commission (ILC). Instead, one finds scant reference to WTO jurisprudence in public international law treatises.2 There is only one reference to GATT/WTO jurisprudence in all of the decisions 1 2 It has been said that ‘judgments by the ICJ received only nominal adoption into the GATT regime, simply referred to in the footnotes of decisions as opposed to being directly applied in the body of a ruling’. J. Cameron and K. Gray, ‘Principles of International Law in The WTO Dispute Settlement Body’ (2001) 50(2) International and Comparative Law Quarterly pp. 248–98, footnote 52. For example, I. Brownlie and J. Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford University Press, 2012), pp. 353, 368, 543, 544, 548, 563, 565 and 740. Shaw’s International Law, 6th edn (Cambridge University Press, 2008), with a 58-page table of cases covering a wide range of international and domestic courts and tribunals, refers to just three Appellate Body decisions. xxiii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xxiv Preface and advisory opinions of the International Court of Justice (ICJ) (and it is found in a dissenting opinion, and it criticizes the ICJ majority decision for not following WTO panel practice concerning the use of scientific experts).3 There are not very many references to WTO jurisprudence in the commentaries of the ILC, and one ILC member has recently questioned whether WTO jurisprudence is looked at closely enough by public international lawyers.4 Work on this digest was prompted by the suspicion that WTO jurisprudence is an untapped goldmine of jurisprudence on public international law concepts and principles, and that a systematic review of the roughly 60,000 pages of WTO jurisprudence generated to date would unearth a large number of key statements by WTO adjudicators (i.e. the Appellate Body, panels, and arbitrators) relating to a wide range of general international law topics. The resulting mass of material collected in this digest speaks for itself. First, in the context of adjudicating claims of violation under the WTO agreements, WTO adjudicators have considered a wide range of ancillary concepts and principles of general international law, including but not limited to those regarding the law of treaties, State responsibility, and international dispute settlement. Statements by WTO adjudicators on general international law concepts and principles are by no means limited to the customary international law rules of treaty interpretation.5 Second, many concepts and principles have been the subject of substantial clarification and application, as opposed to simply passing references. Third, many statements and lines of jurisprudence are not inextricably linked to particular provisions of the WTO agreements in a way that would reduce their value to public international lawyers working in different contexts. To quote from Lauterpacht and McNair’s preface to an early volume of the International Law Reports (which at that time bore the title Annual Digest and Reports of Public International Law Cases): 3 4 5 In their joint dissenting opinion in the Pulp Mills case, Judges Al-Khasawneh and Simma disagreed with the Court’s decision not to appoint experts proprio motu, and observed that ‘[i]t is perhaps the World Trade Organization, however, which has most contributed to the development of a best practice of readily consulting outside sources in order better to evaluate the evidence submitted to it; in fact, it was devised as a response to the needs of the dispute resolution process in cases involving complex scientific questions.’ The judges recalled several aspects of WTO panel practice and cited to several panel decisions. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, 2010 ICJ Reports, p. 14 (20 April), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, para. 16. D. McRae, ‘International Economic Law and Public International Law: The Past and The Future’ (2014) 17(3) Journal of International Economic Law 627, at 632. With respect to the direction in Article 3.2 to apply customary international law ‘rules of interpretation’, the Panel in Korea – Procurement did not read this direction as implying that other rules of international law are necessarily inapplicable. The Panel stated that ‘[w]e should also note that we can see no basis here for an a contrario implication that rules of international law other than rules of interpretation do not apply. The language of [Article] 3.2 in this regard applies to a specific problem that had arisen under the GATT to the effect that, among other things, reliance on negotiating history was being utilized in a manner arguably inconsistent with the requirements of the rules of treaty interpretation of customary international law.’ Panel Report, Korea – Procurement, footnote 753. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Preface xxv The work of which this book is the first-fruits was prompted by the suspicion that there is more international law already in existence and daily accumulating ‘than this world dreams of’ . . . As the work has progressed that suspicion has ripened into a certainty . . . [T]he resulting mass of raw material forms a body of authority which both in quality and in variety has exceeded our expectations.6 The purpose of this guide is to make the wealth of statements by WTO adjudicators on general international law concepts and principles more easily accessible, in particular for those working or studying in non-WTO fields of international law. It provides a comprehensive and systematically organized digest of nearly one thousand extracts from WTO jurisprudence covering the following general international law topics: (i) admissibility and jurisdiction; (ii) the attribution of conduct to a State; (iii) the breach of an obligation; (iv) conflicts between treaties; (v) countermeasures; (vi) due process; (vii) evidence before international tribunals; (viii) good faith; (ix) judicial economy; (x) municipal law; (xi) non-retroactivity; (xii) reasonableness; (xiii) the sources of international law; (xiv) sovereignty; (xv) treaty interpretation; and (xvi) words and phrases commonly used in treaties and other international legal instruments. This work is inspired by several books that have examined the contributions of particular international courts and tribunals to the development of international law. The best-known book of this kind is The Development of International Law by the International Court,7 in which Lauterpacht reviewed the jurisprudential contributions of the Permanent Court of International Justice and the International Court of Justice on a range of concepts and principles of general public international law, including treaty interpretation, the role of judicial precedent, principles of judicial caution and restraint, jurisdictional issues, State responsibility, and sovereignty. In The Development of International Law by the European Court of Human Rights,8 Merrills reviewed that court’s jurisprudential contributions to topics such as treaty interpretation, State responsibility, reservations, estoppel and waiver, due process, and the relationship between treaties and general international law. Brower and Brueschke devoted a significant part of their book on The Iran–United States Claims Tribunal to examining that tribunal’s jurisprudential contributions to general international law, including the treatment of evidence before international 6 7 8 A. D. McNair and H. Lauterpacht (eds.), Annual Digest of Public International Law Cases, Volume 3, Years 1925–1926 (Cambridge University Press, 1929), at p. ix. H. Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958), which was a revised version of H. Lauterpacht, The Development of International Law by the Permanent Court of International Justice (Longmans, Green and Co., 1934). See also O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge University Press, 2005); and J. Sloan and C. J. Tams (eds.), The Development of International Law by the International Court of Justice (Oxford University Press, 2013). J. G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester University Press, 1988). © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xxvi Preface tribunals, treaty interpretation, State responsibility and estoppel.9 Other works have looked at the development of international law by the Permanent Court of Arbitration,10 the International Criminal Tribunal for Rwanda11 and the Special Court for Sierra Leone.12 There are two ways in which this digest differs from the above-mentioned works that inspired it. First, most of those works examined the particular court or tribunal’s jurisprudential contributions not only on general international law, but also with respect to core concepts and principles in specialized fields of international law – international human rights law in the case of the ECHR, international investment law in the case of the Iran–United States Claims Tribunal, and international criminal law in the case of some of the others mentioned above. This digest focuses exclusively on those statements by WTO adjudicators concerning general public international law concepts and principles.13 It does not, for example, cover the extensive body of WTO jurisprudence relating to national treatment and most-favoured-nation obligations found in the WTO agreements; although that body of WTO jurisprudence is perhaps relevant to the interpretation of national treatment and most-favoured-nation provisions typically found in bilateral investment treaties14 and other international trade agreements, those are not general public international law concepts or principles. Second, as its title suggests, this work is a ‘digest’ of relevant WTO jurisprudence, as opposed to an 9 10 11 12 13 14 C. N. Brower and J. Brueschke, The Iran–United States Claims Tribunal (Martinus Nijhoff, 1998), Part III, ‘Contributions of the Iran–United States Claims Tribunal to Public International Law’, pp. 263–368, and Chapter 19, ‘The Tribunal’s Jurisprudence as a Source of Public International Law’, pp. 631–56. J. G. Merrills, ‘The Contribution of the Permanent Court of Arbitration to International Law and to the Settlement of Disputes by Peaceful Means’, in P. Hamilton, H. C. Requena, L. van Scheltinga and B. Shifman (eds.), The Permanent Court of Arbitration: International Arbitration and Dispute Resolution, Summaries of Awards, Settlement Agreements and Reports (Kluwer, 1999), pp. 3–31. L. J. van den Herik, Contribution of the Rwanda Tribunal to the Development of International Law (Martinus Nijhoff, 2005). C. C. Jalloh, ‘The Contribution of the Special Court for Sierra Leone to the Development of International Law’ (2007) 15(2) African Journal of International and Comparative Law, pp. 165– 207. Consideration was given to inserting the word ‘general’ before ‘public international law’ in the title of this work. Sometimes brevity beats precision. In the context of international economic law, there are various works examining the potential relevance of WTO jurisprudence on national treatment (and other obligations) to the interpretation of similar obligations in other international trade and investment agreements. For example, see G. Cook, Importing GATT/WTO Jurisprudence into NAFTA Chapter Eleven to Define the Standards of International Investment Law (University of British Columbia, 2001, available at www.law.libary.ubc.ca); J. Kurtz, ‘The Use and Abuse of WTO Law in Investor–State Arbitration: Competition and its Discontents’ (2009) 20(3) European Journal of International Law 749; G. Tereposky and M. Maguire, ‘Utilizing WTO Law in Investor–State Arbitration’, in A. W. Rovine (ed.), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (Martinus Nijhoff, 2011), pp. 247–83; A. Mitchell, ‘Variations on a Theme: Comparing the Concept of “Necessity” in International Investment Law and WTO Law’ (2013) 14 Chicago Journal of International Law 93. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information Preface xxvii academic monograph – its added value comes from the identification and systematic organization of the relevant jurisprudence, in such a way as to help researchers quickly identify relevant cases. It is best left to others to critically evaluate that jurisprudence, or draw out the possible implications of that jurisprudence for future cases, or compare and contrast that jurisprudence with the jurisprudence of other international courts or tribunals, and/or engage with the substantial body of literature that exists on some of the topics covered. Statements by WTO adjudicators on general public international law concepts and principles should be taken into account by lawyers working in other fields of public international law, for at least two reasons. First, as Schwarzenberger observed in International Law as Applied by International Courts and Tribunals, ‘[c]ompared with the dicta of textbooks and the practice of this or that State, the decisions of international courts have an authority and reality which cannot be surpassed’.15 WTO panels, arbitrators and the Appellate Body function as international judicial tribunals. They are required to resolve the disputes that come before them exclusively on the basis of law and legal reasoning. It is true that the WTO agreements use a considerable amount of non-judicial terminology when describing the dispute settlement system,16 but WTO adjudicators function in essentially the same way as any other international judicial tribunal. In the words of one panel, ‘an inquiry of a peculiarly economic and political nature’ is ‘notably ill-suited’ to WTO panels, ‘whose function is fundamentally legal’.17 In the words of the Appellate Body, WTO adjudicators are engaged in the exercise of ‘the judicial function’.18 A second reason why statements by WTO adjudicators on public international law concepts and principles should be taken into account is that WTO adjudicators have developed a body of jurisprudence that is remarkably consistent and coherent. The role and influence of the WTO Appellate Body has been important in this regard. As others have explained, ‘[t]he repeated quotation and citation of earlier decisions in standing tribunals will result in a jurisprudence constante which, precisely because it is repeated and constante, tends to acquire a certain natural authority and influence that even the most carefully crafted award of an ad hoc tribunal is unlikely to command.’19 15 16 17 18 19 G. Schwarzenberger, International Law. Volume I: International Law as Applied by International Courts and Tribunals (Stevens & Sons, 1945), p. 2. See also Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Separate Opinion of Judge Sir Gerald Fitzmaurice, 1970 ICJ Reports, p. 64, para. 2 (‘judicial pronouncements of one kind or another constitute the principal method by which the law can find some concrete measure of clarification and development’). In the WTO dispute settlement system, ‘panels’ and the ‘Appellate Body’ issue ‘reports’ that contain ‘recommendations’ addressed to a plenary organ (i.e. the Dispute Settlement Body), which then adopts those recommendations (unless all WTO Members agree otherwise). Panel Report, Brazil – Aircraft, para. 7.89. Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), at para. 36. V. Lowe and A. Tzanakopoulos, ‘The Development of the Law of the Sea by the International Court of Justice’, in J. Sloan and C. Tams (eds.), The Development of International Law by the International Court of Justice (Oxford University Press, 2013), pp. 177–93, at p. 186. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information xxviii Preface This digest aims to be comprehensive, and is based on a review of all WTO decisions generated over the period 1995–2014. By my count,20 a total of 352 decisions were issued during this period. These include: (i) 191 panel reports (including 162 panel reports in original proceedings, and 29 panel reports in compliance proceedings under Article 21.5 of the DSU to determine the existence and WTO-consistency of measures taken to comply with earlier rulings); (ii) 112 Appellate Body reports (including 94 Appellate Body reports reviewing original panel reports, and 18 Appellate Body reports in Article 21.5 proceedings); and (iii) 49 arbitral awards and decisions (including 27 arbitration awards under Article 21.3(c) of the DSU to determine the reasonable period of time for implementing rulings and recommendations, 19 arbitration decisions in proceedings under Article 22.6 of the DSU and Articles 4 and/or 7 of the SCM Agreement to determine the level of retaliation in the event of non-compliance, 1 arbitration award under Article 25 of the DSU, and 2 arbitration awards under special procedures). This digest also contains extracts from about a dozen panel reports from the GATT era. Stating that this digest aims to be comprehensive does not amount to a representation that it presents all relevant statements by all WTO adjudicators on all of the topics covered herein. It does not. To the contrary, considerable care has been taken to identify and exclude from this digest those statements and lines of jurisprudence that are linked to specific provisions of the WTO agreements in a way that potentially reduces their relevance for those working in other fields of public international law. As a result, for some of the topics covered, the statements collected in this digest only represent a fraction, and in some instances a very small fraction (e.g. countermeasures), of what WTO adjudicators have had to say on the topic. In addition, care has been taken to keep this digest to a manageable length, keeping the extracts as short as possible, and avoiding duplication as far as possible. For all of the topics covered, it aims to highlight the cases and statements that are likely to be of the greatest interest and utility to lawyers working in other fields of public international law. In other words, this digest tries to present all the ‘greatest hits’ of WTO jurisprudence for public international lawyers working in other fields of international law. 20 A note on the figures presented here: (i) when the parties to a WTO dispute reach a bilateral settlement during the course of a proceeding, the WTO adjudicator still issues a report/award, which simply notes that a bilateral agreement was reached and does not contain any findings or analysis by the adjudicator – such reports are not counted in these figures; and (ii) when there are multiple complainants challenging the same matter, the WTO adjudicator may issue its separate reports in the form of a single document – these are counted as only one report in these figures; and (iii) WTO panels sometimes issue preliminary rulings on jurisdiction (or other points) as separate documents, which are then deemed to be an integral part of their final report – such rulings are not counted separately in these figures. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information EDITORIAL CONVENTIONS This digest adheres to the following editorial conventions:  The material is divided into multiple chapters and sub-sections, systematically broken down under issue-specific sub-headings.  Each sub-section is introduced by a concise overview of relevant jurisprudence relating to the concept, principle or issue in question, followed by key extracts from WTO panel, Appellate Body and arbitration decisions.  Where there are multiple cases addressing an issue under a particular subheading, they are generally presented in chronological order; in some instances cases are grouped together, out of strict chronological order, if they are closely linked to one another.  All WTO cases and agreements are referred to by their standard short titles. The glossary that follows sets out the full title (and brief explanation) of the WTO agreements referenced most frequently in this work. The table of cases that follows sets out the full citation for all WTO cases cited.  All extracts are introduced by short explanatory sentences, which present the context for the statements being quoted.  Original footnotes within extracted passages are omitted, except where they contain substantial discussion; when retained, such footnotes are reproduced immediately below the extracted passage.  No emphasis is added to any of the extracts. Thus, wherever there is any emphasis in an extract, it is found in the original.  Within quoted material, ellipses (. . .) are used to indicate where text within a sentence, a paragraph or larger section has been omitted. Ellipses are not used at the beginning or ending of passages reproduced in quotations. Square brackets are used to indicate required editorial changes, which have been kept to a strict minimum. xxix © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-10276-7 - A Digest of WTO Jurisprudence on Public International Law Concepts and Principles Graham Cook Frontmatter More information GLOSSARY OF COMMONLY USED TERMS Panel Report Appellate Body Report Article 21.3(c) Award Article 21.5 Panel Report Article 22.6 Decision WTO panels are comprised of three individuals, appointed on an ad hoc basis, to make findings on the consistency of the challenged measure(s) with one or more obligations contained in the WTO agreements. Panels make findings on disputed questions of law and fact. Panel decisions are referred to as ‘reports’. Panels are the adjudicators of first instance, and their decisions are subject to review by the Appellate Body. The Appellate Body is a standing body of seven individuals with demonstrated expertise in law, three of whom serve on a particular appeal. Appeals are limited to issues of law covered in the panel report and legal interpretations developed by the panel. Decisions of the Appellate Body are referred to as ‘reports’. Where the measure(s) at issue are found to be inconsistent with one or more WTO obligations, the Member concerned is entitled to a reasonable period of time to bring the measure(s) into conformity with those obligations. In the absence of agreement between the disputing parties, the time-period is determined through arbitration pursuant to Article 21.3(c) of the DSU. The decision of the arbitrator (in all cases to date, a current or former member of the Appellate Body) is referred to as an ‘award’. Where the parties disagree as to whether the Member concerned has brought the WTO-inconsistent measure(s) into conformity with its obligations within the reasonable period of time, the matter is referred to a ‘compliance panel’ pursuant to Article 21.5 of the DSU. The compliance panel is composed of the same individuals from the original panel where possible, and its report may be appealed to the Appellate Body in the same way as an original panel report. Where the Member concerned has not brought the measure(s) found to be WTO-inconsistent into compliance with its obligation(s) within the reasonable period of time for doing so, the complaining party may request authorization from the WTO to suspend concessions or other obligations. Where the Member concerned objects to the level of retaliation requested, the matter is referred to arbitration pursuant to Article 22.6 of the DSU (and Articles 4 and/or 7 of the SCM Agreement, where xxx © in this web service Cambridge University Press www.cambridge.org