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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.
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A DIGEST OF
WTO
JURISPRUDENCE
ON PUBLIC
INTERNATIONAL
LAW CONCEPTS
AND PRINCIPLES
Graham Cook
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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.
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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
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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
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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
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113
114
115
126
127
128
131
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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
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178
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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Any opinions expressed or implied in what follows reflect the author’s personal
opinions and should not be attributed to the WTO Secretariat.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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
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