About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

35 J. World Trade 499 (2001)
Applicable Law in WTO Dispute Settlement Proceedings

handle is hein.kluwer/jwt0035 and id is 505 raw text is: Journal of World Trade 35(3): 499-519, 2001. © 2001 Khwer Law International. Printed in The Netherlands. Applicable Law in WTO Dispute Settlement Proceedings Lorand BARTELS* 1. INTRODUCTION This article considers the extent to which Panels and the Appellate Body may apply rules and principles of international law deriving from sources other than the WTO covered agreements.' The premise of the article may be stated very simply: it is that international law from all sources is potentially applicable as WTO law, subject to a de facto restriction resulting from the limited jurisdiction of Panels and the Appellate Body to decide on only certain types of disputes, and subject also to a conflicts rule, stated in Articles 3.2 and 19.2 of the DSU, that Panels may not add to or diminish the rights and obligations of Members set out in the covered agreements.2 The large print of the formulation suggested here differs from the view, advanced by a number of authors, that Panels and the Appellate Body may only apply the rules expressly set out in the covered agreements (as interpreted in accordance with the rules of customary international law on the interpretation of treaties).3 It is argued here that this view places too restrictive an interpretation on the relevant provisions of the DSU, is unduly positivistic, and does not reflect the actual practice of Panels and the Appellate Body. On the other hand, the small print qualifications account for the fact that, first, Panels and the Appellate Body may only hear claims based on the covered agreements and that, second, they must give priority to the rights and obligations in the covered agreements in the event of any conflict between these and any other norms. * BA (Hons), LLB (UNSW). Researcher, European University Institute, Florence, Italy (lorand.bartels@iue.it). Many thanks to Gabrielle Marceau, Petros Mavroidis and Federico Ortino for their kind comments. All errors remain mine. This article will also be published in J. Bourgeois and J. Wouters (eds), WTO Dispute Settlement (Cameron, May 2001) (forthcoming). ' The 'covered agreements' include the WTO Agreement, the Agreements in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee of signatories has taken a decision to apply the DSU (Brazil-Measures Affecting Desiccated Coconut, WT/DS22/AB/R, 21 February 1997, at p. 11). 2 The present author agrees with Mavroidis and Palmeter that all of the sources of law set out in Article 38(l)(d) of the Statute of the International Court of Justice are potential sources of law though not that the authority for this is Article 7 of the DSU. See D. Palmeter and P.C. Mavrmidis, The ,TO Legal System: Sources of Law, 92 American Journal of International Law (1998) p. 398, at p. 398, and also T. Schoenbaum, WTO Dispute Settlement: Praises and Suggestions for Reform, 47 International and Comparative Law Quarterly (1998), p. 647. 1 E.g. G. Marceau, A Call for Coherence in International Law: Praises for the Prohibition Against Clinical Isolation in WTO Dispute Settlement, 33-J.WT.5 (1999), p. 87, at pp. 109-115; L.D. Guruswamy, Should UNCLOS or GATT/WTO Decide Trade and Environment Disputes? 7 Minnesota Journal of Global Trade 287 (1998), p. 311; Trachtman, The Domain of WTO Dispute Resolution, 40 (2) Harvard International LawJournal 333 (1999), p. 342, n 41; J.1. Charney, Is International Law Threatened by Multiple International Tribunals? 271 Recueil des Cours 101 (1998), p. 219. For a different view, see J. Pauwelyn, Public International Law in the WTO System: How Far Can We Go? (2001) 95 (3) AJIL (forthcoming). Copyright © 2007 by Kluwer Law International. All rights reserved. No claim asserted to original government works.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most