This paper aims to examine changes in the jurisprudence of the World Trade Organization Appellate Body in three areas of law (judicial economy, the identification of the measure…
Abstract
Purpose
This paper aims to examine changes in the jurisprudence of the World Trade Organization Appellate Body in three areas of law (judicial economy, the identification of the measure to be examined under Article XX of the General Agreement on Tariffs and Trade and other duties and import charges), and concludes that the Appellate Body failed to acknowledge and cogently explain in each of these areas, the changes it made.
Design/methodology/approach
The paper asks two key questions: what has the Appellate Body done when its own rulings in past cases stood in the way of a legally sound ruling in a new case, and how should it handle such instances in the future?
Findings
The paper concludes that all changes in jurisprudence reduce predictability, but that predictability suffers even more when the changes are made in disguise because panels and Members then receive confused or conflicting normative signals.
Originality/value
The paper argues that the Appellate Body should seek consistency of jurisprudence wherever possible. It should handle changes in jurisprudence more transparently and adopt internal procedures that make the need for them less likely.
Details
Keywords
One of the core objectives of the World Trade Organisation (WTO) is to maintain a practice of legality, including guaranteeing state and non-state actors interact based on the…
Abstract
Purpose
One of the core objectives of the World Trade Organisation (WTO) is to maintain a practice of legality, including guaranteeing state and non-state actors interact based on the world trade norms. In seeking to achieve this objective, the WTO aims to uphold the trade rule of law by emphasising compliance with specified rules and procedures during the accession process, dispute settlement and trade policy review. This study aims to review these compliance procedures by invoking the interactional international law concept of a community of legal practice. Second, it briefly illuminates Chad Bown’s proposal to establish an institute for assessing WTO commitments to improve member states’ remit to detect, challenge and deter noncompliance.
Design/methodology/approach
This paper is based on Jutta Brunnée and Stephen Toope’s Interactional Theory of International Law.
Findings
There is a strong link between transparency and enforcement in WTO law. The efficacy of the WTO law depends not only on its role in adjudication, but also on facilitating interactional legal practices, within and outside the WTO.
Originality/value
This paper offers an original analysis of the practices of compliance with WTO obligations and illuminates a new proposal for improving compliance. To attract and maintain compliance, the WTO needs to facilitate transparent interactional legal practices for states and non-state actors.
Details
Keywords
The purpose of this paper is to examine the critical issue of legal interpretation on the “development question” as they arise before WTO panels and Appellate Body, in view of the…
Abstract
Purpose
The purpose of this paper is to examine the critical issue of legal interpretation on the “development question” as they arise before WTO panels and Appellate Body, in view of the benefits inherent in a more‐rounded consideration of the development needs and concerns of WTO developing country Member States.
Design/methodology/approach
The introduction sets out the background to the challenges of developing countries in utilising the dispute settlement process effectively and using existing support. By analysing relevant cases, Section 2 analyses the “development question” and how it has been so far considered in legal interpretation. Section 3 addresses WTO jurisprudence on development, examining situations wherein “development” arises in the course of WTO dispute settlement. An examination as to how this aspect of WTO jurisprudence may be revisited including the potential aid of trade policy review mechanisms, and procedures for enforcement is then undertaken. It concludes on the position that the WTO judicial review process can work better by providing the much‐needed balance between binding global trade rules and the domestic progress of its developing country membership at the level of dispute settlement.
Findings
This paper establishes the importance of recognising and addressing the fact that core challenges and concerns facing developing countries can and should be factored into the legal interpretation of issues in dispute settlement.
Originality/value
A decisive enquiry into WTO development jurisprudence, this paper addresses developing country capacity to pursue the legal opportunities promised by the WTO dispute settlement mechanism, and how this can be redressed.