The WTO in international law: Tradition continued or new frontier?

Journal of International Economic Law

Volumn 3, Issue 1, 2000, Pages 27-41

  McRae, Donald M ^a  

^a UNIVERSITY OF OTTAWA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034381807     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.1.27     Document Type: Article

References (68)

1. For an elaboration of this point see Donald M. McRae, 'The Contribution of International Trade Law to the Development of International Law', Recueil des Cours, Vol 260 (1996) 111-23.
2. See for example, John H. Jackson, The World Trading System (2nd ed, 1998) 25-28.
3. See for example, Ernst-Ulrich Petersmann, 'Dispute Settlement in International Economic Law - Lessons for Strengthening International Dispute Settlement in Non-Economic Areas', 2 J Int'l Econ L 189-248 (1999).
4. Two further exceptions are Stephen Zamora, 'Is there Customary International Economic Law?', 22 German YIL 9-42 (1989) and P. J. Kuyper, 'The Law of GATT as a Special Field of International Law: Ignorance, Further Refinement or Self-Contained System of International Law', 25 Neth YIL 227-57 (1994).
5. Two further exceptions are Stephen Zamora, 'Is there Customary International Economic Law?', 22 German YIL 9-42 (1989) and P. J. Kuyper, 'The Law of GATT as a Special Field of International Law: Ignorance, Further Refinement or Self-Contained System of International Law', 25 Neth YIL 227-57 (1994).
6. Agreement Establishing the World Trade Organization (hereafter the 'WTO Agreement'), Article IV and Article VIII: 1.
7. Understanding on Rules and Procedures Governing the Settlement of Disputes (hereafter 'DSU') Article 3.2.
8. Japan - Taxes on Alcoholic Beverages, 4 October 1996 (AB-1996-2), at 15.
9. Georg Schwarzenberger, 'The Principles and Standards of International Economic Law', Recueil des Cours Vol 87 (1996-I) 1: Ignaz Seidl-Hohenveldern, International Economic Law (1989).
10. Georg Schwarzenberger, 'The Principles and Standards of International Economic Law', Recueil des Cours Vol 87 (1996-I) 1: Ignaz Seidl-Hohenveldern, International Economic Law (1989).
11. McRae, note I, at 147-51.
12. See Donald M. McRae, 'From Sovereignty to Jurisdiction: The Implications for States of the WTO' in Mark A. Buchanan (ed), The Asia-Pacific Region and the Expanding Borders of the WTO: Implications, Challenges and Opportunities (1996) 37-55 at 51.
13. The WTO dispute settlement system is an extrapolation of the system for dispute settlement under the GATT.
14. Apart from questions of compliance, there is no recourse after a panel or Appellate Body report has been adopted by the DSU. Non-compliance with an adopted report can lead to retaliation in accordance with DSU Article 22.
15. Gilbert Guillaume, 'The Future of International Judicial Institutions', 44 ICLQ 848-62 (1995).
16. A panel is required to 'make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements' (DSU Article 11). The Appellate Body is to 'hear appeals from panel cases' (Article 17.1). Panel and Appellate Body reports must be adopted by the DSB (Article 16.4, Article 17.14).
17. DSU Article 8.7.
18. DSU Article 15.
19. In fact, there is little justification for this atmosphere of secrecy; other processes, both domestic and international have found ways to deal with legitimate concerns of confidentiality. They are not matters that are unique to the WTO.
20. Pressures from both states and non-state entities in respect of WTO transparency may lead to change.
21. DSU Article 11.
22. DSU Article 17.
23. The DSB can reject the report of a panel (Article 16.4) or of the Appellate Body (Article 17.14) if there is a consensus to do so.
24. United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, 25 April 1997 (AB-1997-1), 17-21.
25. See Canada - Certain Measures Concerning Periodicals, 30 June 1997 (AB-1997-2), at 24.
26. Wool Shirts from India, 12-17, in particular 14.
27. For a discussion of the GATT experience in finding facts, see Christopher Thomas, 'Litigation Process under the GATT Dispute Settlement System: Lessons for the World Trade Organization?', 30 J World T 53-81 (1996) at 68-76.
28. DSU Article 13.1.
29. Idem.
30. Canada - Measures Affecting the Export of Civilian Aircraft, 2 August 1999 (AB-1999-2), 51.
31. Ibid, 54.
32. DSU Article 13.2 and Appendix 4.
33. See EC Measures Concerning Meat and Meat Products (Hormones), 16 January 1998, (WT/DS26/R/ USA), Annex: Transcript of the Joint Meeting with Experts, held on 17 and 18 February 1997.
34. See EC Measures Concerning Meat and Meat Products (Hormones), 16 January 1998, (WT/DS26/R/ USA), Annex: Transcript of the Joint Meeting with Experts, held on 17 and 18 February 1997.
35. United States - Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998 (AB-19998-4), paras 104-10.
36. See generally, Glen T. Schleyer, 'Power to the People: Allowing Private Parties to Raise Claims Before the WTO Dispute Resolution System', 65 Fordham L Rev 2275-311 (1997).
37. United States - Standards for Reformulated and Conventional Gasoline, 29 April 1996 (AB-1996-1), 17.
38. Japan Alcohol, 12.
39. Shrimp/Turtle, para 129.
40. In Shrimp/Turtle the Appellate Body said that the term 'natural resources' was 'by definition, evolutionary', ibid, para 130.
41. Ibid, paras 152-53.
42. Ibid, para 157.
43. 40 European Communities - Customs Classification on Certain Computer Equipment, 5 June 1998 (AB-1998-2), para 84.
44. Ibid, para 80.
45. For a clear indication that it is the common intention of the parties that must be sought, see Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) [1995] ICJ Rep. 6 para 41.
46. Fisheries Jurisdiction Case (Spain v. Canada) [1998] ICJ Rep.
47. Ibid, para 46.
48. Ibid, para 49.
49. WTO Agreement, Article XVI:5.
50. No state has yet challenged the tariffication of another party before the WTO. For such a challenge under NAFTA, see Tariffs Applied by Canada to Certain US-Origin Agricultural Products, 2 December 1996 (CDA-95-2008-01).
51. In Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, 13 October 1999 (AB-1999-4), the Appellate Body characterized the commitment on fluid milk in Canada's Schedule to GATT 1994 as having been made 'unilaterally' (para 139). Nevertheless, the Appellate Body followed its earlier approach in the LAN decision that the terms set out in a state's Schedule are treaty provisions to be interpreted in accordance with the Vienna Convention on the Law of Treaties (para 131).
52. Hormones, para 124.
53. Brazil - Measures Affecting Desiccated Coconut, 21 February 1997 (AB-1996-4), 12.
54. European Communities - Regime for the Importation, Sale and Distribution of Bananas, 9 September 1997 (AB-1997-3), para 221.
55. That Article 30 was 'not entirely satisfactory' in view of the complications that can arise where there are regional and multilateral arrangements relating to the same subject-matter, was recognized from the outset: see Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd ed, 1984) at 98.
56. Petersmann, above, note 3, at 241.
57. 'The M.V. Saiga (Saint Vincent and the Grenadines v. Guinea) 4 December 1997', 37 ILM 362 (1998).
58. Reformulated Gasoline, above.
59. 56 Unless it sits as a Chamber, the ICJ is composed of 15 members. ITLOS is composed of 21 members.
60. Italy - Discrimination Against Imported Agricultural Machinery, adopted 23 October 1958, BISD 7S/ 60, para 16.
61. Reformulated Gasoline, 30.
62. In effect, contemporary trade policy is being decided by the Appellate Body, and given the time that trade negotiations take, this is likely to continue for a considerable period of time.
63. Alexander Hamilton, 'Report on the Subject of Manufactures' (1791) in The Papers of Alexander Hamilton, Vo1 X, Harold C. Syrett (ed) (New York, NY: Columbia University Press 1966) at 291. Quoted in F. M. Scherer and Richard S. Belous, Unfinished Tasks: The New International Trade Theory and the Post-Uruguay Round Challenges (British North America Committee Issues Paper No 3, 1994) at 5.
64. Alexander Hamilton, 'Report on the Subject of Manufactures' (1791) in The Papers of Alexander Hamilton, Vo1 X, Harold C. Syrett (ed) (New York, NY: Columbia University Press 1966) at 291. Quoted in F. M. Scherer and Richard S. Belous, Unfinished Tasks: The New International Trade Theory and the Post-Uruguay Round Challenges (British North America Committee Issues Paper No 3, 1994) at 5.
65. WTO Agreement on the Application of Sanitary and Phytosanitary Measures, Article 2.
66. The existing decisions of the Appellate Body, Hormones, above, Australia - Measures Affecting Importation of Salmon, 20 October 1998 (AB-1998-5), and Japan - Measures Affecting Agricultural Products, 22 February 1999 (AB-1998-8), have provided some guidance, but many questions are left unanswered.
67. The existing decisions of the Appellate Body, Hormones, above, Australia - Measures Affecting Importation of Salmon, 20 October 1998 (AB-1998-5), and Japan - Measures Affecting Agricultural Products, 22 February 1999 (AB-1998-8), have provided some guidance, but many questions are left unanswered.
68. In this regard, the debate over the proposed 'Multilateral Agreement on Investment' was in many respects a classic debate over the scope and limitations of sovereignty.