The separation of powers in the wto: How to avoid judicial activism

International and Comparative Law Quarterly

Volumn 53, Issue 4, 2004, Pages 861-895

  Bartels, Lorand ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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[No Author keywords available]

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EID: 33645310564     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.4.861     Document Type: Article

References (169)

1. WTO Appellate Body Report European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (‘EC-Asbestos’), WT/DS135/AB/R, adopted 5 Apr 2001.
2. The outcry is recorded in General Council Minutes of Meeting held on 22 November 2000, WT/GC/M/60, 23 Jan 2001. There is a substantial literature on the amicus dispute. See, eg, GA Zonnekeyn ‘The Appellate Body's Communication on Amicus Curiae Briefs in the Asbestos Case-An Echternach Procession?’ (2001) 35 Journal of World Trade 553
3. G. Marceau and M Stilwell ‘Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies’ (2001) 4 Journal of International Economic Law 155.
4. C.E. Barfield Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization (Washington DC AEI Press 2001).
5. For a review of the issues, see S Charnoviiz ‘Judicial Independence in the World Trade Organization’ in Boisson de Chazournes, Romano and Mackenzie (eds) International Organizations and International Dispute Settlement: Trends and Prospects (Ardsley NY Transational Publications 2002)
6. for a political science perspective, J McCall Smith ‘WTO Dispute Settlement: The Politics of Procedure in Appellate Body Rulings’ (2003) 2 World Trade Review 65.
7. See PJ Kuijper ‘Some Institutional Issues Presently Before the WTO’ in Kennedy and Southwick (eds) Tfie Political Economy of International trade Law: Essays in Honor of Robert E. Hudec (Cambridge CUP 2002). This Article observes that some of the decisions made by the Ministerial Conference do not make it clear that this (and a fortiori the other bodies) is an organ of the WTO. not an ad hoc conference of ministers (at 107).
8. The Councils, Committees and other subordinate bodies of the WTO are mandated by Rule 33 of their respective Rules of Procedure to refer a matter to the General Council whenever they are unable to reach a decision by consensus. For an example, see WTO Document Rules of Procedure for Meetings of the Council for Trade in Goods, WT/L/79, 7 Aug 1995.
9. For a discussion of Rule 33, see Kuijper. above n 7 at 103–106.
10. WTO Appellate Body Report Japan-Taxes on Alcoholic Beverages (‘Japan-Alcoholic Beverages II’), WT/DS8/AB/R, adopted 1 Nov 1996, para 108 (binding force of panel reports)
11. WTO Appellate Body Report United States-Import Prohibition of Certain Shrimp and Shrimp Products-Recourse to Art 21.1 of the DSU by Malaysia (‘US-Shrimp (Art 21.5-Malaysia)’), WT/DS58/AB/RW, adopted 21 Nov 2001, para 109 (Appellate Body reports)
12. WTO Appellate Body Report European Communities-Anti-Dumping Duties on Imports of Cotton-Type Bed Linen From India-Recourse to Art 21.5 by India (‘EC-Bed Linen (Art 21.5-India)’), WT/DS141/AB/RW, adopted 24 Apr 2003, para 95 (non-appealed parts of a panel report).
13. It is only on adoption that panel and Appellate Body reports could establish the basis for a res judicata: J Pauwelyn ‘How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law? Questions of Jurisdiction and Merits’ (2003) 37 Journal of World Trade 997 at 1017–1019.
14. See C-D Ehlermann and L Ehring ‘WTO Decision-Making Procedures, “Member-Driven” Rule-Making and WTO Consensus-Practices: Are They Adequate?’ presented at a conference on Developing Countries in the Doha Round EU1, 2–3 July 2004.
15. The reason for voting is explained in General Council Minutes of Meeting held on 31 July 1995, WT/GC/M/6, 20 Sept 1995.
16. The decision is contained in General Council Minutes of Meeting held on 15 November 1995, WT/GC/M/8, 13 Dec 1995, later circulated as WTO Document WT/L/93.
17. See General Council Minutes of Meeting held on 27 March 1999, WT/GC/M/36/Add 3, 31 Mar 1999.
18. A. Narlikar ‘The Politics of Participation: Decision-Making Processes and Developing Countries in the World Trade Organization’ (2002) 364 The Round Table 171 at 177.
19. See also RH Steinberg ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’ (2002) 56 International Organization 339.
20. WTO Document Singapore Ministerial Declaration, adopted 13 December 1996, WT/MIN(96)/DEC, 18 December 1996, para 20 (competition and investment)
21. WTO Document Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, paras 20, 23, 26, and 27 (also transparency in government procurement and trade facilitation).
22. For a discussion of the meaning of ‘explicit consensus’, see WTO Document Comments on the EC Communication (WT/GC/W/491) on the Modalities for the Singapore Issues-Communication from Bangladesh, Cuba, Egypt, India, Indonesia, Kenya, Malaysia, Nigeria, Pakistan, Venezuela, Zambia and Zimbabwe, WT7GC/W/50, 8 July 2003.
23. See Ehlermann and Ehring n 19 above.
24. Narlikar, above n 23 at 178–180.
25. T. Cottier and S Takenoshita ‘The Balance of Power in WTO Decision-Making: Towards Weighted Voting in Legislative Response’ (2003) 59 Aussenwirtschaft 171, at 184–6. The authors define trading power in terms of share of trade, Gross Domestic Product, market openness (defined as proportion of imports to GDP) and population.
26. See WTO Document Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding on Improving Flexibility and Member Control in WTO Dispute Settlement-Textual Contribution by Chile and the United States, TN/DS/W/52, 14 Mar 2003, para (c). Partial adoption does not appear to be possible at present, given that Ait 16.4 (on panel reports) and Art 17.14 (on Appellate Body reports) refer to the adoption of ‘the report’ in the singular. The EC has cited Art 16 DSU as a basis for rejecting a suggestion by India for partial adoption of a panel report: see WTO Dispute Settlement Body, Minutes of Meeting held on 5 April 2002, WT/DSB/M/122, 23 Apr 2003, at para 21.
27. WTO Document TN/DS/W/52, 14 Mar 2003, above n 31.
28. For concerns, see Special Session of the Dispute Settlement Body, Minutes of Meeting held on 16–18 December 2002, TN/DS/M/7, 26 June 2003.
29. Also sceptical is C-D Ehlermann ‘Reflections on the Process of Clarification and Improvements of the DSU’ in Ortino and Petersmann (ed) The WTO Dispute Settlement System 1995–2003 (The Hague Kluwer 2004) at 106–107.
30. Barfield, above n 3 at 127.
31. R.E. Hudec ‘Review of Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization’ (2002) 1 World Trade Review 211, at 222
32. A. Stoler ‘The WTO Dispute Settlement Process: Did The Negotiators Get What They Wanted?’ (2004) 3 World Trade Review 99 at 117.
33. On this see RE Hudec ‘The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure’ in Bhagwati and Hirsch (eds) The Uruguay Round and Beyond: Essays in Honour of Arthur Dunkel (University of Michigan Press 1999).
34. Barfield, above n 3 at 112–113.
35. D. Steger ‘Book Review: Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization, by Claude E Barfield’ (2002) 5 Journal of International Economic Law 565 at 568.
36. WTO Appellate Body Report EC Measures Concerning Meat and Meat Products (Hormones) (‘EC-Hormones’), WT/DS26/AB/R, adopted 13 Feb 1998.
37. WTO Appellate Body Report United States-Import Prohibition of Certain Shrimp and Shrimp Products (‘US-Shrimp’), WT/DS58/AB/R, adopted 6 Nov 1998. The revised ban was allowed in US-Shrimp (Art 21,5-Malaysia) above n 15.
38. Eg by J Greenwald ‘WTO Dispute Settlement: An Exercise in Trade Law Legislation?’ (2003) 6 Journal of International Economic Law 113.
39. See S Esserman and R Howse ‘The WTO on Trial’ (2003) 82 Foreign Affairs 130.
40. See, eg, D Akande and S Williams ‘International Adjudication on National Security Issues: What Role for the WTO?’ (2003) 43 Virginia Journal of International Law 365
41. H.L. Schloemann and S Ohlhoff ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’ (1999) 93(2) American Journal of International Law 424 at 441
42. O.Q. Swaak-Goldman ‘Who Defines Members’ Security Interest in the WTO?’ (1996) 9 Leiden Journal of International Law 361 at 366
43. M.J. Hahn ‘Vital Interests and the Law of GATT: An Analysis of GATT's Security Exception’ (1991) 12 Michigan Journal of International Law 558 at 611.
44. WTO Document Nicaragua-Measures Affecting Imports from Honduras and Colombia-Statements by Nicaragua, WT/DSB/COM/5/Rev 1, 30 May 2000. This appears also to be the position of the United States. See JH Jackson and AF Lowenfeld ‘Helms-Burton, the US, and the WTO,’ ASIL Insight, Mar 1997, available at .
45. See GATT Panel Report United States-Imports of Sugar from Nicaragua, L/5607, unadopted, 13 Mar 1984
46. GATT Panel Report United States-Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 Oct 1986.
47. See Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 (22 Dec), at para 45, for a discussion of distinction between jurisdiction and justiciability. For an application of this distinction to Ait XXI GATT
48. see Akande and Williams ‘International Adjudication on National Security Issues’ above n 44.
49. GATT Document Decision Concerning Art XXI of the General Agreement, Decision of 30 Nov 1982, L/5426, BISD 29S/23. This Decision forms part of the GATT 1994 under para l(b)(iv) of the language incorporating the GATT 1994 into the WTO Agreement, as it was intended to be binding on all of the Contracting Parties. On this requirement see WTO Appellate Body Report United States-Tax Treatment for ‘Foreign Sales Corporations’ (‘US-FSC’), WT/DS108/AB/R, adopted 20 Mar 2000, para 108.
50. WTO Appellate Body Report Brazil-Measures Affecting Desiccated Coconut (‘Brazil-Desiccated Coconut’), WT/DS22/AB/R, adopted 20 Mar 1997, at 18.
51. This was done to exclude certain national security issues in the Nicaragua/US GATT panel reports noted above n 46.
52. In Oil Platforms, Preliminary Objections, Judgment [1996] ICJ Rep 804 (12 Dec), the International Court of Justice considered a national security provision reading as follows: ‘[t]he present Treaty shall not preclude the application of measures: … necessary to protect its essential security interests’. The Court concluded that this provision ‘does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise’ (para 20).
53. V. Heiskanen ‘International Sanctions and GATT Obligations’ in Hakapää et al (ed) Essays on International Law (Helsinki Finnish Branch of the International Law Association 1987) at 86
54. Akande and Williams, above n 44 at 399–402.
55. Akande and Williams, above n 44 at 389–94 (also discussing problems with a ‘good faith’ test).
56. Cf the ‘necessity’ test in Art XX, as described by WTO Appellate Body Report Korea-Measures Affecting Imports of Fresh, drilled and Frozen Beef, WT/DS161/AB/R, adopted 10 Jan 2001, para 162
57. WTO Appellate Body Report EC-Asbestos, above n 1 at para 172.
58. See also Akande and Williams, above n 44 at 394–396.
59. J. Pauwelyn Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge CUP 2003) at 23–24.
60. See JHH Weiler ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2002) 35 Journal of World Trade 191.
61. This has led one former Director of the WTO Legal Affairs Division to advance the ‘modest proposal’ that a legal drafting group be made available in order to minimize ‘surprises’ from any texts adopted in the Doha Round of negotiations. See PJ Kuijper ‘A Legal Drafting Group for the Doha Round: A Modest Proposal’ (2003) 37 Journal of World Trade 1031.
62. See WTO Appellate Body Report United States-Import Measures on Certain Products from the European Communities (‘US-Certain EC Products’), WT/DS165/AB/R, adopted 10 Jan 2001, para 92
63. WTO Appellate Body Report United State s-Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (‘US-Hot Rolled Steel’), WT/DS184/AB/R, adopted 23 Aug 2001, para 125.
64. See also GATT Panel Report European Economic Community-Subsidies on Exports of Wheat Flour, SCM/42, BISD 31S/259, unadopted, 21 Mar 1983, para 5.3, where the panel said that ‘it was unable to conclude as to whether the increased share has resulted in the EEC “having more than an equitable share” in terms of Art 10 [of the SCM Code] in light of most importantly, the difficulties inherent in the concept of “more than equitable share”.’
65. J. Pauwelyn ‘Cross-Agreement Complaints Before the Appellate Body: A Case Study of the EC-Asbestos Dispute’ (2002) 1 World Trade Review 167, considers that the Appellate Body declared a non liquet in refusing to decide on a claim under the TBT Agreement in WTO Appelate Body Report EC-Asbestos, above n 1. However, this can also be explained on the basis that the panel had made no legal findings under the TBT Agreement and therefore the Appellate Body had no jurisdiction to entertain these claims.
66. In the context of negotiations on DSU reform, Jordan has proposed adding a new Art 5 bis to the DSU, according to which parties and third parties to a dispute would be entitled to refer questions of interpretation to the General Council (which adds nothing to Ait 3.9) and additionally would ‘follow the form, time-frame and other guidelines set by the General Council for this purpose’. This might allow for suspension of the DSU time limits. See WTO Document Jordan's Contributions Towards the Improvement and Clarification of the WTO Dispute Settlement Understanding, TN/DS/W/43, 28 Jan 2003.
67. It is relevant to note a proposal made by Kenya, according to which Ait 3.2 DSU would be amended by adding the following paragraph: ‘[w]hen, in the course of proceedings before a panel or the Appellate Body, a question arises on whether or not there is a conflict between provisions of any covered Agreement or between any covered Agreements, the panel or Appellate Body shall refer the matter to the General Council for a determination. In reaching the determination, the General Council may exercise the authority conferred under paragraph 2 of Ait IX of the WTO Agreement.’ See WTO Document Text for the African Group Proposals on Dispute Settlement Understanding Negotiations-Communication from Kenya, TN/DS/W/42, 24 Jan 2003. A similar proposal was made in GATT Document Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, MTN.TNC/W/FA, 20 Dec 1991, at T.3.
68. H. Lauterpacht ‘Some Observations on the Prohibition of Non Liquet and the Competeness of the Law’ in van Asbeck et al (eds) Symbolae Verzijl (The Hague 1958) at 200.
69. J. Stone ‘Non Liquet and the Function of Law in the International Community’ (1959) 35 British Yearbook of International Law 124.
70. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion requested by the General Assembly, [1996] ICJ Rep 226 (8 Jul), para 105(2)(E). For criticism of this ruling, see especially the Dissenting Opinions of Judges Schwebel, Higgins and Koroma.
71. See Stone, above n 67 at 133–137
72. P. Weil ‘The Court Cannot Conclude Definitively … Non Liquet Revisited’ (1997) 36 Columbia Journal of Transational Law 109 at 110–113.
73. Columbia Journal of Transational Law at 119.
74. See WTO Panel Report United States-Sections 301–310 of the Trade Act of 1974 (‘US-Section 301 y)y WT/DS152/R, adopted 27 Jan 2000, at para 7.43 (describing Art 23(1) as an ‘exclusive dispute resolution clause’).
75. Y. Shany The Competing Jurisdictions of International Courts and Tribunals (Oxford OUP 2003), at 184, notes several caveats to the view that Ait 23 can be considered an exclusive jurisdiction clause: first, that the DSU permits arbitration, though subject to DSB review; second, that it applies only to determinations, not to ‘interpretations∗ of the WTO agreements; and third, that it does not prejudge the determination of disputes in another legal forum, such as under regional trade agreements, so long as it is accepted that they do not produce res judicata effects within the WTO. In the opinion of the present author, this third caveat is unfounded.
76. See on this point G Marceau ‘The Dispute Settlement Rules of the North American Free Trade Agreement: A Thematic Comparison with the Dispute Settlement Rules of the World Trade Organization’ in Petersmann (ed) International Trade Law and the GATTIWTO Dispute Settlement System (The Hague Kluwer 1997) at 534.
77. WTO Appellate Body Report Mexico-Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States-Recourse to Art 21.5 of the DSU by the United States (‘Mexico-Corn Syrup (Art 21.5-US)’), WT/DS132/AB/RW, adopted 21 Nov 2001, at para 37.
78. J. Bacchus ‘The Bicycle Club: Affirming the American Interest in the Future of the WTO’ (2003) 37 Journal of World Trade 429 at 439.
79. C.-D. Ehlermann ‘Tensions between the Dispute Settlement Process and the Diplomatic and Treaty-Making Activities of the WTO’ (2002) 1(3) World Trade Review 301 at 305 (citing for this proposition both Aits 17.12 and 3.2 DSU).
80. WTO Appellate Body Report Australia-Measures Affecting the Importation of Salmon (‘Australia-Salmon’), WT/DS18/AB/R, adopted 6 Nov 1998, at para 233.
81. There is a risk involved in the exercise of judicial economy, as noted by PC Mavroidis ‘Judicial Supremacy, Judicial Restraint, and the Issue of Consistency of Preferential Trade Agreements with the WTO: The Apple in the Picture’ in Kennedy and Southwick (eds) The Political Economy of International Trade Law; Essays in Honor of Robert E. Hudec (Cambridge CUP 2003) at 596. The danger is that panels will leave the Appellate Body with insufficient factual evidence to ‘complete the analysis’ in the event that it overturns the panel's other findings. Consequently, Mavroidis notes, panels have more recently tended to address all issues before them.
82. WTO Appellate Body Report Japan-Measures Affecting Agricultural Products (‘Japan-Agricultural Products’), WT/DS76/AB/R, adopted 19 Mar 1999, para 143, issue (d). Compare issue (d) in para 71 (issues raised on appeal).
83. See GATT Panel Report European Community Tariff Treatment on Imports of Citrus Products from Certain Countries in the Mediterranean Region, 175776, unadopted, 7 Feb 1985
84. GATT Panel Report EEC-Member States' Import Regimes for Bananas, DS32/R, unadopted, 3 June 1993.
85. WTO Appellate Body Report India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (‘India-Quantitative Restrictions’), WT/DS90/AB/R, adopted 22 Sept 1999.
86. Art XVIII:B of GATT Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 paras 5–12 (consultations)
87. India-Quantitative Restrictions above n 82 at paras 89–95.
88. India-Quantitative Restrictions at para 98.
89. India-Quantitative Restrictions at para 104.
90. WTO Appellate Body Report Turkey-Restrictions on Imports of Textile and Clothing Products (‘Turkey-Textiles’), WT/DS34/AB/R, adopted 19 Nov 1999.
91. During the Uruguay Round the EC unsuccessfully proposed adding the following sentence to these provisions: ‘Such recourse to the dispute settlement provisions, however, shall not be allowed to question the conformity with GATT of existing customs unions, [or] free-trade areas … as long as the CONTRACTING PARTIES have not made a specific recommendation under Art XXIV:7 of the General Agreement’. See Communication from the European Communities, MTN.TNC/W/125. 13 Dec 1993.
92. In accord, Ehlermann, above n 77 at 303
93. G. Marceau and C Reiman ‘When and How Is a Regional Trade Agreement Compatible with the WTO?’ (2001) 28 Legal Issues of Economic Integration 297 at 313
94. F. Roessler ‘The Institutional Balance between the Judicial and the Political Organs of the WTO’ in Bronckers and Quick (eds) New Directions in International Economic Law: Essays in Honour of John H Jackson (The Hague Kluwer 2000) at 338.
95. Turkey-Textiles, above n 88 at para 60.
96. Ehlermann, above n 77 at 306.
97. Cf Mavroidis, above n 79
98. W.J. Davey ‘Has the WTO Dispute Settlement System Exceeded Its Authority?’ (2001) 4 Journal of International Economic Law 79 at 85–88.
99. Roessler, above n 90 at 340.
100. See, eg, Oil Platforms, Preliminary Objections, Judgment [1996] ICJ Rep 803 (12 Dec) and the Separate Opinion of Judge Higgins.
101. Roessler, above n 92 at 344.
102. Davey, above n 95 at 87, states that a panel can determine whether or not balance of payments measures are justified with the aid of advice from the IMF, while acknowledging the greater complexities involved in any determination by panels of the legality of regional trade agreements. In support of panel review in the case of regional trade agreements
103. see Mavroidis, above n 77.
104. Roessler, above n 92 at 342.
105. Davey, above n 95 at 87
106. Mavroidis, above n 79 at 595.
107. Roessler, above n 92 at 342.
108. India Quantitative Restrictions above n 82 at para 104.
109. WTO Panel Report India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 Sept 1999, para 5.90.
110. WTO Panel Report India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products para 5.93.
111. WTO Panel Report India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products. The panel ignores the condition in Art IX: 3 of the WTO Agreement that a waiver be granted only ‘in exceptional circumstances9 and kept under review.
112. WTO Panel Report India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products para 5.94.
113. Mavroidis, above n 79 at 597, expresses the view that a panel would respect the decision of the CRTA.
114. Military and Paramilitary Activities in and against Nicaragua (Nicaragua/US), Jurisdiction and Admissibility, Judgment [1984] ICJ Rep 392 (26 Nov), at para 95.
115. Eg Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina/Yugoslavia (Serbia and Montenegro), Provisional Measures, Order [1993] ICJ Rep 3 (8 Apr) para 33.
116. D. Akande ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Political Organs of the United Nations’ (1997) 46 ICLQ 309 at 313.
117. ICLQ at 313
118. see also V Gowlland-Debbas ‘The Relationship Between the International Court of Justice and the Security Council in Light of the Lockerbie case’ (1994) 88 AJIL 643
119. C. Gray ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’ (2003) 14 EJIL 867.
120. Exclusivity does not seem to be required in the context of competing judicial proceedings (and nor does it so far seem to be conclusive). Here the situation is usually analysed in terms of the doctrine of litis pendens, which entitles a tribunal, on certain conditions, to decline to exercise its jurisdiction when there is a danger of conflicting judgments. The conditions are an identity of parties, matters in dispute, object of proceedings (Polish Upper Silesia (Jurisdiction) [1925] PCIJ Ser A, No 6, at 19–20)
121. remedies (The Factory at Chorzow (Germany/Poland) (Claim for Indemnity) (Jurisdiction) [1927] PCIJ Ser A, No 9, at 27). It should be noted however that in these cases the doctrine was neither applied nor expressly approved, and it remains unclear whether it applies in international law. In support
122. see Shany, above n 69 at 244
123. V. Lowe ‘Overlapping Jurisdictions in International Tribunals’ (2000) 20 Australian Yearbook of International Law 1 at 195–197.
124. Upper Silesia Rights of Minorities in [1928] PCIJ Ser A, No 15 at 23.
125. Upper Silesia Rights of Minorities in, above n 113 at 23.
126. also Shany, above n 71 at 232–234.
127. WTO Dispute Settlement Body Minutes of Meeting held on 17 November 2000, WT/DSB/M/92, 15 Jan 2001, para 58.
128. See also WTO Document Philippines-Measures Affecting Trade and Investment in the Motor Vehicle Sector-Communication from the Philippines, WT/DS195/4, 7 Nov 2000.
129. In Case Concerning the Northern Cameroons (Cameroon/UK) [1963] ICJ Rep 3 (2 Dec), at 29, the Court referred to its power to declare certain cases inadmissible on the basis that ‘[t]he Court itself, and not the parties, must be the guardian of the Court's judicial integrity’.
130. See also Nuclear Tests (Australia/France). Judgment [1974] ICJ Rep 253 (20 Dec) at 271.
131. WTO Members have criticized comparisons between the WTO dispute settlement system and other international tribunals. See eg Special Session of the Dispute Settlement Body, Minutes of Meeting held on 10 September 2002, TN7DS/M/4, 6 November 2002, para 38 (Brazil), para 40 (Indonesia), para 42 (Malaysia), para 52 (Costa Rica), para 53 (Venezuela).
132. See also F Weiss ‘Inherent Powers of National and International Courts’ in Ortino and Petersmann above n 55, who states that ‘[w]hile the AB searches and even seeks to expand the parameters of its power, it is too dependent upon the Members of the WTO for it to possess anything akin to inherent powers’ (at 189).
133. The fact that panels have the duty to determine their own jurisdiction does not give them a judicial character. The ICJ has held in the context of the United Nations that even the political organs of that organization have a duty to determine their own jurisdiction. See Certain Expenses of the United Nations (Advisory Opinion), [1962] ICJ Rep 151 (20 July) at 168
134. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion
135. [1971] ICJ Rep 16 (26 Jan) at 49.
136. Ehlermann, above n 77 at 305, mentions this provision in the context of cautioning self-restraint on the part of Members in bringing institutional balance questions to dispute settlement.
137. Compare the expansive reading of Ait 3.7 DSU in RSJ Martha ‘The Duty to Exercise Judgment on the Fruitfulness of Actions in World Trade Law’ (2001) 35 Journal of World Trade 1035.
138. WTO Appellate Body Report Mexico-Corn Syrup (Art 21.5-US) above n 75 at para 74.
139. WTO Appellate Body Report US-FSCy above n 50, para 166 (noting that 4[t]his pervasive principle requires both complaining and responding Members to comply with the requirements of the DSU (and related requirements in other covered agreements) in good faith)
140. WTO Appellate Body Report Canada-Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 Aug 1999, para 190
141. WTO Appellate Body Report Thailand-Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Iron Alloy Steel and H-Beams from Poland (‘Thailand-Steel’), WT/DS122/AB/R, adopted 5 Apr 2001, para 97.
142. In its First Written Submission in European Communities-Export Subsidies on Sugar, WT/DS265, 11 Mar 2004 (available at ), at paras 129, the EC relies on Art 3.10 of the DSU as a basis for a panel to reject a claim. Australia argues in its Rebuttal Submission, 21 Apr 2004 (available at ), at para 120, that Art 3.10 requires good faith during dispute settlement proceedings, and that it is Ait 3.7 that governs the question whether a claim may be rejected.
143. See also the parties' Oral Statements, available at the above websites.
144. WTO Appellate Body Report United States-Sunset Review of Anti-Dumping Duties on Corrosion Resistant Carbon Steel Flat Products from Japan (‘US-Corrosion Resistant Steel Sunset Review’), WT/DS244/AB/R, adopted 9 Jan 2004.
145. WTO Appellate Body Report US-FSC, above n 50, para 166
146. WTO Appellate Body Report United States-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (‘US-Cotton Yarn’, WT/DS192/AB/R, adopted 5 Nov 2001, para 81.
147. Border and Transborder Armed Actions (Nicaragua/Honduras), Jurisdiction and Admissibility, Judgment [1988] ICJ Rep 69 (Dec 20) at para 94.
148. In Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon/Nigeria), Preliminary Objections [1998] ICJ Rep 275 (11 June), the ICJ held that the principle of good faith did not require a State to inform another State subject to compulsory jurisdiction of the Court that it was intending to accept compulsory jurisdiction, and shortly thereafter to commence proceedings against that State.
149. Regarding the obligation to perform obligations in good faith (reflected in Ait 26 of the Vienna Convention on the Law of Treaties), see II Lukashuk ‘New Thinking by Soviet Scholars: The Principle Pacta Sunt Servanda and the Nature of Obligation under International Law’ (1989) 83 AJIL 513 at 514, who notes that v[i]n jurisprudence the term “obligation” is not equivalent to the term “duty”, since the former includes not only duties, but also relevant rights. Rights, too, should be exercised in good faith, ie, in conformity with the purposes and principles of international law and without prejudice to the legitimate interests and rights of other subjects of that law.’
150. G. Fitzmaurice The Law and Procedure of the International Court of Justice (Cambridge Grotius 1986) vol 1 at 12–13.
151. A. Kiss ‘Abuse of Rights’ in Encyclopaedia of Public International Law (Amsterdam North-Holland 1984) at 4.
152. For a fuller discussion of the doctrine, see V Paul ‘The Abuse of Rights and Bona Fides in International Law’ (1977) 28 Osterreichische Zeitschrift fur Offentliches Recht und Volkerrecht 107.
153. WTO Appellate Body Report US-Shrimp, above n 40, para 158.
154. The Appellate Body quoted B Cheng General Principles of Law as Applied by International Courts and Tribunals (Stevens and Sons 1953).
155. This exact situation was foreshadowed in Lowe, above n 114 at 199.
156. MOX Plant Arbitration (Ireland/UK), Order No 3, above n 139, para 28.
157. A further suspension was ordered in MOX Plant Arbitration (Ireland/UK), Order No 4, Further Suspension of Proceedings on Jurisdiction and Merits, 14 Nov 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at .
158. MOX Plant Arbitration (Ireland/UK), Rules of Procedure, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at .
159. MOX Plant Arbitration (Ireland/UK), Transcript of Proceedings, Day Eight, 21 June 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at at paras 37, 38, and 90. It is perhaps relevant that both parties are bound in this regard by a duty of cooperation under Art 10 of the EC Treaty.
160. See WTO Panel Report United States-Imposition of Count emailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (‘US-Lead and Bismuth II’), WT/DS138/R, adopted as upheld by the Appellate Body Report 7 June 2000, at para 6.2.
161. The current version is WTO Document Working Procedures for Appellate Review, WT/AB/WP/7, 1 May 2003.
162. The Appellate Body circulated proposed amendments for consultation in WTO Document Proposed Amendments to the Working Procedures for Appellate Review-Communication from the Appellate Body, WT/AB/WP/8, 8 Apr 2004.
163. wto Appellate Body Report EC-Hormones, above n 39, para 152 n 138.
164. WTO Appellate Body Report India-Patent Protection for Pharmaceutical and Agricultural Chemical Products (‘India-Patents (US)’) WT/DS50/AB/R, adopted 16 Jan 1998, at para 92.
165. WTO Appellate Body Report United States-Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (‘US-Lead and Bismuth II’), WT/DS138/ABR, adopted 7 June 2000, at para 39. This proviso is reflected in Rule 16(1) of the Appellate Body's Working Procedures.
166. In WTO Appellate Body Report US-Lead and Bismuth II, above n 149, at para 8, the Appellate Body took a decision under Rule 16(1) of the Working Procedures that contradicted the time limit in Art 17.5 of the DSU. The parties agreed with the Appellate Body to extend the 90-day period for circulation of the report by two weeks. However, this was necessary to accommodate the passing away of one of the Members of the Appellate Body Division hearing the appeal, and it would be difficult to extract much of value from this occurrence.
167. The 90-day period was also exceeded in WTO Appellate Body Report EC-Hormones, above n 39
168. WTO Appellate Body Report EC-Asbestos, above n 1
169. WTO Appellate Body Report Thailand-Steel, above n 127.