Joost Pauwelyn

The Role of Public International Law in the WTO: How Far Can We Go?

How does the World Trade Organization (WTO) relate to the wider corpus of public international law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these two difficult questions. No straightforward answers to them can be found in WTO rules. Yet answering them has major ramifications both for the WTO (is the WTO a largely “self-contained regime” or is it not?) and for international law (is the future of international law further fragmentation or increased unity?). This exercise will be conducted under the law as it stands today—that is, the law as it may be invoked at present before the WTO “judiciary” (panels and the Appellate Body). Of course, WTO members (viz., the WTO “legislator”) could clarify or change the relationship between WTO rules and other rules of international law. However, it is unlikely that such changes will occur any time soon. In part I, I examine the general relationship between public international law and WTO law. I then assess, more specifically, the role of public international law in WTO dispute settlement in part II and offer some conclusions in part III.

Enforcement and Countermeasures in the WTO: Rules are Rules-Toward a More Collective Approach

In the thirty cases that have led to the adoption of dispute settlement reports in the World Trade Organization (WTO), the enforcement tool of last resort—countermeasures—has been invoked five times. This number is more—in five years—than in the forty-seven-year history of the General Agreement on Tariffs and Trade (GATT), the WTO’s predecessor. In addition, on six occasions WTO members have invoked the expedited procedure to solve disagreements concerning compliance with dispute setdement reports, a procedure newly introduced with the establishment of the WTO. In another case, compliance procedures are looming.

Informal International Lawmaking

Informal international lawmaking (IN-LAW) is on the rise. It seems to fall outside the strictures of both domestic law as well as international law. Hence, this activity raises questions of accountability deficit. The books aim is to be empirical and problem-oriented. It intends to gauge whether there is a problem related to informal international lawmaking and, if so, to think about how to solve this problem in a way that can assist policy-makers and their stakeholders. The book distinguishes informal lawmaking from traditional lawmaking by focusing on the actors, process, and output. It argues that the international legal discipline will have to find ways to take the rich, effective, and (more often than not) legitimate normative output stemming from IN-LAW onboard to remain relevant.

The Appellate Body's GSP decision

CHARNOVITZ: The Appellate Bodys decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwithstanding the composition of the panel – which was as highly qualified, balanced, and diverse as any panel could possibly be – the panel issued a decision that met widespread disapproval. In what is probably a record for third-party support of the plaintiff, eight countries asked the Appellate Body to reverse key points. Happily, the Appellate Body did reverse many of the troubling holdings in the panel report. Unhappily for the world community, the Appellate Body did not have an opportunity to review the panels interpretation of GATT Article XX, which (like many previous panels) has chiseled away at vital exceptions.

How to Win a WTO Dispute Based on Non-WTO Law? Questions of Jurisdiction and Merits

The recognition that public international law, including non-WTO treaties, has a role to play in the WTO has gained momentum. However, what does it mean in practice for litigants before a WTO panel? Is one just paying lip service to other non-WTO treaties to enhance the legitimacy of the WTO or can a WTO member actually win or loose a dispute by pleading this other law? That is the question examined in this essay. Put differently, can the defendant before a WTO panel successfully fence off a WTO complaint based on other treaties or rulings from other courts or tribunals? Two types of cases are discussed: First, cases where non-WTO law may lead a panel to decline jurisdiction; Second, cases where non-WTO law may effectively justify, on the merits, what would otherwise be a breach of the WTO treaty.

Trading Cultures: Appellate Body Report on China–Audiovisuals (WT/DS363/AB/R, adopted 19 January 2010)

In China–Audiovisuals , a series of Chinese restrictions on the importation and distribution of certain ‘cultural’ or ‘content’ goods and services were found to violate GATT, GATS, and Chinas Accession Protocol. This paper reviews the definition of what is a ‘good’ (is a ‘film’ a good or a service?) and the extent to which GATT Article XX exceptions can justify violations under WTO instruments other than the GATT itself. We argue that trade volumes are unlikely to significantly rise as a result of this ruling as it does not affect Chinas right to keep out foreign films and publications if China finds them objectionable. However, foreign producers of audiovisuals can now gain potentially large economic rents, by being able to export and distribute their products into the Chinese market. Finally, we discuss the issue of the protection of cultural goods and review the recent literature on trade and culture that has put forward economic arguments to justify, under some conditions, the protection of cultural goods.

Upholding the rule of law in informal international lawmaking processes

AbstractNew, alternative, forms of cross-border cooperation, in particular processes of informal international lawmaking (‘IN-LAW’), have emerged and gained prominence since the 2000s in response to an increasingly diverse, networked, and knowledge-based society. This transformation impacts on traditional notions of public international law as well as on the conceptualization of an emerging international rule of law. This is all the more the case given the tendency to emphasise the formal characteristics of the latter. The present article, nevertheless, challenges the assumption that informal international law is, because of its informal nature, by definition incompatible with a rule of law approach. The article thereto reintroduces a negative (shielding society from arbitrariness) and a positive (providing requirements for lawmaking) conception of the rule of law. First, it identifies actors and processes of informal international lawmaking and elucidates the extent of their reliance on legal principles as opposed to the wielding of arbitrary power on the international plane. Second, it operationalises a rule of law approach in the three phases of informal lawmaking processes (lawmaking per se, law-application and accountability). As such, it discusses how a number of concrete rule of law requirements related to participation, procedural guarantees, accessibility of norms, and accountability mechanisms are implemented. To conclude, it is submitted that rule of law theories can be reconciled with IN-LAW, without affecting the flexibility that is fundamental to the non-traditional norms produced at the global level.

The World Trade Organization’s Dispute Settlement Mechanism – Analysis and Problems

This paper provides an overview of issues and progress in research on WTO dispute settlement. It also points out the remaining gaps in the existing literature. For reasons of space, the focus is primarily on research by political scientists and legal scholars. We pay only passing attention to the burgeoning normative literature on the legal accuracy of WTO rulings and the legitimacy and accountability of WTO dispute settlement. The following (second) section describes how the DSM works, notes the key differences with the older GATT dispute mechanism, and discusses some trends in WTO dispute settlement. The third section focuses on how the nature and functioning of the DSM can be studied. In the fourth section, we look at some key findings from recent research and in the fifth section we identify some remaining research gaps. The final section links research on the DSM with ongoing debates on reforming WTO dispute settlement.

The Application of Non-WTO Rules of International Law in WTO Dispute Settlement

Can WTO panels apply general rules on state responsibility? Can they apply provisions of the Vienna Convention on the Lawof Treaties other than those on treaty interpretation? Are WTO panels mandated to applynon-WTOtreaties, such as multilateral environmental agreements, or bilateral agreements concluded only as between the disputing parties? If so, what is the relationship between these non-WTO rules of international law and the WTO Agreement? Which prevails in the event of conflict? Those are some of the practical questions examined in this Chapter. Part I examines the nature of WTO law. Part II looks at how WTO law interacts in the abstract with other rules of international law. Then the jurisdictional scope of WTO panels is set forth (Part III) and the law that panels may apply and refer to in examining WTO claims (Part IV). The outcome of the interaction between WTO and other international law in practice before a WTO panel, is addressed in Part V. Part VI provides a summary of the chapter and offers some guidelines to WTO negotiators and other treaty-makers.

Lost in Translation: Communication and Interpretation Challenges Related to Economic Evidence in Trade Disputes

Recent years have witnessed numerous instances in which economic evidence has been submitted to adjudicators in the context of WTO disputes. As it turns out, adjudicators have used this evidence only hesitantly as a basis for their decisions. In this paper we argue that a number of communication and interpretation challenges arising from the use of quantitative economic evidence can explain this phenomenon. In particular, we argue that it is in the current context difficult for adjudicators to assess the reliability and (un)biasedness of such evidence. Guidelines on how to assess quantitative evidence and benchmarks against which to evaluate the quality of such evidence may represent a useful if not necessary step in order to raise the acceptance of the use of quantitative evidence in trade disputes.