The Legal Basis for Using Principles in WTO Disputes

41 Pages Posted: 27 Jun 2008 Last revised: 21 Apr 2015

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Multiple version iconThere are 2 versions of this paper

Date Written: December 1, 2007

Abstract

This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status.

Suggested Citation

Mitchell, Andrew D., The Legal Basis for Using Principles in WTO Disputes (December 1, 2007). Journal of International Economic Law, Vol. 10, Issue 4, pp. 795-835, 2007. Available at SSRN: https://ssrn.com/abstract=1152166 or http://dx.doi.org/10.1093/jiel/jgm037

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

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