Sources of International Trade Law: Mantras and Controversies at the World Trade Organization
Forthcoming in: Oxford Handbook on the Sources of International Law (eds. Samantha Besson & Jean d’Aspremont, 2016)
23 Pages Posted: 7 Sep 2016
Date Written: September 5, 2016
This contribution focuses on sources of law in Word Trade Organization (WTO) dispute settlement rather than sources of international trade or international economic law more broadly. Section II illustrates how, from a certain perspective, the sources of WTO law are relatively uncontroversial, the WTO being treaty-based and member-driven, two ‘mantras’ of the WTO legal system. Section III, in contrast, demonstrates that, from a different vantage point, sources of law have become one of the thorniest questions in WTO governance with recent developments questioning the source-monopoly of WTO members, WTO covered agreements, and legally binding instruments. Section IV, finally, offers a number of factors — two-tiered compulsory dispute settlement, consensus decision-making and increased membership diversity — that may explain the current state of play.
Keywords: sources of international law, WTO, international courts, international standards, state consent, precedent
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