Temporal Scope of WTO Dispute Settlement: Charting the Currents of a Turbulent Sea

Abstract

The WTO Dispute Settlement system, like other dispute settlement fora, may be facing jurisdiction arguments arising from a debate about temporal scope. In fact, there are numerous panel and Appellate Body Reports that have addressed a wide variety of temporal scope arguments. However, it is difficult to build up an overview of these rulings due to the lack of a systematic summary in the rulings, not to mention the lack of academic work on this issue. This Paper seeks to address this vacuum by presenting to the readers a systematic summary of these practices based on the following four factors: (1) the identification of critical dates; (2) classification of the measure in light of its temporal nature; (3) special considerations arising from specific provisions of the covered agreements; and (4) other considerations that may have a bearing on the dispute. In addition, this Paper will also point out flaws in the approach of the panels and the Appellate Body.

Keywords: Appellate Body, Dispute Settlement, Jurisdiction, Procedural Issue, rationale temporis, Temporal Scope, terms of reference, WTO