How to Win a WTO Dispute Based on Non-Wto Law? Questions of Jurisdiction and Merits
Journal of World Trade, Vol. 37, No. 6, 2003
34 Pages Posted: 17 Sep 2004
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.
Keywords: international trade, WTO, public international law, dispute settlement, conflicting norms, forum shopping
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