The Facts Aside: The Limitation of WTO Appeals to Issues of Law

Abstract

This article explores the distinction between law and fact in the context of dispute settlement in the World Trade Organization (WTO) and, in particular, the limitation of appeals to issues of law pursuant to Article 17.6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). This distinction is becoming increasingly important, as WTO appellants more frequently claim that the panel erred in fulfilling its function, and appellees more frequently resort to procedural objections. However, it is fraught with difficulty. Moreover, even assuming that law can be cleanly separated from fact in every instance, the Appellate Body frequently has to confront factual issues. In addition, the limits of panels' discretion in making factual findings are reached where the panel itself commits a legal error, such as a failure to comply with Article 11 of the DSU. Therefore, Article 17.6 of the DSU should not be misunderstood as suggesting that appeals have nothing to do with facts or that the Appellate Body does not deal with facts at all.

Keywords: law, WTO, appeals, fact, dispute settlement

JEL Classification: K33