Fair Crack of the Whip: Examining Procedural Fairness in WTO Disputes Using an Australian Administrative Law Framework
Ten Years of WTO Dispute Settlement: Australian Perspectives, 2006
30 Pages Posted: 22 May 2007
The principle of 'procedural fairness' (also called 'fundamental fairness', 'due process' and 'natural justice') broadly requires administrative and judicial proceedings to be fair. Decision-makers in administrative and judicial systems attempt to achieve procedural fairness by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights, duties, powers and liabilities are administered. As will be seen in this chapter, the principle of procedural fairness is difficult to define precisely, because the demands of fairness depend on the circumstances. For example, it may be necessary to balance an individual's interest in pursuing additional procedures with the value and cost of such procedures. Thus, in particular circumstances, procedural fairness might require a full hearing, whereas in other circumstances, basic notice and the right to speak might be sufficient. Considerations of procedural fairness might also conflict. For instance, parties' rights to be heard and give evidence might weigh in favour of last minute introduction of evidence. On the other hand, the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against such evidence. Discretion is required to resolve such conflicts.
Keywords: procedural, fairness, WTO, dispute, Australian
JEL Classification: K33, K4
Suggested Citation: Suggested Citation