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Principles play a crucial role in any dispute settlement system, and the World Trade Organization (WTO) is no exception. However, WTO Panels and the Appellate Body have been too timid in using principles, sometimes avoiding their use when appropriate and at other times using them without fully acknowledging that they are doing so. Perhaps more worryingly, these bodies often fail to delve deeply enough into principles. They tend to overlook key questions such as the legal basis for using a given principle, whether the principle is being used in an interpretative manner or as applicable law and the meaning of the principle in public international law. This book establishes a framework for addressing these questions. The use of such a framework should allay fears and misconceptions about the use of principles and ensure that they are used in a justifiable manner, improving the quality of dispute settlement in the WTO.
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This page intentionally left blank Legal Principles in WTO Disputes Principles play a crucial role in any dispute settlement system, and the World Trade Organization (WTO) is no exception. However, WTO Panels and the Appellate Body have been too timid in using principles, sometimes avoiding their use when appropriate and at other times using them without fully acknowledging that they are doing so. Perhaps more worryingly, these bodies often fail to delve deeply enough into principles. They tend to overlook key questions such as the legal basis for using a given principle, whether the principle is being used in an interpretative manner or as applicable law, and the meaning of the principle in public international law. This book establishes a framework for addressing these questions. The use of such a framework should allay fears and misconceptions about the use of principles and ensure that they are used in a justifiable manner, improving the quality of dispute settlement in the WTO. a n d r e w d . m i t c h e l l is a Senior Lecturer at Melbourne Law School. Previously he was a solicitor with Allens Arthur Robinson in Australia. He has also worked in the Trade Directorate of the Organisation for Economic Co-operation and Development (OECD), the intellectual Property Division of the World Trade Organization (WTO), and the Legal Department of the International Monetary Fund (IMF). CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW Established in 1946, this series produces high-quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention. The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General Editors James Crawford SC FBA Whewell Professor of International Law, Faculty of Law, an