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WTO Jurisprudence

28 posts

The Scope of DSU Article 21.5: Claims That Could Have Been Brought in the Original Proceeding

In the recent U.S. - Zeroing (EC), Article 21.5 dispute, there was a systemic issue related to bringing "new" claims in an Article 21.5 proceeding: If a claim could have been brought against the measure at issue in the original proceeding, but was not, can

The Scope of GATT Article XX

From para. 7.498 of the Colombia - Ports of Entry WTO panel decision, circulated Monday: In any cases where a measure may violate a particular provision of the WTO Agreements, a number of exceptions – notably those included in Article XX of the GATT 1994 – allow WTO Members to justify

Barcelo on Burdens

John Barcelo has posted an article on SSRN called "Burden of Proof, Prima Facie Case and Presumption into WTO Dispute Settlement." The abstract: The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie

More Muddling of "Interpret" and "Clarify"

In the recent decision in Bananas, the AB had this to say about "interpretations" under WTO Agreement Article IX:2: 383. Multilateral interpretations of provisions of WTO law are the next method identified above. Article IX:2 of the WTO Agreement sets out specific requirements for decisions that

Clarify versus Interpret

In a communication related to the AB's Hormones Suspension decisions, the U.S. says: 3. Accordingly it is clear that the Appellate Body can clarify, but not interpret or amend, any of the covered agreements, including the DSU. Putting aside "amend," it is not very clear

Panels, the AB, and the Role of Precedent

From the recent EC appeal in the Continued Zeroing (DS350) case: First, if the Panel Report is construed as finding that a panel can invoke "cogent reasons" for departing from previous Appellate Body findings on the same issue of legal interpretation (paragraphs 7.180 and 7.182 of

The Role of Precedent: What the WTO Members Think (Part 2)

A while back, I mentioned a discussion among the WTO Members, at a DSB meeting, on the role of precedent in WTO dispute settlement. This discussion was in the context of the U.S. - Stainless Steel (Mexico) dispute, where the AB made some statements that seemed to indicate a

The Role of Precedent at the WTO: What the Members Think

From the summary of the DSB meeting where the recent U.S. - Stainless Steel from Mexico case was adopted: There was a debate among members on whether or not panels were obliged to follow AB decisions. Some members argued that prior AB rulings constituted a clear line of jurisprudence