¹ WTO Appellate Body Report European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (‘EC-Asbestos’), WT/DS135/AB/R, adopted 5 Apr 2001.Google Scholar

² The outcry is recorded in General Council Minutes of Meeting held on 22 November 2000, WT/GC/M/60, 23 01 2001. There is a substantial literature on the amicus dispute.Google ScholarSee, eg, Zonnekeyn, GA ‘The Appellate Body's Communication on Amicus Curiae Briefs in the Asbestos Case—An Echternach Procession?’ (2001) 35 Journal of World Trade 553 andCrossRefGoogle ScholarMarceau, G and Stilwell, M ‘Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies’ (2001) 4 Journal of International Economic Law 155.CrossRefGoogle Scholar

³ Barfield, CEFree Trade, Sovereignty, Democracy: The Future of the World Trade Organization (Washington DCAEI Press 2001).Google Scholar

⁴ For a review of the issues, see Charnovitz, S ‘Judicial Independence in the World Trade Organization’ in Boisson de Chazournes, Romano, and Mackenzie, (eds) International Organizations and International Dispute Settlement: Trends and Prospects (Ardsley NYTransational Publications 2002)Google Scholarand, for a political science perspective, Smith, J McCall ‘WTO Dispute Settlement: The Politics of Procedure in Appellate Body Rulings’ (2003) 2 World Trade Review 65.CrossRefGoogle Scholar

⁵ All the WTO agreements and other instruments are available at <http://www.wto.org>..>Google Scholar

⁶ Art IV:1 of the WTO Agreement. The Agreement on Government Procurement and the Agreement on Trade in Civil Aircraft, set out in Annex 4 to the WTO Agreement, are plurilateral rather than multilateral, and are subject to different rules (see Art IV:8 of the WTO Agreement). The two other plurilateral agreements in Annex 4 are defunct.Google Scholar

⁷ See Kuijper, PJ ‘Some Institutional Issues Presently Before the WTO’ in Kennedy, and Southwick, (eds) The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec (CambridgeCUP 2002). This Article observes that some of the decisions made by the Ministerial Conference do not make it clear that this (and a fortiori the other bodies) is an organ of the WTO, not an ad hoc conference of ministers (at 107).Google Scholar

⁸ The Councils, Committees and other subordinate bodies of the WTO are mandated by Rule 33 of their respective Rules of Procedure to refer a matter to the General Council whenever they are unable to reach a decision by consensus. For an example, see WTO Document Rules of Procedure for Meetings of the Council for Trade in Goods, WT/L/79, 7 08 1995. For a discussion of Rule 33, see Kuijper, above n 7 at 103–6. The authority to adopt Rules of Procedure is found in paras 5–7 of Art IV of the WTO Agreement.Google Scholar

⁹ Art IV:3 of the WTO Agreement.Google Scholar

¹⁰ Art 2.4 DSU. Echoing footnote 1 of the WTO Agreement, footnote 1 of the DSU states that ‘[t]he DSB shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision.’Google Scholar

¹¹ See below nn 26 and 27.Google Scholar

¹² Art 2.1. These functions are further elaborated in the DSU.Google Scholar

¹³ Art 11 DSU.Google Scholar

¹⁴ Art 17.6 DSU.Google Scholar

¹⁵ WTO Appellate Body Report Japan—Taxes on Alcoholic Beverages (‘Japan-Alcoholic Beverages II’), WT/DS8/AB/R, adopted 1 11 1996, para 108 (binding force of panel reports); WTO Appellate Body Report United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Art 21.1 of the DSU by Malaysia (‘US—Shrimp (Art 21.5—Malaysia)’), WT/DS58/AB/RW, adopted 21 Nov 2001, para 109 (Appellate Body reports); WTO Appellate Body Report European Communities—Anti-Dumping Duties on Imports of Cotton-Type Bed Linen From India—Recourse to Art 21.5 by India (‘EC—Bed Linen (Art 21.5—India)’), WT/DS141/AB/RW, adopted 24 Apr 2003, para 95 (non-appealed parts of a panel report).Google ScholarIt is only on adoption that panel and Appellate Body reports could establish the basis for a res judicata: Pauwelyn, J ‘How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law? Questions of Jurisdiction and Merits’ (2003) 37 Journal of World Trade 997 at 1017–19.Google Scholar

¹⁶ Art IX:2 of the WTO Agreement.Google Scholar

¹⁷ Art IX:3 of the WTO Agreement. Footnote 4 of the WTO Agreement requires consensus for decisions to grant a waiver with respect to implementation periods.Google Scholar

¹⁸ Art X of the WTO Agreement. Certain core obligations can only be amended by consensus vote (Art X:2). Other amendments changing the rights and obligations of WTO Members require a two-thirds majority vote to be binding on those Members that accept the amendment. The Ministerial Council may decide by three-quarters majority vote that Members that do not accept the amendment shall be free to leave the WTO or may remain a Member with the consent of the Ministerial Council (Art X:3).Google Scholar

¹⁹ See Ehlermann, C-D and Ehring, L ‘WTO Decision-Making Procedures, “Member-Driven” Rule-Making and WTO Consensus-Practices: Are They Adequate?’ presented at a conference on Developing Countries in the Doha Round EU1,2–3 July 2004.Google Scholar

²⁰ The reason for voting is explained in General Council Minutes of Meeting held on 31 July 1995, WT/GC/M/6, 20 09 1995.Google Scholar

²¹ The decision is contained in General Council Minutes of Meeting held on 15 November 1995, WT/GC/M/8, 13 12 1995, later circulated as WTO Document WT/L/93.Google Scholar

²² See General Council Minutes of Meeting held on 27 March 1999, WT/GC/M/36/Add 3, 31 03 1999.Google Scholar

²³ Narlikar, A ‘The Politics of Participation: Decision-Making Processes and Developing Countries in the World Trade Organization’ (2002) 364 The Round Table 171 at 177.Google ScholarSee also Steinberg, RH ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’ (2002) 56 International Organization 339.CrossRefGoogle Scholar

²⁴ WTO Document Singapore Ministerial Declaration, adopted 13 12 1996, WT/MIN(96)/DEC, 18 December 1996, para 20 (competition and investment) and WTO Document Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, paras 20, 23, 26, and 27 (also transparency in government procurement and trade facilitation).Google Scholar

²⁵ For a discussion of the meaning of ‘explicit consensus’, see WTO Document Comments on the EC Communication (WT/GC/W/491) on the Modalities for the Singapore Issues—Communication from Bangladesh, Cuba, Egypt, India, Indonesia, Kenya, Malaysia, Nigeria, Pakistan, Venezuela, Zambia and Zimbabwe, WT/GC/W/50, 8 07 2003.Google Scholar

²⁶ See Ehlermann, and Ehring, n 19 above.Google Scholar

²⁷ Under Art 6.1 DSU, on request by a complaining Member, panels are established at the second (monthly) meeting of the DSB, unless the DSB decides by consensus not to establish the panel.Google Scholar

²⁸ See Art 16.4 DSU (adoption of panel reports) and Art 17.14 DSU (adoption of Appellate Body reports).Google Scholar

²⁹ Narlikar, above n 23 at 178–80.Google Scholar

³⁰ Cottier, T and Takenoshita, S ‘The Balance of Power in WTO Decision-Making: Towards Weighted Voting in Legislative Response’ (2003) 59 Aussenwirtschaft 171, at 184–6. The authors define trading power in terms of share of trade, Gross Domestic Product, market openness (defined as proportion of imports to GDP) and population.Google Scholar

³¹ See WTO Document Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding on Improving Flexibility and Member Control in WTO Dispute Settlement—Textual Contribution by Chile and the United States, TN/DS/W/52, 14 Mar 2003, para (c). Partial adoption does not appear to be possible at present, given that Art 16.4 (on panel reports) and Art 17.14 (on Appellate Body reports) refer to the adoption of ‘the report’ in the singular. The EC has cited Art 16 DSU as a basis for rejecting a suggestion by India for partial adoption of a panel report: see WTO Dispute Settlement Body, Minutes of Meeting held on 5 April 2002, WT/DSB/M/122, 23 04 2003, at para 21.Google Scholar

³² Under Art 15 of the DSU, the descriptive parts of panel reports (though not Appellate Body reports) are circulated to the parties to the dispute in advance of a final report. A party to the dispute may request the panel to review parts of the report, but whether the panel does so is within its own discretion.Google Scholar

³³ WTO Document TN/DS/W/52,14 Mar 2003, above n 31. For concerns, see Special Session of the Dispute Settlement Body, Minutes of Meeting held on 16–18 December 2002, TN/DS/M/7, 26 June 2003.Google ScholarAlso sceptical is Ehlermann, C-D ‘Reflections on the Process of Clarification and Improvements of the DSU’ in Ortino, and Petersmann, (ed) The WTO Dispute Settlement System 1995–2003 (The HagueKluwer 2004) at 106–7.Google Scholar

³⁴ Barfield, above n 3 at 127.Google Scholar

³⁵ Hudec, RE ‘Review of Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization’ (2002) 1 World Trade Review 211, at 222CrossRefGoogle Scholar; Staler, A ‘The WTO Dispute Settlement Process: Did The Negotiators Get What They Wanted? (2004) 3 World Trade Review 99 at 117.CrossRefGoogle Scholar

³⁶ On this see Hudec, RE ‘The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure’ in Bhagwati, and Hirsch, (eds) The Uruguay Round and Beyond: Essays in Honour of Arthur Dunkel (University of Michigan Press 1999).Google Scholar

³⁷ Barfield, above n 3 at 112–13.Google Scholar

³⁸ Steger, D ‘Book Review: Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization, by Claude E Barfield’ (2002) 5 Journal of International Economic Law 565 at 568.CrossRefGoogle Scholar

³⁹ WTO Appellate Body Report EC Measures Concerning Meat and Meat Products (Hormones) (‘EC—Hormones’), WT/DS26/AB/R, adopted 13 02 1998.Google Scholar

⁴⁰ WTO Appellate Body Report United States—Import Prohibition of Certain Shrimp and Shrimp Products (“US—Shrimp’), WT/DS58/AB/R, adopted 6 11 1998. The revised ban was allowed in US—Shrimp (Art 21.5—Malaysia) above n 15.Google Scholar

⁴¹ Eg by Greenwald, J ‘WTO Dispute Settlement: An Exercise in Trade Law Legislation?’ (2003) 6 Journal of International Economic Law 113.CrossRefGoogle Scholar

⁴² See Esserman, S and Howse, R ‘The WTO on Trial’ (2003) 82 Foreign Affairs 130.CrossRefGoogle Scholar

⁴³ By amendment under Art X of the WTO Agreement. WTO Members may also renegotiate certain of their individual commitments.Google Scholar

⁴⁴ See, eg, Akande, D and Williams, S ‘International Adjudication on National Security Issues: What Role for the WTO?’ (2003) 43 Virginia Journal of International Law 365Google Scholar; Schloemann, HL and Ohlhoff, S ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’ (1999) 93(2) American Journal of International Law 424 at 441CrossRefGoogle Scholar; Swaak-Goldman, OQ ‘Who Defines Members' Security Interest in the WTO?’(1996) 9 Leiden Journal of International Law 361 at 366CrossRefGoogle Scholar; and Hahn, MJ ‘Vital Interests and the Law of GATT: An Analysis of GATT's Security Exception’ (1991) 12 Michigan Journal of International Law 558 at 611.Google Scholar

⁴⁵ WTO Document Nicaragua—Measures Affecting Imports from Honduras and Colombia-Statements by Nicaragua, WT/DSB/COM/5/Rev 1, 30 May 2000. This appears also to be the position of the United States. See Jackson, JH and Lowenfeld, AF ‘Helms-Burton, the US, and the WTO,’ ASIL Insight, 03 1997, available at <http://www.asil.org/insight7.htm>.Google Scholar

⁴⁶ See GATT Panel Report United States—Imports of Sugar from Nicaragua, L/5607, unadopted, 13 03 1984 and GATT Panel Report United States—Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 Oct 1986.Google Scholar

⁴⁷ See above n 44.Google Scholar

⁴⁸ See Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 (22 12), at para 45, for a discussion of distinction between jurisdiction and justiciability. For an application of this distinction to Art XXI GATT, see Akande and Williams ‘International Adjudication on National Security Issues’ above n 44.Google Scholar

⁴⁹ Art XXIII GATT.Google Scholar

⁵⁰ GATT Document Decision Concerning Art XXI of the General Agreement, Decision of 30 Nov 1982, L/5426, BISD 29S/23. This Decision forms part of the GATT 1994 under para 1(b)(iv) of the language incorporating the GATT 1994 into the WTO Agreement, as it was intended to be binding on all of the Contracting Parties. On this requirement see WTO Appellate Body Report United States—Tax Treatment for ‘Foreign Sales Corporations’ (‘US—FSC’), WT/DS108/AB/R, adopted 20 Mar 2000, para 108.Google Scholar

⁵¹ WTO Appellate Body Report Brazil—Measures Affecting Desiccated Coconut (‘Brazil—Desiccated Coconut’), WT/DS22/AB/R, adopted 20 03 1997, at 18.Google Scholar

⁵² This was done to exclude certain national security issues in the Nicaragua/US GATT panel reports noted above n 46.Google Scholar

⁵³ In Oil Platforms, Preliminary Objections, Judgment [1996] ICJ Rep 804 (12 12), the International Court of Justice considered a national security provision reading as follows: ‘[t]he present Treaty shall not preclude the application of measures:…necessary to protect its essential security interests’. The Court concluded that this provision ‘does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise’ (para 20).Google Scholar

⁵⁴ Emphasis added.Google Scholar

⁵⁵ Heiskanen, V ‘International Sanctions and GATT Obligations’ in Hakapaa, et al. (ed) Essays on International Law (HelsinkiFinnish Branch of the International Law Association 1987) at 86; Akande and Williams, above n 44 at 399–402.Google Scholar

⁵⁶ Akande, and Williams, , above n 44 at 389–94 (also discussing problems with a ‘good faith’ test).Google Scholar

⁵⁷ Cf the ‘necessity’ test in Art XX, as described by WTO Appellate Body Report Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, adopted 10 01 2001, para 162 and in WTO Appellate Body Report EC—Asbestos, above n 1 at para 172. See also Akande and Williams, above n 44 at 394–6.Google Scholar

⁵⁸ Pauwelyn, JConflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CambridgeCUP 2003) at 23–4.CrossRefGoogle Scholar

⁵⁹ See Weiler, JHH ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2002) 35 Journal of World Trade 191.CrossRefGoogle Scholar

⁶⁰ This has led one former Director of the WTO Legal Affairs Division to advance the ‘modest proposal’ that a legal drafting group be made available in order to minimize ‘surprises’ from any texts adopted in the Doha Round of negotiations. See Kuijper, PJ ‘A Legal Drafting Group for the Doha Round: A Modest Proposal’ (2003) 37 Journal of World Trade 1031.Google Scholar

⁶¹ See WTO Appellate Body Report United States—Import Measures on Certain Products from the European Communities (‘US—Certain EC Products’), WT/DS165/AB/R, adopted 10 01 2001, para 92 and WTO Appellate Body Report United States—Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (‘US—Hot Rolled Steel’), WT/DS184/AB/R, adopted 23 Aug 2001, para 125. See also GATT Panel Report European Economic Community—Subsidies on Exports of Wheat Flour, SCM/42, BISD 31S/259, unadopted, 21 Mar 1983, para 5.3, where the panel said that ‘it was unable to conclude as to whether the increased share has resulted in the EEC “having more than an equitable share” in terms of Art 10 [of the SCM Code] in light of…most importantly, the difficulties inherent in the concept of “more than equitable share”.’Google ScholarPauwelyn, J ‘Cross-Agreement Complaints Before the Appellate Body: A Case Study of the EC-Asbestos Dispute’ (2002) 1 World Trade Review 167, considers that the Appellate Body declared a non liquet in refusing to decide on a claim under the TBT Agreement in WTO Appelate Body Report EC—Asbestos, above n 1. However, this can also be explained on the basis that the panel had made no legal findings under the TBT Agreement and therefore the Appellate Body had no jurisdiction to entertain these claims.CrossRefGoogle Scholar

⁶² It may be noted that Article 3.9 does not, on its face, add much to the rights of WTO Members under the WTO Agreement, given that in any case the WTO Agreement prevails over the DSU in the event of any conflict. Art XVI:3 of the WTO Agreement. Art II:2 of the WTO Agreement somewhat confusingly deems the DSU to be one of the ‘Multilateral Trade Agreements’ to which this conflicts rule applies.Google Scholar

⁶³ There has only once even been an attempt to obtain an authoritative interpretation. This was to resolve the ‘sequencing’ issue on the relationship between Art 21.5 and 22.2 of the DSU. See WTO Document Request for an Authoritative Interpretation Pursuant to Art IX:2 of the Marrakesh Agreement Establishing the World Trade Organization—Communication from the European Communities, WT/GCAV/133, 25 01 1999. Likewise, there has been only one proposal to use Art X to amend the WTO Agreements, on the same issue. See WTO Document Proposal to Amend Certain Provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) Pursuant to Art X of the Marrakesh Agreement Establishing the World Trade Organization—Submission by Bolivia, Canada, Chile, Colombia, Costa Rica, Ecuador, Japan, Korea, New Zealand, Norway, Peru, Switzerland, Uruguay and Venezuela for Examination and Further Consideration by the General Council, WT/GC/W/410/Rev.1, 26 Oct 2001.Google Scholar

⁶⁴ In the context of negotiations on DSU reform, Jordan has proposed adding a new Art 5 bis to the DSU, according to which parties and third parties to a dispute would be entitled to refer questions of interpretation to the General Council (which adds nothing to Art 3.9) and additionally would ‘follow the form, time-frame and other guidelines set by the General Council for this purpose’. This might allow for suspension of the DSU time limits. See WTO Document Jordan's Contributions Towards the Improvement and Clarification of the WTO Dispute Settlement Understanding, TN/DS/W/43, 28 01 2003.Google Scholar

⁶⁵ It is relevant to note a proposal made by Kenya, according to which Art 3.2 DSU would be amended by adding the following paragraph: ‘[w]hen, in the course of proceedings before a panel or the Appellate Body, a question arises on whether or not there is a conflict between provisions of any covered Agreement or between any covered Agreements, the panel or Appellate Body shall refer the matter to the General Council for a determination. In reaching the determination, the General Council may exercise the authority conferred under paragraph 2 of Art IX of the WTO Agreement.’ See WTO Document Text for the African Group Proposals on Dispute Settlement Understanding Negotiations—Communication from Kenya, TN/DS/W/42, 24 01 2003. A similar proposal was made in GATT Document Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, MTN.TNC/W/FA, 20 Dec 1991, at T.3.Google Scholar

⁶⁶ Lauterpacht, H ‘Some Observations on the Prohibition of Non Liquet and the Competeness of the Law’ in van Asbeck, et al. (eds) Symbolae Verzijl (The Hague 1958) at 200.Google Scholar

⁶⁷ Stone, J ‘Non Liquet and the Function of Law in the International Community’ (1959) 35 British Yearbook of International Law 124.Google Scholar

⁶⁸ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion requested by the General Assembly, [1996] ICJ Rep 226 (8 Jul), para 105(2)(E). For criticism of this ruling, see especially the Dissenting Opinions of Judges Schwebel, Higgins and Koroma.Google Scholar

⁶⁹ See Stone, above n 67 at 133–7 and Weil, P ‘The Court Cannot Conclude Definitively…Non Liquet Revisited’ (1997) 36 Columbia Journal of Transational Law 109 at 110–13.Google Scholar

⁷⁰ Ibid at 119.

⁷¹ See WTO Panel Report United States—Sections 301–310 of the Trade Act of 1974 (‘US—Section 301’), WT/DS152/R, adopted 27 Jan 2000, at para 7.43 (describing Art 23(1) as an ‘exclusive dispute resolution clause’).Google ScholarShany, YThe Competing Jurisdictions of International Courts and Tribunals (OxfordOUP 2003), at 184, notes several caveats to the view that Art 23 can be considered an exclusive jurisdiction clause: first, that the DSU permits arbitration, though subject to DSB review; second, that it applies only to determinations, not to ‘interpretations’ of the WTO agreements; and third, that it does not prejudge the determination of disputes in another legal forum, such as under regional trade agreements, so long as it is accepted that they do not produce res judicata effects within the WTO. In the opinion of the present author, this third caveat is unfounded.Google ScholarSee on this point Marceau, G ‘The Dispute Settlement Rules of the North American Free Trade Agreement: A Thematic Comparison with the Dispute Settlement Rules of the World Trade Organization’ in Petersmann, (ed) International Trade Law and the GATT/WTO Dispute Settlement System (The HagueKluwer 1997) at 534.Google Scholar

⁷² For this reason it may be suggested that the DSU be amended to allow the Dispute Settlement Body, as an organ, to refer matters to the General Council for authoritative interpretation under Art IX:2.Google Scholar

⁷³ Emphasis added.Google Scholar

⁷⁴ Emphasis added.Google Scholar

⁷⁵ WTO Appellate Body Report Mexico—Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States—Recourse to Art 21.5 of the DSU by the United States (‘Mexico—Corn Syrup (AH 21.5—US)’), WT/DS132/AB/RW, adopted 21 11 2001, at para 37.Google Scholar

⁷⁶ Bacchus, J ‘The Bicycle Club: Affirming the American Interest in the Future of the WTO’ (2003) 37 Journal of World Trade 429 at 439.Google Scholar

⁷⁷ Ehlermann, C-D ‘Tensions between the Dispute Settlement Process and the Diplomatic and Treaty-Making Activities of the WTO’ (2002) 1(3) World Trade Review 301 at 305 (citing for this proposition both Arts 17.12 and 3.2 DSU).CrossRefGoogle Scholar

⁷⁸ WTO Appellate Body Report Australia—Measures Affecting the Importation of Salmon (‘Australia—Salmon’), WT/DS18/AB/R, adopted 6 11 1998, at para 233.Google Scholar

⁷⁹ There is a risk involved in the exercise of judicial economy, as noted by Mavroidis, PC ‘Judicial Supremacy, Judicial Restraint, and the Issue of Consistency of Preferential Trade Agreements with the WTO: The Apple in the Picture’ in Kennedy, and Southwick, (eds) The Political Economy of International Trade Law; Essays in Honor of Robert E. Hudec (CambridgeCUP 2003) at 596. The danger is that panels will leave the Appellate Body with insufficient factual evidence to ‘complete the analysis’ in the event that it overturns the panel's other findings. Consequently, Mavroidis notes, panels have more recently tended to address all issues before them.Google Scholar

⁸⁰ WTO Appellate Body Report Japan—Measures Affecting Agricultural Products (‘Japan—Agricultural Products’), WT/DS76/AB/R, adopted 19 03 1999, para 143, issue (d). Compare issue (d) in para 71 (issues raised on appeal).Google Scholar

⁸¹ See GATT Panel Report European Community Tariff Treatment on Imports of Citrus Products from Certain Countries in the Mediterranean Region, L/5776, unadopted, 7 02 1985, and GATT Panel Report EEC—Member States' Import Regimes for Bananas, DS32/R, unadopted, 3 June 1993.Google Scholar

⁸² WTO Appellate Body Report India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (‘India—Quantitative Restrictions’), WT/DS90/AB/R, adopted 22 09 1999.Google Scholar

⁸³ Art XVIII:B of GATT Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 paras 5–12 (consultations) and 13 (report to General Council).Google Scholar

⁸⁴ BOP Understanding para 13. This paragraph also states that ‘[w]henever the General Council has made specific recommendations, the rights and obligations of Members shall be assessed in the light of such recommendations.’Google Scholar

⁸⁵ India—Quantitative Restrictions above n 82 at paras 89–95.Google Scholar

⁸⁶ Ibid at para 98.

⁸⁷ Ibid at para 104.

⁸⁸ WTO Appellate Body Report Turkey—Restrictions on Imports of Textile and Clothing Products (‘Turkey-Textiles’), WT/DS34/AB/R, adopted 19 11 1999.Google Scholar

⁸⁹ Similar to footnote 1 of the BOP Understanding, para 12 of the Understanding on Art XXIV of the General Agreement on Tariffs and Trade 1994 provides that ‘[t]he provisions of Arts XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of those provisions of Art XXIV relating to customs unions [or] free-trade areas…’.Google Scholar

⁹⁰ Review of regional trade agreements was undertaken by Working Parties under Art XXTV:7(a) GATT, and para 7 of the Understanding on the Interpretation of Art XXIV. This function is now performed by the CRTA pursuant to WTO General Council Committee on Regional Trade Agreements, Decision of 6 02 1996, WT/L/127.Google Scholar

⁹¹ During the Uruguay Round the EC unsuccessfully proposed adding the following sentence to these provisions: ‘Such recourse to the dispute settlement provisions, however, shall not be allowed to question the conformity with GATT of existing customs unions, [or] free-trade areas…as long as the CONTRACTING PARTIES have not made a specific recommendation under Art XXIV:7 of the General Agreement’. See Communication from the European Communities, MTN.TNC/W/125,13 12 1993.Google Scholar

⁹² In accord, Ehlermann, above n 77 at 303; G Marceau and Reiman, C ‘When and How Is a Regional Trade Agreement Compatible with the WTO?’ (2001) 28 Legal Issues of Economic Integration 297 at 313Google Scholar; Roessler, F ‘The Institutional Balance between the Judicial and the Political Organs of the WTO’ in Bronckers, and Quick, (eds) New Directions in International Economic Law: Essays in Honour of John H Jackson (The HagueKluwer 2000) at 338.Google Scholar

⁹³ Turkey—Textiles, above n 88 at para 60.Google Scholar

⁹⁴ Ehlermann, above n 77 at 306.Google Scholar

⁹⁵ Cf Mavroidis, above n 79 and Davey, WJ ‘Has the WTO Dispute Settlement System Exceeded Its Authority?’ (2001) 4 Journal of International Economic Law 79 at 85–8.CrossRefGoogle Scholar

⁹⁶ On this see above n 75.Google Scholar

⁹⁷ Roessler, above n 90 at 340.Google Scholar

⁹⁸ See, eg, Oil Platforms, Preliminary Objections, Judgment [1996] ICJ Rep 803 (12 Dec) and the Separate Opinion of Judge Higgins.Google Scholar

⁹⁹ Roessler, above n 92 at 344.Google Scholar

¹⁰⁰ Davey, above n 95 at 87, states that a panel can determine whether or not balance of payments measures are justified with the aid of advice from the IMF, while acknowledging the greater complexities involved in any determination by panels of the legality of regional trade agreements. In support of panel review in the case of regional trade agreements, see Mavroidis, above n 77.Google Scholar

¹⁰¹ Roessler, above n 92 at 342.Google Scholar

¹⁰² Davey, above n 95 at 87 and Mavroidis, above n 79 at 595.Google Scholar

¹⁰³ Roessler, above n 92 at 342.Google Scholar

¹⁰⁴ India Quantitative Restrictions above n 82 at para 104.Google Scholar

¹⁰⁵ WTO Panel Report India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 09 1999, para 5.90.Google Scholar

¹⁰⁶ Ibid para 5.93.

¹⁰⁷ Ibid. The panel ignores the condition in Art IX:3 of the WTO Agreement that a waiver be granted only ‘in exceptional circumstances’ and kept under review.

¹⁰⁸ Ibid para 5.94.

¹⁰⁹ Mavroidis, above n 79 at 597, expresses the view that a panel would respect the decision of the CRTA.Google Scholar

¹¹⁰ Military and Paramilitary Activities in and against Nicaragua (Nicaragua/US), Jurisdiction and Admissibility, Judgment [1984] ICJ Rep 392 (26 Nov), at para 95.Google Scholar

¹¹¹ Eg Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina/Yugoslavia (Serbia and Montenegro), Provisional Measures, Order [1993] ICJ Rep 3 (8 Apr) para 33.Google Scholar

¹¹² Akande, D ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Political Organs of the United Nations’ (1997) 46 ICLQ 309 at 313.CrossRefGoogle Scholar

¹¹³ Ibid at 313; see also Gowlland-Debbas, V ‘The Relationship Between the International Court of Justice and the Security Council in Light of the Lockerbie case’ (1994) 88 AJIL 643 andCrossRefGoogle ScholarGray, C ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’ (2003) 14 EJIL 867.CrossRefGoogle Scholar

¹¹⁴ Exclusivity does not seem to be required in the context of competing judicial proceedings (and nor does it so far seem to be conclusive). Here the situation is usually analysed in terms of the doctrine of litis pendens, which entitles a tribunal, on certain conditions, to decline to exercise its jurisdiction when there is a danger of conflicting judgments. The conditions are an identity of parties, matters in dispute, object of proceedings (Polish Upper Silesia (Jurisdiction) [1925] PCIJ Ser A, No 6, at 19–20) and remedies (The Factory at Chorzów (Germany/Poland) (Claim for Indemnity) (Jurisdiction) [1927] PCIJ Ser A, No 9, at 27). It should be noted however that in these cases the doctrine was neither applied nor expressly approved, and it remains unclear whether it applies in international law. In support, see Shany, above n 69 at 244 andGoogle ScholarLowe, V ‘Overlapping Jurisdictions in International Tribunals’ (2000) 20 Australian Yearbook of International Law 1 at 195–7.Google Scholar

¹¹⁵ Upper Silesia Rights of Minorities in [1928] PCIJ Ser A, No 15 at 23.Google Scholar

¹¹⁶ This is the precursor to Art 36(1) of the ICJ Statute.Google Scholar

¹¹⁷ Upper Silesia Rights of Minorities in, above n 113 at 23. See also Shany, above n 71 at 232–4.Google Scholar

¹¹⁸ WTO Document Philippines—Measures Affecting Trade and Investment in the Motor Vehicle Sector—Communication from the Philippines, WT/DS195/4, 7 11 2002. A panel was established, though never composed: WTO Secretariat, Update of WTO Dispute Settlement Cases, WT/DS/OV/20, 26 Mar 2004.Google Scholar

¹¹⁹ This decision, entitled ‘TRIMs Transition Period Issues’ is found in Annex II of General Council Minutes of Meeting held on 3 and 8 May 2000, WT/GC/M/55, 16 06 2000, and states that ‘Members agree to direct the Council for Trade in Goods to give positive consideration to individual requests presented in accordance with Art 5.3 by developing countries for extension of transition periods for implementation of the TRIMs Agreement.’Google Scholar

¹²⁰ WTO Dispute Settlement Body Minutes of Meeting held on 17 November 2000, WT/DSB/M/92, 15 01 2001, para 58. See also WTO Document Philippines—Measures Affecting Trade and Investment in the Motor Vehicle Sector—Communication from the Philippines, WT/DS195/4,7 Nov 2000.Google Scholar

¹²¹ In Case Concerning the Northern Cameroons (Cameroon/UK) [1963] ICJ Rep 3 (2 Dec), at 29, the Court referred to its power to declare certain cases inadmissible on the basis that ‘[t]he Court itself, and not the parties, must be the guardian of the Court's judicial integrity’. See also Nuclear Tests (Australia/France), Judgment [1974] ICJ Rep 253 (20 Dec) at 271Google Scholar

¹²² WTO Members have criticized comparisons between the WTO dispute settlement system and other international tribunals. See eg Special Session of the Dispute Settlement Body, Minutes of Meeting held on 10 September 2002, TN/DS/M/4, 6 November 2002, para 38 (Brazil), para 40 (Indonesia), para 42 (Malaysia), para 52 (Costa Rica), para 53 (Venezuela). See also F Weiss ‘Inherent Powers of National and International Courts’ in Ortino and Petersmann above n 33, who states that ‘[w]hile the AB searches and even seeks to expand the parameters of its power, it is too dependent upon the Members of the WTO for it to possess anything akin to inherent powers’ (at 189). Weiss also questions whether the Appellate Body's decision to admit amicus curiae briefs, and its practice of ‘completing the analysis’ in the absence of appealed legal findings, could be considered evidence of inherent powers, but rejects this possibility on the basis that neither practice can be defended as ‘necessary’ to the functioning of the dispute settlement system (ibid).

¹²³ The fact that panels have the duty to determine their own jurisdiction does not give them a judicial character. The ICJ has held in the context of the United Nations that even the political organs of that organization have a duty to determine their own jurisdiction. See Certain Expenses of the United Nations (Advisory Opinion), [1962] ICJ Rep 151 (20 July) at 168, and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16 (26 Jan) at 49.Google Scholar

¹²⁴ Ehlermann, above n 77 at 305, mentions this provision in the context of cautioning selfrestraint on the part of Members in bringing institutional balance questions to dispute settlement.Google Scholar

¹²⁵ Compare the expansive reading of Art 3.7 DSU in Martha, RSJ ‘The Duty to Exercise Judgment on the Fruitfulness of Actions in World Trade Law’ (2001) 35 Journal of World Trade 1035.CrossRefGoogle Scholar

¹²⁶ WTO Appellate Body Report Mexico—Corn Syrup (Art 21.5—US) above n 75 at para 74.Google Scholar

¹²⁷ WTO Appellate Body Report US—FSC, above n 50, para 166 (noting that ‘[t]his pervasive principle requires both complaining and responding Members to comply with the requirements of the DSU (and related requirements in other covered agreements) in good faith); WTO Appellate Body Report Canada—Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 Aug 1999, para 190; WTO Appellate Body Report Thailand—Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Iron Alloy Steel and H-Beams from Poland (‘Thailand—Steel’), WT/DS122/AB/R, adopted 5 Apr 2001, para 97.Google Scholar

¹²⁷ In its First Written Submission in European Communities—Export Subsidies on Sugar, WT/DS265, 11 03 2004 (available at <http://www.trade-info.cec.eu.int/doclib/cfm/doclib_type.cfm?type=4>), at paras 129, the EC relies on Art 3.10 of the DSU as a basis for a panel to reject a claim. Australia argues in its Rebuttal Submission, 21 Apr 2004 (available at <http://www.dfat.gov.au/trade/negotiations/disputes/265_australia_rebuttal_sub.html>), at para 120, that Art 3.10 requires good faith during dispute settlement proceedings, and that it is Art 3.7 that governs the question whether a claim may be rejected. See also the parties' Oral Statements, available at the above websites.),+at+paras+129,+the+EC+relies+on+Art+3.10+of+the+DSU+as+a+basis+for+a+panel+to+reject+a+claim.+Australia+argues+in+its+Rebuttal+Submission,+21+Apr+2004+(available+at+),+at+para+120,+that+Art+3.10+requires+good+faith+during+dispute+settlement+proceedings,+and+that+it+is+Art+3.7+that+governs+the+question+whether+a+claim+may+be+rejected.+See+also+the+parties'+Oral+Statements,+available+at+the+above+websites.>Google Scholar

¹²⁹ Arts 1.1,1.2, 2.1, 2.4, 3.1, 3.11, 3.12, 23.1, and 23.2 of the DSU.Google Scholar

¹³⁰ Arts 3.7, 3.10,10.4, 12.11, 21.5 22.2, 24.1, and 27.3 of the DSU.Google Scholar

¹³¹ WTO Appellate Body Report United States—Sunset Review of Anti-Dumping Duties on Corrosion Resistant Carbon Steel Flat Products from Japan (‘US—Corrosion Resistant Steel Sunset Review’), WT/DS244/AB/R, adopted 9 Jan 2004.Google Scholar

¹³² WTO Appellate Body Report US—FSC, above n 50, para 166; WTO Appellate Body Report United States-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (‘US—Cotton Yarn’), WT/DS192/AB/R, adopted 5 Nov 2001, para 81.Google Scholar

¹³³ Above n 126.Google Scholar

¹³⁴ Border and Transborder Armed Actions (Nicaragua/Honduras), Jurisdiction and Admissibility, Judgment [1988] ICJ Rep 69 (Dec 20) at para 94. In Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon/Nigeria), Preliminary Objections [1998] ICJ Rep 275 (11 June), the ICJ held that the principle of good faith did not require a State to inform another State subject to compulsory jurisdiction of the Court that it was intending to accept compulsory jurisdiction, and shortly thereafter to commence proceedings against that State.Google Scholar

¹³⁵ Regarding the obligation to perform obligations in good faith (reflected in Art 26 of the Vienna Convention on the Law of Treaties), see Lukashuk, U ‘New Thinking by Soviet Scholars: The Principle Pacta Sunt Servanda and the Nature of Obligation under International Law’ (1989) 83 AJIL 513 at 514, who notes that ‘[i]n jurisprudence the term “obligation” is not equivalent to the term “duty”, since the former includes not only duties, but also relevant rights. Rights, too, should be exercised in good faith, ie, in conformity with the purposes and principles of international law and without prejudice to the legitimate interests and rights of other subjects of that law.’CrossRefGoogle Scholar

¹³⁶ Fitzmaurice, GThe Law and Procedure of the International Court of Justice (CambridgeGrotius 1986) vol 1 at 12–13.Google Scholar

¹³⁷ Kiss, A ‘Abuse of Rights’ in Encyclopaedia of Public International Law (Amsterdam North-Holland 1984) at 4.Google Scholar For a fuller discussion of the doctrine, see Paul, V ‘The Abuse of Rights and Bona Fides in International Law’ (1977) 28 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 107.Google Scholar

¹³⁸ WTO Appellate Body Report US—Shrimp, above n 40, para 158. The Appellate Body quoted Cheng, BGeneral Principles of Law as Applied by International Courts and Tribunals (Stevens and Sons 1953).Google Scholar

¹³⁹ These issues concerned the standing of the parties before the Tribunal, the division of competences between the European Community and its Members States with respect to UNCLOS, and the exclusive jurisdiction of the European Court of Justice. Another problem was ‘the extent to which provisions and instruments invoked by the Parties may properly be relied upon before this Tribunal’. See MOX Plant Arbitration (Ireland/UK), Order No 3, Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures, 24 June 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca/cap.org> at para 20.+at+para+20.>Google Scholar

¹⁴⁰ This exact situation was foreshadowed in Lowe, above n 114 at 199.Google Scholar

¹⁴¹ MOX Plant Arbitration (Ireland/UK), Order No 3, above n 139, para 28. A further suspension was ordered in MOX Plant Arbitration (Ireland/UK), Order No 4, Further Suspension of Proceedings on Jurisdiction and Merits, 14 Nov 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org>..>Google Scholar

¹⁴² MOX Plant Arbitration (Ireland/UK), Rules of Procedure, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org>..>Google Scholar

¹⁴³ The panel also retains a discretion not to suspend proceedings even on request of the complainant. In this context, it is relevant to note the joint proposal by Chile and the United States, which would amend Art 12.12 to entitle the parties to a dispute to require a panel to suspend proceedings. See WTO Document TN/DS/W/52, 14 Mar 2003, above n 31 at para (d). Compare Rule 30(1) of the Appellate Body's Working Procedures, below n 146 which states that ‘[a]t any time during an appeal, the appellant may withdraw its appeal by notifying the Appellate Body, which shall forthwith notify the DSB.’Google Scholar

¹⁴⁴ MOX Plant Arbitration (Ireland/UK), Transcript of Proceedings, Day Eight, 21 June 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org> at paras 37, 38, and 90. It is perhaps relevant that both parties are bound in this regard by a duty of cooperation under Art 10 of the EC Treaty.+at+paras+37,+38,+and+90.+It+is+perhaps+relevant+that+both+parties+are+bound+in+this+regard+by+a+duty+of+cooperation+under+Art+10+of+the+EC+Treaty.>Google Scholar

¹⁴⁵ See WTO Panel Report United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (‘US—Lead and Bismuth II’), WT/DS138/R, adopted as upheld by the Appellate Body Report 7 June 2000, at para 6.2.Google Scholar

¹⁴⁶ The current version is WTO Document Working Procedures for Appellate Review, WT/AB/WP/7, 1 May 2003. The Appellate Body circulated proposed amendments for consultation in WTO Document Proposed Amendments to the Working Procedures for Appellate Review—Communication from the Appellate Body, WT/AB/WP/8, 8 Apr 2004.Google Scholar

¹⁴⁷ WTO Appellate Body Report EC-Hormones, above n 39, para 152 n 138.Google Scholar

¹⁴⁸ WTO Appellate Body Report India—Patent Protection for Pharmaceutical and Agricultural Chemical Products (‘India—Patents (US)’), WT/DS50/AB/R, adopted 16 Jan 1998, at para 92.Google Scholar

¹⁴⁹ WTO Appellate Body Report United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom(‘US—Lead and Bismuth II’), WT/DS138/ABR, adopted 7 June 2000, at para 39. This proviso is reflected in Rule 16(1) of the Appellate Body's Working Procedures.Google Scholar

¹⁵⁰ Art 12.8 DSU states that ‘the period in which the panel shall conduct its examination…shall, as a general rule, not exceed six months’ and Art 12.9 provides that ‘in no case should the period from the establishment of the panel to the circulation of the report to the Members exceed nine months’. In similar fashion, Art 17.5 DSU recommends that the Appellate Body circulate its report within 60 days, and requires it to do so within 90 days. There is also a week-by-week timetable established for panel proceedings in Appendix 3 of the DSU, although this may be altered by the panel after consulting with the parties to the dispute. In addition to these provisions, it is necessary to mention Art 20 DSU, which implies that the parties may agree to extend the time period for panel and Appellate Body proceedings, despite the obligations imposed on panels and the Appellate Body to issue their reports within nine and three months respectively. Art 20 also confusingly describes the nine month deadline in Art 12.9 as ‘a general rule’, to which the extra time allowed pursuant to Arts 12.9 and 17.5 is to be added.Google Scholar

¹⁵¹ In WTO Appellate Body Report US—Lead and Bismuth II, above n 149, at para 8, the Appellate Body took a decision under Rule 16(1) of the Working Procedures that contradicted the time limit in Art 17.5 of the DSU. The parties agreed with the Appellate Body to extend the 90-day period for circulation of the report by two weeks. However, this was necessary to accommodate the passing away of one of the Members of the Appellate Body Division hearing the appeal, and it would be difficult to extract much of value from this occurrence. The 90-day period was also exceeded in WTO Appellate Body Report EC—Hormones, above n 39, WTO Appellate Body Report EC—Asbestos, above n 1, and WTO Appellate Body Report Thailand—Steel, above n 127.Google Scholar