Introduction

It has been suggested that the concept of due process ‘is probably the greatest contribution ever made to modern civilization by lawyers or perhaps any other professional group.’ It is a pervasive concept in international law. The United States' 2004 Model Bilateral Investment Treaty clarifies that the obligation to accord ‘fair and equitable treatment’ includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings ‘in accordance with the principle of due process embodied in the principal legal systems of the world’. Article 17.2 of the Rome Statute of the International Criminal Court refers to ‘principles of due process recognized by international law’. Article 17(1) of the UNCITRAL Arbitration Rules, without referring to ‘due process’, requires that the parties be treated ‘with equality’, that each party be ‘given a reasonable opportunity of presenting its case’, and that the tribunal provide ‘a fair and efficient process’ for resolving the dispute. This chapter reviews WTO jurisprudence clarifying the requirements of due process. The first part covers due process in the context of international dispute settlement proceedings. It then briefly reviews WTO juris prudence on due process in the administration of domestic laws and regulations.

Due process in international dispute settlement proceedings

While the term ‘due process’ does not appear in the text of the DSU or the other covered agreements at the time of writing, it has been referred to over 2,300 times in 189 different WTO reports, awards and decisions. Most of the references concern the requirements of due process in the context of international dispute settlement proceedings. There has also been discussion of due process in the context of reviewing domestic countervailing and antidumping duty investigations (where there are not many statements of wider applicability), and in the administration of domestic law (where there are, and which are covered towards the end of this Chapter).