Introduction

It has been said that ‘[t]emporal jurisdiction has long been a source of contention between states in international adjudication’, and ‘[i]nternational tribunals have faced such questions for over a century and have developed a jurisprudence of continuing circumstances’. Certain provisions of the WTO agreements specify their temporal scope and application, and other provisions deal with issue of retroactivity in the context of the administration of domestic trade regulations. However, most of the WTO agreements are silent on their temporal scope, and WTO adjudicators have therefore been called upon to clarify WTO rights and obligations in light of concepts and principles found in general international law. This chapter reviews WTO pronouncements relating to: (i) the non-retroactivity of treaties (Article 28 of the Vienna Convention); (ii) the non-retroactive consequences of treaty termination (Article 70 of the Vienna Convention); (iii) Article 14 of the ILC Articles on State Responsibility; and (iv)other inter-temporal rules of international law.

Non-retroactivity of treaties

A number of WTO decisions have considered and applied the general principle in Article 28 of the Vienna Convention, entitled ‘Non-retroactivity of treaties’. It reads:

In US – Non-Rubber Footwear, the GATT Panel examined the temporal scope of the United States' obligations under the Tokyo Round Subsidies Code with respect to countervailing duties collected after the entry into force of the Code, pursuant to investigations completed prior to the entry into force of the Code. Prior to the entry into force of the Code in 1980, the United States did not conduct an injury determination with respect to imports from certain GATT parties, including Brazil; with the entry into force of the Code, the United States became subject to the injury determination requirement in Article VI:6(a) of the GATT, at least vis-à-vis other Code signatories, including Brazil.