WTO – An integral part of public international law

WTO law does not exist in a vacuum; it is part of international law. The Appellate Body emphasised, in its very first case, that the provisions of the Marrakesh Agreement Establishing the World Trade Organization (the WTO Agreement) are not to be read in ‘clinical isolation’ from public international law. What status does ‘non-WTO law’ – customary international law, general international law or treaties between parties to a dispute – have in WTO dispute settlement? Can WTO panels and the Appellate Body take ‘non-WTO’ international legal rules into account in deciding a case under the WTO Agreement, and if so, what status should they be accorded?

Jurisdiction of the WTO

In the WTO, the Understanding on Rules and Procedures Governing the Settlement of Disputes (the ‘DSU’) applies only to ‘disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to the Understanding’ (the ‘covered agreements’). Therefore, under the DSU, WTO panels and the Appellate Body have jurisdiction to hear cases involving ‘claims’ brought under the dispute settlement provisions of the covered agreements. Claims may be based on allegations of violations of specific obligations contained in the covered agreements or involve so-called ‘non-violation’ complaints or ‘situation’ complaints.

The WTO is one of the few international dispute resolution mechanisms that has compulsory jurisdiction over disputes arising under its covered agreements. A panel will be established by the Dispute Settlement Body of the WTO (the ‘DSB’) upon the request of a complaining party, unless there is a consensus to the contrary.