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Proportionality in WTO Law
1 LLM (University of Michigan), Attorney at Stibbe, Stibbe, 47–51 rue Henri Wafelaerts, 1060 Brussels, Belgium. Email: Axel.Desmedt{at}stibbe.be
In many legal systems, the proportionality principle is an important tool for judges to check the regulatory freedom of governments. In EC law, for example, the proportionality principle is one of the most important unwritten principles commonly invoked before the European Court of Justice in challenging EU legislation. Likewise, the proportionality principle could also play a significant role in WTO law when judging regulations of WTO Members. This article analyses the status of this principle in WTO law, looking at three different areas of WTO law where proportionality requirements have been explored: countermeasures, the TBT and SPS Agreements, and Article XX of GATT. The experience in these three areas shows that the proportionality principle has not yet been recognized as an unwritten principle of WTO law. Rather, requirements of proportionality depend on the actual language found in the text of the relevant provisions. Sometimes more specific provisions will limit the proportionality principle's relevance as is the case for countermeasures. In other cases, obligations that could result from a hypothetical overarching WTO proportionality principle are specifically provided in the text of the agreements. However, depending on the language of the provision at stake, the implications of the proportionality requirements will differ. In sum, there is not one single overarching (unwritten) proportionality principle in WTO law. Furthermore, this article submits that at this stage of the WTO's development, it would not be appropriate for the WTO dispute settlement organs to assert such a principle.