Journal of International Economic Law Advance Access originally published online on September 28, 2005
Journal of International Economic Law 2005 8(3):721-758; doi:10.1093/jiel/jgi043
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‘Good Faith’ in the WTO Jurisprudence – Necessary Balancing Element or an Open Door to Judicial Activism?
* Dr. Iur. (University of Freiburg, Germany, 2000); LL.M. (Georgetown, 2005). The author has been a 2004/2005 Fellow at the Institute of International Economic Law at the Georgetown University Law Center and may be reached at helgezeitler{at}gmx.de.
The purpose of the article is two-fold: first, it seeks to clarify and structure those contexts in which the principle of good faith has entered the WTO jurisprudence; and second, it presents an analysis of the potential effects and risks accompanying this entrance, such as the allegation of judicial activism on the part of the panels or the Appellate Body and the viability of a distinction between violation and non-violation cases. It attempts to define the framework within which a suitable concept for the application of good faith must be found and explores the conclusion that thus far the Appellate Body has applied good faith with the necessary caution. However, it cautions the necessity of avoiding an overbroad use of the concept and mandates the requirement for the judicial bodies to articulate more clearly the content attributed to the concept in a particular case and the legal consequences thereof than it has done thus far. Finally this article urges the judicial bodies to avoid the idea of an abstract obligation of good faith that adds something to the obligation under the WTO Agreements. This would accord with the traditional international law understanding of what the application of the good faith principle implies.