Journal of International Economic Law Advance Access published online on November 14, 2007
Journal of International Economic Law, doi:10.1093/jiel/jgm037
| ||||||||||||||||||||||||||||||||||||||||||||||||||
© Oxford University Press 2007, all rights reserved
The Legal Basis for Using Principles in WTO Disputes
Correspondence: *Senior Lecturer, Faculty of Law, University of Melbourne; Fellow, Tim Fischer Centre for Global Trade & Finance, Bond University Barrister and Solicitor, Supreme Court of Victoria. E-mail: a.mitchell{at}unimelb.edu.au. The author would like to thank Dr Tania Voon and the anonymous referee for their helpful comments on an earlier draft of this article. This article draws on a larger work by the author on the role of legal principles in WTO dispute settlement (Legal Principles in WTO Disputes), which will be published by Cambridge University Press in 2008.
 |
Abstract |
|---|
This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status.