Since the formation of the Dispute Settlement Body of the World Trade Organisation, an interesting question in the context of settling trade disputes in the WTO is whether the legal process is limited to WTO law, or, can the entire body of public international law be used. This article endeavours to answer this question by providing a critique of certain issues raised by Joost Pauwelyn, who argues that the entire body of public international law is applicable for the DSB.
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1523Applicable Law in the Dispute Settlement Body of the WTOPrabhash RanjanSince the formation of the Dispute Settlement Body of the World Trade Organisation, an interesting question in the context of settling trade disputes in theWTO is whether the legal process is limited toWTO law, or, can the entire body of public international law be used. This article endeavours to answer this question by providing a critique of certain issues raised by Joost Pauwelyn, who argues that the entire body of public international law is applicable for the DSB.One of the unique outcomes of the Uruguay round of negotiations that led to the establishment of theWorld Trade Organisation (WTO) was the formation of the Dispute Settle-ment Body (DSB) with compulsory juris-diction to settle trade disputes among WTO member countries. This marked a shift from the diplomatic, power- oriented approach to a rule-based regime to settle trade disputes.1 An interesting question in the context of settling trade disputes in the WTO is – “what is the applicable law for the DSB?”. Is it limited toWTO law enshrined in the covered agreements2 or, can the entire body of public international law be used in settling disputes among the WTO member countries? This article endeavours to answer thisquestion by providing a critique of certain issues raised by the well-known legal expert Joost Pauwelyn in his paper,which argues that the entire body of public international law is appli-cable law for the DSB (Pauwelyn 2001, Bartels 2001). Pauwelyn has argued that the sub-stantive jurisdiction of WTO panels3 is limited to claims under theWTO covered agreements, but the applicable law is the entire gamut of public international law. Pauwelyn distinguishes between claims based on non-WTO law from defence made on non-WTO law (Tracht-man 2004a). In other words, according to Pauwelyn, a WTO member country cannot bring a case in the DSB against another member country for not honouring a non-WTO public inter-national law obligation, but can use public international law as a defence to deviate from its WTO obligations. This article offers the critique byanalys-ing the Dispute Settlement Under-standing (DSU) provisions and the WTO jurisprudence that do not support Pauwelyn’s argument. 1 Pauwelyn’sArgumentThis section evaluates Pauwelyn’s argument in light of the relevant DSU provisions. 1.1 Analysis of Article 3 of the DSU The purpose of the DSU is given in Article 3.2 ofDSU – the dispute settlement system of the WTO is a central element in “provid-ing security and predictability to the mul-tilateral trading system”. The panel inUS – Section 3014 held that providing security and predictability to the multilateral trad-ing regime is the central object and pur-pose of the system.5 Further, the DSB has to “preserve the rights and obligations of members under the covered agreements” of the WTO and clarify the existing provi-sions of those agreements in accordance with customary rules of interpretation of public international law. Article 3.2 also imposes an important obligation on the panel not to make such recommendations and rulings to the DSB that will “add to or diminish the rights and obligations pro-vided in the covered agreements”.6 In oth-er words, the panel cannot create new norms for the member countries, since this is the job of the member countries. It is important to bear in mind that theWTO is a member-driven organisation, and only the member countries have the power to make new rules or modifyexistingrules. An important consequence of Pauwe-lyn’s argument will be to undermine the security and predictability of the WTO.7 It is important to understand that theWTO as a trade treaty reflects an attempt by member countries that are at different lev-els of development, to strike a fine balance between their rights and obligations so that the entire system brings mutual ben-efits. The trade rules that come into exist-ence are the result of years of hard negoti-ations and involve huge economic and political bargains (Trachtman 2004b: 861). This delicate balance, if disturbed, will result in damaging consequences for the overall multilateral trade system, especially for developing countries and least deve-loped countries. This can be understood with the help of the following example. Assume a case where country “A” (developed country) starts imposing a tar-iff rate on product X coming from country “B” (developing country) that is higher The author expresses deep gratitude to Joel P Trachtman for his comments and inputs on this topic for a different paper. He is also grateful to an anonymous referee for comments. Views and errors if any are solely the author’s responsibility.Prabhash Ranjan (pragmaticranjan@yahoo.com) is with the WB National University of Juridical Sciences, Kolkata.
COMMENTARYapril 11, 2009 vol xliv no 15 EPW Economic & Political Weekly24than the most favoured nation (MFN) rate (the increase in theMFN rate is only for the products coming from B). B will certainly challenge this action in the DSB as the vio-lation of Article I of General Agreement on Tariffs and Trade (GATT), which gives the MFN rule. Suppose that A in its defence states that this high tariff rate has been imposed because B is not honouring a particular human right treaty to which both A and B are parties. Further, A argues that it follows the international policy to honour and respect human rights and dis-courage exports from those countries that it thinks do not honour these rights. Will such a defence be acceptable?Applying Pauwelyn’s argument, defence of A is acceptable. However, A cannot take such a defence, barring the exception of jus cogens, as its movement away from the MFN rule does not fall under any of the exceptions given in the GATT/WTO. If the defence of A is accepted andthein-crease in theMFN tariff rate upheld, then this would mean that B can exporttoA only if it fulfils the human right provision. In other words, the panel, in such a case would recommend to the DSB that B should fulfil the human right obligation imposed on it by virtue of the bilateral treaty that exists between her and A. Hence, the panel would add to the existing obliga-tions of B to trade because B did not under-take any such obligation within the WTO. Thus, the panel will act in contravention to Articles 3.2 and 19.2 of the DSU. Further, this will also imply differentobligations for different countries in the WTO. For instance, if there is another country C that is not party to such human right convention, it may continue to export at theMFN tariff rate to country A. Another related point is that while examining A’s defence, the panel will actually be examining whether B is in compliance with a non-WTO law (in this example human rights). Such an examination implies that the panel goes beyond its jurisdiction and becomes an adjudicator of non-WTO disputes.8 This is not to sug-gest that honouring human rights obli-gations is not important or that trade is superior to human rights. Human rights is used as a public international law example intended to illustrate how Pauwelyn’sthesiswill result in the WTO panel adding new obligations on member countries, which it cannot do as per the DSU of the WTOtreaty. When a country becomes a member of theWTO, it expects that all other member countries will trade with it on the princi-ple of non-discrimination that exists in the form of theMFN rule. To be treated with-out discrimination, barring certain excep-tions, is the right of a WTO member coun-try. Allowing countries to base their de-fence on non-WTO law will disturb the balance of rights and obligations of mem-ber countries by creating new obligations, not contained in the WTO treaty, for some of them. The WTO treaty does not allow the modification of the provisions of the agreement in this manner. Pauwelyn has argued that different ap-plication of WTO rules by different WTO members (dependent on whether non-WTO law has been complied with) is an unavoid-able consequence (Pauwelyn 2001: 567). This argument goes against the very basis of the WTO agreement given in the pream-ble that countries resolve to develop an in-tegrated, more viable and durable multilat-eral trading regime. Pauwelyn’s argument would create a system that has different rules for different countries. If a non-WTO law is made a condition for a particular WTOmembercountry to do international trade without the same non-WTO law be-ing made the condition for other WTO member countries, it will result in creat-ing a multilateral trading system, which is not integrated on the basis of common set of rules and obligations barring those exceptions which the system itself has created. Such a system will also not be durable because the economic gains that the WTO member countries expect to flow from the multilateral trading regime will get frustrated because the non-WTO law obligations will be imposed on them. It is neither integratednor durable. 1.2 Terms of Reference of the Panel: Article 7 We now turn to Article 7 of the DSU, which describes the terms of reference of WTO panels and hence is more directly related to the issue of applicable law. Article 7.1 states:Panels shall have the following terms of reference…:To examine, in the light of the relevant pro-visions in (name of the covered agreement(s) cited by the parties to the dispute), the mat-ter referred to the DSB by (name of party) in document ... and to make such findings as will assist theDSB in making the recommen-dations or in giving the rulings provided for in that/those agreement(s).Further, Article 7.2 of DSU states: “Pan-els shall address the relevant provisions in any covered agreement or agreements cit-ed by the parties to the dispute”.According to Article 7, the panel has to examine the “matter”9 in the light of the relevant provisions of the covered agree-ments. Subsequent to this examination, the panel has to make “such findings” that will assist theDSB in making the recom-mendations or rulings provided in the cov-ered agreements. Here, Pauwelyn argues that reference to “such findings”,in Article 7.1 implies that the panel may have to re-sort to international law or non-WTO law (Pauwelyn 2001: 562). This argument is untenable. The words “such findings” need to be read with the preceding words and in the overall context of Article 7.The panel, after examining the “mat-ter” (ie, the specific “measure” [actions of a country] and the “claims” [complaints against that action] related to that meas-ure) brought before it, may arrive at either of the following two conclusions. First, the specific actions (measure) of one country is in accordance with the covered agree-ments and hence the “claims” or the com-plaint of the other country is dismissed. Second, the specific action (measure) is WTO inconsistent, and hence, the com-plaint of the other country is upheld. In both the cases the panel will judge the “measure” and the “claim” related to it, in accordance with the covered agreements and not in accordance with non-WTO law. After this examination, the panel may make either of the following two findings. In the former case, the defending country may continue with its actions (measure) because it is consistent with theWTO. In the latter case, the action (measure) be removed or modified as per the relevant WTO provisions. “Such findings” in Article7.1 needs to be understood in this context. Pauwelyn’s argument will lead to a third kind of situation, where a country’s action (measure) is not in accordance withthe covered agreements and yet the
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1525complaint (claims) of the other country related to that measure cannot succeed because the “measure” is invoked as a de-fence based onnon-WTO law to which both the parties are bound.10 In other words, this will be a strange situation where the panel will make a finding that the action of a country is inconsistent with the covered agreements but is permissible since it is consistent with the non-WTO law. This, from the un-derstanding of Article 7, is something that the panel cannot do. Nothing in the DSU provides for a WTO inconsistent action to be maintained due to its consistency with non-WTO law. It is also important to em-phasise here that Pauwelyn has argued that there is no presumption that in case of conflict between non-WTO law and WTO law, the latter would prevail (Pauwelyn 2001: 564). Which rule would prevail will depend on the conflict rules of interna-tional law. This argument further rein-forces the possibility of the third situation discussed above (Bartels 2001: 507-09). Pauwelyn has argued that despite the obligation to address and possibly apply theWTO rules, there is nothing in the WTO (WTO has not contracted out from the ap-plication of public international law) that precludes panels from addressing and applying non-WTO law to decide on WTO claims (ibid). It has also been argued that a judicial system aimed at enforcing cer-tain rules of international law need not refer explicitly or conform to the applica-tion of potentially relevant rules of inter-national law (Pauwelyn 2001: 561-62). He goes on to argue that such reference or confirmation occurs automatically as a re-sult of the simple fact that theDSU was created and continues to exist in the wider context of international law, and hence, other rules of international law apply au-tomatically (ibid). This is not supported by the language of Article 7 or of any other provision of the DSU. The DSB may exist in the wider context of international law, but its basic function is to settle trade disputes among WTO member countries that may arise from their rights and obligations given in the covered agreements and not from their rights and obligations outside theWTO treaty. The panels or the Appellate Body (AB)11 are not courts of general jurisdiction. It is clear from Article 7 that panels have to examine claims and de-fences in accordance with the covered agreements, which form the basis of claims and defences inWTO disputes. Had the parties intended to allow the panel to use law other than that given in the covered agreements, Article 7 should have reflected such intention. In that caseArticle 7.1 could have been drafted as follows: To examine in the light of the relevant provi-sions in (name of the covered agreement(s) and other agreements cited by the parties to the dispute) the matter referred to theDSB by (name of party) in document…. However, Article 7.1 does not contain the words ‘other agreements’. Therefore, Professor Pauwe-lyn’s analysis is based on words that are not written in Article 7.1.12 Moreover, there is little textual support for the difference between claims based on non-WTO law and the applicable de-fence based on non-WTO law (Trachtman 2004a: 857), the distinction made by Pau-welyn. The argument that non-WTO law can be used as defence because there is nothing in theWTO treaty that prohibits the application of non-WTO law to settle disputes among member countries is un-tenable. If “express prohibition” is the yardstick, then there is also nothing that prohibits claims based on non-WTO law to be brought to the DSB. However, according to Pauwelyn, this is not possible. Then, applying the same logic, application of non-WTO law as defence in the DSB should also not be allowed. How is it that the “automatic confirmation”, referred to by Pauwelyn, of the rules of international law happens only in cases where inter-national law is used as a defence and not as a claim? Thus, Pauwelyn draws an un-tenable distinction between claims and applicable defence based on non-WTO law (ibid). 1.3 Analysis of Article 11 Similarly, Article 11 of theDSU also provides: The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agree-ments. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agree-ments, and make such other findings as will assist theDSB in making the recommenda-tions or in giving the rulings provided for in the covered agreements. According to Article 11, the panel has the overall function to assist the DSB in discharging its responsibilities under the DSU and other covered agreements. Fur-ther, under this overall function, the panel has to do three things: (1) To carry out the objective assessment of the matter and facts of the case.(2) To examine the applicability and con-formity of the matter and facts with the relevant covered agreements. (3) To make findings that will assist the DSB in making recommendation or rulings as provided in the covered agreements. Hence, it is the duty of the panel to apply the law given in the covered agree-ments to the facts and circumstances of the case and to find out their applicabi-lityand conformity with the covered agreements. Article 11 nowhere mentions that the objective assessment of the matter and the facts of a case are to be assessed according to non-WTO law. Had this been the intention of the parties, the panel should have been put under an obligation by the member countries underArticle 11 to assess the facts in accordance with the covered agreements and other sources of law. Pauwelyn argues that the reference in Article 11 to “other findings”, also supports the accept-ability of defence based on non-WTO law (Pauwelyn 2001: 562). However, reading the phrase “other findings” in Article 11 with the words preceding it does not support this argument. The phrase other findings is preceded by the following words: “….the applicability of and conformity with the relevant agree-ment and make such other findings…” According to the ordinary and plain meaning of the words this means that the panel first has to determine whether a particular measure is applicable as per the covered agreement and conforms to the relevant covered agreement. If it doesnot, then the panel has to make findings that will bring the measure in conformity with the covered agreements. “Other findings” does not mean that the panel is required to find out whether the particular “measure” is in conformity with non-WTO law.
COMMENTARYapril 11, 2009 vol xliv no 15 EPW Economic & Political Weekly26A combined reading of all these provi-sions reveals that the purpose of the panel is to find whether a covered agreement has been violated. Subsequent to such a finding, the panel will make recommen-dations to the DSB to ask the erring coun-try to modify its measure as per its WTO obligations. In arriving at this conclu-sion, the panel will apply and enforce WTO law and not non-WTO law (Marceau 2002: 759). 2 Argument on WTO JurisprudencePauwelyn has cited the panel’s decision on Korea-Government Procurement13 case in support of his thesis that Article 7 does not restrict the law applicable to the WTO dis-pute resolution to the covered agreements (Pauwelyn, op cit, p 562). In this case, the panel said that Article 7.1 of the DSU doesnot restrict the ability of the panel to refer to the broader rules of customary international law. However, this does not support the assertion that applicable law for the DSB extends beyond the covered agreements. It only supports the fact that WTO does not exist in isolation from the larger body of public international law. In fact, this point was made by the AB in the very first dispute in US-Gasoline.14 Subse-quently, the AB and the panels have re-ferred to many other non-WTO laws in variousdisputes such as inUS-Shrimp,15 the Convention in International Trade on Endangered Species of Wild Flora and Fauna wasreferred to understand the term “exhaustible natural resources” occurring in ArticleXX (g) ofGATT (ibid, para 25-28). Likewise, inUS-Shirts and Blouses,16 theAB adopted the practice of numerous international tribunals includ-ing the International Court of Justice (ICJ) that the “burden of proof” is on the party that makes the assertion. In the debate on applicable law in the WTO it is fundamental to draw the distinc-tion between the use of international law or non-WTO law in clarifying theWTO covered agreements and in making the international law or non-WTO law the ba-sis of substantive claims or defences in the WTO disputes. There is evidence to sup-port the former but there is nothing to support the latter argument. Each time theAB refers to theWTO as not existing in splendid isolation from the greater body of public international law, it supports the former argument and not the latter. TheAB has ruled out the possibility of using non-WTO law as a defence to violate the WTO obligations. InEC-Hormones,17 where the European Commission used the precautionary principle to impose stricter sanitary and phytosanitary (SPS) meas-ures, the AB held that this principle had not been written into the SPS agreement as a ground for justifying measures that are otherwise inconsistent with the agreement (ibid, para 124). This clearly suggests that only exceptions given in the SPS agreement should be used to main-tain SPS measures that are otherwise inconsistent with other provisions of the SPS agreement. StricterSPS measures Endeavour(RGNIYD’s Journal of Youth Development)RGNIYD brings out a half-yearly Journal of Youth Development ‘Endeavour’ dedicated to providing a platform to the diverse voices of those concerned with helping young people including scholars, practitioners and people from various disciplines and professions. The Journal aims at promoting study and research in youth development and provides a forum for exchange of views between various youth development workers and the policy makers, planners and executives concerned with youth development.Articles/papers for the Journal ‘Endeavour’ are invited on youth and related aspects from academicians, researchers, policy makers, thinkers, planners, executives and others concerned with youth development. Guidelines to Authors will be provided on request. Broad thematic areas could be on Youth and:▪ Leadership ▪ Personality Development ▪ Employment/Unemployment ▪ Education ▪ HIV/AIDS ▪ Adolescents ▪ Entrepreneurship ▪ Panchayati Raj/Local Governance/Decentralisation ▪ Rural/Urban Development ▪ Social Harmony and National Integration ▪ International Perspective ▪ Globalisation.Rajiv Gandhi National Institute of Youth Development (RGNIYD), Sriperumbudur, Tamil Nadu, Deemed University u/s 3 of UGC Act 1956 and an autonomous premier organisation of the Ministry of Youth Affairs and Sports, Government of India, functions as vital resource centre coordinating Training, Research, Orientation, Extension and Outreach besides Documentation and Dissemination initiatives in the field of youth development.Contributions/Articles/Subscriptions should be sent to:The Faculty HeadREAD DivisionRGNIYD, Sriperumbudur - 602 105Phone: 044-27162401 ▪ Fax: (091) 044-27163227Website: www.rgniyd.gov.in▪ E-mail: rgniyd@yahoo.com/fhread@rgniyd.gov.inSubscription RatesRs. 150 per annum Payment by DD in favour of RGNIYD, Sriperumbudur.
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1527cannot be imposed by using non-SPS rules, i e, non-WTO law such as the pre-cautionary principle. InEC-Poultry,18 theAB did not apply the oilseeds agreement, a non-WTO law in the dispute between theEC and Brazil (Trachtman 2004: 858). It held that the oilseeds agreement did not form the legal basis of the dispute for various reasons such as the fact that the oilseeds agree-ment was not a “covered agreement” within theWTO.19 Similarly, the oilseeds agreement was also not part of the multi-lateral obligations accepted by the EC and Brazil pursuant to the WTO agreement (ibid). Further, theAB also said that the oilseeds agreement could also not be applied pursuant to Article XVI.1 of the Marrakesh agreement establishing the WTO.20 Pauwelyn has justified the decision in this case by arguing that the oilseeds agreement was not applied by the AB be-cause it formed the claim and not the de-fence (Pauwelyn, op cit, p 568). Had the oilseeds agreement been invoked as a de-fence, the outcome would have been diffe-rent. However, this argument is not supported by the analysis done by the AB. TheAB made it very clear that it was not applying the oilseeds agreement because it was not a covered agreement. Logically, it would have given the same argument even if the oilseeds agreement had been invoked as a defence. Moreover, the AB held that bilateral agreements like the oilseeds agreement could serve as the supplementary means of interpretation pursuant to Article 32 of the Vienna Con-vention on the Law of Treaties (VCLT).21 Given the approach of the AB, it is clear that the AB would not have dealt with the oilseeds agreement (non-WTO law) any differently, had it been invoked as a defence, if one accepts Pauwelyn’s argument that it was used as a claim and not as a defence. Again, in theMexico – Soft Drinks22 case, one of the issues before the AB was whether Mexico could use Article XX (d) of GATT to deviate from the National Treatment obligation in Article III of GATT to secure compliance by theUS for its ob-ligation under North American Free Trade Agreement (NAFTA) (non-WTO law). The AB decided that Article XX (d) could not be used by a country to deviate from WTO obligations to secure compli-ance by another country under an inter-national agreement (non-WTO law, in this caseNAFTA).23 This discussion illustrates that while theWTO panels may use non-WTO law to interpret or clarify the provisions given in the covered agreements, this certainly cannot lead us to the conclusion that coun-tries start using non-WTO laws as defence for violating WTO agreements. 3 Conclusions TheDSB of the WTO exists to settle trade disputes between countries that arise as a result of the interplay between their rights and obligations contained in the covered agreements. The panels or the AB in the DSB have not been given the mandate to function like courts of general jurisdiction by the member countries of the WTO. Therefore, not just the claims that coun-tries bring to the DSB but also defence should be based on WTO law. There is no legal basis to disallow claims but allow de-fence based on non-WTO international law. Both are not allowed, although public international law can be used to interpret theWTO treaty. Any change in this man-date of the DSB will imply adding to the existing set of obligations on countries in theWTO and hence, modifying the exist-ing obligations and rights. This, in turn, will undermine the security and predicta-bility of the WTO. Notes 1 Petersmann, E U (1997); Cameroon and Gray (2001). Also see Annex 2 of the WTO Agreement – Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinaf-ter DSU). 2 All the agreements given in the different annexes of the WTO agreement are covered agreements. 3 A panel is a temporary body established by the DSB of the WTO at the request of the complain-ing party to settle a dispute between two member countries of the WTO (See Article 6 of the DSU). 4 United States – Sections 301-310 of the Trade Act of 1974, Report of the Panel, WT/DS152/R, 27 Janu-ary 2000 (hereinafter US-Section 301). 5 US-Section 301, para 7.75. 6 Also see Article 19.2 of the DSU that also states that the panel cannot add or diminish the rights and obligations of the countries given in the covered agreements. 7 Also see Trachtman (1999), (2004b), and Marceau (2002). 8 Mexico – Soft Drinks, para 78, also see Marceau (2002) op cit. 9 For interpretation of “matter” occurring in Arti-cle 7.1 see Guatemala – Anti Dumping Investiga-tion Regarding Portland Cement from Mexico, Report of the Appellate Body, WT/DS60/AB/R, 2 November 1998. 10 Pauwelyn has argued that defence based on non-WTO can be invoked only when both the coun-tries are bound by the concerned non-WTO law. See Pauwelyn (2001), p 566. 11 The permanent judicial body of the WTO. 12Also see Palmeter and Mavroidis (1998), pp 398-413. 13 Korea – Measures Affecting Government Procure-ment, Report of the Panel, WT/DS163/R, 19 June 2000. 14 US – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/AB/R, 29 April 1996. 15 US – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998 (hereinafter US-Shrimp). 16 United States – Measures Affecting Imports of Woven Shirts and Blouses from India, Report of the Appellate Body, WT/DS33/AB/R, 25 April 1997. 17 European Community – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, 13 February 1998. 18 European Communities – Measures Affecting the Importation of Certain Poultry Products, Appellate Body Report, WT/DS69/AB/R, 13 July 1998 (hereinafter EC – Poultry). 19 EC Poultry, para 79.20 EC Poultry, para 80. 21 EC Poultry, para 83. 22 Mexico – Tax Measures on Soft Drinks, Appellate Body Report, WT/DS308/AB/R, 6 March 2006 (hereinafterMexico – Soft Drinks).23 Mexico – Soft Drinks, para 72. REFERENCES Bartels, Lorand ( 2001): “Applicable Law in WTO Dis-pute Settlement Proceedings”, Journal of World Trade (JWT), 35, p 499.Cameroon, James and Kevin R Gray (2001): “Princi-ples of International Law in the WTO Dispute Set-tlement Body”,International and Comparative Law Quarterly(ICLQ), 50-2, pp 248-98. Marceau, Gabrielle (2002): “WTO Dispute Settlement and Human Rights”,European Journal of Inter-national Law (EJIL), 13(4), pp 753-801. Palmeter, David and Petros Mavroidis (1998): “The WTO Legal System: Sources of Law”, AJIL, 92(3), pp 398-413. Pauwelyn, Joost (2001): “The Role of Public Inter-national Law in the WTO: How Far Can We Go?”, American Journal of International Law (AJIL), 95 (3), pp 535-78. Petersmann, E U (1997): The GATT/WTO Dispute Settlement System (London: Kluwer Law Inter-national), pp 63-64.Trachtman, P Joel (1999): “Domain of WTO Dispute Resolution”, Harvard International Law Journal (H. INT. L. J), 40(2), pp 333-77. – (2004a): “Review of Conflict of Norms in Public International Law”,AJIL, 98, pp855-62. – (2004b): “Jurisdiction in WTO Dispute Settlement” in Rufus Yerxa and Bruce Wilson (ed.), Key Issues in WTO Dispute Settlement: The First Ten Years (Cam-bridge: Cambridge University Press), pp 132-43.Subscription NumbersSubscribers are requested to note their Subscription Numbers mentioned on the wrappers and quote these numbers when corresponding with the circulation d epartment.
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1523Applicable Law in the Dispute Settlement Body of the WTOPrabhash RanjanSince the formation of the Dispute Settlement Body of the World Trade Organisation, an interesting question in the context of settling trade disputes in theWTO is whether the legal process is limited toWTO law, or, can the entire body of public international law be used. This article endeavours to answer this question by providing a critique of certain issues raised by Joost Pauwelyn, who argues that the entire body of public international law is applicable for the DSB.One of the unique outcomes of the Uruguay round of negotiations that led to the establishment of theWorld Trade Organisation (WTO) was the formation of the Dispute Settle-ment Body (DSB) with compulsory juris-diction to settle trade disputes among WTO member countries. This marked a shift from the diplomatic, power- oriented approach to a rule-based regime to settle trade disputes.1 An interesting question in the context of settling trade disputes in the WTO is – “what is the applicable law for the DSB?”. Is it limited toWTO law enshrined in the covered agreements2 or, can the entire body of public international law be used in settling disputes among the WTO member countries? This article endeavours to answer thisquestion by providing a critique of certain issues raised by the well-known legal expert Joost Pauwelyn in his paper,which argues that the entire body of public international law is appli-cable law for the DSB (Pauwelyn 2001, Bartels 2001). Pauwelyn has argued that the sub-stantive jurisdiction of WTO panels3 is limited to claims under theWTO covered agreements, but the applicable law is the entire gamut of public international law. Pauwelyn distinguishes between claims based on non-WTO law from defence made on non-WTO law (Tracht-man 2004a). In other words, according to Pauwelyn, a WTO member country cannot bring a case in the DSB against another member country for not honouring a non-WTO public inter-national law obligation, but can use public international law as a defence to deviate from its WTO obligations. This article offers the critique byanalys-ing the Dispute Settlement Under-standing (DSU) provisions and the WTO jurisprudence that do not support Pauwelyn’s argument. 1 Pauwelyn’sArgumentThis section evaluates Pauwelyn’s argument in light of the relevant DSU provisions. 1.1 Analysis of Article 3 of the DSU The purpose of the DSU is given in Article 3.2 ofDSU – the dispute settlement system of the WTO is a central element in “provid-ing security and predictability to the mul-tilateral trading system”. The panel inUS – Section 3014 held that providing security and predictability to the multilateral trad-ing regime is the central object and pur-pose of the system.5 Further, the DSB has to “preserve the rights and obligations of members under the covered agreements” of the WTO and clarify the existing provi-sions of those agreements in accordance with customary rules of interpretation of public international law. Article 3.2 also imposes an important obligation on the panel not to make such recommendations and rulings to the DSB that will “add to or diminish the rights and obligations pro-vided in the covered agreements”.6 In oth-er words, the panel cannot create new norms for the member countries, since this is the job of the member countries. It is important to bear in mind that theWTO is a member-driven organisation, and only the member countries have the power to make new rules or modifyexistingrules. An important consequence of Pauwe-lyn’s argument will be to undermine the security and predictability of the WTO.7 It is important to understand that theWTO as a trade treaty reflects an attempt by member countries that are at different lev-els of development, to strike a fine balance between their rights and obligations so that the entire system brings mutual ben-efits. The trade rules that come into exist-ence are the result of years of hard negoti-ations and involve huge economic and political bargains (Trachtman 2004b: 861). This delicate balance, if disturbed, will result in damaging consequences for the overall multilateral trade system, especially for developing countries and least deve-loped countries. This can be understood with the help of the following example. Assume a case where country “A” (developed country) starts imposing a tar-iff rate on product X coming from country “B” (developing country) that is higher The author expresses deep gratitude to Joel P Trachtman for his comments and inputs on this topic for a different paper. He is also grateful to an anonymous referee for comments. Views and errors if any are solely the author’s responsibility.Prabhash Ranjan (pragmaticranjan@yahoo.com) is with the WB National University of Juridical Sciences, Kolkata.
COMMENTARYapril 11, 2009 vol xliv no 15 EPW Economic & Political Weekly24than the most favoured nation (MFN) rate (the increase in theMFN rate is only for the products coming from B). B will certainly challenge this action in the DSB as the vio-lation of Article I of General Agreement on Tariffs and Trade (GATT), which gives the MFN rule. Suppose that A in its defence states that this high tariff rate has been imposed because B is not honouring a particular human right treaty to which both A and B are parties. Further, A argues that it follows the international policy to honour and respect human rights and dis-courage exports from those countries that it thinks do not honour these rights. Will such a defence be acceptable?Applying Pauwelyn’s argument, defence of A is acceptable. However, A cannot take such a defence, barring the exception of jus cogens, as its movement away from the MFN rule does not fall under any of the exceptions given in the GATT/WTO. If the defence of A is accepted andthein-crease in theMFN tariff rate upheld, then this would mean that B can exporttoA only if it fulfils the human right provision. In other words, the panel, in such a case would recommend to the DSB that B should fulfil the human right obligation imposed on it by virtue of the bilateral treaty that exists between her and A. Hence, the panel would add to the existing obliga-tions of B to trade because B did not under-take any such obligation within the WTO. Thus, the panel will act in contravention to Articles 3.2 and 19.2 of the DSU. Further, this will also imply differentobligations for different countries in the WTO. For instance, if there is another country C that is not party to such human right convention, it may continue to export at theMFN tariff rate to country A. Another related point is that while examining A’s defence, the panel will actually be examining whether B is in compliance with a non-WTO law (in this example human rights). Such an examination implies that the panel goes beyond its jurisdiction and becomes an adjudicator of non-WTO disputes.8 This is not to sug-gest that honouring human rights obli-gations is not important or that trade is superior to human rights. Human rights is used as a public international law example intended to illustrate how Pauwelyn’sthesiswill result in the WTO panel adding new obligations on member countries, which it cannot do as per the DSU of the WTOtreaty. When a country becomes a member of theWTO, it expects that all other member countries will trade with it on the princi-ple of non-discrimination that exists in the form of theMFN rule. To be treated with-out discrimination, barring certain excep-tions, is the right of a WTO member coun-try. Allowing countries to base their de-fence on non-WTO law will disturb the balance of rights and obligations of mem-ber countries by creating new obligations, not contained in the WTO treaty, for some of them. The WTO treaty does not allow the modification of the provisions of the agreement in this manner. Pauwelyn has argued that different ap-plication of WTO rules by different WTO members (dependent on whether non-WTO law has been complied with) is an unavoid-able consequence (Pauwelyn 2001: 567). This argument goes against the very basis of the WTO agreement given in the pream-ble that countries resolve to develop an in-tegrated, more viable and durable multilat-eral trading regime. Pauwelyn’s argument would create a system that has different rules for different countries. If a non-WTO law is made a condition for a particular WTOmembercountry to do international trade without the same non-WTO law be-ing made the condition for other WTO member countries, it will result in creat-ing a multilateral trading system, which is not integrated on the basis of common set of rules and obligations barring those exceptions which the system itself has created. Such a system will also not be durable because the economic gains that the WTO member countries expect to flow from the multilateral trading regime will get frustrated because the non-WTO law obligations will be imposed on them. It is neither integratednor durable. 1.2 Terms of Reference of the Panel: Article 7 We now turn to Article 7 of the DSU, which describes the terms of reference of WTO panels and hence is more directly related to the issue of applicable law. Article 7.1 states:Panels shall have the following terms of reference…:To examine, in the light of the relevant pro-visions in (name of the covered agreement(s) cited by the parties to the dispute), the mat-ter referred to the DSB by (name of party) in document ... and to make such findings as will assist theDSB in making the recommen-dations or in giving the rulings provided for in that/those agreement(s).Further, Article 7.2 of DSU states: “Pan-els shall address the relevant provisions in any covered agreement or agreements cit-ed by the parties to the dispute”.According to Article 7, the panel has to examine the “matter”9 in the light of the relevant provisions of the covered agree-ments. Subsequent to this examination, the panel has to make “such findings” that will assist theDSB in making the recom-mendations or rulings provided in the cov-ered agreements. Here, Pauwelyn argues that reference to “such findings”,in Article 7.1 implies that the panel may have to re-sort to international law or non-WTO law (Pauwelyn 2001: 562). This argument is untenable. The words “such findings” need to be read with the preceding words and in the overall context of Article 7.The panel, after examining the “mat-ter” (ie, the specific “measure” [actions of a country] and the “claims” [complaints against that action] related to that meas-ure) brought before it, may arrive at either of the following two conclusions. First, the specific actions (measure) of one country is in accordance with the covered agree-ments and hence the “claims” or the com-plaint of the other country is dismissed. Second, the specific action (measure) is WTO inconsistent, and hence, the com-plaint of the other country is upheld. In both the cases the panel will judge the “measure” and the “claim” related to it, in accordance with the covered agreements and not in accordance with non-WTO law. After this examination, the panel may make either of the following two findings. In the former case, the defending country may continue with its actions (measure) because it is consistent with theWTO. In the latter case, the action (measure) be removed or modified as per the relevant WTO provisions. “Such findings” in Article7.1 needs to be understood in this context. Pauwelyn’s argument will lead to a third kind of situation, where a country’s action (measure) is not in accordance withthe covered agreements and yet the 
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1525complaint (claims) of the other country related to that measure cannot succeed because the “measure” is invoked as a de-fence based onnon-WTO law to which both the parties are bound.10 In other words, this will be a strange situation where the panel will make a finding that the action of a country is inconsistent with the covered agreements but is permissible since it is consistent with the non-WTO law. This, from the un-derstanding of Article 7, is something that the panel cannot do. Nothing in the DSU provides for a WTO inconsistent action to be maintained due to its consistency with non-WTO law. It is also important to em-phasise here that Pauwelyn has argued that there is no presumption that in case of conflict between non-WTO law and WTO law, the latter would prevail (Pauwelyn 2001: 564). Which rule would prevail will depend on the conflict rules of interna-tional law. This argument further rein-forces the possibility of the third situation discussed above (Bartels 2001: 507-09). Pauwelyn has argued that despite the obligation to address and possibly apply theWTO rules, there is nothing in the WTO (WTO has not contracted out from the ap-plication of public international law) that precludes panels from addressing and applying non-WTO law to decide on WTO claims (ibid). It has also been argued that a judicial system aimed at enforcing cer-tain rules of international law need not refer explicitly or conform to the applica-tion of potentially relevant rules of inter-national law (Pauwelyn 2001: 561-62). He goes on to argue that such reference or confirmation occurs automatically as a re-sult of the simple fact that theDSU was created and continues to exist in the wider context of international law, and hence, other rules of international law apply au-tomatically (ibid). This is not supported by the language of Article 7 or of any other provision of the DSU. The DSB may exist in the wider context of international law, but its basic function is to settle trade disputes among WTO member countries that may arise from their rights and obligations given in the covered agreements and not from their rights and obligations outside theWTO treaty. The panels or the Appellate Body (AB)11 are not courts of general jurisdiction. It is clear from Article 7 that panels have to examine claims and de-fences in accordance with the covered agreements, which form the basis of claims and defences inWTO disputes. Had the parties intended to allow the panel to use law other than that given in the covered agreements, Article 7 should have reflected such intention. In that caseArticle 7.1 could have been drafted as follows: To examine in the light of the relevant provi-sions in (name of the covered agreement(s) and other agreements cited by the parties to the dispute) the matter referred to theDSB by (name of party) in document…. However, Article 7.1 does not contain the words ‘other agreements’. Therefore, Professor Pauwe-lyn’s analysis is based on words that are not written in Article 7.1.12 Moreover, there is little textual support for the difference between claims based on non-WTO law and the applicable de-fence based on non-WTO law (Trachtman 2004a: 857), the distinction made by Pau-welyn. The argument that non-WTO law can be used as defence because there is nothing in theWTO treaty that prohibits the application of non-WTO law to settle disputes among member countries is un-tenable. If “express prohibition” is the yardstick, then there is also nothing that prohibits claims based on non-WTO law to be brought to the DSB. However, according to Pauwelyn, this is not possible. Then, applying the same logic, application of non-WTO law as defence in the DSB should also not be allowed. How is it that the “automatic confirmation”, referred to by Pauwelyn, of the rules of international law happens only in cases where inter-national law is used as a defence and not as a claim? Thus, Pauwelyn draws an un-tenable distinction between claims and applicable defence based on non-WTO law (ibid). 1.3 Analysis of Article 11 Similarly, Article 11 of theDSU also provides: The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agree-ments. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agree-ments, and make such other findings as will assist theDSB in making the recommenda-tions or in giving the rulings provided for in the covered agreements. According to Article 11, the panel has the overall function to assist the DSB in discharging its responsibilities under the DSU and other covered agreements. Fur-ther, under this overall function, the panel has to do three things: (1) To carry out the objective assessment of the matter and facts of the case.(2) To examine the applicability and con-formity of the matter and facts with the relevant covered agreements. (3) To make findings that will assist the DSB in making recommendation or rulings as provided in the covered agreements. Hence, it is the duty of the panel to apply the law given in the covered agree-ments to the facts and circumstances of the case and to find out their applicabi-lityand conformity with the covered agreements. Article 11 nowhere mentions that the objective assessment of the matter and the facts of a case are to be assessed according to non-WTO law. Had this been the intention of the parties, the panel should have been put under an obligation by the member countries underArticle 11 to assess the facts in accordance with the covered agreements and other sources of law. Pauwelyn argues that the reference in Article 11 to “other findings”, also supports the accept-ability of defence based on non-WTO law (Pauwelyn 2001: 562). However, reading the phrase “other findings” in Article 11 with the words preceding it does not support this argument. The phrase other findings is preceded by the following words: “….the applicability of and conformity with the relevant agree-ment and make such other findings…” According to the ordinary and plain meaning of the words this means that the panel first has to determine whether a particular measure is applicable as per the covered agreement and conforms to the relevant covered agreement. If it doesnot, then the panel has to make findings that will bring the measure in conformity with the covered agreements. “Other findings” does not mean that the panel is required to find out whether the particular “measure” is in conformity with non-WTO law. 
COMMENTARYapril 11, 2009 vol xliv no 15 EPW Economic & Political Weekly26A combined reading of all these provi-sions reveals that the purpose of the panel is to find whether a covered agreement has been violated. Subsequent to such a finding, the panel will make recommen-dations to the DSB to ask the erring coun-try to modify its measure as per its WTO obligations. In arriving at this conclu-sion, the panel will apply and enforce WTO law and not non-WTO law (Marceau 2002: 759). 2 Argument on WTO JurisprudencePauwelyn has cited the panel’s decision on Korea-Government Procurement13 case in support of his thesis that Article 7 does not restrict the law applicable to the WTO dis-pute resolution to the covered agreements (Pauwelyn, op cit, p 562). In this case, the panel said that Article 7.1 of the DSU doesnot restrict the ability of the panel to refer to the broader rules of customary international law. However, this does not support the assertion that applicable law for the DSB extends beyond the covered agreements. It only supports the fact that WTO does not exist in isolation from the larger body of public international law. In fact, this point was made by the AB in the very first dispute in US-Gasoline.14 Subse-quently, the AB and the panels have re-ferred to many other non-WTO laws in variousdisputes such as inUS-Shrimp,15 the Convention in International Trade on Endangered Species of Wild Flora and Fauna wasreferred to understand the term “exhaustible natural resources” occurring in ArticleXX (g) ofGATT (ibid, para 25-28). Likewise, inUS-Shirts and Blouses,16 theAB adopted the practice of numerous international tribunals includ-ing the International Court of Justice (ICJ) that the “burden of proof” is on the party that makes the assertion. In the debate on applicable law in the WTO it is fundamental to draw the distinc-tion between the use of international law or non-WTO law in clarifying theWTO covered agreements and in making the international law or non-WTO law the ba-sis of substantive claims or defences in the WTO disputes. There is evidence to sup-port the former but there is nothing to support the latter argument. Each time theAB refers to theWTO as not existing in splendid isolation from the greater body of public international law, it supports the former argument and not the latter. TheAB has ruled out the possibility of using non-WTO law as a defence to violate the WTO obligations. InEC-Hormones,17 where the European Commission used the precautionary principle to impose stricter sanitary and phytosanitary (SPS) meas-ures, the AB held that this principle had not been written into the SPS agreement as a ground for justifying measures that are otherwise inconsistent with the agreement (ibid, para 124). This clearly suggests that only exceptions given in the SPS agreement should be used to main-tain SPS measures that are otherwise inconsistent with other provisions of the SPS agreement. StricterSPS measures Endeavour(RGNIYD’s Journal of Youth Development)RGNIYD brings out a half-yearly Journal of Youth Development ‘Endeavour’ dedicated to providing a platform to the diverse voices of those concerned with helping young people including scholars, practitioners and people from various disciplines and professions. The Journal aims at promoting study and research in youth development and provides a forum for exchange of views between various youth development workers and the policy makers, planners and executives concerned with youth development.Articles/papers for the Journal ‘Endeavour’ are invited on youth and related aspects from academicians, researchers, policy makers, thinkers, planners, executives and others concerned with youth development. Guidelines to Authors will be provided on request. Broad thematic areas could be on Youth and:▪ Leadership ▪ Personality Development ▪ Employment/Unemployment ▪ Education ▪ HIV/AIDS ▪ Adolescents ▪ Entrepreneurship ▪ Panchayati Raj/Local Governance/Decentralisation ▪ Rural/Urban Development ▪ Social Harmony and National Integration ▪ International Perspective ▪ Globalisation.Rajiv Gandhi National Institute of Youth Development (RGNIYD), Sriperumbudur, Tamil Nadu, Deemed University u/s 3 of UGC Act 1956 and an autonomous premier organisation of the Ministry of Youth Affairs and Sports, Government of India, functions as vital resource centre coordinating Training, Research, Orientation, Extension and Outreach besides Documentation and Dissemination initiatives in the field of youth development.Contributions/Articles/Subscriptions should be sent to:The Faculty HeadREAD DivisionRGNIYD, Sriperumbudur - 602 105Phone: 044-27162401 ▪ Fax: (091) 044-27163227Website: www.rgniyd.gov.in▪ E-mail: rgniyd@yahoo.com/fhread@rgniyd.gov.inSubscription RatesRs. 150 per annum Payment by DD in favour of RGNIYD, Sriperumbudur.
COMMENTARYEconomic & Political Weekly EPW april 11, 2009 vol xliv no 1527cannot be imposed by using non-SPS rules, i e, non-WTO law such as the pre-cautionary principle. InEC-Poultry,18 theAB did not apply the oilseeds agreement, a non-WTO law in the dispute between theEC and Brazil (Trachtman 2004: 858). It held that the oilseeds agreement did not form the legal basis of the dispute for various reasons such as the fact that the oilseeds agree-ment was not a “covered agreement” within theWTO.19 Similarly, the oilseeds agreement was also not part of the multi-lateral obligations accepted by the EC and Brazil pursuant to the WTO agreement (ibid). Further, theAB also said that the oilseeds agreement could also not be applied pursuant to Article XVI.1 of the Marrakesh agreement establishing the WTO.20 Pauwelyn has justified the decision in this case by arguing that the oilseeds agreement was not applied by the AB be-cause it formed the claim and not the de-fence (Pauwelyn, op cit, p 568). Had the oilseeds agreement been invoked as a de-fence, the outcome would have been diffe-rent. However, this argument is not supported by the analysis done by the AB. TheAB made it very clear that it was not applying the oilseeds agreement because it was not a covered agreement. Logically, it would have given the same argument even if the oilseeds agreement had been invoked as a defence. Moreover, the AB held that bilateral agreements like the oilseeds agreement could serve as the supplementary means of interpretation pursuant to Article 32 of the Vienna Con-vention on the Law of Treaties (VCLT).21 Given the approach of the AB, it is clear that the AB would not have dealt with the oilseeds agreement (non-WTO law) any differently, had it been invoked as a defence, if one accepts Pauwelyn’s argument that it was used as a claim and not as a defence. Again, in theMexico – Soft Drinks22 case, one of the issues before the AB was whether Mexico could use Article XX (d) of GATT to deviate from the National Treatment obligation in Article III of GATT to secure compliance by theUS for its ob-ligation under North American Free Trade Agreement (NAFTA) (non-WTO law). The AB decided that Article XX (d) could not be used by a country to deviate from WTO obligations to secure compli-ance by another country under an inter-national agreement (non-WTO law, in this caseNAFTA).23 This discussion illustrates that while theWTO panels may use non-WTO law to interpret or clarify the provisions given in the covered agreements, this certainly cannot lead us to the conclusion that coun-tries start using non-WTO laws as defence for violating WTO agreements. 3 Conclusions TheDSB of the WTO exists to settle trade disputes between countries that arise as a result of the interplay between their rights and obligations contained in the covered agreements. The panels or the AB in the DSB have not been given the mandate to function like courts of general jurisdiction by the member countries of the WTO. Therefore, not just the claims that coun-tries bring to the DSB but also defence should be based on WTO law. There is no legal basis to disallow claims but allow de-fence based on non-WTO international law. Both are not allowed, although public international law can be used to interpret theWTO treaty. Any change in this man-date of the DSB will imply adding to the existing set of obligations on countries in theWTO and hence, modifying the exist-ing obligations and rights. This, in turn, will undermine the security and predicta-bility of the WTO. Notes 1 Petersmann, E U (1997); Cameroon and Gray (2001). Also see Annex 2 of the WTO Agreement – Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinaf-ter DSU). 2 All the agreements given in the different annexes of the WTO agreement are covered agreements. 3 A panel is a temporary body established by the DSB of the WTO at the request of the complain-ing party to settle a dispute between two member countries of the WTO (See Article 6 of the DSU). 4 United States – Sections 301-310 of the Trade Act of 1974, Report of the Panel, WT/DS152/R, 27 Janu-ary 2000 (hereinafter US-Section 301). 5 US-Section 301, para 7.75. 6 Also see Article 19.2 of the DSU that also states that the panel cannot add or diminish the rights and obligations of the countries given in the covered agreements. 7 Also see Trachtman (1999), (2004b), and Marceau (2002). 8 Mexico – Soft Drinks, para 78, also see Marceau (2002) op cit. 9 For interpretation of “matter” occurring in Arti-cle 7.1 see Guatemala – Anti Dumping Investiga-tion Regarding Portland Cement from Mexico, Report of the Appellate Body, WT/DS60/AB/R, 2 November 1998. 10 Pauwelyn has argued that defence based on non-WTO can be invoked only when both the coun-tries are bound by the concerned non-WTO law. See Pauwelyn (2001), p 566. 11 The permanent judicial body of the WTO. 12Also see Palmeter and Mavroidis (1998), pp 398-413. 13 Korea – Measures Affecting Government Procure-ment, Report of the Panel, WT/DS163/R, 19 June 2000. 14 US – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/AB/R, 29 April 1996. 15 US – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998 (hereinafter US-Shrimp). 16 United States – Measures Affecting Imports of Woven Shirts and Blouses from India, Report of the Appellate Body, WT/DS33/AB/R, 25 April 1997. 17 European Community – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, 13 February 1998. 18 European Communities – Measures Affecting the Importation of Certain Poultry Products, Appellate Body Report, WT/DS69/AB/R, 13 July 1998 (hereinafter EC – Poultry). 19 EC Poultry, para 79.20 EC Poultry, para 80. 21 EC Poultry, para 83. 22 Mexico – Tax Measures on Soft Drinks, Appellate Body Report, WT/DS308/AB/R, 6 March 2006 (hereinafterMexico – Soft Drinks).23 Mexico – Soft Drinks, para 72. REFERENCES Bartels, Lorand ( 2001): “Applicable Law in WTO Dis-pute Settlement Proceedings”, Journal of World Trade (JWT), 35, p 499.Cameroon, James and Kevin R Gray (2001): “Princi-ples of International Law in the WTO Dispute Set-tlement Body”,International and Comparative Law Quarterly(ICLQ), 50-2, pp 248-98. Marceau, Gabrielle (2002): “WTO Dispute Settlement and Human Rights”,European Journal of Inter-national Law (EJIL), 13(4), pp 753-801. Palmeter, David and Petros Mavroidis (1998): “The WTO Legal System: Sources of Law”, AJIL, 92(3), pp 398-413. Pauwelyn, Joost (2001): “The Role of Public Inter-national Law in the WTO: How Far Can We Go?”, American Journal of International Law (AJIL), 95 (3), pp 535-78. Petersmann, E U (1997): The GATT/WTO Dispute Settlement System (London: Kluwer Law Inter-national), pp 63-64.Trachtman, P Joel (1999): “Domain of WTO Dispute Resolution”, Harvard International Law Journal (H. INT. L. J), 40(2), pp 333-77. – (2004a): “Review of Conflict of Norms in Public International Law”,AJIL, 98, pp855-62. – (2004b): “Jurisdiction in WTO Dispute Settlement” in Rufus Yerxa and Bruce Wilson (ed.), Key Issues in WTO Dispute Settlement: The First Ten Years (Cam-bridge: Cambridge University Press), pp 132-43.Subscription NumbersSubscribers are requested to note their Subscription Numbers mentioned on the wrappers and quote these numbers when corresponding with the circulation d epartment.
