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WTO Dispute Settlement: a Check-up

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Edited By Jacques H.J. Bourgeois, Marco Bronckers and Reinhard Quick

The dispute settlement system of the World Trade Organisation has been referred to as the jewel in the crown of the WTO. Reviewing more than
twenty years of the system’s operation, this volume takes stock by providing an in-depth analysis of key issues that have emerged. The book collects and updates papers by a group of eminent experts that were presented at an international conference at the College of Europe in Bruges. The fundamental question of whether the system is in good shape or whether changes are necessary is addressed through five themes.

Firstly, the book looks at the interpretive function of the dispute settlement system and questions whether rulings are capable of "gap-filling". Secondly, under the heading ‘Jurisdiction and Applicable Law’ we cover the thorny issue of how public international law can be integrated into the dispute resolution system. Thirdly, regarding problems associated with implementation, we ask whether the system ensures satisfactory compliance with its rules and rulings or whether financial remedies need to be added. Furthermore, through themes four and five we compare the WTO dispute settlement system with the dispute settlement system contained in the Free Trade Agreements, as well as the investor-state arbitration system (ISDS). We investigate how these two different systems can influence each other and learn from one another. With respect to the reform debate on ISDS, for example, the question was raised whether the WTO dispute settlement system could be considered as a model for such a reform.

This review comes to the conclusion that the system is functioning, if not perfectly, at least reasonably well. Where problems are identified, solutions are suggested to improve the system.

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Jurisdiction and Applicable Law in the WTO (Lorand Bartels)

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Jurisdiction and Applicable Law in the WTO

Lorand BARTELS1

1. Introduction

This chapter considers the law applicable by WTO panels and the Appellate Body in dispute settlement proceedings. It begins by explaining how law is applied to facts, and how this is relevant to the exercise of jurisdiction by WTO panels and the Appellate Body. It then looks at several discrete sets of legal questions, both jurisdictional and merits, in which questions related to applicable law arise.

The jurisdictional questions, broadly speaking, that are considered concern the power of panels to determine the legality of their establishment, the power of panels to determine whether other preconditions to the exercise of their jurisdiction have been met, including what is elsewhere termed “admissibility”. The merits questions concern the law applicable to the proper identification of the facts and to the law applicable to these facts, based on the various overlapping provisions in the DSU pertaining to these matters, and taking into account the possible role of non-WTO law.

In addressing these questions, this chapter adopts a quite particular understanding of the legal process by which rules are applied to facts. In brief, this understanding is that every legal rule is based on a description of certain hypothetical facts and can be applied to any given “fact”, no matter how remote it might appear to be to the facts described in the rule, and the result will necessarily generate a...

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