The Inherent Jurisdiction of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function

Abstract

Many important issues confronting WTO law - the capacity of regional trade agreements (‘RTAs’) to prevent a claim from being adjudicated before the WTO, the ability of a Member to hold another Member to a representation, and the extent to which WTO Panels and the Appellate Body can control the procedure of complaints - depend for their resolution almost entirely on the degree that rules of international law are applicable in WTO dispute settlement. Given the increasing proliferation of RTAs, the likelihood of WTO Panels having to deal with conflicting international obligations is increasing - indeed, it may be required in the impending US - Tuna/Dolphin (Mexico) dispute. This paper argues that a principled (if sophisticated) approach to international law in WTO dispute settlement is necessary to provide ‘security and predictability to the multilateral trading system’. This approach is based on recognizing that WTO Panels and the Appellate Body (‘WTO Tribunals’) have an inherent jurisdiction that allows them to apply select international law (outside the WTO Agreements) where three criteria are satisfied. Specifically: the application of international law must be necessary for the WTO Tribunal to properly discharge its function; the relevant international law must have no substantive content of its own; and the application of international law must not be inconsistent or incompatible with the provisions of the Dispute Settlement Understanding (‘DSU’) as well as with the objects and purposes of the covered Agreements. Given this framework, this paper examines several procedural and good-faith based principles of international law that may be relevant to WTO disputes, as well as the conceptual difficulties that they cause.