Treaty Interpretation and the WTO Appellate Body Report in US – Gambling: A Critique

The WTO Secretariat describes sustainable development as a central WTO principle. Relevant international law treaties have declared sustainable development's mutual supportiveness with trade liberalization, and also emphasized the need to balance its 'pillars': economic development, often equated with trade liberalization, with environmental conservation and social welfare. While 'mutual supportiveness' suggests that sustainable development's environmental and social goals are a side effect of trade liberalization, 'balancing' involves weighing these different goals, and prompts the difficult question of which are most important, and who is empowered to decide. This paper traces these two broad theoretical conceptions through WTO legal texts, negotiations and dispute settlement, arguing that they have important pragmatic implications. In particular, to create mutual supportiveness WTO Director-General, Pascal Lamy, has stated the need for adequate domestic policies, suggesting that the WTO should support these. Yet, if they have negative trade impacts, pure 'sustainable development' policies may be difficult to balance against the WTO obligation to liberalize trade. * Email: emily.lydgate@kcl.ac.uk. I am grateful to my Ph.D. supervisor, Federico Ortino, as well as the editor of the World Trade Review, Alan Winters, and two anonymous reviewers, whose comments have improved the quality of the article. Any remaining errors are mine alone.1 Available on the WTO website at www.wto.org-english-tratop_e-envir_e-sust_dev_e.

Section: Defining Sustainable Developmentmentioning

confidence: 99%

Sustainable development in the WTO: from mutual supportiveness to balancing

Lydgate

2012

“…22 Note, however, that the AB did not reach this conclusion by deferring to the Scheduling Guidelines. 23 Other commentators as well have expressed their views on US-Gambling see Krajweski (2005), Ortino (2006), Pauwelyn (2005), and Delimatsis (2006). None of them however, advances an understanding of Art.…”

Section: The Approach In a Nutshellmentioning

confidence: 99%

Highway XVI re-visited: the road from non-discrimination to market access in GATS

Mavroidis

2007

The GATS (General Agreement on Trade in Services) is a highly complicated legal instrument and prone to various interpretations because of the embedded ambiguity. It should not come as a surprise that in the context of all disputes concerning services, WTO panels and the Appellate Body reached diametrically opposite conclusions on the same issues. Un-appealed panel reports, on the other hand, have not been welcome either. One of the major, if not the major, issue is the legal relationship between Arts. XVI and XVII GATS, which regulate market access. The manner in which this relationship has been interpreted inescapably leads to constructing the GATS as a move beyond negative integration. This is at odds with the intent of the founding fathers, the letter and the spirit of the GATS itself. Subjecting Art. XVI to Art. XVII GATS guarantees respect of the negative integration character of GATS. It thus avoids internationalizing issues that WTO Members want to keep in their domaine reservé. Counter-intuitively probably, it allows for more trade liberalization. Using the unfortunate US–Gambling report as an example, this report suggests an approach to understanding Art. XVI as a sub-set of Art. XVII GATS.

“…2.2-5.1/5.7 relationship is technical: the arcane classification of WTO norms as ' Positive Rules ', ' Exceptions ', or 'Autonomous rights '. 4 See also Horn and Weiler (2005: 252); and Ortino (2006). EC-Biotech confirms them, and shows how norm classification problems have ' cross-pollinated ' into substantive law beyond burden-of-proof.…”

Section: Introductionmentioning

confidence: 96%

Genetically modified rules: the awkward rule–exception–right distinction inEC–Biotech

Broude

2007

The arcane distinction between 'rules ', ' exceptions ', and ' autonomous rights' has troubled WTO dispute settlement since its earliest days, primarily with respect to procedural burden-of-proof questions. Yet in its report, the EC-Biotech panel relied on a techno-textual understanding of this distinction to interpret the substantive applicability of Articles 2.2, 5.1, and 5.7 SPS -the WTO 's fundamental rules on the degree of scientific certainty of risk required to allow a state to restrict imports of goods due to human, animal, or plant health or life concerns. This article critiques the panel's approach on the backdrop of WTO jurisprudence and deontic logic, arguing that the norm-category of 'autonomous rights ' does not actually exist; that the Article 2.2-5.1/5.7 SPS relationship should be more straightforwardly construed than the panel's analysis would suggest ; and that the disorderly and incoherent outcome of the panel's analysis serves as a cautionary tale against excessive textualism in WTO dispute settlement.' It's perfectly intelligible ', the Captain said, in an offended tone, ' to anyone that understands such things.' Lewis Carroll, A Tangled Tale (1885)