Due process in WTO disputes

Abstract

Due process is a necessary component of any legal system seeking legitimacy and effectiveness. The dispute settlement system of the WTO is no exception. Indeed, the potentially vast political and economic effects of trade liberalization and protectionism, the opportunity for Members to challenge domestic regulations of sovereign governments using WTO rules, and the power differences between WTO Members all heighten the need for fair rule enforcement in the WTO. WTO due process obligations are of two types. The first are obligations imposed within the WTO dispute settlement system, such as the rules that protect fairness between the parties in panel proceedings. The second are obligations imposed on WTO Members to ensure due process in their domestic legal systems, such as Article X:3(a) of the GATT 1994, which requires that all ‘laws, regulations, decisions and rulings’ of the kind described in Article X:1 be administered ‘in a uniform, impartial and reasonable manner’. While both types of due process obligations are important and could be the subject of a WTO dispute settlement proceeding, for reasons of space, this chapter is restricted to the first type. This chapter begins by examining the content of the principle of due process and its justification, placing the specific meaning of the principle in the WTO within its wider context in domestic law and international law generally. Although the obligations discussed in this section relate primarily to the provision of due process in domestic legal systems, they also assist in understanding the nature of due process in the WTO dispute settlement system. Next I examine the WTO provisions that can be seen as imposing due process obligations in relation to the dispute settlement system, taking into account the interpretation of these provisions to date by WTO panels and the Appellate Body (described for convenience as WTO adjudicating bodies in this chapter). Finally, I consider the inherent powers of WTO adjudicating bodies to protect due process in disputes, independent of any specific WTO provisions. This chapter does not address the WTO obligations imposed on Members to ensure due process in their domestic legal systems, such as through Article X:3(a) of the GATT 1994, which requires that all ‘laws, regulations, decisions and rulings’ of the kind described in Article X:1 be administered ‘in a uniform, impartial and reasonable manner’.