EU-Ukraine Arbitration: Will WTO Law Become More Deferential Outside the WTO?

Abstract

The first dispute brought by the EU under its bilateral trade agreements, Ukraine – Export Restrictions on Wood, was in many respects a typical World Trade Organization (WTO) case. A panel of three arbitrators, including two prominent and highly experienced WTO adjudicators, was to rule on consistency of the respondent’s export bans with Articles XI and XX of the General Agreement on Tariffs and Trade, incorporated by reference into the EUUkraine Association Agreement. The latter, moreover, explicitly requires that arbitrators rely on the WTO jurisprudence – which they, technically, did. Yet, the arbitration panel appears to have shown more deference to the respondent than any WTO panel ever has (or would). By contrasting the reasoning of the arbitration panel with that of WTO panels deciding similar issues, the article questions whether WTO law may take a more deferential path outside the WTO. WTO law, GATT, Article XX(b), EU-Ukraine Association Agreement, wood export ban, dispute settlement, judicial deference