From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance

Abstract

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision dismissed by GATT panels as ‘subsidiary’ to the other ‘substantive’ provisions of the GATT. Since the creation of the WTO, Article X has emerged from obscurity, and is now viewed as creating obligations of ‘fundamental importance,’ such as transparency and due process. In addition, there has been an exponential increase in the number of cases asserting Article X claims before WTO panels and the Appellate Body. The resulting treatment of such claims by the WTO dispute settlement bodies reflects both the emerging role of the WTO as a supranational administrative body and the continuing discomfort of panels and the Appellate Body with applying good governance obligations.