Some Reflections on the Culture of WTO Law

Abstract

This contribution assesses the treatment of claims and defences to culture in WTO dispute settlement to date. It concludes that, despite some interpretative sensitivity, WTO dispute settlement is hampered from being fully sensitive to culture by its own particular ‘culture’ in at least three respects. First, WTO dispute settlement analyzes treatment of goods in a utilitarian and functional manner, thereby neglecting their associational, heritage or symbolic attributes. Second, culture is something communal, yet the product-by-product comparisons engaged in WTO dispute settlement claims about non-discrimination miss this and also overlook the fact of culture as a human right. Third, WTO dispute settlement tends to view claims to culture as a right asserted exceptionally and therefore something requiring evidence and a restrictive interpretation, both of which tend to work against liberal interpretations of what culture is. The contribution concludes that further inspiration may have to come from the treatment of culture in other systems of law. These could serve as an example of the role that cultural considerations might play in the development of WTO law.