Taking the Fact/Law Distinction Not Too Seriously: the Status of Domestic Law within International Litigation

Abstract

Abstract The article uses legal theory relating to the traditional distinction between fact and law in order to shed light on the procedural consequences of the consideration that domestic law is a fact in international law. The analysis first relies on formalism, and on the legal syllogism doctrine more specifically, to show that domestic law cannot be, in most cases, anything else than a fact in international legal reasoning. It then draws attention to a constructivist approach to facts according to which domestic law is subject to assessment and interpretation as any other fact is in the judicial process. It paves the way to understanding that the distinction between fact and law for the purposes of the scope of review in the WTO dispute settlement system, as in other appellate systems, is purely functional and must not be taken too seriously, contrary to what is suggested by some analyses of the practice.