When do the Activities of Private Parties Trigger WTO Rules?

Abstract

abstractAs scrutiny of government actions affecting international trade relations continues to increase, the relevance of private party actions having an impact on those relations may gain in importance. Since the 1960s, the GATT member states have been cognizant of the role that private parties can play in disrupting the natural competitive economic relationships extant between countries. A handful of GATT and WTO adjudicative determinations over the intervening four and a half decades have initiated the process of fleshing-out the conditions under which GATT/WTO legal disciplines apply to private party action as a consequence of ascribing such action to the government of a relevant member state. What follows reviews those adjudicative determinations and distills the themes and conditions for attribution articulated therein. It also reviews what could be offered GATT/WTO dispute settlement bodies were consideration to be given to the international rules regarding state responsibility for acts of individuals. From an examination of article 8 of the 2001 International Law Commission's articles on state responsibility in particular, it is suggested a somewhat narrow understanding of attribution should obtain, and that such an understanding can be seen as in conformance with the basic thrust of international economic law, extant GATT/WTO case law, and sound policy.