At the Crossroads - The World Trading System and the Doha by Stefan Griller

By Stefan Griller

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See Appellate Body Report on EC – Hormones, supra footnote 89. See supra footnote 91. How to Win a WTO Dispute Based on Non-WTO Law? 98 B. WTO Violations Permitted (or Even Imposed) Pursuant to the Dispute Settlement Provisions of Another Treaty As explained in Section I, when WTO panels examine the validity of WTO claims, they should not limit themselves to WTO covered agreements, nor to non-WTO rules explicitly referred to in the WTO treaty or WTO waiver decisions. The easiest situation for panels to thus apply non-WTO rules would be where a measure is inconsistent with WTO rules, but specifically imposed or permitted by a decision under the dispute settlement mechanism of another treaty.

Every international agreement entered into by the EC becomes, from its entry into force, an integral part of EC law (Case 181/73, Haegeman v Belgium, [1974] ECR 449 at paragraph 5 and Opinion 1/91, [1991] ECR I-6079 at paragraph 37. 49 The subject matter of the WTO dispute is then covered fully also under EC law; as a matter of fact, under EC law as it applies between EU members, it is then an internal question only of EU law, not one of WTO law. In that event, a conflict would arise between Article 292 of the EC Treaty, reserving exclusive jurisdiction to EC bodies to resolve the dispute, and Article 23 of the DSU, stating with equal force that ‘[w]hen [WTO] Members seek the redress of a violation of obligations ...

87 As a result, it was, indeed, hard to say that the earlier MERCOSUR ruling dealt with substantively similar claims as those raised before the subsequent WTO panel. Hence, even under the wider notions of ‘issue estoppel’ or ‘collateral estoppel’, Brazil should not have been precluded from submitting the WTO case. IV. Because of Non-WTO Law, a WTO Violation is Justified In Section II, we examined instances where non-WTO law may lead a panel to decline jurisdiction. In this Section, we assess how non-WTO law may, on the merits, prevent a finding of violation of WTO rules.

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