Date: 2013
Type: Working Paper
The establishment of a GATT office of legal affairs and the limits of ‘public reason’ in the GATT/WTO dispute settlement system
Working Paper, EUI LAW, 2013/10
PETERSMANN, Ernst-Ulrich, The establishment of a GATT office of legal affairs and the limits of ‘public reason’ in the GATT/WTO dispute settlement system, EUI LAW, 2013/10 - https://hdl.handle.net/1814/27698
Retrieved from Cadmus, EUI Research Repository
The article offers an ‘insider story’ of the establishment of the Office of Legal Affairs in the General Agreement on Tariffs and Trade (GATT 1947) in 1982/83 and of its increasing involvement in assisting GATT dispute settlement panels and the Uruguay Round negotiations on a new World Trade Organization with compulsory jurisdiction for the settlement of trade disputes (Sections I and II). The transformation, within only one decade, of the anti-legal pragmatism in GATT 1947 into the compulsory WTO dispute settlement system amounted to a ‘revolution’ in international law. But the ‘public reason’ governing the GATT/WTO dispute settlement system remains limited, notably by (1) the domination of GATT/WTO decision-making by governments interested in limiting their own legal, democratic and judicial accountability vis-à-vis citizens for their often welfare-reducing trade restrictions and distortions; (2) the deliberate neglect for the customary law requirements of interpreting treaties and settling related disputes ‘in conformity with principles of justice and international law’, including ‘human rights and fundamental freedoms for all’; (3) the treatment of citizens as mere objects of GATT/WTO law and institutions rather than as ‘democratic principals’ of all governance institutions, ‘agents of justice’ and main economic actors; and (4) the deliberate neglect for the GATT/WTO legal obligations of ‘consistent interpretation’, ‘judicial comity’ and ‘access to justice’ in domestic courts in the ‘dispute settlement system of the WTO’ (Sections III and IV).
Table of Contents:
Introduction : From ‘Rule by Law’ to ‘Rule of Law’ in the World Trading System? -- I. The Establishment of a GATT Office of Legal Affairs in 1982/1983 : A Constitutional Lawyer’s Perspective -- II. From ‘Conciliation’ to ‘Due Process of Law’ and ‘Third Party Adjudication’ in GATT Dispute Settlement Practices during the 1980s -- III. Lack of ‘Democratic Public Reason’ in GATT/WTO ‘Diplomats Jurisprudence’? Need for Taking the Customary Rules of Treaty Interpretation More Seriously -- IV. Diplomatic Failures to Protect the ‘Multilateral Trading System’ and ‘Dispute Settlement System of the WTO’ as Cosmopolitan Legal Systems
Cadmus permanent link: https://hdl.handle.net/1814/27698
ISSN: 1725-6739
Series/Number: EUI LAW; 2013/10
Keyword(s): DSU GATT Public reason Trade law WTO