'Measure' in WTO law, as reflecting upon the degree of judicialization of the WTO dispute settlement system : substantive politico-economic perspective and procedural doctrinal perspective

Abstract

The ‘measure’ in WTO law is best conceived as a stabilizing concept grafted onto the substance of specific GATT/WTO legal obligations in terms of aim and effects throughout the judicial proceedings, in line with its essence as enshrined in the DSU and the fundamental WTO principle of security and predictability, beyond the predominant open approach to the ‘measure’ in WTO law based on its form. More specifically, we conceive the ‘measure’ in WTO law as deriving from the substantive judicialization of the WTO dispute settlement system understood primarily from the perspective of the coherence and consistency of the judicial reasoning, as centrally informed by the substantive politico-economic perspective of GATT/WTO law integrating the very nature of the disciplined measures. To fully attain the stabilizing concept of ‘measure’, we integrate it as from the panel request against the background of the procedural doctrinal perspective of GATT/WTO law. In this perspective, we critically assess the substantive conceptualization of the ‘measure’ based on its aim and effects with respect to three fundamental GATT pillars relating to tariffs, quantitative restrictions and domestic measures. We identify a lower degree of substantive conceptualization and judicialization regarding more complex cases involving general legal clauses and de facto cases, which may be explained by a limited economic approach and a lack of integration of the very nature of the measure. We further show that the substantive conceptualization of the ‘measure’ in WTO law extends to questions relating a priori to its form or nature. On the procedural side, we identify a low required degree of specificity regarding ‘the specific measures at issue’ in a panel request. To enhance the procedural judicialization, we propose to link this specificity requirement to the substantive conceptualization of the ‘measure’ in WTO law as founded on the substantive politico-economic perspective of GATT/WTO law.