Rules, Effects and the Structure of WTO Law
14 Pages Posted: 4 Jul 2008 Last revised: 9 Jul 2008
Date Written: June 30, 2008
Abstract
The WTO Agreement is said to be unconcerned with trade effects. Instead, WTO member countries incur state responsibility on the basis of their acts alone. This responsibility is reinforced by the irrebuttable presumption contained in DSU Art. 3.8 and longstanding practice, which together constitute the core of WTO law. At the same time, trade effects do have a subsisting importance in the assertion of certain trade-related rights, including the ability to invoke countermeasures, in non-violation cases, and inferentially in the determination of violation. This suggests that the idealism inherent in a presumed violation is reinforced or tempered by a certain realism about prevailing conditions. It also suggests that the evidentiary distinctions between presumption and proof in the WTO Agreement are a sign of a deeper conceptual divide between contending yet complementary modes of legal thought in the treaty.
Keywords: WTO, WTO agreement, State responsibility, Trade effects, Trade-related rights, Countermeasures, Judicial presumptions, Inferences, Non-violation cases
JEL Classification: F02, F10, F13, F14, F15, K33
Suggested Citation: Suggested Citation