Good Faith, Fairness and Due Process in WTO Dispute Settlement Practice

Abstract

By resorting to the principles of good faith, fairness and due process, the WTO Panels and the Appellate Body have rebalanced inequities in the procedural law of the WTO Dispute Settlement Understanding (DSU). The principles of procedural justice roll back the use of flexibilities within the DSU as a litigation technique in trade remedy cases. Thus, the WTO Panels have introduced nothing less than a constitutional component to the WTO legal system, to check against abusing those very flexibilities, which were introduced to maintain fairness, promptness and effectiveness of dispute resolution. This paper explores how the WTO Panels have fostered a relationship between the WTO treaty provisions and general principles of law — particularly in relation to the development of a procedural fairness standard in WTO dispute settlement — which is one that the Appellate Body has often confirmed, but more often rejected.

Keywords: good faith, abuse of rights, due process, dispute settlement, WTO