Rule of Law Developments by Judiciaries in the EU and the WTO: A Comparative Approach in a Multilevel Setting

Abstract

The rule of law as a governing norm has expanded from state to regional and international level. Within the EU, the Court of Justice (ECJ) is one of the institutions developing an EU rule of law, which in particular is informed by the EU treaties, secondary legislation, and national constitutional systems. The rule of law is also developed on international level in the World Trade Organization (WTO) by its quasi-judiciaries; Panel and Appellate Body (AB). This paper compares these developments and discusses areas where the WTO rule of law should be improved in order to provide more transparency and stronger legal protection for enterprises. The paper claims that a rule of law cannot be detached from certain values in order to function and thus requires certain overall, constitutional and value-based elements; transparency, access to justice and equality. With these elements as standard, the paper compares the approach adopted by judiciaries in the EU and the WTO. Although the rule of law developments in the WTO is at a less mature stage than the EU, there are also some similarities. In particular, the AB has emphasized that economics cannot prevail over law. Furthermore, the panels and the AB make reviews of national laws and practices; develop an administrative law; strengthen legal certainty of international law; and follow principles of equality. Nevertheless, the paper concludes that there are several areas where institutions and law of the WTO could be improved in order to strengthening the rule of law.

Keywords: Rule of law, EU, WTO, transparency, equality, access to justice

JEL Classification: K33, K40, P16