Conflict of norms in WTO dispute
If the WTO is to become a vehicle for global governance one thing has to
be clear: this vehicle ought not travel without a road map, and should
be mindful of other traffic.1
The case study used throughout this book has been the law of the WTO. When examining the hierarchy of sources of international law (chapter 3), the concepts of accumulation and conflict of norms (chapter 4) and the available conflict-avoidance techniques (chapter 5), we have made reference to the particular situation in the WTO as well as to the case law developed under WTO dispute settlement. When it comes then to resolving conflicts of norms, be they inherent normative conflicts (chapter 6) or conflicts in the applicable law (chapter 7), we also used conflicts involving WTO norms, including internal WTO conflicts, as the standard example. A major missing link that remains, however, is to see how the ideas developed in previous chapters play out in the concrete setting of WTO dispute settlement. The main tenet of this book has been to portray WTO law as part of the wider corpus of public international law, with which it may either accumulate or conflict, and which it may either prevail over or have to give way to. But what remains of this ‘unitary view’ of international law when looking at the specifics of WTO dispute settlement? Does, for example, the DSU allow non-WTO norms to be part of the applicable law before a WTO panel? This is what we examine in this final, but crucially important, chapter.
This chapter is based largely on Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’(2001) 95 AJIL 535.
1 Marco Bronckers, ‘More Power to the WTO?’(2001) 4 JIEL 41 at 56.