How do the World Trade Organisation agreements impact upon the laws and legal systems of the WTO member states?

Résumé du document

Article XVI § 4 of the Marrakech Agreement has put an end to the "grandfather clause" which, under the General Agreement on Tariffs and Trade (GATT), allowed the Member States to invoke a previously existing domestic law to escape their GATT obligations. It provides that: "Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements". Thus, this article defines how the World Trade Organisation (WTO) Agreements should impact on WTO Member States.

The WTO was created on January 1st 1995 following the ratification of the Marrakech Agreement. This organization succeeded the GATT 1947 then modified by the GATT in 1994. The GATT and then the WTO were not only agreements but also organizations governing the international trade law. Since 1947, eight rounds of negotiations took place and it is the Uruguay Round (1986-1994) which led to the drafting of the WTO Agreements. The WTO Agreements are diverse; we shall mention some of them such as the Agreement on Trade Related Aspects of Intellectual Property Rights, the General Agreement on Trade in Services, the Understanding on Rules and Procedures Governing the Settlement of Disputes... These WTO Agreements, as well as GATT 1947 and 1994, are the constituent of the WTO Agreement.

Extraits

[...] The limited impact of key provisions of the WTO Agreements upon the Member States' legal systems. We shall first focus on the WTO Dispute Settlement Understanding (DSU) which is a key provision of the WTO Agreement and is designed to play a role on the impact of WTO Agreements upon the WTO Member States' legal systems Then, we will study the uneven impact of the Most Favoured Nation (MFN) principle upon the WTO Member States' legal systems The poor impact of WTO's dispute settlement bodies' rulings upon WTO Member States' legal systems. [...]

[...] Secondly, it would be interesting to study the position adopted by the European Union (EU). Finally, we shall focus on the impact of particular WTO Agreements' provisions upon Member States' legal systems. Accordingly, we will study the WTO dispute settlement resolution, more precisely the impact of its rulings, and the impact of the Most Favoured Nation (MFN) principle. I. An uneven impact of WTO Agreements depending on the Member States' legal systems. The impact of WTO Agreements will significantly vary according to the way each Member State treats international law in its domestic law. [...]

[...] Nevertheless, the dualist approach adopted by these Member States can lead to reduce the impact of the WTO Agreements. Indeed, through the obligation to pass an implementing legislation to give effect to WTO Agreements, some Member States may reduce the enforceability of WTO Agreements by private individuals before national courts. For instance, in India, these agreements cannot be enforced if there is a “conflict with any other treaty obligation and that there is no relevant Indian law”[13]. Moreover, the existence of multiple implementing legislations and thus multiple interpretations by the WTO Member States could be a concern for the consistence of the rules set by the WTO Agreements. [...]

[...] ) among WTO Member States, we can easily understand that these exceptions greatly reduce the scope of the impact of the MFN principle upon Member States' legal systems. As a consequence, under these exceptions, the MFN principle cannot be invoked by individual members. Secondly, when the MFN principle should come to apply, its impact is generally of a lesser importance due to the Member States' reluctance to grant WTO Agreements direct effect into their legal systems. Indeed, we may take the example of the ECJ Banana case[53]. [...]

[...] Thus, WTO Agreements have neither direct effect nor enforceability by private members in the USA; and the URAA highlights the superiority of existing federal law over WTO laws[16]. However, the impact of international law (thus, the WTO Agreements) in US law can be reinforced by the “Charming Betsey” doctrine[17] which is a canon of interpretation of federal statutes based on international agreements. According to this doctrine, Act of Congress ought never to be construed to violate the law of nations (i.e. international treaties) if any other possible construction remains”[18]. [...]