The WTO Legal System: Sources of Law
The WTO is the product of an international agreement, and that agreement and the agreements annexed to it constitute the basic source of WTO law. The reports of panels and the Appellate Body, however, add a growingly important gloss to those texts. Most WTO disputes will be resolved primarily, if not solely, with reference to the texts and to prior reports, and in this sense the WTO legal system may be thought of as largely self-contained.
But if the WTO legal system is largely self-contained, it is not entirely self-contained. To the contrary, it is an important part of the larger system of public international law, as reflected not only by the interpretive principles that are brought to bear on its texts, which are explicitly those of public international law, but also by its increasing recourse to the other traditional sources of public international law: custom, the teachings of publicists, general principles of law, and other international instruments, particularly those incorporated by reference into the the WTO and its agreements.
Public international law has clearly made an important contribution to WTO law. It is not yet clear that the reverse will be true, that other international tribunals will begin to see the WTO, as reflected in its adopted reports, as a source of law. Given the growing quantity and high overall quality of those reports, however, it seems likely that it is only a matter of time before this recognition begins to take place, particularly with regard to evidentiary and procedural issues that could have wider application.
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- The American Journal of International Law
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- December 16, 2015