An Analysis On The Applicable Law For The WTO Dispute Settlement Body

The World Trade Organization has played an important part in the regime of international trade since its foundation on January 1st of 1995.It is very important for global economic development. The position of the WTO in international society relates with not only the prosperity of the international trade, but also the stability of the international economic order and the international political order, and it relates to the world peace to some degree. The WTO legal system is a most important part of modern international law, and it is also the branch which develops fast and energetically. Anyone who does research on the WTO legal system cannot ignore the dispute settlement mechanism of the WTO, which is one of the most effective mechanisms for international trade disputes and is also one of the most important achievements of the WTO. In the process of settling disputes, the application of law is a very important step. The laws applied by the panel and the appellate body are vital to the results of the case.By referring to the theories and practices of the application of law in the process of settling disputes, this dissertation aims to provide a set of effective rules for the application of laws for dispute settlement body.This dissertation comprises three chapters, totaling 30,000 words or so.Chapter 1 focuses on two theories on the applicable law for Dispute Settlement Body (DSB). There is no doubt that WTO covered agreements can be directly applied. The problem is whether other international law resources that are regulated in article 38(1) of Statute of the International Court of Justice can be applied except the covered agreements. Scholars at present have a controversy about"incorporation"and"self-contained regime". The essence of the difference between the two doctrines lies in whether the nature of WTO laws is open of self-contained. This chapter consists of three sections. The fist one introduces the assertion, the characteristics and the bases of the doctrine of"incorporation". The second one introduces the assertion, the characteristics and the bases of the doctrine of"self-contained regime". This author analyses the two doctrines and points out their defects separately in the last section.Chapter 2 explores the applicable law for DSB in practice. This chapter analyzes the attitude of the panel and the appellate body towards the scope of the applicable law in practice, with the five kinds of international law resources regulated in Statute of the ICJ as a thread. The practice of the DSB indicates that the covered agreements are the basic and the most important applicable law, the reports of the panel and the appellate body have been given precedent effect de facto, and other international law resources, like international conventions, international customs, general principles of law, will be applied if necessary. This chapter comprises four sections. Section 1 discusses how international conventions are applied in the process of settling disputes. Section 2 presents what position international customs lie in. Section 3 and section 4 introduce how judicial decisions are applied and how general principles of law and teachings of the most highly qualified publicists of the various nations are applied in WTO cases.Chapter 3 points out the problems of the existing rules of applicable law and provide some suggestions on it. This author thinks that the existing rules are ambiguous and not systematized. Therefore, a set of unambiguous rules of applicable laws should be constructed. This author maintains that this set of rules should include a guideline, the central rules and subsidiary rules. This chapter includes two sections. Section 1 is to sum up the existing rules of applicable law and to point out the problems. On the basis of above analysis, some rational suggestions to improve the actuality are submitted in the second section.