Can the WTO Law be Applied Indirectly in Municipal Courts? Analysis of the trade remedies cases in the United States and NAFTA

Author Name ITO Kazuyori  (University of Shizuoka)
Creation Date/NO. February 2010 10-J-019
Research Project Comprehensive Research on International Trade System
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This paper examines whether private actors can rely upon WTO Agreements and rulings when challenging the legality of actions taken by a WTO member before that member's domestic court, with special attention to the cases on trade remedies law, such as antidumping and subsidies countervailing measures. As is well known, however, most countries have clearly denied the direct applicability of WTO law. Hence, what deserves to be discussed is the indirect applicability, i.e., courts taking WTO law into consideration when they interpret domestic statutes. In the present paper, the author tries to address this issue on the basis of the recent jurisprudence developed in the United States and the NAFTA bi-national panels. As a result, it is shown that the indirect applicability, on one hand, has been denied if it leads to the same consequences as when WTO law is directly applied and thus compels political branches to change their positions significantly. On the other hand, courts would not hesitate to make a strict review of governmental actions in light of WTO law if the government itself has a positive attitude toward complying with it. Therefore, even before the domestic courts, private actors may have the opportunity to challenge the legality of governmental measures successfully, relying upon the WTO Agreements and jurisprudence indirectly. A combined use of the WTO dispute settlement system and the domestic judicial procedure would be helpful in ensuring more effective compliance with WTO law.