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Key Issues in WTO Dispute Settlement

image of Key Issues in WTO Dispute Settlement

This book examines aspects of the operation of the WTO dispute settlement system during the first ten years of the WTO. It covers a representative cross-section of the issues and situations WTO Members have dealt with under the Dispute Settlement Understanding. The book is unique in that it includes contributions from virtually the entire gamut of actors involved in the day-to-day operation of the WTO dispute settlement system: Member government representatives, private lawyers who litigate on behalf of Member governments in the system, Appellate Body members, Appellate Body Secretariat staff, and WTO Secretariat staff. It also includes contributions from several academics who closely follow and carefully scrutinize all that goes on within the system. It therefore provides fascinating insights into how the system has operated in practice, and how the lessons of the first decade can be applied to make the system even more successful in the years to come.

English

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Due process in WTO disputes

The principle of ‘due process’ (also called ‘fundamental fairness’, ‘procedural fairness’ or ‘natural justice’) broadly requires administrative and judicial proceedings to be fair. Administrative and judicial systems attempt to achieve due process by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights, duties, powers and liabilities are administered. As will be seen in this chapter, the principle of due process is difficult to define precisely, because the demands of fairness depend on the circumstances. For example, it may be necessary to balance an individual’s interest in additional procedures with the value and cost of such procedures. Thus, in particular circumstances, due process might require a full trial, whereas in other circumstances, basic notice and the right to speak might be sufficient. Considerations of due process might also conflict. For instance, parties’ rights to be heard and give evidence might weigh in favour of the last minute introduction of evidence. On the other hand, the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against its introduction. Discretion is required to resolve such conflicts.

English

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