Enforcement of the Law of the World Trade Organization in the EU and the US: Is the EU the odd one?

Abstract

WTO law does not determine whether the WTO Agreements or the Panel and Appellate Body Reports after their adoption by the DSB generate direct effect. A Swiss proposal to make direct effect a condition sine qua non of WTO membership was rejected in the Uruguay Round. As a consequence, WTO Member States rely on domestic constitutional arrangements to decide the extent of direct effect.

The US Congress enacted the Uruguay Round Agreements Act 1994 which precludes claimants from directing enforcing WTO law in US courts. Within the EU, CJEU bars claimants from contesting the validity of EU measures vis-à-vis the WTO Agreements and DSB rulings.

This thesis examines the enforcement of WTO law in the EU and the US in order to determine if the EU is the odd one. First, it is examined if the CJEU gave valid arguments to rule out direct effect of WTO law. The answer is that while some points of analysis of the CJEU were flawed, the Luxembourg Court gave overall valid reasons to not allow the WTO Agreements and DSB rulings to be used as a parameter of legality of EU law. Second, despite the generally negative attitude towards WTO law by the CJEU, the judiciary has recognised that WTO law can have indirect effect. On the other side of the Atlantic, the Charming Betsy canon requires courts to interpret US law in light of US international obligations. After considering the cases relating to indirect effect of WTO law in the EU and the US it is argued that the EU gives stronger deference to WTO law through the doctrine of indirect effect. Based on this, it is argued that the EU is not the odd one.