National Law in WTO Law ：Effectiveness and Good Governance in the World Trading System ( Cambridge Studies in International and Comparative Law )

Publication subTitle ：Effectiveness and Good Governance in the World Trading System

Publication series ：Cambridge Studies in International and Comparative Law

Author： Sharif Bhuiyan;

Publisher： Cambridge University Press‎

Publication year： 2007

E-ISBN: 9781316976760

P-ISBN(Paperback): 9780521875318

P-ISBN(Hardback): 9780521875318

Subject： D996.1 International Commercial Law (International Trade)

Keyword：法律

Language： ENG

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Description

Bhuiyan examines the relationship between WTO law and national laws of WTO Member countries. Bhuiyan examines the relationship between the law of the World Trade Organization (WTO) and national laws of WTO Member countries. This was the first thorough analysis of a subject with huge systemic and constitutional significance both for the WTO and for the national legal systems of WTO Members. Bhuiyan examines the relationship between the law of the World Trade Organization (WTO) and national laws of WTO Member countries. This was the first thorough analysis of a subject with huge systemic and constitutional significance both for the WTO and for the national legal systems of WTO Members. This book examines how national law is treated in WTO law, both in the WTO treaty and dispute settlement cases. The WTO treaty contains a set of far-reaching obligations establishing a systemic and constitutional framework of interaction between WTO law and national law. WTO dispute settlement operates as an international layer of judicial review of national laws and administrative, judicial or quasi-judicial measures. Consequently, much of the WTO dispute settlement decisions and rulings relate in different ways to Members' national laws. Yet, up until the publication of this book, there was no systematic analysis of this vastly important subject. This book provides a thorough map of an increasingly complex field. In doing so, it extends the enquiry beyond well-known formulas and combines practical analysis with principled discussion of how the treatment of national law in international law can and should ensure effectiveness of international rules and promote good governance within nation-states. 1. Introduction; Part I: 2. National law in international law; 3. Systemic WTO obligations regarding national law; 4. WTO Dispute settlement procedures and national law; Part II: 5. The problem of characterization; 6. Standard of review, 7. National law as a question of fact; 8. Mandatory and discretionary legislation; 9. Conclusion.

Chapter

Table of other cases

1 Introduction

1 The WTO and its coverage

2 Aims, objects and relevance of the study

3 Organization of the study

4 Organizing principles: effectiveness and good governance

4.1 Constitutive function of effectiveness

4.2 Evaluative function of effectiveness

4.3 Constitutive function of good governance

4.4 Evaluative function of good governance

5 Related issues

5.1 The exhaustion of local remedies rule

5.2 General principles of national law as a source of international and WTO law

Part I

2 National law in international law

1 Introduction: dualism and monism

2 National law and international obligations

2.1 National laws cannot be relied upon to avoid international obligations

2.2 Is there a duty to ensure conformity of national laws with international obligations?

2.3 Can national legislation by itself violate international obligations?

3 National laws as facts

3 Systemic WTO obligations regarding national law

1 Introduction

2 Substantive obligations and national law

3 Obligations regarding implementation of WTO commitments

3.1 Background

3.2 Obligations to ensure conformity of national laws with the WTO agreements

3.2.1 Article XVI:4 vis-à-vis general public international law

3.2.2 Article XVI:4 vis-à-vis national laws of Members

3.3 Implementation at sub-national levels

4 Obligations on transparency

4.1 Publication and notification of national laws

4.2 The Trade Policy Review Mechanism

5 Obligations regarding administration of national laws

6 Obligations to make available under national law specified procedures and remedies

6.1 Review procedures

6.2 Enforcement procedures

7 Concluding remarks

4 WTO dispute settlement procedures and national law

1 Introduction

2 General overview of the dispute settlement mechanism

2.1 The DSU, the dispute settlement organs and the key procedures

2.2 Coverage of the mechanism

2.3 Applicable law

2.4 Rules of treaty interpretation

3 Panels’ jurisdiction and competence

3.1 Causes of action

3.2 What can be challenged

3.3 Terms of reference of panels

3.4 Functions of panels

4 Appellate jurisdiction

5 Dispute settlement recommendations and rulings and their implementation

5.1 Background

5.2 Remedies

5.3 Enforcement mechanism

6 Concluding remarks

Part II

5 The problem of characterization

1 Introduction

2 Characterization in private international law

3 Characterization in public international law

4 Characterization in WTO law

4.1 Extra/intra-regime characterization

4.2 Intra-regime characterization

4.3 Provision-specific characterization

5 Concluding remarks: is there any scope for cross-fertilization?

6 Standard of review

1 Introduction

1.1 Scope of the chapter

1.2 Effectiveness and good governance

1.3 The wider international legal context

2 Textual framework

3 Definitional, terminological and thematical issues

3.1 Standard of review, deference and margin of appreciation

3.2 Proportionality?

3.3 Subsidiarity?

4 Standard of review and treaty interpretation

5 Emerging standards

5.1 In general

5.2 Factors that have bearings on the standard of review

5.2.1 Type of the measure

5.2.2 Substantive provisions

5.2.3 The area in which the contested measure falls

5.2.4 Underlying facts and the nature of the evidence

6 Future perspective

6.1 Evolution and politicization of standard of review

6.2 Looking forwards

7 National law as a question of fact

1 Introduction

2 Proof of national law

3 Interpretation of national law

3.1 In general

3.2 Methodological issues

3.3 Evaluation of various elements of national law

3.3.1 Text / statutory language

3.3.2 Judicial decisions

3.3.3 Legislative history

3.3.4 Intention or object and purpose of the law

3.3.5 Context

3.3.6 Administrative criteria and practice

3.3.7 Statements/representations made before panels

4 Appellate review of panels’ findings regarding the interpretation/meaning of national law

5 Concluding remarks

8 Mandatory and discretionary legislation

1 Introduction

2 The distinction under the GATT 1947

3 The distinction vis-à-vis international law in general

4 The distinction under the WTO

4.1 General remarks

4.2 The jurisprudence

5 Justifications for treating some discretionary laws as WTO-inconsistent

6 Implications of bringing discretionary laws under WTO discipline

6.1 ‘‘The sovereignty debate”

6.2 Rule orientation

6.3 Individual rights

6.4 Distinguishing between different kinds of discretionary legislation

7 Techniques of avoiding unreasonable intrusion

7.1 General remarks

7.2 Case by case analysis

7.3 Non-statutory elements

7.4 Mootness

8 Concluding remarks

9 Conclusion

References

Index

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