20 Jan 2011
Book Review: Legal Principles in WTO Disputes
A review by Marion Panizzon of Legal Principles in WTO Disputes by Andrew D. Mitchell (Cambridge University Press 2008, pages 308), published in the American Journal of International Law, Vol. 105, No. 1 (2011) 181-185
Andrew Mitchell’s book (“Legal Principles in WTO Disputes”) offers an account of the interplay of WTO with wider public international law viewed through the prism of principles. One part legal theory, one part case study, the book first develops a doctrinal framework for principles, which it then applies to four principles - good faith, due process, proportionality, and special and differential treatment (SDT) - that figure prominently in WTO panel and Appellate Body reports. Like other scholarly contributions in the field, Mitchell also discusses the circumstances for when principles may become law applicable in a WTO dispute. In his view, principles must dispose of a concrete legal basis in established rules of international law, be sufficiently clear and coherent and not contradict the plain meaning of a WTO agreement. If too vaguely defined, the WTO tribunals are encouraged to defer use of that principle until state practice has more reliably concretized its meaning. Yet, if found within the Appellate Body’s inherent jurisdiction, a principle may be applicable despite the absence of a basis in the text of a WTO agreement or in the VCLT. Whether this exception, which Mitchell’s book makes for due process (but not good faith or proportionality), will appease the fears that Panels and the Appellate Body may be overreaching their mandate is questionable. Along such lines, a more assertive articulation of how principles may impact on the future development of WTO law would have offered the trade lawyer some more material for debate. Nonetheless, the book’s authoritative taxonomy of principles in WTO law lays a solid doctrinal foundation for further research in this area.