The Scales of Trade--Reflections on the Growth and Functions of the WTO Adjudicative Branch

This essay argues that, increasingly, international economic law develops through adjudication. It therefore aims to offer some reflections on the growth and functions of the WTO adjudicative branch, which is of central importance to international economic law, by reviewing a number of important developments in the case law. The essay shows that important policy questions are submitted to adjudication. It aims to identify some of those questions, and to establish some parameters for WTO adjudication. It focuses in particular on the case law concerning the GATT and GATS General Exceptions, which, notwithstanding their generality and indeterminacy, occupy a central position in the resolution of international trade disputes. The essay takes issue with the use of economic concepts such as cost-effectiveness and cost--benefit balancing to characterize the adjudicative process of applying the General Exceptions. It argues that these concepts are inappropriate for analysing questions about trade versus environment/health/morals, etc. Instead, the essay suggests that legal theory offers further guidance for developing tools aimed at limiting adjudicative discretion. The essay approves of the weighing-and-balancing test which the Appellate Body has introduced, and contends that there is now a richer toolkit for tackling these sensitive cases and questions. Oxford University Press 2010, all rights reserved, Oxford University Press.