MJIEL Vol 3 Issue 2 2006 - A1

Abstract

The founding of the World Trade Organization was hailed as a new era in resolving global trade disputes, with many academicians espousing a constitutionalised vision of world trade law. The constitutional evolution of WTO law is grounded, not only on the text of the WTO Covered Agreements, but is also buttressed exceedingly by precedence and norms that are generated through adjudication by the panels and the standing WTO Appellate Body. Today, as with most mature legal systems, international lawyers and academics avidly critique WTO jurisprudence and the interpretive methodology of its adjudicators. However, there is a pressing need to fully appreciate the implications of WTO law interpretation on developing nations. This article seeks to ameliorate research in this field by constructing a framework for analysing the jurisprudence of the WTO from the perspective of developing nations. To this end, a development approach to fair adjudication is prescribed, which is grounded on established legal concepts of legitimacy, justice, and ultimately fairness. These legal concepts are defined using the works of Thomas Franck, John Rawls, and Ronald Dworkin.

A fair trading regime entails more than seemingly balanced treaty texts, but rather that adjudication of the treaties must include an approach, which recognises and accounts for the effects of interpretation on development. Therefore, the adjudicators have to go beyond merely finding the literal meaning of the treaty text, but embrace an approach, which is guided by the context and purpose of WTO provisions. The analysis reveals that taking a development approach to fair adjudication will enable the adjudicators to better address the nexus between interpretation of WTO law and the facilitation of development.


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