1.- INTERNATIONAL LAW – NATURE
Concept today – International law should be understood as the system of treaties and norms governing international relations between sovereign states, as well as creating obligations of varied natures to its subjects and certain organizations, such as the UN and the ICJ.
Traditional concept excludes individuals and juridical persons.
Tendency
International disputes – Dispute is a disagreement of fact or law between two or more parties.
Municipal Law
Private international law
Public international law
Sources of law
Article 38 statute of the ICJ:
a) international conventions.
b) international custom, as evidence of a general practice accepted as law.
c) general principles of law recognised by civilised nations.
d) subject to article 59, decisions and legal doctrine.
e) Ex aequo et bono Article 59 – The Decision of the ICJ has no binding force except between the parties in respect to a particular case.
Vienna Convention
26 Pacta sunt servanda and the principle of good faith in international agreements 27 Sovereign state cannot invoke its internal law as an international legal justification for failing to perform its obligations under a treaty.
Hierarchy of treaties
rationae personae
intrinsic superiority intrinsic inferiority
rationae materiae
History of the System
2.- EXPERIENCE OF THE DSB
From January 1 1995
220 cases
>
to January 2001
consultations
116
>
definitive decisions
51
>
settled or inactive
39
>
under way
14
>
51 cases
3 developing against developing 17 developed as plaintiffs against developing 8 developing as plaintiffs against developed 23 developed against developed
of the 8 cases developing as plaintiffs against developed
5 cases lost
by developing countries
>
3 cases won
of the 23 cases developed countries as plaintiffs 16 cases lost by developing countries 6 cases balanced result 1 case won by a developing country
3.- STRUCTURAL FAILURES
Legal Nature In general adversarial or contradictory in the WTO diplomatic "not contentions" objective "to secure a positive solution to the dispute".
Recommendations rather than rulings
>
Terminology Ad-hoc Panel Procedural Lacunae Bobbio: incomplete – incoherent Lacunae déni de justice or non liquet (judicial economy) moot preliminary issues: excess of jurisdiction conflict of treaties locus standi – evidence – burden of proof – participation of lawyers – joinder of defendants – joinder of plaintiffs – remand Other problems Execution removal compensation retaliation not self-executing Standard of review Confidentiality – consultations governance – democratic controls Amicus Curiae 4.- OPERATIONAL VICES Secretariat Scope DSU 3.2. – The ruling of the DSB cannot add to or diminish the rights and obligations under the covered agreements. – To preserve rights and obligations of member in accordance with international law In practice case law "stare decisis" Derogation India Indonesia Brazil Amicus Curiae Burden of Proof Lawyers Standard of Review (from dumping to safeguards) Judicial economy (déni de justice) – India Promise as execution (USA) 301 Duty of Co-operation (Canada) Leather (Australia) Reform of the DSU 1) Consultations 2) Panel Procedures 3) AB Procedures 4) Implementation and relief 5) Case law 6) Developing countries 7) Third Parties and Amicus Curiae
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.