Jurisdiction and Applicable Law in the WTO

This paper considers the law applicable by WTO panels and the Appellate Body in dispute settlement proceedings. It begins by explaining how law is applied to facts, and how this is relevant to the exercise of jurisdiction by WTO panels and the Appellate Body. It then looks at several discrete sets of legal questions, both jurisdictional and merits, in which questions related to applicable law arise. The jurisdictional questions, broadly speaking, that are considered concern the power of panels to determine the legality of their establishment, the power of panels to determine whether other preconditions to the exercise of their jurisdiction have been met, including what is elsewhere termed ‘admissibility'. The merits questions concern the law applicable to the proper identification of the facts and to the law applicable to these facts, based on the various overlapping provisions in the DSU pertaining to these matters, and taking into account the possible role of non-WTO law