Legal Means to Protect Private Parties` Interests in the WTO : The Case of the EC New Trade Barriers Regulation

The WTO contract is essentially a government contract with important repercussions on private parties` interests. WTO Members enjoy wide discretion when it comes to regulating the way in which private interests will be represented; the WTO contract itself imposing only an obligation to perform the WTO contract in good faith. In principle, three solutions seem legally possible: WTO Members recognize direct effect to the WTO rules and consequently allow private parties to invoke WTO rules before national courts; WTO Members do not recognize any direct effect on the WTO rules and continue to be the sole judges of whether private parties` interests should be represented before the WTO adjudicating bodies; recently, in the WTO Government Procurement Agreement, the so-called `challenge procedures` were agreed whereby WTO Members would allow private parties to check whether government behaviour in the field of government procurement is in conformity with the relevant WTO rules. This paper argues that since the first option is still `wishful thinking` and the third option is limited, for the time being, strictly to government behaviour, private parties` interests will continue to be represented for some time by governments. Hence, the need to study such instruments and their evolution. We propose a comparative study of the two most elaborate instruments in this respect (the EC and the US instruments) and draw the conclusion that over time they have become more responsive to private parties` concerns but that they can by no means be construed as perfect substitute of the other two options