Brazil,imposes no restrictions on Brazil’s right to bring subsequent WTOdispute settlement proceedings in respect of the same measure’.86On these grounds, the panel refused to apply the principle of estoppel and continued to examine Brazil’s claims.It is worth noting, however, that rather than applying WTOlike anti-dumping rules, the earlier MERCOSUR arbitration panelfound that no specific anti-dumping rules applied to the contestedmeasure.87 As a result, it was, indeed, hard to say that the earlierMERCOSUR ruling dealt with substantively similar claims as thoseraised before the subsequent WTO panel. Hence, even under thewider notions of ‘issue estoppel’ or ‘collateral estoppel’, Brazilshould not have been precluded from submitting the WTO case.IV. Because of Non-WTO Law, a WTO Violation is JustifiedIn Section II, we examined instances where non-WTO law maylead a panel to decline jurisdiction. In this Section, we assess hownon-WTO law may, on the merits, prevent a finding of violation ofWTO rules. As mentioned in the introduction, we are concerned notwith cases where non-WTO law may simply influence the interpretation of WTO terms, be it by expanding or limiting the scope of
858687
Ibidem, fn. 58.Ibidem, para. 7.38.Award by the Ad Hoc MERCOSUR Tribunal (Brazil v Argentina)concerning the Application of anti-dumping Measures on the Exportof Poultry from Brazil, 21 May 2001, at http://www.mercosur.org.uy/pagina1esp.htm.
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WTO rules or exceptions.88 Rather, we focus on the exceptionalcase where a harmonious interpretation of WTO rules and otherrules is not possible and the non-WTO rule offers an independentdefense for what would otherwise be a violation of the WTO treaty.When it comes to the substantive evaluation of WTO claims,two DSU provisions imply the power of WTO panels to apply andmake findings under other rules of international law (in addition tothe other reasons stated in Section I in support of a broad notion ofapplicable law). First, the obligation in Article 11 of the DSU forpanels to make an ‘objective assessment of ... the applicability of ...relevant covered agreements’ may require a panel to refer to andapply other rules of international law; these other rules may showthat the relevant WTO rules do not apply and have therefore notbeen violated; in contrast, failure to look at these other rules wouldpreclude an ‘objective assessment of ... the applicability of . . . therelevant covered agreements’. Second, the panel’s mandate in Article 7.2 of the DSU to ‘make such findings as will assist the DSB inmaking the recommendations or in giving the rulings provided forin that/those agreement(s)’, further acknowledges that WTO panelsmay need to resort to and apply rules of international law beyondWTO covered agreements as long as it assists the DSB in resolvingthe WTO claims before it.It may be useful to distinguish four types of situations where anon-WTO defense can be raised on the merits of a WTO claim, ofincreasing order of complexity (in that each time it becomes moredifficult to justify why a WTO panel should accept the defense): (1)defenses under non-WTO law explicitly incorporated into the WTOlegal system; (2) measures allegedly violating the WTO treaty butspecifically permitted (or even imposed) pursuant to the disputesettlement provisions of another treaty; (3) measures that a WTOmember must enact (or is explicitly permitted to enact) pursuant tothe provisions of another treaty; (4) measures normally in breach ofWTO rules but permitted under another treaty on condition that theWTO panel finds that this other treaty is respected/violated.A. Non-WTO Defenses Explicitly Incorporatedinto the WTO Legal SystemSeveral avenues exist where WTO law itself explicitly refers to orincorporates defenses under non-WTO rules. First, WTO treaty88
See supra footnotes 1 and 2.
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provisions sometimes incorporate non-WTO defenses: (i) the SPSand TBT agreements refer to certain international standards adoptedoutside the WTO (such as Codex Alimentarius standards on hormones89); if the measure challenged conforms to such a standard,the measure will be presumed to be consistent also with WTO rules;(ii) the TRIPS agreement not only incorporates obligations underother, WIPO conventions; it also incorporates certain exceptions tobe found in these conventions;90 (iii) under the Subsidies agreementan export credit practice is not considered a prohibited export subsidy if it is in conformity with the interest rate provisions of theOECD Arrangement on Guidelines for Officially Supported ExportCredits;91 (iv) Article XXI of GATT and Article XIVbis of GATSexplicitly permit ‘any action in pursuance of [a WTO member’s]obligations under the United Nations Charter for the maintenance ofinternational peace and security’; if, therefore, the UN SecurityCouncil, acting under Chapter VII of the UN Charter, imposes economic sanctions on a WTO member, the relevant Security Councilresolution – an instrument not part of WTO covered agreements –can be used in defense of a WTO complaint that the target of thesanctions would submit before a WTO panel.Second, waivers adopted by the WTO Ministerial Conference(or General Council) pursuant to Article IX:3 of the MarrakeshAgreement may authorize a WTO member to adopt otherwise WTOinconsistent measures with reference to non-WTO rules. The waivergranted to the EC in respect of its import regime for bananas, forexample, refers to the Lome Convention and permits the EC ‘toprovide preferential treatment for products originating in ACPStates as required by the relevant provisions of the Fourth LomeConvention’.92 The more recent waiver on conflict diamonds per89
9091
92
See, for example, Appellate Body Report, EC Measures ConcerningMeat and Meat Products (Hormones), WT/DS26/AB/R,WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135.See, for example, Panel Report, United States – Section 110(5) of theUS Copyright Act, WT/DS160/R, adopted 27 July 2000 (not appealed).See, for example, Panel Report, Canada – Export Credits and LoanGuarantees for Regional Aircraft, WT/DS222/R and Corr.1, adopted19 February 2002 (not appealed).The Fourth ACP-EEC Convention of Lome, Decision of the CONTRACTING PARTIES of 9 December 1994, L/7604, 19 December1994.
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mits measures ‘necessary to prohibit the export [and import] ofrough diamonds to [and from] non-Participants in the KimberleyProcess Certification Scheme consistent with the Kimberley Process Certification Scheme’.93 Neither the Lome Convention nor theKimberley scheme (or the WTO waiver, for that matter) are WTOcovered agreements. Still, they can, and have been,94 referred to,interpreted and applied by a WTO panel in defense of an allegedviolation of WTO rules.When non-WTO rules are explicitly incorporated into theWTO legal system, WTO panels and the Appellate Body will feelrather comfortable to apply those rules (even if, in the case of waivers, the link to those rules – that is, the waiver decision itself – is,strictly speaking, not part of a WTO covered agreement).95 Yet, thebasis for referring to those rules is the same as that for referring toother rules not explicitly incorporated: the consent of the WTOmembers involved to accept what could otherwise be violations ofthe WTO treaty. Whether this consent was given within or outsidethe WTO should not matter. To the contrary, quite often the consentgiven inside the WTO will be less explicit and direct than thatgiven outside the WTO: for example, the international standardsreferred to in the SPS and TBT agreements include those objectedto by WTO members in the relevant standard-making bodies;96 thereference to the OECD arrangement is an ongoing one which permits OECD members to create safe-havens never accepted by WTOmembers not party to the OECD;97 the WTO waiver on conflict diamonds exempts trade restrictions consistent with the Kimberleyscheme that are imposed on non-participants to this scheme, that is,
93
94
959697
Waiver decision, WTO document G/C/W/432/Rev. 1, dated 24February 2003, referred to in the Decision by the WTO GeneralCouncil at its meeting on May 15-16, 2003 (WTO documentWT/GC/W/498, dated 13 May 2003, Item VI), adopted by consensus.See also Pauwelyn (2003b).See the Appellate Body Report, European Communities – Regime forthe Importation, Sale and Distribution of Bananas (‘EC – BananasIII’), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II,591.Ibidem.See Appellate Body Report on EC – Hormones, supra footnote 89.See supra footnote 91.
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WTO members not having any influence on how this scheme develops.98B. WTO Violations Permitted (or Even Imposed) Pursuant to theDispute Settlement Provisions of Another TreatyAs explained in Section I, when WTO panels examine the validityof WTO claims, they should not limit themselves to WTO coveredagreements, nor to non-WTO rules explicitly referred to in theWTO treaty or WTO waiver decisions. The easiest situation forpanels to thus apply non-WTO rules would be where a measure isinconsistent with WTO rules, but specifically imposed or permittedby a decision under the dispute settlement mechanism of anothertreaty.A case in point is the Resolution of the International LaborConference recommending action against Myanmar for gravebreaches of the ILO’s Forced Labor Convention.99 There, the conclusion that ILO rules had been breached was made by an independent Commission of Inquiry set up under the ILO Constitution.The subsequent ILO recommendation was the very first case wheresanctions were called for under Article 33 of the ILO Constitutionsince the ILO’s creation in 1919. A number of WTO members haveimposed trade embargoes on Myanmar since that ILO resolution.100If Myanmar – a member of the WTO – were now to challenge thoseembargoes, could the WTO member imposing the embargo not relyon the ILO recommendation so as to justify any potential WTOviolations? In my view, this should be possible: Myanmar, as allILO members, agreed to the ILO dispute settlement mechanism;See, supra footnote 93.The ILO recommended that ILO members ‘review, in the light of theconclusions of the Commission of Inquiry [which had found the serious violations of the Forced Labor Convention], the relations thatthey may have with the member State concerned [Myanmar] and takeappropriate measures to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forcedor compulsory labor referred to by the Commission of Inquiry, and tocontribute as far as possible to the implementation of its recommendations made’, Resolution of the International Labour Conference(88th session, 2000) at http://www.ilo.org/public/english/standards/relm/ilc/ilc88/resolutions.htm#II.100 In the United States, see the Burmese Freedom and Democracy Act2003, H.R. 2330, 108th Congress (2003).
9899
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this mechanism found that Myanmar had breached ILO rules andrecommended action against it; although it is hard to say that otherILO members where thereby obliged to impose a trade embargo onMyanmar, in case those other members are ‘good ILO citizens’ anddo what the ILO is explicitly calling for, then who is the WTO toquestion the validity of ILO decisions? In that event, a conflict mayarise between WTO rules (prohibiting the embargo101) and the ILOrecommendation (calling for an embargo). As the later and morespecific norm, the ILO recommendation should then prevail overthe WTO prohibition.A similar situation could arise when two WTO members agreein an economic cooperation agreement that in case either violatesfundamental human rights, the other may impose trade sanctions.102If such violation of human rights were now impartially determinedeither by a human rights court or a tribunal or commission set upunder the cooperation agreement and the other member imposestrade sanctions, can the perpetrator of the human rights violation goto the WTO and obtain a ruling that the trade sanction is illegal? Inmy view, not. The WTO panel should then apply not just WTOcovered agreements, but also take cognizance of the ruling wherebreach of human rights was found and of the provision explicitlypermitting trade sanctions in such event.Turning the tables around, for a WTO panel to thus recognizethe outcome of dispute settlement procedures under other treatieswould be very similar to a situation where the World IntellectualProperty Organization (WIPO) refuses to find a violation of theBerne Convention when such violation was explicitly authorized bythe WTO as a countermeasure under Article 22.6 of the DSU. Acase in point is the DSB authorization obtained by Ecuador to suspend the protection of EC copyrights under WIPO conventions inresponse to prior WTO violations by the EC’s import regime forbananas. In contrast, for a WTO panel not to take account of ILOrecommendations would be the same as WIPO finding a violationunder its conventions notwithstanding an explicit WTO authorization to engage in those violations.
101 Even if the case can be made also that the embargo is justified already under GATT itself (e.g. under GATT Arts. XX and/or XXI).102 The EC, for example, often includes such provisions in its agreements with third states, see Bartels (2002).
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C. WTO Violations Permitted (or Even Imposed) Pursuantto the Provisions of Another TreatyWhen another court, tribunal or commission has previously foundthat a trade measure is justified under another treaty, it is relativelyeasy for a WTO panel to give effect to such ruling: the justificationunder non-WTO law is then decided upon not by the WTO panel,but by the actors in charge of the other treaty. The WTO panel thenonly gives effect to a ruling very specific to the parties and subjectmatter in dispute, which is simply the result of a procedure explicitly agreed upon by both parties in another international organization or under another treaty.The slightly more difficult situation may arise also where ameasure is prohibited under WTO rules, but prescribed or explicitlypermitted under the self-standing provisions of another treaty (oreven customary international law103). In that event, it would be forthe WTO panel itself to interpret the non-WTO treaty provision andto decide for itself whether this provision justifies the measure inquestion.Examples of such situation are trade measures that violateWTO rules but which a WTO member must take (or has an explicitright to take) under a multilateral environmental or health agreement that is binding on both disputing parties – such as the Cartagena Protocol on Biosafety or the recent WHO Framework Convention on Tobacco Control104 – or even under a bilateral agreement in which two WTO members agreed on the imposition asbetween them of otherwise WTO-inconsistent measures.105 Although in most cases measures under these other conventions willbe justified also under the WTO exceptions related to health and theenvironment, in exceptional situations a genuine conflict may103 See, however, the caveat in the text below at footnote 108.104 See supra footnotes 6 and 7.105 Imagine that the United States and Malaysia had settled theShrimp/turtle dispute and agreed, among other things, that the UnitedStates can continue the imposition, as against Malaysia, of otherwiseWTO inconsistent measures. Should a WTO panel, subsequentlyconstituted at the request of Malaysia to strike down these very U.S.measures, not take account also of this bilateral settlement and onthat basis decline to find a WTO violation? In my view, it should.This position implies the qualification of WTO obligations as essentially bilateral obligations, see Pauwelyn (2003c).
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arise.106 A WTO panel should examine whether this is, indeed, thecase and may thereby have to interpret the provisions of the othertreaty. If it finds a conflict, it should then decide also which of thetwo norms prevails under conflict rules of international law. If it isthe WTO norm, then it should find a violation of WTO coveredagreements. If it is the other norm, then the panel should accept thejustification under non-WTO law and not find a WTO violation.Already now, WTO panels regularly interpret non-WTO rules.Although in most (though not all) of those cases there is an explicitreference to these rules in WTO provisions themselves, panels andthe Appellate Body have shown that they have the qualificationsand impartiality to properly interpret ‘foreign’ rules.107 Interpretingand applying non-WTO rules not explicitly referred to in the WTOtreaty would, indeed, take it a step further but not inherently changea function that WTO panels already exercise at the present day.One particular reference to non-WTO law may, however,cause additional concerns, namely the application by WTO panelsof rules of general international customary law. While other, nonWTO treaties agreed upon by the disputing parties are the productof deliberative and explicit state consent, international custom derives from ‘a general practice accepted as law’.108 As a result, whenit comes to defining and interpreting custom, WTO panels have lessexplicit guidance and may feel inhibited, in particular, to decide onwhether WTO treaty provisions have been altered by an allegedlysupervening custom. In EC – Hormones, for example, the AppellateBody was extremely hesitant when addressing the EC claim that theprecautionary principle as a rule of customary law ought to supple-
106 On the definition of ‘conflict’, see Pauwelyn (2003a).107 See the panel and/or Appellate Body interpretations of (i) the LomeConvention in EC – Bananas III, supra footnote 95; (ii) the BerneConvention in US – Copyright, supra footnote 90; (iii) internationalCodex Alimentarius standards in EC – Hormones, supra footnote 89and especially in European Communities – Trade Description of Sardines, WT/DS231/R and AB/R, adopted on 23 October 2002; (v) theOECD arrangement on export credits, in Canada – Export Credits, supra footnote 91, (v) environmental conventions and declarations in US– Shrimp, supra footnote 1; and (vi) the precautionary principle in EC– Hormones, supra footnote 89.108 Article 38.1(b) of the Statute of the International Court of Justice.
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ment the provisions of the SPS Agreement.109 This trepidation isjustified and WTO panels ought, indeed, be extremely careful andon solid grounds before concluding that a new rule of custom hasemerged. At the same time, the risk of new custom overruling priorWTO provisions is extremely limited. Although it is generally accepted that no inherent hierarchy exists between treaties and custom110, in practice, it is rare for custom to, first of all, emerge notwithstanding the continuing existence of a contradictory treatynorm: it is not as if custom can be established over night; customrequires a general and consistent practice of states, including the (atleast) tacit consent of those who concluded the pre-existing treaty(persistent objectors cannot be bound by it). Moreover, even if newcustom does emerge in the face of a treaty dealing with the samesubject matter, given the often vague and general nature of custom,a genuine conflict between custom and treaty is exceptional: inmost cases it will be possible to interpret the treaty in line with thenew custom. Finally, in those cases where a genuine conflict doesarise, the treaty is most likely to prevail as lex specialis based on its109 Appellate Body Report, EC Measures Concerning Meat and MeatProducts (Hormones) (‘EC – Hormones’), WT/DS26/AB/R,WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, atpara. 123: ‘The precautionary principle is regarded by some as having crystallized into a general principle of customary internationalenvironmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appearsless than clear. We consider, however, that it is unnecessary, andprobably imprudent, for the Appellate Body in this appeal to take aposition on this important, but abstract, question’. For a critique, seePauwelyn (2001), 569-570, and Pauwelyn (2003a), 481 et seq.110 See, for example, Kontou (1995) and the references in Pauwelyn,(2003), 94-97. Contra: McGinnis (2003), arguing that ‘[g]lobalmultilateral agreements should dominate customary international lawbecause they rest on a more certain consensus and have fewer agencycosts’ (42) and even ‘skeptical that [the] substantive aspects [of custom that is part of jus cogens] should have priority over global multilateral treaties’ (note 137). While this author has previously argued(see footnotes 109 and 111) and hence agrees with ProfessorMcGinnis – that, in practice, and in the particular context of theWTO, it will be extremely rare for subsequent custom to overruleWTO treaty provisions, this should not, however, mean that thestarting principle of absence of hierarchy between treaty and customin the wider field of public international law is no longer valid.
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often more specific and explicit expression of state will.111 In sum,the fear expressed by some authors112 that for WTO panels to applycustom risks high-jacking the contractual, consent-based nature ofthe WTO is unwarranted: WTO members can only be held to custom if the strict rules for its emergence are met (states who explicitly and consistently objected to the custom cannot be bound by it);moreover, even if custom was explicitly or tacitly consented to, it isunlikely to prevail over the WTO treaty.D. WTO Violations Permitted under Another Treatyon Condition that the WTO Panel Finds that thisOther Treaty is Respected/ViolatedUndoubtedly the most controversial use of non-WTO law would befor a panel to accept a defense under another treaty even if that defense – say, an explicit right to impose a trade restriction – is conditional on prior breach of the other treaty by the complaining party(or conditional on simultaneous compliance of the other treaty bythe defendant itself).Recall the example of an economic cooperation agreementwhere two Members agree that in case either of them violates fundamental human rights, the other may impose trade sanctions.113Now, if such prior breach of human rights has not been independently determined by a court, tribunal or other competent commission, can the WTO member who is of the view that its partner has,indeed, committed such breach, unilaterally decide that this breachoccurred and, consequently, impose trade sanctions? If so, whathappens if the victim of the sanctions challenges them before aWTO panel? Can the member who enacted the sanctions justify itsconduct based on the cooperation agreement? A similar situationwould arise in case a participant in the Kimberley scheme againstconflict diamonds is of the view that another participant to thatscheme does not abide by the restrictions imposed on conflict diamonds. As a result, that member could impose import restrictionson diamonds coming from this other participant (the Kimberleyscheme only permits trade in certified conflict-free diamonds andthe member concerned is convinced that diamonds from this other111 For a full discussion, see Pauwelyn (2003a), 131-143.112 See, in particular, McGinnis (2003), discussed also supra fn. 23 and110.113 See supra footnote 102.
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participant are, in fact, conflict diamonds). Now, if the target ofthose trade restrictions were to challenge them before a WTO panel,could the WTO member imposing the restrictions rely on the Kimberley scheme in defense of what it is doing?114A slightly different yet similar situation would arise also whentwo WTO members conclude a bilateral settlement of a WTO dispute in which they agree that the defendant can maintain a WTOinconsistent measure for a certain period of time for as long as itconforms to the other provisions in the settlement.115 If the complainant were, thereafter, to challenge this WTO inconsistent measure, notwithstanding the agreement that it can be maintained,should the defendant be allowed to rely on the bilateral settlementin its defense, even if the validity of this defense depends onwhether the defendant itself has implemented the other provisionsof the settlement?Although, in all three examples, the applicable law should, inmy view, include also defenses under the cooperation agreement,the Kimberley scheme or the bilateral settlement (all of which were,after all, accepted by the complainant), any WTO panel would thenbe faced with an additional hurdle: for the defense to be valid, either the parties ought to agree that human rights / Kimberley certification requirements had, indeed, been breached or the WTO panelitself must decide that such breach has, indeed, occurred (in respectof the bilateral settlement, parties would have to agree, or the panelitself would have to find, that the defendant had otherwise compliedwith the settlement). Put differently, the WTO panel would then notsimply apply other rules ‘as it finds them’ in other treaties, withminimal interpretation by the panel, but actually have to decide firstwhether or not these other rules have been breached/complied with.As noted several times, however, WTO panels have jurisdictiononly to examine claims of violation under WTO covered agreements. In the examination of those WTO claims – and even accepting the argument made here that the applicable law to conductthis examination can include also other rules of international law –114 Recall, in this respect, that the WTO waiver on conflict diamonds canbe invoked only for trade restrictions on non-participants; it does notoperate in the WTO relationship as between two participants to thescheme. See supra text at footnote 98.115 See, for example, the bilateral settlement in India – Quantitative Restrictions, supra footnote 32.
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are WTO panels permitted to go as far as making prior findings ofviolation of (or compliance with) non-WTO rules?In my view, this power for panels to make prior findings ofviolation under non-WTO rules should not be easily accepted andmay depend on the circumstances of each case. At that juncture, thedividing line between, on the one hand, substantive jurisdiction todecide on certain claims of violation (WTO claims only) and, onthe other hand, the applicable law to decide on the validity of thoseclaims (potentially all international law), becomes rather blurred. Ifthe required finding of violation or compliance with obligationsunder non-WTO rules is both legally and factually straightforward,a panel may decide to move forward. Especially if no compulsorydispute settlement mechanism exists under the other treaty, a panelmay be more inclined to decide the issue itself. After all, even if itfinds a violation under the other treaty, it would only permit theconsequential trade sanction and reject the WTO complaint. Itwould, in other words, simply confirm the status quo. If, in contrast,there is a special dispute settlement procedure available to determine violation of those non-WTO obligations – and the resolutionof this matter is intricately linked to, and decisive for the outcomeof, the WTO claims – then a panel may be wise to suspend its proceedings so as to give the parties the chance to first obtain a rulingunder the other treaty.116Yet, in other cases the additional task thus put on the panelmay take it outside of its limited substantive jurisdiction. If so, thequestion is then how the panel should decide the case? It couldsimply disregard the non-WTO defense at issue and find a violationof the WTO treaty (even if it could later turn out that the violationis actually justified under the other treaty); Or the panel could decide that the dispute not genuinely concerns WTO claims (eventhough such claims can technically be made) but, rather, claims under another treaty to which the WTO claims are inextricably linkedand for which the panel does not have substantive jurisdiction (incasu, the cooperation agreement, the Kimberley scheme or the bilateral settlement). The panel could, on that basis, decide that itdoes not have jurisdiction over the dispute and, thereby, for allpractical purposes, reject the WTO complaint. If the defense undernon-WTO rules is serious enough, in my view, the latter approach(decline jurisdiction) should be the preferred one, albeit (i) to avoid116 See supra text at footnote 52.
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conflicting rulings and a fragmentation of international regimes and(ii) to provide an incentive to the parties to resolve the non-WTOquestions amicably, after which they can always come back to theWTO for a resolution of the remaining dispute.V. ConclusionThis essay analyses the different situations where non-WTO lawcan constitute an independent defense against claims of violation ofWTO law. These situations are summarized in the table below:Other Treaties / Rulings Un- Other Treaties / RulingsUndermine the Merits of thedermine the Jurisdiction ofWTO Complaintthe WTO Panel1. Bilateral agreement not to 1. Other treaties/standards exappeal; not to invoke the DSUplicitly referred to in the WTOtreaty2. Rulings/recommendations2. Another treaty with exclusive jurisdictionunder another treaty specifically imposing/permitting themeasure at issue3. Another treaty impos3. Another treaty with choiceing/permitting the measure atof forum but making anyissuechoice exclusive4. Another treaty with compul- 4. Another treaty impossory (though not exclusive nor ing/permitting the measure atexclusionary) jurisdictionissue on condition that this5. Res judicata effect of other other treaty is violated/complied withrulingsIn conclusion, and taking some distance from the specific solutions advocated here, it may be useful to sum up the alternativesavailable to panels when faced with non-WTO defenses, as well assome of the practical consequences and policy concerns that theyentail.The panel completely disregards the defense under non-WTO lawBe it in response to a defense that may undermine the jurisdictionof the WTO panel or one that may change the substantive outcomeof the WTO complaint, the WTO panel could simply disregard theapplicability of other rules of international law:x Not to apply other international rules consented to by the parties amounts, in the first place, to a disregard for the sovereignwill of the disputing parties.
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To limit the resolution of the dispute to WTO rules, therewhere other rules are also applicable, does not resolve the dispute. At best, it resolves the dispute only partially; at worst, itleads to conflicting rulings and WTO counterme