This article deals with the issue of limiting a panel’s jurisdiction by means of a preliminary ruling within the World Trade Organization’s dispute settlement system. The analysis is based on appellate court jurisprudence concerning the issuance of preliminary rulings. The authors of this article come to the conclusion that, despite the absence of specific provisions in the Dispute Settlement Understanding (DSU) pertaining to preliminary rulings, panels have powers to issue preliminary rulings in relation to the scope of the panel’s jurisdiction. Preliminary rulings can be seen as a procedural means for the defendant to defend his interests. To use it properly, the defendant should show that the panel request of the complainant does not meet the criteria of Article 6.2. of the DSU, according to which a panel request must identify the specific measures at issue and provide a brief summary of the legal basis of the complainant. The authors conclude that the defendant has the right to request that the panel exclude the complainant’s claims as not satisfying such criteria from the scope of the panel’s jurisdiction. Therefore, the defendant may reach a panel’s rejection of some or all claims of the complaint even before addressing the merits of the case. This comprises the respondent’s defensive concept and may be executed through a preliminary ruling. The paper contains an analysis of (1) the “scope of jurisdiction of the panel”, (2) the criteria that the complainant’s panel request should satisfy, and (3) possible arguments that the respondent may submit to the panel explaining why the request of the complainant does not satisfy these criteria and that therefore the panel’s jurisdiction should be limited by issuing a preliminary ruling.
About the author
Daria Boklan – Doctor of Sciences in Law, Associate Professor, Higher School of Economics, Moscow, Russia.
Olga Boklan – Ph.D. student, Department of International Law, Russian Foreign Trade Academy, Moscow, Russia.
Boklan D., Boklan O. (2017) Predvaritel’noe reshenie kak sredstvo ogranicheniya otvetchikom yurisdiktsii treteyskoy gruppy Organa po razresheniyu sporov VTO [Preliminary ruling as an instrument of respondent to limit the jurisdiction of WTO panel]. Mezhdunarodnoe pravosudie, no.4, pp.110–118.
Cottier T., Mavroidis P.C. (eds.) (2003) The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO, AnnArbor, MI: University of Michigan Press.
Ehlermann C. (2002) Six Years on the Bench of the “World Trade Court”: Some Personal Experiences as Member of the Appellate Body of the World Trade Organization. Journal of World Trade, vol.36, no.4, pp.605–639.
Grando M.T. (2010) Evidence, Proof, and Fact-Finding in WTO Dispute Settlement, Oxford: Oxford University Press.
Jara A. (2013) Enhancing the Efficiency of the Penal Process at WTO? A Progress Report on Informal Consultations – Chapter 2. Available at: https://www.wto.org/english/news_e/news13_e/ddg_26sep13_e.htm (accessed: 14.07.2017).
Piérola F. (2011) The Issuance of Preliminary Rulings before the Issuance of the Panel Report: A Development on the Management of Panel Proceedings? Global Trade & Customs Journal, vol.6, no 1, pp.35–36.
Ram J.R. (2016) Pitching Outside the DSU: Preliminary Rulings in WTO Dispute Settlement. Journal of World Trade, vol.50, no.3, pp.369–390.
Van Damme I. (2008) Inherent Powers of and for the WTO Appellate Body: Centre for Trade and Economic Integration (CTEI) Working Paper 2008-02, Geneva: The Graduate Institute. Available at: http://repository.
graduateinstitute.ch/record/283795/ (accessed: 14.07.2017).
Van Damme I. (2009) Treaty Interpretation by the WTO Appellate Body, Oxford: Oxford University Press.
Moscow, Shchepkina str., 8
+7 (495) 608-69-59
+7 (495) 608-66-35