Fei, Xiuyan

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Fei, Xiuyan
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Fei, Xiuyan

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  • Publication
    Judicial interactions around WTO dispute settlement: sovereinty and deference
    (University College Dublin. School of Law, 2015)
    Fei, Xiuyan 
    ;
    McMahon, Joseph A. 
    This thesis explores the issues of sovereignty and deference involved in the judicial actions around WTO dispute settlement, focusing on two research questions that whether the WTO tribunals have infringed the WTO Members’ sovereignty and whether the Members’ courts have appropriately responded to WTO rulings. The WTO tribunals’ approach to national law interpretation and national courts’ approaches to WTO rulings are selected to instance the research questions. Accordingly, the thesis is divided into two parts. The first part is about the WTO tribunals’ characterization of national law interpretation and the methods of interpretation. National law is usually considered as within the domain of a state, so is national law interpretation. If national law interpretation is characterized as a question of law, it means that the WTO tribunals would undertake a de novo review of national law. If characterized as a question of fact, it implies that the WTO tribunals should attribute deference to the legislating states’ interpretation of their own law. Likewise, the methods employed by the WTO tribunals to interpret national law should correspond to the characterization of national law interpretation. By examining the characterization and the methods, the WTO tribunals approach to national law interpretation will be disclosed. The second part is about direct effect and indirect effect of WTO rulings in national courts. The EU and the US are selected as examples to provide the basis of discussion. Both the EU and the US courts deny direct effect of WTO rulings, and the denial brings about negative effects. Meanwhile, there are also justifications for the denial. How to understand the denial of direct effect deserves consideration. As to indirect effect of WTO rulings, the EU courts recognize indirect effect under certain circumstances. While the US courts seem resistant to indirect effect. Why the EU and the US courts provide different degrees of respect and deference to WTO rulings also deserves examination. By research in the first and second parts, a full picture about the scenario of judicial interactions around the WTO dispute settlement will be revealed.
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