Introduction

This chapter addresses jurisdiction of the WTO rules and procedures under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).

At the start, we must concede that the DSU itself does not refer to the jurisdiction per se of the DSU, or of any bodies formed pursuant to the DSU. Furthermore, ‘jurisdiction’ may require some definition in connection with the DSU, and the WTO more broadly. The WTO, as an international organization, does not exercise jurisdiction the way that a state does. For a state, we would divide jurisdiction in terms of jurisdiction to legislate or to make applicable law, jurisdiction to adjudicate and jurisdiction to enforce. We do not deal here with jurisdiction to legislate per se, but focus on jurisdiction to adjudicate, including jurisdiction to apply law.

Of course, the power of the bodies formed under the DSU emanates from the language of a treaty: the WTO treaty, including the DSU. At the level of international law, tribunals have limited and specified jurisdiction. That is, they only have power accorded them by the treaty that creates them. Thus, this chapter focuses on the interpretation of the DSU and other parts of WTO law – on the treaty that empowers WTO adjudicating bodies. This point is important, because in the WTO, as in the rest of the international legal order, there is no centralized sovereign whose implicit and more or less absolute power is exercised through a court.