WTO Dispute Settlement and Competition Law: Views from the Perspective of the Appellate Body\u27s Experience

This Article explores the extent to which the dispute settlement system of the WTO would be suitable in resolving competition-related cases. It first recalls that under existing trade rules, national competition law and practice are not exempt from, but rather subject to, the application of the dispute settlement system. Both competition laws as such and their application in individual cases must comply with the current, substantive standards of the WTO Agreement, and complaints can be brought against both. Extending the application of the dispute settlement system to a new agreement to be negotiated in the area of competition would produce no qualitative innovation. Drawing a parallel to the area of trade remedies, this Article further argues that the standard of review applied in WTO dispute settlement would also be appropriate for competition cases. This standard of review excludes de novo review, but sets rather high standards for the national authorities\u27 duties of investigation and explanation. The dispute settlement system, however, shows significant weaknesses in connection to the fact-finding conducted by panels. Competition-related cases--as is usual in the area of economic law in general, and of trade remedies in particular--are very fact-intensive. In the dispute settlement system of the WTO, it is the task of the panels to establish the facts, whereas the Appellate Body addresses only questions of law. In order to achieve the objective of establishing the relevant facts of a case, panels can resort to experts. They can also seek information from WTO Members, who must respond, lest they should face the risk of negative inferences being drawn from their behavior. A serious weakness, however, exists with regard to the treatment of confidential information, for which no generally applicable rules of procedure exist to date. For the dispute settlement system to be able to apply effectively to a review of individual decisions under a future WTO competition agreement, it would be important to overcome this impediment, which, already today, regularly creates significant practical problems. Another weakness is rooted in the non-permanent character of the panels. A body composed of ad hoc selected members cannot be expected to conduct fact-finding with the same determination as a permanent body. It would therefore be beneficial to increase the structural independence of panel members