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165 7 From the Periphery to the Centre? The Evolving WTO Jurisprudence on Transparency and Good Governance PADIDEH ALA’I* 1. Introduction This chapter traces the jurisprudence of Article X of the General Agreement on Tariffs and Trade (GATT) of 1994.1 Article X is significant because it ‘goes to the heart of a country’s legal infrastructure, and more precisely to the nature and enforcement of its administrative law regime’.2 Article X was proposed by the United States in 1947 and was influenced by the contemporaneous enactment of the U.S.Administrative Procedures Act (APA).3 Article X requires that trade-related measures be promptly published; administered in a uniform, impartial, and reasonable manner; and provide for independent review of administrative action that relates to customs matters. During the GATT 1947 years,4 Article X was a silent provision dismissed by panels as‘subsidiary’ to other‘substantive’ GATT provisions. Since the creation of the World Trade Organization (WTO),Article X has emerged from obscurity and has developed into a provision of fundamental importance as the embodiment of the principles of transparency and due process.5 The relative prominence of Article X in trade disputes in the WTO is a manifestation of the emerging role of the WTO as a global (supranational) regulatory body.6 The increased emphasis on Article X also highlights the potential role for the WTO in promoting ‘good governance’ norms in both the transnational and domestic context.7 This chapter will show that WTO Members are increasingly relying on good governance principles, such as transparency and due process in dispute settlement proceedings. These good governance principles, as embodied in Article X, are most often invoked in connection with contentious trade issues, including the administration of anti-dumping or countervailing measures by the U.S. Department of Commerce (DOC). The growing centrality of Article X also reflects (1) an emerging global consensus regarding good governance values such as transparency, access to information, and participation, which must inform both domestic and global administrative systems; (2) the evolution of the GATT from a system based on tariffs, reciprocal bargaining, and exchange of concessions to one concerned with rule-making; and (3) an attempt by the dispute settlement system to accommodate the emerging role of the WTO as a rule-making body by enforcing its good governance mandate in a manner that avoids political controversy and charges of overreaching by the Members. For example, as discussed below, a panel may expansively interpret a provision of Article X, but then either refuse to address the Article X claim in the name of judicial economy or find that the measure in question does not in fact violate Article X requirements of transparency or due process.8 This chapter will first define terms and explore the roots and scope of Article X of GATT 1994. It will then discuss the application of Article X during the GATT 1947 years (1947 to 1994) when, after being a dormant provision for almost 40 years, it was dismissed in the 1980s and early 1990s as merely subsidiary to the more ‘substantive’ obligations contained in GATT 1947. It will then explore the impact of WTO jurisprudence on the scope and application of Article X’s requirements of transparency and due process by analyzing the interpretation and application of Article X by the WTO panels and the Appellate Body from 1995 to the present. This chapter will then review the most prominent Article X cases brought under the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),9 culminating with European Communities—Selected Customs Matters (EC—Selected Customs Matters ), in which all of the claims were based on alleged violations of Article X.10 Finally, this chapter will make some observations about the importance of acknowledging the WTO’s good governance mandate as we embark on reforming our international economic institutions in light of the current global economic crisis. II. History of Article X of GATT 1994 Article X was initially proposed by the United States as Article 15 of the draft Charter of the International Trade Organization (ITO),11 which was subsequently adopted by the GATT 1947 Contracting Parties.At the time of its adoption , no other country expressed an interest in Article X, and it was adopted without any discussion or amendment. The proposed text of Article X generally followed the text of the APA, which was enacted in 1946.12 At the time of its adoption, the Contracting Parties viewed Article X...

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