Natens & Descheemaeker: Making Sense of the Seemingly Insensible — 'Procedural’ Good Faith as a Legal Impediment to Validly Established Jurisdiction

Bregt Natens (KU Leuven - Leuven Centre for Global Governance Studies) & Sidonie Descheemaeker (Univ. of Barcelona) have posted Making Sense of the Seemingly Insensible — 'Procedural’ Good Faith as a Legal Impediment to Validly Established Jurisdiction. Here's the abstract:

The Appellate Body’s (AB) remarks in paragraphs 53 and 54 of the Mexico – Soft Drinks case on the existence of legal impediments to exercise jurisdiction may appear to make little sense. The AB notes that there is no margin of discretion to decline to exercise validly established jurisdiction, yet goes on by implying that legal impediments precluding a panel from exercising its jurisdiction may nonetheless exist. This paper argues that the AB’s statements are both internally coherent and coherent in the whole of its jurisprudence by way of two arguments. First, indeed, a panel has no margin of discretion to decline to exercise validly established jurisdiction. However, jurisdiction is not automatically validly established. Second, legal impediments precluding validly established jurisdiction exist. These are Articles 3.7 and 3.10 DSU. The paper subsequently develops ‘procedural’ good faith in Article 3.10 DSU as a legal impediment, the test for a violation of which is a ‘clear statement’. However, the conditions for the fruitful invocation of a violation of ‘procedural’ good faith as in Article 3.10 DSU have never been met in WTO disputes. Nonetheless, we consider that case law has cleared the path for a dispute in which this would be the case.