Pitching Outside the DSU: Preliminary Rulings in WTO Dispute Settlement

It has become the norm for WTO panels to issue rulings on preliminary issues such as jurisdiction, terms of reference and other related issues pertaining to a dispute upon the request of the disputing parties at the preliminary stage itself. In recent practice, panels have even started to circulate these preliminary rulings. Panel practice on preliminary rulings has developed in spite of the absence of any express or implied provision in the Dispute Settlement Understanding. This paper discusses panel jurisprudence pertaining to preliminary rulings on salient aspects such as the scope of preliminary rulings, the timing of requests, et al. It also discusses issues pertaining to preliminary rulings which have legal bearing on the WTO dispute settlement system such as circulation, appellate review, and adoption; some of which WTO Members have themselves identified. While the practice of issuing preliminary rulings may be beneficial to the WTO’s Members and the dispute settlement system as such, the unfettered practice of issuing preliminary rulings coupled with the absence of any express rules or a formal WTO understanding regarding the same raises certain systemic concerns. Given the systemic importance and utility of preliminary rulings in WTO dispute settlement, and also the legal uncertainties that may arise, it would be in Members’ best interests if they took steps to codify current practice to ensure uniformity. However, a better alternative may be for panels/AB to develop the extant framework by either adding or modifying the Working Procedures.