The broad issue considered here is when national laws can be regarded as being in conformity with the WTO Agreements. More specifically, the focus is on the distinction between mandatory and discretionary legislation in WTO law. When the application of a national law in individual cases depends upon the exercise of executive discretion, this law may be capable of application in a manner either consistent or inconsistent with WTO obligations. The question here is whether the law itself can be challenged as incompatible, or whether only specific instances of incompatible applications can be challenged. The mandatory / discretionary distinction is a creation of judicial policy, and its application is an indicator of the role of Panels and the Appellate Body in furthering the objectives of the WTO Agreements. This is an interesting time to review the case law since there are developments which indicate to the present author a less tolerant approach towards discretionary legislation than has historically been the case.
Legal Issues of Economic Integration