Volume 48 (2014) / Issue 6
Shin-yi Peng, 'Regulating New Services through Litigation? Electronic Commerce as a Case Study on the Evaluation of Judicial Activism in the WTO' (2014) 48 Journal of World Trade, Issue 6, pp. 1189–1222
This article engages in the exercise of developing criteria with which to measure the panel and Appellate Body reports of the WTO for the extent of their judicial activism. Pursuant to Article 3.2, judicial activism at the World Trade Organization (WTO) should be identified not only by behavioural patterns but also by the results the DSB produced. The development of the electronic commerce provides an interesting case study on WTO's judicial decision-making. Should DSB be permitted to 'modernize' agreements to cope with the 'new' services? After methodologically analysing all e-commerce cases under the WTO, this article concludes that activism was extreme in US-Gambling because the panel and Appellate Body invented limitations on the sovereign rights of members to regulate, which has no foundation in the treaty text and no general basis in international law. Different from the 'activist ruling' in US-Gambling, the Appellate Body in China-Audiovisual Services has demonstrated some activism in its interpretation of the 'object and purpose' of the GATS. Similarly, the panel of China-Payment Card has shown certain activism in its interpretation of provisions on the objective of progressive liberalization contained in the Preamble to the GATS.
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