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Is Intermediary Approach The Way: For Direct Effect Of WTO Obligations

Introduction to the Discourse
The direct effect of law was first discussed in the landmark judgement of Van Gend en Loos[1] , that gave rise to this discourse in 1963. As per the court's precedent in this case, European Law not only encompassed the obligations for the countries which constituted it but also provided for the legal rights of individuals.

Thus, the individuals who are a part of the European Union have the right to take advantage of aforementioned rights and directly invoke the European Laws before their domestic courts as well as the European Courts. 'Direct effect' is not an essential component or characteristic of international law[2] and it is worldly acknowledged that direct effect can be applied to international treaties only when there is an intention of the parties to do so, which usually remains silent upon the same.

The objective of this paper is to analyze, when a conflict arises between a domestic legal provision and a WTO law provision, which cannot be resolved through treaty consistent interpretation, then whether it would be possible to invoke the provisions of WTO law before Indian courts to challenge the legality of such provision.

Whether it would be possible for a Chinese steel manufacturer and exporter to challenge India's Anti-Dumping Duty before the Indian Courts on the ground that the latter will be inconsistent is a question that deeply requires us to understand direct effect being given to International Treaties.[3] Arguably, if the WTO's laws is formulated to have direct effect and they can be invoked any time to challenge the legality of domestic laws, it would increase the effectiveness of the WTO Law and decrease the non-compliance of the same vide sanctions from domestic courts.

WTO's Viewpoint

Like the GATT, WTO agreements are silent with regards to their possible direct effect.[4] The underlining thesis supporting the direct effect of WTO law was laid down by the late Jan Tumlir, who was of the view that the direct effect of the trade treaties can function as a 'weapon' against the inherently protectionist tendencies that are deeply intricated in the domestic law systems of a country.

In order to prevent the erosion of the state's sovereignty, the individuals should have the right to invoke treaty provisions only in front of their domestic courts. Permitting for standing in an aforesaid manner will be available to citizens, who have been previously harmed by the 'exorbitantly protectionist national policies' that are put into collective effect with other national interest groups. Therefore, the direct effect will essentially help in correcting the asymmetries in the political process.

Arguments against Direct Effect
Many scholars such as John Jackson[5] have resisted the idea of applying the direct effect to the WTO Rules, primarily because it may prove to be dangerous to a nation's democracy and its purpose because this would essentially let international law take precedence over the country's domestic laws.

Furthermore, it contravenes the intention of the country's legislative wish since they would be required to start drafting their domestic laws in the language of international treaties. While the Sovereign States are required to comply with their obligations under international law, however, this can be enforced even without utilizing the 'direct effect'.

Some employ 'functional arguments' which include - the lack of democratic participation in the process of making treaties, in certain countries since the parliament is not given the power for the same and the entire exercise is conducted by a few powerful elites of the country, who also govern the country's foreign relations.

Also, the apparent yet legitimate wishes of the legislature against implementing the languages of international treaties for their domestic legal systems which include the usage of native terms for legal principles, elaborately explaining particular provisions of the law, and even translating the country's international obligations into the local language, or that the government is seeking an opportunity to include its obligations within its domestic legislative process since such an act becomes a part of an internal power struggle and it is sought to be used by some government institutions to amplify their powers.

Even a country's legislative body might wish to safeguard the option of breaching the application of an international treaty since some of these breaches might be fairly minor which might be considered to be better than not entering into the international treaty altogether.

A Balance of Arguments: An Intermediary Approach

Piet Eeckhout[6] who has taken a middle ground has felt the need to resist the implementation of the direct effect of the WTO's rules however he is of the view that when a case has been adjudicated by the WTO's dispute redressal mechanism then the same must be enforced domestically.

The flexibility of the WTO agreement, the division of powers between the judicial and legislative bodies or the jurisdiction in terms of the appropriate forum will become void when a violation has been established. In my opinion, since the WTO agreement has been silent upon the effect of its provisions with respect to the domestic laws of its members, therefore the latter is free to the appropriate legal methods in upholding its commitments under the particular agreement in the manner and way they decide.

Analysis and Conclusion
While the democracy is supposed to represent the wishes of the citizens, however, they have proved to be unaccountable or unaccommodating towards the demands of its citizens unless it is election season and the country's international relations are indeed governed by a handful of people.

Direct effect to the WTO's laws will prove to be fairly problematic in redressing disputes primarily because of the large pendency in cases before all of the court's judicial forums which have plagued it over the past few decades, and in case they feel the need to create a tribunal for addressing such disputes then it becomes crucial to take into account the abysmal and pathetic state of the tribunals in India where a vast majority of them have been vacant of judicial members because of which they have been non-functional[7], which is a problem that has been acknowledged multiple times by the country's high court and the apex court[8].

Furthermore, there also lies the issue of diverging jurisprudence since India is home to 25 High Courts, especially since their decisions are not binding upon the High Courts or commercial courts within the other states of the country[9], and often these High Courts tend to give rise to conflicting judgements on very specific points of law dealing with a particular provision[10]

Because of which it can lead to utter chaos in the development of WTO Law jurisprudence within the court which can only be resolved by the Supreme Court, where cases tend to remain pending for a fairly large amount of time[11] and this is bound to severely affect not only the jurisprudence of WTO Law but also the parties to the suits, which may prove to be fatal for them.

Thus, it appears that while direct effect might initially appear to be a good method of enforcing WTO Laws and Rules in India, the enforcement of the same might not give results that will be favorable to its jurisprudence or the parties.

  1. Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62
  2. Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay, in J. Dickson and P. Eleftheriadis (eds), Philosophical Foundations of European Union Law (2012) 137.
  3. Bossche, P. and Zdouc, W., 2022. The Law and Policy of the World Trade Organization. 3rd ed. Cambridge University Press, p.1102.
  4. Ehlermann, 'On the Direct Effect of the WTO Agreements', in T. Einhorn (ed.), Spontaneous Order, Organization and the Law: Liber Amicorum E.-J. Mestm�cker (2003) 413, at 414
  5. Bossche, P. and Zdouc, W., 2022. The Law and Policy of the World Trade Organization. 3rd ed. Cambridge University Press, p.1103.
  6. Id at P.1104
  7. Ghosh, K., 2022. Indian Judiciary Has 4.5 Crore Pending Cases, Tribunals Have over 240 Vacancies. [online] Outlook India. Available at: [Accessed 30 April 2022].
  8. Id.
  9. Kaur, K., 2022. Judicial Precedents In India - Trials & Appeals & Compensation - India. [online] Available at: [Accessed 30 April 2022].
  10. Mishra, A. and Singh, H., 2022. Across India, high courts' approach to live-in relationships appears to be caught in contradictions. [online] Firstpost. Available at: [Accessed 30 April 2022]
  11. N.S. Behl, T., 2022. 4.5 crore pending cases, 50% judges missing - Why justice in India takes so long | India News - Times of India. [online] The Times of India. Available at: [Accessed 30 April 2022].

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