Due process in WTO disputes

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Abstract

Introduction: The principle of ‘due process’ (also called ‘fundamental fairness’, ‘procedural fairness’ or ‘natural justice’) broadly requires administrative and judicial proceedings to be fair. Administrative and judicial systems attempt to achieve due process by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights, duties, powers and liabilities are administered. As will be seen in this chapter, the principle of due process is difficult to define precisely, because the demands of fairness depend on the circumstances. For example, it may be necessary to balance an individual's interest in additional procedures with the value and cost of such procedures. Thus, in particular circumstances, due process might require a full trial, whereas in other circumstances, basic notice and the right to speak might be sufficient. Considerations of due process might also conflict. For instance, parties' rights to be heard and give evidence might weigh in favour of the last minute introduction of evidence. On the other hand, the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against its introduction. Discretion is required to resolve such conflicts.

Original languageEnglish
Title of host publicationKey Issues in WTO Dispute Settlement
Subtitle of host publicationThe First Ten Years
EditorsRufus Yerxa, Bruce Wilson
PublisherCambridge University Press
Chapter14
Pages144-160
Number of pages17
Edition1st
ISBN (Electronic)9780511754340
ISBN (Print)9780521861595
DOIs
Publication statusPublished - 2005
Externally publishedYes

Cite this

Mitchell, A. (2005). Due process in WTO disputes. In R. Yerxa, & B. Wilson (Eds.), Key Issues in WTO Dispute Settlement: The First Ten Years (1st ed., pp. 144-160). Cambridge University Press. https://doi.org/10.1017/CBO9780511754340.015