Introduction to the Discourse
The direct effect of law was first discussed in the landmark judgement of Van
Gend en Loos , 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
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 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. 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.
Like the GATT, WTO agreements are silent with regards to their possible direct
effect. 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 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
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
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 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, which is a
problem that has been acknowledged multiple times by the country's high court
and the apex court.
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,
and often these High Courts tend to give rise to conflicting judgements on very
specific points of law dealing with a particular provision
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 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
- Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case
- Deciphering the Political and Legal DNA of European Integration: An
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- Bossche, P. and Zdouc, W., 2022. The Law and Policy of the World Trade
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- Ehlermann, 'On the Direct Effect of the WTO Agreements', in T. Einhorn
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- Bossche, P. and Zdouc, W., 2022. The Law and Policy of the World Trade
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- Id at P.1104
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