Chronique de jurisprudence. Chronique du règlement des différends de l'OMC (2006-2008)

The purpose of this review is to highlight those among the numerous decisions rendered by the Dispute Settlement Body in 2006/2007, which seem to us to be especially interesting in that they allow to draw more general lessons about the orientation of international trade law under WTO rules. Perseverance by litigants alone shows how important the stakes in these cases are : Two out of the three cases commented upon here are compliance reports ! The difficulties of definitely settling high-stake litigation may hardly be made more obvious. Protecting health and environment or fighting against international crime constitute the object of major disputes, which States pursue under a regime of economic liberalization and of globalized competition as a matter of preserving their public policy and the views of their people regarding the safeguard of such non-market values. A more general point resulting from this review is that, in this respect, the Dispute Settlement Body does not follow the more ambitious doctrinal or political concepts. In particular, it will not accept a national zero risk approach, but rather relies on some scientific pragmatism. Thus, it will allow trade barriers only when they are based on proved risks (see the biotech products or GMO and Hormones cases), a position, which others may hold to be too severe. If, however, States are allowed to impose their particular public policy, they may do so only in accordance with general WTO standards, namely by strictly respecting the rule of equal treatment. An example in point is presented by the Gambling and Betting case : The US may, by prohibiting Internet betting, fight against money laundering, and they may also seek to protect addict gamblers and young people who would go on-line to such sites. They may not, however, exempt US companies (be it those, whose business is betting about sporting events, especially horse races, under a specific national law) from the general regime of control.