Eurasian Economic Union Coutr and WTO Dispute Settlement Body: Two Housewives in One Kitchen

Russian Law Journal. 2019. No. 7 (3). P. 169–193.

Boklan D., Lifshits I.

Using the approach of the United Nations International Law Commission, the law of the
Eurasian Economic Union and WTO law might be regarded as autonomous complexes of
rules. However, in all current disputes the DSB treats the norms of EAEU law as measures
adopted by a specific EAEU member, but not as international law within the meaning of
the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical
regulation and reveal a number of specific features. First, the EAEU measures are attributable
to every EAEU member. Second, the WTO members may try to challenge in the DSB the
measures adopted by an EAEU member in its national legislation based on EAEU law that
affect national legislation of that EAEU member, rather than EAEU law as such. Third,
“forum shopping” may arise, for the same measure can be challenged under EAEU law in
the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning
WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU
Court. The authors conclude that this approach should provide for the Court’s right to
interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should
be made within the context and object of the EAEU Treaty. However, the autonomous EAEU
legal order cannot be implemented until the Treaty on Functioning of the Customs Union
within the Multilateral Trading System is applicable.
 

Keywords: WTO, dispute settlement, EAEU, WTO DSB, EAEU Court, Treaty on the EAEU