The World Trade Organization (WTO) is the principal driver of international economic law. Its constituent document is the 1994 Marrakesh Agreement Establishing the World Trade Organization (commonly referred to as the Marrakesh Agreement), which establishes the WTO as an international organization. The Marrakesh Agreement should be cited as an ordinary treaty, in accordance with Rule 2.A.1.
However, WTO law as a whole is given further substance through the ‘covered agreements’, presented as a series of annexes to the Marrakesh Agreement,6 e.g. the Disputes Settlement Understanding, the Sanitary and Phytosanitary Measures Agreement, etc. They should accordingly be cited as annexes to the Marrakesh Agreement, rather than as treaties in their own right. Thus the rule is:
Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, Relevant Annex, Art x (Name of Covered Agreement) (Short Title).
Subsequent references should just make reference to the short title of the covered agreement per Rules 2.A.2, rather than the particular annex number.
1 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, Annex 1A, Art 1 (General Agreement on Tariffs and Trade 1994) (GATT 1994).
2 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, Art 1A, Art 5 (Agreement on the Application of Sanitary and Phytosantiary Measures) (SPS).
3 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, Annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes) (DSU).
4 SPS Art 6.
5 GATT 1994 Art 1.
2. Official WTO documents
When referring to official WTO documents (except for documents originating from a dispute resolution mechanism under the Dispute Settlement Understanding), the following formula should be utilized:
Title of Document, WTO Doc Document Number, Date of Document, Pin Cite (Document Description)
Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc WT/L/540, 5 September 2003, para 2(a) (Decision of 30 August 2003).
Preferential Tariff Treatment for Least Developed Countries, WTO Doc WT/L/304, 17 June 1999, paras 1, 2–4 (Decision on Waiver).
Past Negotiations and Consultations on Tropical Products, WTO Doc WT/L/304, 10 February 2005 (Note by Secretariat).
3. Panel, Appellate Body and arbitration decisions
The Dispute Settlement Understanding (DSU) provides for three forms of decision in WTO disputes – decisions of Panels, decisions of the Appellate Body, and decisions of ad hoc compliance arbitrations.
WTO disputes are usually known by both a long and short title. These are assigned by the WTO itself and should be used consistently. Other, informal abbreviations should not be used. For example, the famous decision of the Appellate Body in United States – Import Prohibition of Certain Shrimp or Shrimp Products should the abbreviated to US – Shrimp. The popular alternative name, Shrimp/Turtle should not be used.
The following formula should be used for the citation of WTO cases:
Body, Respondent – Name of Case, WTO Doc Document Number (Date of Decision) para x (Respondent – Short Title).
Subsequent references should be generated according to the following rule:
Body, Respondent – Short Title, para x.
It may be required to cite multiple bodies from the same overall proceeding. Where this occurs, it is not necessary to use the full title of the case if the short title has already been established beforehand. Thus:
Body, Respondent – Short Title, WTO Doc Document Number (Date of Decision) para x).
1 Appellate Body, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WTO Doc WT/DS353/AB/R (12 March 2012) para 45 (US – Aircraft).
2 Art 21.3(c) Arbitrator, Brazil – Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/16, ARB-2008-2/23 (Art 21.3(c) Arbitrator, 29 August 2008) (Brazil – Retreaded Tyres).
3 Panel, US – Aircraft, WTO Doc WT/DS353/R (31 March 2011) para 1.2.
4 Art 21.3(c) Arbitrator, Brazil – Retreaded Tyres, para 2.
International investment tribunal awards have become one of the more common international law sources of recent years. Most commonly, these will either be institutional awards, run under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) or ad hoc awards administered by no institution or perhaps by the Permanent Court of Arbitration.
Unreported investment arbitration decisions
The basic form of an ICSID award is as follows:
Applicant v Respondent, ICSID Case No Case Number (Phase of Proceeding, Date of Award) para x.
The basic form of citation for an ad hoc award is as follows:
Applicant v Respondent, Ad hoc Arbitration (Phase of Proceeding, Date of Award), para x.
Where the ad hoc arbitration is convened under the North American Free Trade Agreement (NAFTA), the following citation should be used:
Applicant v Respondent, UNCITRAL/NAFTA (Phase of Proceeding, Date of Award), para x.
Reported investment arbitration decisions
With respect to most investment arbitrations, both ICSID and ad hoc (but ad hoc especially), it is preferable to refer to a series of reports if at all possible. Likely candidates include the International Law Reports (ILR) or the specialist ICSID Reports. Where a report appears, the following form of citations should be used.
Applicant v Respondent, Phaseof Proceeding(Year of Decision) vol number Report Series start page, pin cite.
When considering unreported investment arbitration decisions, the same rules as other cases apply – no cross-reference is to be used (i.e. ‘above n’ or ‘below n’), but an abbreviated form of the case name should be determined (e.g. Inceysa v El Salvador, or even just Inceysa) and used along with the Phase of Proceeding and Date of Award. No reference to the ICSID Case Number is required. When considering a different phase of the same proceeding, there is no need to refer to the whole case again – just use the abbreviated citation style identifying the new phase of the proceeding and the date.
When considering a reported investment arbitration decision, then the abbreviated title of the case should be given subsequently, along with the full reported citation.
1Tokios Tokeles v Ukraine, ICSID Case No ARB/02/17 (Decision on Jurisdiction, 29 April 2004) para 45.
2Methanex v United States of America, UNCITRAL/NAFTA (First Partial Award, 7 August 2002) para 2.
3SGS Société Générale de Surveillance SA v Philippines, Jurisdiction,(2004) 129 ILR 445, 449 (SGS v Philippines).
4Tokios Tokeles v Ukraine (Decision on Jurisdiction, 29 April 2004) para 46.
6 Fraport AG Frankfurt Airport Services Worldwide v Philippines, ICSID Case No ARB/03/25 (Award, 16 August 2006) para 22 (Fraport v Philippines).
7SGS v Philippines, Jurisdiction (2004) 129 ILR 445, 450.
8Fraport v Philippines (Annulment, 23 December 2010) para 3.
2. Decisions of the International Tribunal for the Law of the Sea
Unreported ITLOS decisions
All decisions of the International Tribunal for the Law of the Sea (ITLOS) will be reported in the ILR eventually. Where such a source is available, it should be used. Until that time, however, editors should use the unreported form of the judgment, which can be found on the ITLOS website.7 The following form of citation should be used:
Case Name (Applicant v Respondent), ITLOS Case No Case Number(Phase of Proceeding, Date of Decision) para x.
Reported ITLOS decisions
Where reported in the ILR, the following form of citation should be used. By way of reference, it is functionally identical to a reported investment arbitration decision.
Case Name (Applicant v Respondent), Phase of Proceeding(Year of Decision) vol number Report Series start page, pin cite.
Apply the same rule as with respect to investment arbitration decisions.
1ARA Libertad (Argentina v Ghana), ITLOS Case No 20 (Provisional Measures, 15 December 2012) para 60.
2Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures (1999) 117 ILR 148.
3 Ibid, 150
4ARA Libertad (Provisional Measures, 15 December 2012) para 62.