J.

ROSELIAN

SOME GENERAL OVERVIEW OF THE ELSA MOOT COMPETITION

Some WTO Basics & Terminology
Here's a few basics in case you don't have prior experience with WTO cases (and don't worry
last year the teammates had no prior knowledge of WTO laws, but we managed to be selected!):
- The WTO, as you know, is the organization that negotiates global trade agreements. The most
important of these agreements were completed in 1994, the most well-known of which are
the GATT (which governs trade in goods) and the GATS (which covers trade in services), but
there are many others, which are actually there to compliment the work of GATT, this include
AG for agriculture, SPS for phytosanitary measures, TBT governs technical regulations. And
SCM Agreement for Subsidies and Countervailing Measures which is very relevant in this year
case (last year we had our case focused on GATT and TBT), the SCM Agreement available at
http://worldtradelaw.net/uragreements/scmagreement.pdf.download#page=1
Basically SCM Agreement addresses two separate but closely related topics: 1. Multilateral
disciplines regulating the provision of subsidies, and 2. The use of countervailing measures to
offset injury caused by subsidized imports.
So in these year case you must understand these two concepts in and out,
- Collectively these treaties are called the "Covered Agreements," because they are the relevant
law for the WTO dispute mechanism, the Dispute Settlement Body or DSB. Disputes under the
WTO are governed by the Dispute Settlement understanding or DSU and move through three
phases: First, consultations between the members in dispute (which the record says were tried
here and failed), Second, the dispute goes to a Panel of temporary appointees, and finally,
members may appeal the Panel decision to the Appellate Body or AB. The AB is composed of
7 permanent members, and its rulings have the strongest sway in WTO jurisprudence.
- Unlike some other branches of international law, the WTO is very skeptical about
incorporating any customary law beyond that which is explicitly found in the treaties. One
important exception is the VCLT or Vienna Convention on the Law of Treaties, which the AB
has ruled is to be used for the interpretation of the WTO treaty text. (You'll find language and
citations to this effect in our briefs that I will share with you)

J. ROSELIAN

- The structure of each treaty is similar: There is usually a preamble that explains its purpose,
then a series of articles describing the substantive commitments or disciplines that signatories
have agreed to. Finally, there is an article that describes exceptions, i.e., circumstances under
which Members may deviate or derogate from their commitments --e.g., health, security,
environmental concerns. (For this case, the named exceptions are GATT XX and TBT 2.1.) The
exceptions are slightly different in each treaty and usually contain a "chapeau," which requires
that even exceptional measures must be non-discriminatory and non-evasive.
- When you argue legal points in WTO, you start with the treaty language itself. If the AB or a
panel has previously interpreted the provision, (the best way to know whether there is decision
by the Panel or the AB is by using the WTO analytical index of cases and jurisprudence (the link
has been provided below) you cite this, otherwise you can move to the dictionary meaning. You
can then link your argued interpretation to secondary sources of law, e.g., WTO documents and
announcements beyond the Covered Agreements (e.g. Secretariat rulings) and general principles
(e.g. WTO preamble). However, none of these are binding precedent, only suggestive.
Understanding the Case
Each year ELSA competition is based on a hypothetical case. To provide ideal fodder for debate,
the case is meant to highlight a set of issues that is usually unresolved in WTO case law.
Typically some of the issues raised will be easier for one side and some for the other. For issues
which are harder to your side, there is no need to deny them, it is better to accept them and show
the panelist the positive side of the issue or use an exception to defend your argument (there is no
intelligence in rejecting a true fact)
When you're writing and arguing, you cite the case as "The Record." (E.g., "Record at
paragraph 2 says...".) The final part of the Record are, Legal Claims, which outlines the specific
treaty

provisions

that

the Complainant (Borduria)

is

going

to

allege

that

the

Respondent (Eriador) has violated. These are also called the "Terms of Reference," and it is
unnecessary (and in oral arguments, impermissible) to address issues outside the Terms of
Reference. So for example, even if you thought that Complainant could make a GATT or AG
claim, you should not discuss it because it's outside the Terms of reference.

J. ROSELIAN

Some cases have a lot of jurisdictional or procedural issues that are governed by the DSU.
However, this case does not seem to have any on its face, which is good!
Random Thoughts About the Competition
- Clarifications: ELSA gives a deadline for which you can submit questions about the case, and
the author will give Clarifications. Personally, I think posing clarification questions is a waste of
time: The author is not going to give information that "answers" any of the issues conclusively,
typically it just reiterates a lot of whats in the Record and leaves things unclear. HOWEVER,
when the Clarifications are released (the clarifications questions has been released), you should
read them thoroughly and incorporate any new facts into your briefs. Panelists are impressed
when you can cite to the Clarifications with ease. And the questions other teams ask gives you
an idea of what arguments they will be making.
- Oral Round: This is far in advance, but the key to success in the competition is practicing your
oral arguments so they are polished and you are ready for anything. To achieve this, you want to
find as many moot judges as you can and ask them to hear and question your arguments. People
with WTO knowledge are best, but any professor or lawyer with oral argument skills can give
useful feedback.
The below link will take you to the WTO's index of cases (WTO analytical index of cases).
This is probably the most important resource you have for compiling your case. You can see at
the bottom the index is searchable by agreement and article (e.g. SCM Art. 2.1), so you can use
this to find basic jurisprudence on each of the relevant claims in the case as well as to pull the
cases the author cites as relevant.
http://www.wto.org/english/res_e/booksp_e/analytic_index_e/analytic_index_e.htm
Other usefully links include:
http://www.worldtradelaw.net
https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S005.aspx
http://worldtradelaw.typepad.com
All the best
Jackson Roselian