Analogy in the Jurisprudence of World Trade Organization: Its Applicability & Inclusion
Heidar Piri
1
(
Assistant Professor, Law Department, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran.
)
wrya hafidi
2
(
Department of Shafi Jurisprudence, Faculty of Humanities and Social Sciences, university of kurdistan, sanandaj, iran
)
Keywords: Analogy, , , , , Legal Reasoning, , , , , WTO, , , , , Panel, , , , , Appellate Body,
Abstract :
Despite some differences, analogy accepted as one of the flexible and practical method in inference of religious laws among most Islamic schools and its origin goes back to the origin of jurisprudence itself. Analogy is not limited to Islamic jurisprudential-legal system and has been recognized in other legal systems, including the international law system. Analogical reasoning has been used repeatedly in the World Trade Organization Dispute Settlement Body (the DSB Panels and the Appellate Body) on different occasions. Although the DSB Panels and the Appellate body has been silent, in most cases, about resorting to analogy; it could be argued that analogy plays an important role in the reports of the Panels and the Appellate body, as a means of filling gaps, eliminating the ambiguity and brevity in the WTO agreements, as well as identifying the sources of international law.This paper analyzes the role of analogy in the judicial procedure and agreements of the WTO. The practice of the WTO clearly shows that in determining the meaning of the provisions of treaties, the scope of a right or obligation, clarifying the content of the rules and its effective role in the interpretation process, the Panels and the appellate body resort to analogical reasoning as a rational solution or a criterion. In addition, by analogy, the WTO legal system typically ensures the coherence and predictability of the Panels and the Appellate body reports,which are vital for any judicial mechanism and reinforce an understanding of the legality and fairness of the system
