EU courts
There is no general direct effect to WTO obligations attributed by the EU courts, but there is a possible scope for indirect effect via consistent interpretation within the EU. If it is possible for a measure to be consistently interpreted with an international law obligation, it should. In the EU case and opinion of Advocate General Kokott, Opinion in Case C-66/18 Commission v Hungary “Hungary must treat foreign (…) institutions equally.” further evidencing that the CJEU does attempt if not stringently abide by its international obligations set forth in the GATT. Looking at this, in line with the EU perspective, then EU would or can declare national legislation incompatible with international law. If a EU court were to rule on the case at hand then following the precedent of C-149/96 Portugal v Council (1999) ECR 1-8425 where, in specific cases ”the Court must review the legality of the Community measure in the light of the GATT rules.” Case C-280/93, Germany v. Council (Bananas) had a similar approach where d preferential treatment to bananas originating from various jurisdictions.
However, certain countries, including the USA, were not among those receiving preferential treatment. The outcome was that Germany challenged the Regulation 404/93 in front of CJEU where the latter decided that held that despite GATT provisions binding on the Community, the spirit, general scheme and terms of GATT should be considered. This evidences that the CJEU has created an unwritten, covert rule for WTO law to have effect in national courts. Furthermore, there are a number of decisions which mention the effects of international law where the Court of Justice may review the legality EU acts in the light of the WTO rules. Where the EU measure refers expressly to a precise provision of the agreement (Case 70/87, Fediol) Where the EU has intended to implement a particular obligation assumed in the context of the WTO (e.g. AntiDumping Agreement). Case C-69/89, Nakajima.
US Courts:
'From a US perspective, US courts only interpret international rules insofar as they contain unambiguous wording. The Case of Charming Betsy established that US courts ought to interpret statutes in conformity with WTO law and give it an indirect effect. Later, another US case establishing the Chevron doctrine recognized that when domestic statute is unambiguous the courts are not required to take account of international obligations. The US case Chevron, when read with the Charming Betsy argument is triggered where a statute is unclear as to the wording of a statute; where the statute is unambiguous, the statutory language prevails and any international obligation is not deemed to be relevant. According to URAA there are no possibilities for WTO law to have direct effect in US courts. Lastly, as per opinion of Advocate General Kokott, Opinion in Case C-66/18 Commission v Hungary “Hungary must treat foreign (…) institutions equally.” further evidencing that the CJEU does attempt, if not stringently abide by its international obligations set forth in the GATT. Looking at this, in line with the EU perspective, then EU would or can declare national legislation incompatible with international law. In conclusion, it is “not possible to offer a firm view on whether consistent interpretation in the EU is a stronger technique of connecting the EU and WTO legal systems than the Charming Betsy canon in the U.S.”4 Moreover, within US legislation it has been made clear that Section 102(a)(1) of the URAA states that “[n]o provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.” Thus there is a higher chance of the Swedish company succeeding in the EU courts as they are more WTO compliant than the US.
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