Macquarie Journal of Business Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Macquarie Journal of Business Law |
|
NGUYEN TAN SON[*]
The interaction between dispute settlement under the WTO and that under Regional Trade Agreements (RTAs) has gained a lot of currency in recent years. This results from the fact that while RTAs are conditionally established under the GATT Article XXIV, most of these RTAs provide for their own mechanisms to settle trade disputes. This complex relationship raises many concerns, including the issues of overlaps of jurisdiction between dispute settlement under the WTO and RTAs as well as the isolation in interpreting law between WTO and RTAs’s dispute settlement bodies, which may lead to the fragmentation of international trade law. As will be discussed later, at the present, it can be said that the dispute settlement mechanism under RTAs does not sufficiently constitute a significant threat to the multilateral dispute settlement mechanism of the WTO. Nevertheless, given the increasing complexity of international trade relations as well as the proliferation of RTAs, especially in the condition where many of these RTAs have sophisticated and well-developed dispute settlement, the nature of the relationship between the WTO and RTAs may significantly change in the future. As a result, the world trading system would suffer a serious conflict between these two systems of dispute settlement. Therefore, in order to make the international trade relations more secure and predictable, it is now an appropriate time to think about some solutions that can help to avoid potential problems arising from the interaction between dispute settlement under the WTO and RTAs. It is arguable that in order to have a compatible interaction between these two systems, the issue of overlaps of jurisdiction needs to be effectively dealt with. In addition, there should be mutual recognition in interpreting law by both the WTO and RTA dispute settlement bodies to avoid the threat of fragmentation of international trade law. Accordingly, on the one hand, the panel under RTA dispute settlement should take into account the WTO law as guidance in interpreting and applying law. On the other hand, the WTO should also consider RTAs as a source of international law and as a means to interpret the WTO covered agreements. It should be noted that a clinical isolation of WTO and RTA law might contribute to nothing, but undermining the security and predictability of the world trading system as a whole.
The WTO dispute settlement process can be generally divided into three main stages. The first stage is to make a request for consultations with the other Member(s). The member concerned must reply within ten days, and must enter into good faith consultations within 30 days after receiving the request[1]. The second stage is the recourse to establish a panel if the consultation fails to settle the dispute within 60 days [2]. Unless the parties to a dispute agree otherwise, the panel is composed of three panelists chosen from the lists maintained by the Secretariat[3]. After the establishment of the panel, parties present their submissions to it. The panel then issues its conclusions and recommendations in a final report, which is adopted by the WTO Dispute Settlement Body (DSB) within 60 day, unless there is a consensus against adoption[4]. Parties apply the decisions of the panel or can refuse them. In the later case, they can seize the Appellate Body, which is composed of seven independent personalities[5]. The conclusions and recommendations of the Appellate Body are automatically adopted, unless the DSB decides by consensus not to adopt the report[6]. Lastly, the third stage consists of the implementation of the recommendations (panel or Appellate Body). The implementation of the final decision has to be made for ‘a reasonable period of time’[7]. If the defendant does not conform to the final decision, the plaintiff can impose temporary trade retaliatory measures (i.e. concessions or obligations suspension)[8], and the level of these retaliations is the object of arbitration[9]. Noticeably, any WTO Member can formally participate in the dispute settlement proceedings as either a co-complainant or as an interested third party[10].
In term of principle, WTO dispute settlement is an exclusive system. Article 23 of the Dispute Settlement Understanding (DSU) requires all Members to resort exclusively to WTO dispute settlement mechanism to seek ‘redress’ for a violation of a covered agreement[11]. This article was originally created in order to prevent the United States from making a determination that WTO rules have been violated outside the framework of the DSU[12]. However, in reality this article has a broader application[13]. It has been considered a fundamental factor to attain the objective of the DSU as a mechanism to provide ‘security and predictability’ for the international trading system as set out in the Article 3.2[14]. It is arguable that security and predictability of the international trading system would be seriously undermined if the alleged violation of the WTO law were allowed to be decided outside the mechanism of the DSU[15].
It has been widely accepted that WTO dispute settlement is a relatively successful system. Indeed, it has been used quite extensively since its inception. In the period from 1995 to the time of writing (November 2007), 369 complaints have been filed by both developed and developing countries[16]. The number of requests for consultation is also quite high. For example, from January to November 2007, there have been 60 requests for consultation[17]. Interestingly, over time, developing countries have become more active in participation in the WTO dispute settlement system. Of 369 complaints filed from 1995 to the time of writing, 106 complaints were made by developing countries[18].
The success of the WTO dispute settlement system can be traced to a number of factors. First, since WTO dispute settlement requires a period of consultation, it encourages parties to raise and settle a dispute on a formal or informal basis without going to litigation, which requires intensive resources[19]. Second, the WTO dispute settlement operates in an automatic manner. Accordingly, there is specific time frame for various phases of dispute settlement and mechanisms to ensure that a complaint can be put forwards if it wishes to do so[20]. The ‘blocking’ defects, which used to exist under GATT dispute settlement was eliminated. Under the WTO dispute settlement system, Members cannot block the initiation of a dispute, the establishment of a panel, or the adoption of a panel report[21]. Third, the WTO dispute settlement results in a very thorough vetting of the issues by neutral experts[22]. Such thoroughness comes from the careful approach followed by the panels in considering cases as well as the existence of an appellate review option[23]. Fourth, to some extent, the WTO system has also detailed rules to monitor the compliance of the default parties, including reporting requirements, and the possibility of negotiating compensation or suspending concessions[24].
In general, the DSU is a rule-oriented system. It provides for an independent and rule-based formal dispute settlement mechanism, for which the source of law is essentially the ‘covered agreements’ of the WTO Agreement[25]. Under such a regime, law rather than power would govern the distribution and enforcement of legal rights and duties[26]. This would help to reduce existing disparities of power, protecting legitimate trading interests of members as well as minimizing the abusive exercise of rights[27]. This does not mean that WTO dispute settlement is an ideal system. It has been sometimes correctly criticized that the legalization of the dispute settlement under the WTO requires intensive human and financial resources, which are often lacking in developing countries. In addition, given the existing disparities of market power, the retaliatory remedy seems not an effective measure for developing countries. As a result, developing countries suffer many disadvantages in participating in the WTO dispute settlement system[28].
In the period from 1990s to 2000s, the world trading system has witnessed an amazing proliferation of RTAs[29]. At the time of this writing, only Mongolia does not engage in any RTA[30]. 141 agreements had been notified to the WTO and are still in effect[31]. According to the WTO, there is also a quite substantial number of agreements that are in force but not (or not yet) notified to the WTO[32]. Noticeably, the number of RTAs are continuing to increase; based on the number of agreements that are under negotiations, it is estimated that the world trading system will have around 400 RTAs in force in 2010[33]. Generally, these modern RTAs have formal legal mechanisms for dispute settlement between the parties[34].
This is quite different to older RTAs. Some older agreements have no dispute settlement mechanism, while some others have political rather than legal ones[35]. Nevertheless, the number of older agreements that have added a mechanism for dispute settlement has increased, including the Caribbean Community (CARICOM) and the Southern African Customs Union (SACU) [36]. As a result, only the Australian New Zealand Closer Economic Relations (ANZCERTA or CER) is now the older agreement that provides no mechanism for dispute settlement[37]. Interestingly, the ASEAN Free Trade Agreement (AFTA) not only added but also legalized its existing dispute settlement mechanism[38]. Initially, the ASEAN Agreements provided for a relatively diplomatic dispute settlement with the inception of the Protocol on dispute settlement in 1996. Subsequently, this Protocol was replaced by the 2004 Protocol on Enhanced Dispute Settlement Mechanism, which provides for AFTA a legalistic and rule-based dispute settlement process modeled on the WTO’s Dispute Settlement Understanding[39].
The AFTA legalized dispute settlement has many features in common with the modern RTAs’ dispute settlement[40]. Indeed, many modern RTAs’ dispute settlement mechanisms also resemble the WTO system. Accordingly, while the details may be different from agreement to agreement, these RTAs typically have provisions for consultations to resolve differences. Especially, disputes may be referred to a panel of experts that will issue a report on the merits of the case[41]. This spread of WTO-like dispute settlement mechanisms in RTAs can be arguably seen as an inevitable influence of the success of WTO dispute settlement system. As D Morgan identified: ‘the DSU, and the regime implementing it, has created a standard that has made WTO members that were previously unwilling or thought it unnecessary to adopt a formal adjudiciary system of dispute settlement in PTAs change their approach’[42]. This trend towards a quasi-judiciary model of adjudication can be seen in recent agreements between the EU and some non-neighbouring countries such as Mexico (2000), Chile (2002), or in agreements under negotiations between EC and Mercado Comun del Sur (MERCOSUR), and Gulf Cooperation Council (GCC)[43]. Such formal legal dispute settlement mechanisms can also be found in the Australia’s agreements with Singapore, Thailand and the USA, or in its underway negotiating agreements with ASEAN, Chile, China, the GCC, Japan and Malaysia[44].
Along with the success of WTO legalized dispute settlement, NAFTA, which was the first RTA including binding arbitration procedures[45], also provides some good experience for subsequent RTAs[46]. The most important lesson from NAFTA is that RTAs should embrace a formal legal dispute settlement mechanism, especially those between developed and the developing countries[47]. Noticeably, this lesson has been consistently learnt by parties of NAFTA; all subsequent agreements between NAFTA parties with other countries, such as the EU-Mexico agreement, comprise such quasi-judicial dispute settlement systems[48].
Although there is an obvious trend towards a model of quasi-judicial adjudication among both older and modern RTAs, dispute settlement mechanisms under RTAs in fact have been used much less frequently than WTO dispute settlement. For example, since the entering into force of NAFTA in 1994, there have been only three cases filed under the Chapter 20’s dispute settlement mechanism (two successful Mexican complaints and an unsuccessful US complaint)[49]. This unsatisfactory record raises the question about the effectiveness of NAFTA dispute settlement as well as suggesting that the principal system for resolving this dispute is the WTO, not the NAFTA system[50]. MERCOSUR offers a slightly better picture. Indeed, there have been 14 arbitral decisions since 1992, and all four parties of the MERCOSUR has invoked the system [51]. Nevertheless, it has been argued that the success of MERCOSUR dispute settlement is quite unusual among the general picture of RTAs’ dispute settlement mechanisms[52]. Indeed, many other RTAs have complex dispute settlement mechanisms; but these systems have never been used, for examples, dispute settlement mechanisms under ASEAN[53], or the EU-Mexico and EU- Chile agreements[54].
The above analysis reveals that except for NAFTA and MERCOSUR, dispute settlement in RTAs does not seem as successful as WTO dispute settlement[55]. It has been argued that this is because parties to RTAs do not have trade disputes. However, this line of reasoning seems improper because there is a fact that while many parties to RTAs do not bring disputes to the RTA forum, they are willing to initiate cases against other parties in the WTO forum. It should be noted that there has been 32 cases among NAFTA parties in the WTO, compared to only 3 sate-state cases among these countries in the NAFTA forum[56]. Similarly, parties to MERCOSUR and even ASEAN have brought cases against other parties in the WTO forum. Therefore, there must be some factors that are responsible for the less frequent use of the RTAs’ dispute settlement mechanisms.
One of the most obvious reasons is the nature of the relationship between parties to RTAs. Indeed, the relationship between parties to RTAs is not purely commercial or legal, but quite political and strategic. As D Morgan pointed out that ‘these agreements should be seen as the contemporary equivalents of treaties of friendship, commerce and navigation’[57]. For example, the South American Development Community (SADC) provides that the aim of this treaty is to ‘promote the coordination and harmonization of the international relations of the Member States’[58]. Given this nature, parties to RTA ‘often have a preference for diplomatic resolution of disputes rather than formal adjudicatory’[59]. It is arguably that settling by diplomatic measures permits governments to fully take into account special needs and interests of both parties to a dispute so that it may offer a more desirable outcome than the legal process[60]. As a result, in many cases, parties do not need to use the formal legal mechanism to settle their disputes.
Another explanation for the less frequent use of the RTAs’ dispute settlement mechanisms is that the WTO dispute settlement is a more sophisticated mechanism for resolving disputes than that of RTAs[61]. While many of RTAs’ dispute settlement mechanisms resemble the WTO model, in reality they do not operate in a sophisticated and effective manner like the WTO mechanism[62]. Indeed, there are some features of the WTO, such as the automaticity of the dispute settlement system, that may be duplicated in RTAs; nevertheless, they can never work effectively as expected. For example, the automatically appointing panelists in NAFTA dispute settlement is not operational. In the Mexican Sugar case, the US authorities have refused for more than four years to appoint panelists[63]. More significantly, while WTO panelists and the Appellate Body benefit from assistance of trained experts, there is no truly independent secretariat like this in the RTAs’ dispute settlement procedures so the latter heavily depends on the panelists themselves to do all of the work[64]. Although the decision is made by panelists or the Appellate Body, the adequate assistance from trained experts would permit WTO panelists and the Appellate Body to fully devote their time and effort to the key issues of the case, which may result in a better decision[65].
A third possible rationale for countries to bring trade disputes to WTO forum rather than the RTAs’ ones is that many RTAs lack effective enforcement mechanisms[66]. Therefore, even disputes have been brought to the formal forum; they can only be solved through other measures such as negotiations[67]. In 2006, Canada chose a negotiated settlement for the long-running softwood lumber dispute with the USA, even it had achieved favorable rulings by NAFTA Chapter 19 panels and the Extraordinary challenge Committee[68]. In addition, it is not clear whether the WTO remedies can provide incentive for countries to bring disputes to the WTO forum, it seems that the informal pressures to comply are much greater in the WTO system than a bilateral situation arising under RTAs[69].
The fourth aspect that may significantly lead to scant use of the RTAs’ dispute settlement procedures is that WTO decisions are considered as more legitimate than thosen of the RTAs. Indeed, in terms of neutrality, the WTO provides a more reliable mechanism than those of the RTAs since panelists are typically from neutral states, while the RTAs’ panels may include nationals of the disputing parties such as the case of NAFTA arbitral panels. This may lead to the concerns of favoritism for the panelist’s own country[70]. In addition, the possibility to appeal may contribute to the disparity of use between WTO and RTA dispute settlement mechanisms. This is an important systemic difference between WTO and RTAs, while typically RTAs provide no mechanism to appeal, WTO panel reports are appellable to the Appellate Body. This makes the WTO dispute settlement system more formal, detailed and legally rigorous, and thus more attractive[71]. Moreover, as a multilateral system, the WTO provides a more legitimate result, a result that is more likely to be accepted by member states than RTAs[72].
There are also many other factors which may result in the choice of WTO forum rather than RTAs’ ones. For example, if a party wants to create a multilateral precedence, it may bring the case to the forum of WTO rather than RTAs. It is true that reports of panels and the Appellate Body are binding only on the disputing parties[73]. Nevertheless, the Appellate Body is unlikely to change its mind as well as explicitly overruling previous decisions. As a result, its rulings have some value as precedents. This may be attractiveness, especially for respondents. Indeed, if a respondent can prove that its measures are consistent with WTO law, it would avoid not only similar complaints from its fellow parties but also any WTO member from suing such measures. Similarly, if a complainant can be successful at the WTO level, it not only creates a precedent against its fellow parties, but also all WTO members[74]. This is not to mention the possibility to receive support from third parties when bringing a case to a multilateral forum.
From the above considerations, it can be seen that for various reasons, the WTO is now still a preferable forum for parties to RTAs to resolve disputes with their fellow parties. It seem that currently the RTA dispute settlement processes have not sufficiently constituted a threat to the multilateral forum of the WTO. Although this view is also shared by many highly respected scholars[75], in a world with an ever-increasing number of RTAs, one should not be over-optimistic with this conclusion. Indeed, given the proliferation of RTAs and most of them having formal legal dispute settlement mechanisms as well as the increasing complexity and variety in trading relations, the existence and operation in parallel of two distinct dispute settlement systems but dealing with many similar even identical trade issues would be the seeds of serious conflicts between these systems. The reason why WTO and RTAs’ dispute settlement procedures may be involved in very similar, even identical, trade issues is that RTAs are conditionally established under GATT Article XIV, and typically RTAs explicitly or implicitly incorporate many provisions of the GATT and (prospectively) the WTO. Therefore, if the issues of conflicts between the WTO and RTAs’ dispute settlement mechanisms are not appropriately identified now, the world trading system would suffer serious problems in not so a far distant future. All of these issues will be discussed in the following sections. [76]
The current quite happy co-existence between the WTO and RTAs’ dispute settlement systems may have twofold effects. On the one hand, it reflects the fact that RTAs’ dispute settlement procedures have not been a significant threat to security as well as predictability of the world trading system. Nevertheless, on the other hand, it may lead to the danger of under-estimating the potential impact of the interaction between the WTO and RTAs’ dispute settlement mechanisms. Obviously, the latter is not a desirable trend. If one looks at the nature of the relationship between the WTO and RTAs’ dispute settlement procedures, they may change their mind on the co-existence of WTO and RTAs dispute settlement. Indeed, the nature of this relationship is more complex than it has been often thought. This takes root from the fact that RTAs are conditionally established under GATT Article XXIV for a deeper integration among WTO members[77]. Therefore, the substantive law of RTAs is largely influenced – and indeed, dependent upon – WTO law[78].
In general, this interaction of obligations between RTAs law and WTO law, which governs the nature of the relationship between the WTO and RTAs’ dispute settlement procedures, can possibly be divided into four following types[79].
First, obligations under RTAs that are largely independent from WTO obligations; or in other words, obligations that are not regulated by WTO rules[80]. For example, in the agreement between EU and Chile, preferential schedules of market access commitments for goods and services, provisions on the rights of establishment or capital movements, or title on government procurement (as Chile is not a party to the WTO multilateral Government Procurement Agreement) are areas that are not regulated by the WTO[81]. However, even in such independent areas, it is impossible to say that WTO law does not have any impact on RTA law because many of underlying legal concepts of these obligations are common WTO law[82].
Second, obligations under RTAs that go beyond WTO obligation (so-called WTO-plus provisions)[83]. It should be noted that in establishing such WTO-plus obligations, negotiators are not drawing from blanket piece of paper; on the contrary, they often consider WTO obligations as starting points[84]. Again, to take the EU-Chile Agreement, it can be seen that this agreement seeks to develop disciplines on technical standards and regulations and on sanitary and phytosanitary measures which go beyond the provisions of the WTO, Technical Barriers to Trade (TBT), and Sanitary and Phytosanitary Measure (SPS) Agreements[85].
Third, obligations under RTAs that are a confirmation of WTO obligations[86]. These obligations are often related to trade remedies such as subsidies, safeguards, antidumping and countervailing measure. For example, Article 78 on Antidumping and Countervailing Measures in the EU- Chile agreement is a confirmation of WTO law[87]. Fourth, obligations under RTAs that are implicitly reproduced from WTO provisions[88]. For instance, Article 47 of the EU-Chile Agreement on national treatment of internal taxes and regulations is simply a duplicate of Article III GATT. Similarly, the regulatory provisions on services are largely modeled on the equivalent provisions of GATTs[89].
In terms of principles, disputes concerning the two later types of obligations can be brought to both WTO and RTA forums[90]. On the contrary, disputes about the first and the second types of obligations can only be adjudicated under RTAs (if they can be adjudicated at all)[91]. However, such interaction between the WTO and RTAs’ dispute settlement procedures is much more complicated in reality, and would give rise to many problems for the world trading system. Arguably, two most obvious potential difficulties are overlaps of jurisdiction, and clinical isolation of WTO and RTA law. These issues will be considered in the next following sections.
Overlaps of jurisdiction in dispute settlement can arguably be defined as ‘situations where the same dispute or related aspects of the same dispute could be brought to two distinct institutions or two different dispute settlement systems’[92]. Under certain circumstances, the overlaps of jurisdiction can lead to difficulties concerning ‘forum-shopping’ whereby parties to a dispute would have a choice between two adjudicating bodies or between two different jurisdictions for the same facts[93]. In the situations where dispute settlement processes of two agreements are activated in parallel or in sequence, two types of problems may arise: first, the two dispute settlement mechanisms may claim that they are final jurisdiction (supremacy) and, second, these mechanisms may reach different or even contrary conclusions on the merit of the dispute[94]. There are many types of overlaps, within the scope of the current discussion, an overlap may occur in the following types: (i) when two fora assert to have exclusive jurisdiction over the disputed matter; (ii) when one forum maintains to have exclusive jurisdiction and the other one offers jurisdiction, on a permissive basis, for dealing with the same matter or a related one; (iii) when the dispute settlement mechanism of two different fora are obtainable (on a non-mandatory basis) to consider the same or similar matters. Conflicts may possibly happen in any of these situations[95].
Whether such overlaps can potentially occur between the WTO dispute settlement system and that under RTAs? Unfortunately, to a great extent, the answer is ‘yes’. This is because, as considered in the previous sections, while conditionally established under GATT Article XXIV, most of RTAs have their own dispute settlement mechanisms. Except for custom unions and some other relatively closely related regional ‘communities’ in which members have to bring the dispute to the regional forum, RTAs generally provide for a choice of forum in resolving disputes relating to obligations that are simply a confirmation of WTO obligations or implicitly produced from WTO obligations. This would permit complainants to choose between WTO and RTAs’ dispute settlement mechanisms to solve the dispute[96]. For instance, the NAFTA Article 2005 regulates that a dispute regards a matter arising under both the WTO and NAFTA, in principle, the choice of forum is left to the discretion of the complaining parties[97]. Similar choice of forum clauses can be found in many other agreements such as ASEAN, the EU-Mexico Free Trade Agreement, the United States – Israel Free Trade Agreement, Australian – United States Free Trade Agreement (AUSFTA), or New Zealand – Singapore Free Trade Agreement (ANZSCEP)[98]. However, it should be noted that most of choice of forum clauses are exclusive ones. For example NAFTA Article 2005(6) sets out that ‘once dispute settlement procedures have been initiated … the forum selected shall be used to the exclusion of the other’[99].
The problem is that, as discussed in the previous section, existing in parallel with the RTAs’ dispute settlement mechanisms is the compulsory jurisdiction of the WTO for alleged WTO violations. Article 23 of the DSU obliges that any WTO member seeking redress of an alleged violation by another member of its commitments to ‘have recourse to, and abide by, the rules and procedures’ of the DSU’[100]. Therefore, by simply alleging that a measure affects or impairs its trade benefits, a WTO member is entitled to trigger the quasi-automatic, rapid and powerful WTO dispute settlement process, excluding thereby the competence of any other mechanism to consider WTO law violations[101].
Such compulsory and automatic jurisdiction for WTO alleged violations puts a critical question on the validity of the exclusion clauses under RTAs. It is clear that the intended purpose of exclusion clauses under RTAs is to avoid the overlaps of jurisdiction between RTAs and the WTO. However, it is doubtful whether such exclusion clauses can in reality preclude disputing parties from bringing the same case a second time to another forum[102]. This is because there are many factors that may affect disputing parties in choosing the forum such as process issues, procedural issues, and the possibility to appeal, the possibility to receive the support from third parties[103]. While the extent to which these factors have an effect on disputing parties may be various, the practice has showed that factors like applicable law, enforcement mechanisms and the scope of the precedents have strong impact on the parties’ choices[104]. Accordingly, parties tend to choose the forum at which the applicable law is more favorable for them. They also favour the forum that provides an effective mechanism for enforcement. Similarly, the possibility of creating a multilateral precedent is also an attraction for parties to bring cases to the WTO rather than the RTAs’ forums[105].
More suspiciously, whether such an exclusion provision would suffice to allow a WTO panel to refuse to exercise its jurisdiction in situations where the dispute settlement process of the RTA has been triggered[106]. Given the compulsoriness and automaticity of the WTO process, it is unlikely that a WTO panel would give much consideration to the defendant’s request to stop the procedures just because similar or related procedures are being pursued under an RTA[107]. Precisely this happened in Mexico - Tax Measures on Soft Drinks and Other Beverages[108]. In this case, Mexico alleged that ‘the United States’ claims … [were] inextricably linked to a broader dispute, and that only a NAFTA panel could resolve the dispute as a whole’[109]. On that ground, Mexico requested the panel not to exercise its jurisdiction on this case[110]. Nevertheless, both the panel and the Appellate Body refused Mexico’s request[111]. In upholding the panel’s decision, the Appellate Body held that ‘under the DSU, … [the panel] ha[d] no discretion to decline to exercise its jurisdiction in the case that ha[d] been brought before it’[112]. Noticeably, the Appellate Body held that the decline to exercise jurisdiction on a case that has been properly brought before the WTO would impair the right of Members in seeking ‘redress’ under Article 23[113].
Therefore, the possibility for overlaps of jurisdiction is very obvious. Both the WTO and a RTA’ dispute settlement mechanisms may claim that they have supremacy jurisdiction on a disputed issue. Even worse, since a case concerning similar or the same matters may be heard twice, both at an RTA dispute settlement mechanism and that under the WTO, in parallel or sequence, the WTO and RTA dispute settlement mechanisms may come with different, or even contrary on the similar, even identical issues. This would be a serious problem, undermining the security and predictability of the world trading system. As K Kwar and G Marceau emphasize: ‘contrary findings based on similar rules from [an RTA] and WTO institutions would have unfortunate consequences for the trust that the states are to place in their international institutions’[114].
The WTO panels and the Appellate Body have had several chances to rule out on the issue concerning the validity of exclusion clauses; regrettably, they provide no decisive findings[115]. In the case Argentina-Poultry Antidumping duties[116] concerning Brazil’s complaint about the imposition of antidumping measures by Argentina, the WTO panel held that the exclusion clause was not valid since simply the Protocol of Olivos was signed by parties to MERCOSUR, but not ratified by all of them. The panel went on to conclude that the exclusion clause under MERCOSUR therefore offers parties a choice of forum, but this could not be an exclusive one. The panel gave no opinion on whether its consideration affects the validity of MERCOSUR’s choice of forum clause[117]. Such a careful approach to the exclusion clause was repeated in Mexico - Tax Measures on Soft Drinks and Other Beverages. Indeed, when going beyond the scope of Mexico’s appeal, the Appellate Body did not express its view on ‘whether there may be other circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits of the claims that are before it’[118]. As a result, the issue of overlaps of jurisdiction is still an open-ended question. Disputing parties may not know where the most appropriate forum to bring the dispute to is, or worse, they may intentionally abuse the process. In these cases, the security and predictability of the world trading system would be seriously undermined. The last section will offer several suggestions to avoid these dilemmas, after considering another potential difficulty arising from the interaction between the WTO and RTAs’ dispute settlement procedures.
Although RTAs are separate treaties, it is impossible to consider WTO law and RTA law as totally independent entities. This is because, as so far pointed out, RTAs are conditionally established under GATT Article XXIV for a deeper integration among WTO members. Therefore, there is a strong interaction of obligations between the WTO and RTAs. In many cases, obligations under RTAs are simply a confirmation or implicit reproduction of that under the WTO. It means that the RTAs’ dispute settlement procedures may in reality deal with the same or very similar issues as what a WTO panel or Appellate Body often deal with. Regardless of such close relationship, WTO and RTAs’ dispute settlement have no institutional relationship that can instruct the interpretation as well as application of WTO and RTA law by adjudicatory bodies. Therefore, it is totally reasonable to be concerned about the clinical isolation of WTO and RTA law on issues that are substantially similar. The security and predictability of the world trading system would suffer if disputes concerning very similar issues were to be resolved in inconsistently by the WTO and RTAs’ dispute settlement entities.
It seems that if not effectively addressed, the problem of isolation between WTO and RTA law may potentially happen to the world trading system. The practice shows that although WTO and RTA law is not totally ignored by WTO and RTA adjudicatory bodies, to a great extent, the current integration between RTA law into multilateral WTO legal regime is highly unsatisfactory and ambiguous. It is highly unsatisfactory because there have not been many cases in which WTO and RTA law is taken into account by the other regime’s dispute settlement mechanism. Indeed, while WTO law has been taken into account by a few RTA panels such as NAFTA Chapter 20 panels in Broomcorn Broom[119], Cross-Border Trucking Service[120], ‘the WTO dispute settlement procedure is blind to the fact of an increasing body of [RTA] law and practice around the world’[121]. Indeed, the WTO panels have rejected the relevance of RTA law in interpreting the WTO law in a number of cases. For example, in US-Tuna I[122], the panel held that ‘practice under the bilateral and multilateral treaties cited could not be taken as practice under the General Agreement, and therefore could not affect the interpretation of it’[123]. Surprisingly, in Chile-Price Band System[124], the panel seemed to allude that the WTO Agreement on Agriculture might qualify as a ‘relevant rule for interpretation of Article 24 of the Economic Complementarity Agreement No.35 as well as this Agreement in general, but rejected the reverse reasoning.[125]
The current integration between RTA law into the multilateral WTO legal regime is not only highly unsatisfactory as mentioned but also very ambiguous. This results from the fact that there has been no clear and systematic mechanism for the integration between WTO law and RTAs in the dispute settlement process. As a consequence, where such integration happens, it has been done in an ambiguous and confused manner. For example, in two NAFTA Chapter 20 cases given above, the NAFTA panels seemed to blindly consider WTO rulings as guidance; no significant discussion on the related NAFTA provisions had been given[126]. Arguably, it is highly undesirable for RTA panels to totally ignore the WTO; nevertheless, it is also not a wise idea for RTA panels to completely adopt WTO interpretations where there are like-provisions in the RTAs since they are separate treaties[127]. Similarly, in Korea – Various Measures on Beef[128], although the panel looked at various bilateral agreements between Korea and the disputants to interpret ambiguous WTO provisions, they only considered such bilateral agreement as supplementary means of interpretation[129]. The consideration of RTA law as a subsidiary means is not a reasonable approach. All of these issues will be discussed in the last section.
It can be seen from previous analyses that there are many difficulties arising from the interaction of jurisdiction between the WTO and RTAs’ dispute settlement mechanisms. Two typical potential problems of which are overlaps of jurisdiction and the clinical isolation of WTO and RTA law. Therefore, in order to make the relationship between the WTO dispute settlement system and that under RTAs more compatible in the future, avoiding the danger of fragmentation in international trade law, which has become a big concern in recent years[130], these problems need to be effectively dealt with. This section will provide some solutions to overcoming these difficulties.
As discussed, there could be potential overlaps of jurisdiction between WTO and RTAs’ dispute settlement. Nevertheless, it seems that currently international law does not appear to offer any solution for this problem[131]. Indeed, while GATT Article XXIV does not make any reference to the dispute settlement mechanism of RTAs, the exclusion clauses under RTAs seems not valid in relation to the compulsory jurisdiction for alleged WTO violations provided by Article 23 of the DSU. As a result, a WTO dispute settlement bodies always has the authority and even the obligation to examine claims of WTO violations. WTO members cannot be required, and arguably cannot even agree, to take its WTO dispute to another forum, even if that other forum may be more relevant or better equipped to resolve the sort of disputed problems[132]. However, DSU Article 23 cannot prohibit adjudicators established by other treaties from exercising jurisdiction over claims arising from their treaties’ provisions that operate parallel to, or overlap with, the WTO provisions[133].
Obviously, the current international law cannot effectively deal with the situations where two members are encountered with two treaties that include overlapping and potentially conflicting jurisdiction. The expectation that WTO panels or the Appellate Body can address and resolve this difficulty seems quite impractical. Given the current legal framework of the WTO, the panels and Appellate Body would never give a determinative decision on this issue. It is sure that the WTO adjudicatory bodies fully understand that if they, for example, allow for WTO alleged violations are decided outside the DSU mechanism, WTO members would perceive that their rights under DSU Article 23 are seriously impaired, not only in a legal but also a political sense. This explains why the WTO adjudicatory bodies have been very careful when they did not provide any conclusion on the validity of the RTAs’ exclusion clauses not only in Argentina-Poultry Antidumping duties[134] , but also in Mexico - Tax Measures on Soft Drinks and Other Beverages[135]. Clearly, it seems over-expected to demand WTO adjudicatory bodies to give decisive rulings on the issue of overlaps of jurisdiction between the WTO and RTAs.
Therefore, in order to thoroughly resolve this dilemma, the current author believes that WTO members should negotiate to develop a set of principles that govern the allocation of jurisdiction between the WTO and RTAs. Bearing in mind this approach, the current author also thinks that the negotiation on this issue should take into account, including but not limited to the following aspects.
First, the RTAs’ jurisdiction should be recognized. This is not an unreasonable approach since one of the principles of Public International Law as set out in the Article 33 of the Charter of the United Nations[136] is the principle of ‘free choice of means’. Trade is one of the fields in which parties have the rights to design their own mechanisms to resolve disputes at both multilateral level, as in the WTO, and regional level, as in RTAs[137]. Accordingly, as long as an RTA provides for a dispute settlement mechanism in its text, parties to a treaty may invoke that mechanism to settle a dispute relating to the interpretation and application of that treaty[138]. It should be noted that by initiating a WTO dispute where there is also a mechanism to resolve that dispute under RTAs, the RTA member may nullify the benefits of another RTA member. The WTO explicitly recognizes the legitimacy of RTAs under GATT Article XXIV (with conditions). Why does not WTO also recognize the capacity of the RTAs’ dispute settlement mechanisms in enforcing RTA obligations? It is arguable that if recognized, the RTAs’ dispute settlement procedures can share some burden with WTO dispute settlement rather than undermine the power of the multilateral dispute settlement system.
This light of reasoning should not only be applicable in cases where there is no clear allocation of jurisdiction between the WTO and RTAs, but also in situations where there is an exclusion clause. Accordingly, when the conditions set out in the exclusion clause are met, WTO adjudicatory bodies should give effect to this clause and decline to exercise the jurisdiction[139]. Such an approach goes to the most sensitive issue concerning what is the applicable law before WTO adjudicatory bodies[140]. Some scholars argue that the WTO adjudicatory can only apply WTO rules[141]. If this correct, the exclusion clauses set out in RTAs are never valid before WTO panels or the Appellate Body since they are not WTO covered law. Nevertheless, if the WTO dispute settlement bodies in examining of WTO claims can also take cognizance of provisions of other non-WTO treaties - a position that supported by many scholars[142] as well as the current author - then the exclusion clauses set out in RTAs can be valid before the WTO panels or the Appellate Body. This view is not only consistent with the principle of ‘free choice of means’, but also can effectively deal with the current dilemma about the overlaps of jurisdiction between the WTO and RTAs.
Second, the principle of res judicata can also be taken into account to avoid duplication. The general principle underlying res judicata is that ‘a right, question or fact distinctly put in issue and distinctly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed’[143]. If adopted, this principle can effectively deal with the issue of duplication since it can prevent disputing parties from bringing the same case a second time to another forum. Traditionally, the res judicata requires that three conditions must be met in order to apply such a principle: (i) identity of parties; (i) identity of object or subject matter; and (iii) identity of legal cause of actions[144]. Nevertheless, there should be a flexible approach here. In this regard, the requirements set out in English and American estoppel doctrines could be a good guidance. Under English estoppel doctrine, the identity of cause is not required[145]. The American collateral estoppel doctrine even goes further to recognize ‘the res judicata effect of a judgment to encompass the same issues arising in a different action and even to different parties where the issues have been determined in prior litigation with adequate opportunity to be heard for the party to be precluded’[146] Under such a flexible approach to the res judicata principle, an RTA party can be prevented from bringing a claim previously decided by an RTA panel, or vice versa[147].
Third, another principle that is distinct from res judicata but has a similar effect on preventing needless and costly duplication of proceedings on the same matter, as between the same parties, is the doctrine of abuse of process, and thus needs to be also taken into account[148]. In international law, a state, by initiating a second procedure on the same matter, may be considered as abusing its process or procedural rights[149]. A tribunal should therefore decline jurisdiction if it considers that the proceedings have been triggered to annoy the defendant or that they were frivolous or baseless[150]. The general obligation of states to enforce their treaty obligations in good faith requires them to bring the case to the most appropriate forum[151]. Therefore, it is justified for the WTO adjudicatory to consider consultations and the use of the RTAs’ dispute settlement mechanisms in a context or the efforts to achieve a mutually agreeable resolution to the dispute as a proof of the good faith of its member(s). Once consultations have been requested by a party, another party must respect and become involved in this procedure in a good manner[152]. Failing to do so should be considered as a basis for WTO adjudicatory bodies to refuse exercising jurisdiction.
It is arguable that in order to have a compatible relationship between the WTO and RTAs’ dispute settlement procedures, there should be a mutual recognition of law between these two regimes in their interpretation processes. On that ground, not only WTO law should be viewed as a guide for the RTAs’s dispute settlement procedures in interpretation of RTA obligations, but also the WTO should consider RTA law as a means to interpret WTO covered agreements. Doing so may help the WTO and RTAs dispute settlement gradually integrate into each other, resulting in a happier co-existence between these two regimes.
Indeed, since many RTA obligations are simply a confirmation or reproduction of WTO obligations, there is a strong rationale for RTA dispute settlement bodies to refer to and reply on WTO law, including case law, in interpreting these WTO-modeled provisions. Doing so would make the interpretation of RTA obligations more consistent with WTO principles. This is very important since it contributes to the predictability of the RTAs’ dispute settlement procedures; parties to such treaties would be better advised on potential interpretation under RTAs[153]. In addition, the preference on WTO law would permit the RTAs’ dispute settlement mechanisms be able to draw on the expertise of WTO dispute settlement system in development of their own legal concepts and principles[154]. More importantly, the preference on WTO law can also help to ameliorate the potential fragmentation of international trade law by significantly eliminating the possibility that the WTO and the RTAs’ dispute settlement mechanisms would reach different conclusions on similar even the same issues. Given the above advantages, where relevant, the RTAs’ dispute settlement bodies should refer to, and reply on WTO law in interpretation of their RTA obligations.
The only issue is how should RTA adjudicatory bodies make a preference to WTO law? The analyses in the previous section have pointed out that current consultations by RTA adjudicatory bodies to WTO law are unsatisfactory and ambiguous since there is no clear mechanism for this preference to be conducted. As a result, WTO law may be totally ignored or blindly adopted in the interpretation of RTA obligations. Both of these extreme trends are undesirable. Therefore, there should be a mechanism for making a preference to WTO by RTA adjudication bodies. It is arguable that since RTAs are separate treaties, they should first be viewed in accordance with Article 31 and 32 of Vienna Convention on the Law of Treaties(VCLT)[155] in the light of their text, context and objective[156]. Where there is a language in the RTA that is similar or identical to the WTO treaty language, an RTA panel have to interpret the RTA language in accordance with these principles[157]. In the light of that RTA’s text, context and objective, the RTA panel may come to an interpretation that may be similar or different from what is in a particular WTO case. It is not a problem for an RTA panel to have a different interpretation from that of the WTO, since an RTA interpretation must be primarily based on its text, context and objective[158]. As observed elsewhere, ‘the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to differences in the respective contexts, objects and purpose, subsequent practice of parties and travauxe prepatoires’[159]. In general, RTA panels should not completely ignore the WTO law, but it is also not a wise idea for them to slavishly and blindly refer to WTO law.
In order to have a compatible interaction between the WTO and RTAs’ dispute settlement procedures, taking into account the law of another regime is not only the requirement for RTA dispute settlement, but also for the WTO adjudicatory bodies. Accordingly, RTA law should be considered as a means to interpret WTO covered agreements. The ground for this is the Article 31(3)(c) of VCLT, which requires that the interpretation of a treaty shall take into account, along with the context of the treaty, ‘any relevant rules of international law applicable in the relations between the parties’[160]. Nevertheless, as analyzed in the previous part, this point has been taken for granted by WTO adjudicatory bodies. They may reject the idea that RTAs should be consulted to interpret WTO covered agreements as in Broomcorn Broom[161], Cross-Border Trucking Service[162]; or they just refer to RTAs as a subsidiary means of interpretations, as in Korea – Various Measures on Beef[163]. As a result, as pointed out by I V Damme, ‘after ten years of WTO dispute settlement, there is little or no mention of Article 31(3)(c) VCLT in the case law of panels and the Appellate Body’[164].
Obviously, WTO adjudicatory bodies should not overlook Article 31(3)(c) VCLT in interpretation of WTO covered agreements. It should be noted that the good faith obligation in interpretation set out in Article 31(1) [165] ‘encapsulate[s] a presumption that states negotiate treaties taking into account all relevant international law’[166]. Noticeably, the source referred to in Article 31(3)(c) VCLT is an authentic rather than a secondary means of interpretation. Therefore, Article 31(3)(c) VCLT should be read as a further elaboration and application of the obligation to interpret a treaty in good faith; WTO dispute settlement bodies should not avoid it to justify the recourse to rules of international law such as rules of RTAs[167]. More importantly, in the context where there is an emergence of specialized and semi-autonomous sub-systems of international law, it is necessary to have build-in-guarantees for coherence between these various systems. Article 31(3)(c) VCLT can be seen as one of such tools to achieve a ‘certain degree of synchronization between these sub-systems of international law, through the interpretation of treaties in the context of other rules of international law’[168]. Arguably, the application of Article 31(3)(c) to justify the recourse to RTA law thus does not undermine the security and predictability of the world trading system; instead, it is a means to stabilize and structure the international trade law in a world with an ever-increasing number of RTAs[169].
The difficulty with this argument is that the term ‘parties’ set out in Article 31(3)(c) VCLT is quite ambiguous. From textual analysis, it is not clear whether the term ‘parties’ means disputants or all members of the WTO. If Article 31(3)(c) required a rule of international law to be applicable between all WTO members in order to be taken into account in interpreting WTO law, this would strongly limit the amount of rules relevant for the interpretation of WTO law and would exclude bilateral and most multilateral treaties such as RTAs[170]. However, while the text of WTO agreements should reflect the common intentions of all WTO members[171], it does not mean that the means to interpret such agreements should be binding on, or reflect the intentions of all WTO members[172]. It should be noted that an interpretation given by a panel or the Appellate Body is not binding on other panels and Appellate body reports. The consideration of an RTA to which not all WTO members are parties in a particular dispute, therefore, does not affect the rights of those who are not bound by that treaty[173].
In short, WTO panels or the Appellate Body may consult and examine the RTAs’ law when interpreting WTO law if such treaties are binding on, or relevant to the parties to a dispute. As discussed, such consultation and examination would enhance rather than undermine security and predictability of the world trading system.
The paper has provided an analysis on the relationship between the dispute settlement mechanism under the WTO and that under RTAs. It suggests that dispute settlement mechanisms under RTAs have not been a significant threat on the multilateral dispute settlement regime. Nevertheless, given the proliferation of RTAs, especially in the condition where most of them include quasi-judicial mechanisms for dispute settlement, it is argued that such a conclusion about the happy co-existence between these two dispute settlement regimes seems no longer true in the future. Indeed, it has been pointed out that among potential difficulties arising from the interactions between WTO and RTAs’ dispute settlement, the possibility for overlaps of jurisdiction and the danger of clinical isolation between WTO and RTA law are the most obvious ones. The paper therefore argues that in order to have a compatible relationship between WTO and RTAs’ dispute settlement, which may significantly enhance the coherence of international law, these potential problems must be eliminated. Since current international law does not appear to offer any practical solution on the issues of overlaps of jurisdiction, it is believed that WTO members should negotiate to develop a set of principles that can govern the allocation of jurisdiction between the WTO and RTAs. Some aspects that should be taken into account in such negotiation are also discussed. The other solution that would help to eliminate the possibility of clinical isolation between WTO and RTA law is also given in this paper. Accordingly, it is suggested that there should be a mutual recognition of law between the WTO and RTA adjudicatory bodies in their interpretation process. The current author strongly believes that if the above suggestions are realized, WTO and RTAs’ dispute settlement can gradually integrate into each other, bringing more security and predictability to the world trading system.
[*] N T Son is a post-graduate student at the Law Faculty, the University of Melbourne. Email: tansonpvdn@yahoo.com.
[1] DSU, Article 4.3.
[2] DSU, Article 4.7 and 4.8.
[3] DSU, Article 8.4 and 8.5.
[4] DSU, Article 16.4.
[5] DSU, Article 17.1.
[6] DSU, Article 17.4.
[7] DSU, Article 21.3.
[8] DSU, Article 22.
[9] DSU, Article 22.7.
[10] DSU, Article 9.1 and 10.2.
[11] DSU Article 23.
[12] D Morgan, ‘Dispute Settlement under PTAs: Political or Legal?’, Printed Material - Free Trade Agreements, Melbourne Law School (2007) 261.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] WTO website, Dispute Settlement Pages,
www.wto.org/English/tratop_e/dispu_e/dispu_e.htm at 15 November 2007.
[17] Ibid.
[18] Ibid.
[19] W J Davey, ‘Dispute Settlement in the WTO and RTAs: A Comment’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 343, 345.
[20] Ibid.
[21] C P Bown, ‘Participation in WTO Dispute Settlement: Complainants, Interested Parties and Free Riders’(2005) 19(2) The World Bank Economic Review 287, 293.
[22] W J Davey, above n 19, 346.
[23] Ibid.
[24] Ibid.
[25] M R Islam, International Trade Law of the WTO (2006), 428.
[26] G Shaffer, ‘Weaknesses and Proposed Improvements to the WTO Dispute Settlement System: An Economic and Market-Oriented View’ (Paper presented at the conference: The WTO at 10: A Look at the Appellate Body, São Paulo, Brazil,15-17 May 2005).
[27] M R Islam, above n 25,28.
[28] See, for example, R Abbott, ‘Are Developing Countries Deterred from Using The WTO Dispute Settlement System?’ (Working Paper No 01, European Centre for International Political Economy (ECIPE) 2007); C Bown, ‘On the Economic Success of GATT/WTO Dispute Settlement’ 86 The Review of Economics and Statistic 811(2004); C Bown, ‘Participation in WTO Dispute Settlement: Complainants, Interested Parties and Free Riders’ 19(2) The World Bank Economic Review 287(2005).
[29] For a critical analysis on RTAs’ proliferation and dispute settlement, see D Morgan, ‘Dispute Settlement under PTAs: Political or Legal ?’, Free Trade Agreements: Printed Materials, Melbourne Law School (2007) 249-264.
[30] Ibid, 250.
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Ibid, 251.
[35] Ibid.
[36] Ibid, 251-252.
[37] Ibid, 251.
[38] Ibid, 252.
[39] Y Luo, ‘Dispute Settlement in the Proposed East Asia Free Trade Agreement: Lessons Learned from the ASEAN, the NAFTA, and the EU’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006) 419, 431.
[40] D Morgan, above n 12, 252.
[41] W J Davey, above n 19, 349.
[42] D Morgan, above n 12, 252.
[43] I G Bercero, ‘Dispute Settlement in European Union Free Trade Agreements: Lessons Learned ?’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006) 383, 387-389.
[44] D Morgan, above n 12, 252.
[45] I G Bercero, above n 43, 390.
[46] D Morgan, above 12, 252.
[47] Ibid.
[48] Ibid.
[49] NAFTA Secretariat Wedsite
<http://www.nafta-sec-alena.org/DefaultSite/index_e.aspx?DetailID=5>
at 15 November 2007.
[50] W J Davey, above n 19, 351.
[51] MERCOSUR Wedsite < http://www.sice.oas.org/Dispute/mercosur/ind_s.asp>
at 15 November 2007.
[52] W J Davey, above n 19, 352.
[53] Ibid, 353.
[54] E R Robles, ‘Political & Quasi-Adjudicative Dispute Settlement Models In European Union Free Trade Agreements Is the quasi-adjudicative model a trend or is it just another model?’ (Staff Working Paper ERSD-2006-09, WTO, 2006), 29.
[55] W J Davey, above n 19, 354.
[56] D Morgan, above n 12, 253.
[57] Ibid, 255.
[58] SADC Treaty, Article 5.2 (h).
[59] D Morgan, above n 12, 256.
[60] Ibid.
[61] W J Davey, above n 19, 354.
[62] Ibid, 355.
[63] Mexico - Tax Measures On Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (2006) [54] (Report of the Appellate Body).
[64] David A. Gantz , ‘The United States and NAFTA Dispute Settlement: Ambivalence, Frustration and Occasional Defiance’ (Discussion Paper No. 06-26 The University of Arizona, James E. Rogers College of Law, 2006) 26.
[65] W J Davey, above n 19, 354.
[66] D Morgan, above n 12, 256.
[67] Ibid.
[68] Ibid.
[69] W J Davey, above n 19, 355.
[70] David A. Gantz , above n 64, 26.
[71] J Pauwelyn, ‘Going Global, Regional, or Both ? Dispute Settlement in the South American Development Community (SADC) and Overlaps with the WTO and Other Jurisdictions’ (2003) Minnesota Journal of Global Trade 231, 259-260.
[72] W J Davey, above n 19, 356.
[73] DSU, Article 3.2, 3.4, 19.2.
[74] J Pauwelyn, above n 71, 261-262.
[75] See, for examples, D Morgan, ‘Dispute Settlement under PTAs: Political or Legal?’, Printed Material - Free Trade Agreements, Melbourne Law School (2007) 263; W J Davey, ‘Dispute Settlement in the WTO and RTAs: A Comment’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 343, 357; A D Mestral, ‘NAFTA Dispute Settlement: Creative Experiment or Confusion?’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 359, 381.
[76] I would like to thank Mr D Morgan for his useful instructions on this argument.
[77] GATT, Article XIV.
[78] M J Trebilcock and R Howse, Regulation of International Trade (3rd, 2005), 142; I G Bercero, 399.
[79] I G Bercero, above n 43, 399.
[80] Ibid, 400.
[81] The EU-Chile Agreement,
<http://www.bilaterals.org/IMG/html/EU-CL_assoc_agreement-2.html>
at 18 November 2007.
[82] I G Bercero, above n 43, 400.
[83] Ibid.
[84] Ibid, 401.
[85] The EU-Chile Agreement,
<http://www.bilaterals.org/IMG/html/EU-CL_assoc_agreement-2.html>
at 18 November 2007.
[86] I G Bercero, above n 43, 400.
[87] The EU-Chile Agreement, Article 74.
[88] I G Bercero, above n 43, 400.
[89] Ibid.
[90] D Morgan, above 12, 259.
[91] Ibid.
[92] K Kwar and G Marceau, ‘Overlaps and Conflicts of Jurisdiction between the World Trade Organization and Regional Trade Agreements’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 465, 467.
[93] Ibid.
[94] Ibid.
[95] Ibid.
[96] D Morgan, above n 12, 259.
[97] NAFTA, Article 2005(1).
[98] J Pauwelyn, above n 71, 266-286.
[99] NAFTA, Article 2005(1).
[100] DSU, Article 23.
[101] K Kwar and G Marceau, above 92, 466, 467.
[102] Ibid, 471.
[103] D Morgan, above 12, 260.
[104] Ibid 261.
[105] Ibid 261.
[106] Ibid.
[107] Ibid, 469.
[108] Mexico - Tax Measures On Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (2006) (Report of the Appellate Body).
[109] Ibid, [54].
[110] Ibid, [42].
[111] Ibid, [5, 57].
[112] Ibid, [57].
[113] Ibid, [53].
[114] Ibid, 474.
[115] D Morgan, above n 12, 260.
[116] Argentina-Poultry Antidumping Duties, WTO Doc, WT/DS241/R (2003) (Panel Report)
[117] D Morgan, above n 12, 260.
[118] Mexico - Tax Measures On Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (2006) [54] (Report of the Appellate Body).
[119] NAFTA Chapter 20 Panel Report, US Safeguard Action Taken on Broomcorn Brooms from Mexico (1998).
[120] NAFTA Chapter 20 Panel Report In the Matter of Cross-Border Trucking Service (2001).
[121] A D Mestral, ‘NAFTA Dispute Settlement: Creative Experience or Confusion?’, in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 359, 366.
[122] US-Tuna I, WTO Doc, DS29/R (1994) (Panel Report).
[123] Ibid, [5.19].
[124] Chile- Price Band System, WTO Doc WT/DS207/R (2002) (Panel Report)
[125] I V Damme, ‘What role is there for Regional International Law in the Interpretation of the WTO Agreements ?’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 553, 570.
[126] L Hsu, ‘Applicability of WTO Law in Regional Agreements: Identifying the Link’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006), 525, 543-547.
[127] Ibib, 529.
[128] Korea – Various Measures on Beef, WTO Doc, WT/DS161/R (2001) (Appellate Body Report).
[129] Ibid, [539].
[130] See, for examples, for a deep discussion on this issues, R Higging, ‘A Babel of Judicial Voices ? Ruminations from the Bench’ (2006) 55 International and Comparative Law Quarterly 719; Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversion and Expansion of International Law’, UN Doc A/CN.4/l.682 (2006).
[131] K Kwar and G Marceau, above n 92, 484.
[132] Ibid.
[133] K Kwar and G Marceau, above n 92, 476.
[134] Argentina-Poultry Antidumping Duties, WTO Doc, WT/DS241/R (2003) (Panel Report)
[135] Mexico - Tax Measures On Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (2006) (Report of the Appellate Body).
[136] Charter of the United Nations article 33.
[137] E R Robles, above n 54, 5.
[138] K Kwar and G Marceau, above n 92 476.
[139] J Pauwelyn, above n 71, 286-289.
[140] Ibid, 286.
[141] See, for example, J P Trachtman, ‘The Domain of WTO Dispute Resolution’ (1999) Harvard International Law Journal 333; G Maceau, ‘Conflicts of Norms and Conflicts of Jurisdiction: The Relationship between WTO Agreement and MEAs and Other Treaties’ (2001) 35 Journal of World Trade 1081
[142] J Pauwelyn, above n 71, 286; J Pauwelyn, “Adding Sweeteners to Soft Lumber: The WTO-NAFTA ‘Spaghetti Bowl’ is Cooking”, (2006) 9 Journal of international Economic Law 197, 201.
[143] Amco Asia Corp v Indonesia, 1988 89 I.L.R 368, 560.
[144] V Lowne ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8AFR. J.IIN’T.COMP.38, 40.
[145] J Pauwelyn, above n 71, 292.
[146] E F Scoles et al, Conflict of Laws (2000), 1141.
[147] J Pauwelyn, above n 71, 286.
[148] J Pauwelyn, above n 71, 293.
[149] K Kwar and G Marceau, above n 92, 478.
[150] Ibid.
[151] Ibid.
[152] Ibid.
[153] L Hsu, above n 126, 551, 552.
[154] Ibid, 552.
[155] Vienna Convention on the Law of Treaties, Article 31, 32.
[156] L Hsu, above n 126, 541.
[157] Ibid
[158] Ibid.
[159] Mox Plant Case (Ireland v United Kingdom), Order on Provisional Measures (2002) 41 ILM 405, 413.
[160] Vienna Convention on the Law of Treaties, Article 31(3)(c).
[161] NAFTA Chapter 20 Panel Report, US Safeguard Action Taken on Broomcorn Brooms from Mexico (1998).
[162] NAFTA Chapter 20 Panel Report In the Matter of Cross-Border Trucking Service (2001).
[163] Korea – Various Measures on Beef, WTO Doc, WT/DS161/R (2001) (Appellate Body Report).
[164] I V Damme, above n 125, 556.
[165] Vienna Convention on the Law of Treaties, Article 31(1).
[166] I V Damme, above n 125, 556.
[167] Ibid, 557.
[168] Ibid, 561.
[169] Ibid.
[170] W Weiss ‘Security and Predictability under WTO Law’ (2003) 2 World Trade Review 183, 195.
[171] J Pauwenlyn, Conflict of Norms in Public International Law-How WTO Law Relates to Other Rules of International Law (2003), 257, 261.
[172] I V Damme, 559.
[173] W Weiss ‘Security and Predictability under WTO Law’ (2003) 2 World Trade Review 183, 195.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MqJlBLaw/2008/6.html