The Jurisdictional Conflict Between Regional Trade Agreements and The World Trade Organization
الملخص
The number of Regional Trade Agreements (RTAs) between countries has significantly increased over the past few decades. RTA may include rights and obligations that are parallel to those of WTO agreement, and provide for its own dispute settlement mechanism that is different from WTO Dispute Settlement Understanding (DSU). This forum clause allows parties to both RTA and WTO to litigate their dispute outside the DSU. This article addresses the issue of jurisdictional conflict between the RTAs and the WTO dispute mechanism over a claim that is violative of both WTO and RTA’s obligations.
The main question this article answers is whether it is possible for the forum clause incorporated in RTA to divest the jurisdiction of WTO if invoked during the proceeding. This article analyzes a number of cases and RTAs involving a choice of forum clause before the WTO panel. This paper proceeds to examine different legal principles to find a legal justification to reconcile the jurisdictional scope of both RTA and WTO. As in current international legal principles do not offer an effective solution, this paper suggests that DSU should be amended to provide a set of rules governing the conflict between the RTA and WTO jurisdictions.
المراجع
1. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987
2. Peter R. Barnett, Res Judicata, Estoppel and Foreign Judgments, 2001
3. J.J. Fawcett, Decliding Jurisdiction in Private International Law , 1995
Articles
1. Candice Whyte, Yuval Shany, The Competing Jurisdictions of International Courts And Tribunals, 12 UNIVERSITY OF MIAMI INT’L AND COMPARATIVE L. REVIEW, 2004.
2. Pauwelyn. Joost, ‘The Role Of Public International Law In The WTO: How Far Can We Go?’ 95 (3) 95 J. INT’L L., 535.
3. Henry Gao and C. L. Lim, Saving the WTO From The Risk of Irrelevance: The WTO Dispute Settlement Mechanism As A ‘Common Good’ For RTA Disputes, J. INT’L ECON. L., 904.
4. Hillman, Jennifer, conflicts Between Dispute Settlement Mechanisms in Regional Trade Agreements and the WTO-What, Should the WTO Do, 42 CORNELL INT'L L.J.
5. Kyung Kwak and Gabrielle Marcea, Overlaps and conflicts of Jurisdiction between the World Trade Organization and Regional Trade Agreements, The CanadianYearbook of Int’l L.
6. Jennifer Lan, U.S. and Canadian Trade War over Softwood Lumber: The Continuing Dispute, 13 LAW & BUS. REV.
7. Pauwelyn, Joost, How to Win a WTO Dispute Based on Non-Wto Law? Questions of Jurisdiction and Merits. Journal of World Trade.
8. Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, 21 EUR. INT’L. L.
9. Nguyen Tan Son, Towards a Compatible Interaction between Dispute Settlement under the WTO and Regional Trade Agreements, 5 MACQUARIE J. Bus. L. 113 (2008).
10. Songling Yang, The Ssettlement of Jurisdictional Conflicts Between The WTO and RTAS: The Forum non Convenience Principle, 23 WJILDR.
Treaties
1. WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994).
2. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992.
3. EFTA-Singapore Free Trade Agreement, 26 June 2002.
4. Protocolo de Olivos Para la Solucion de Controversias en el MERCOSUR, Feb. 18, 2002.
5. Vienna convention on the law of treaties.
6. Canada – US Free Trade Agreement, Jan. 2, 1988.
WTO-RELATED Documents
1. DSU, Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994)
2. WTO, Regional Trade Agreements-Facts and Figures: How Many Regional.
3. Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil
4. Ireland v. United Kingdom
5. Panel Report, India- Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R (Dec. 21, 2001). Canada v. USA softwood lumber countervailing and anti-dumping measures
6. Appellate Body Report, United States-Final Dumping Determination on Softwood Lumber from Canada, at Art 21.5, 11 144-147, WT/ DS264/AB/RW (Aug. 15, 2006).
7. Panel Report, Argentina-Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 19 May 2003 (not appealed), 7.38.
Internet Sources:
• WTO, Regional Trade Agreements-Facts and Figures: How Many Regional. Available at: https://www.wto.org/english/tratop_e/region_e/region_e.htm#:~:text=back%20to%20top,Facts%20and%20figures,the%20GATT%20or%20the%20WTO%3F.
Working Paper, and Other Source
• Steger, Debra P., Jurisdiction of the WTO (2004). Proceedings of the 98th Annual Meeting of the American Society of International Law, pp. 142-147, 2004, Available at SSRN: https://ssrn.com/abstract=2467273.
