Can the WTO appellate Body Apply the Domestic Jurisdictional Rules?
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
2. WTO, Regional Trade Agreements-Facts and Figures: How Many Regional. Available: 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.
3. Pauwelyn. Joost, ‘The Role Of Public International Law In The WTO: How Far Can We Go?’, 95 J. INT’L L., 535, 554.
4. Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article 23.
5. 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.
6. WTO, Regional Trade Agreements-Facts and Figures: How Many Regional, supra (n 3).
7. EFTA-Singapore Free Trade Agreement, 26 June 2002.
8. North American Free Trade Agreement Among the Government of the United States of America, the Government of Canada, and the Government of the United Mexican States (NAFTA), 1 January 1994, Chapter Twenty: Institutional Arrangements and Dispute Settlement Procedures Article. 2005(4)(a).
9. NAFTA, Article 2005.6.
10. Hillman, Jennifer, conflicts Between Dispute Settlement Mechanisms in Regional Trade Agreements and the WTO What Should the WTO Do? CORNELL INT'L L.J. 193 (2009), 1.
11. Kyung Kwak and Gabrielle Marcea, Overlaps and conflicts of Jurisdiction between the World Trade Organization and Regional Trade Agreements, 41 THE CANADIANYEARBOOK OF INT’L L., 84, 86.
12. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867.
13. Steger, Debra P., Jurisdiction of the WTO (2004). Proceedings of the 98th Annual Meeting of the American Society of International Law, 142-147, 2004, 3-4.
14. The appellate body overturned DSU decision; however, that does not negate the fact there is a potential jurisdictional conflict. See Appellate Body Report, United States-Final Dumping Determination on Softwood Lumber from Canada, at Art 21.5,
15. Jennifer Lan, U.S. and Canadian Trade War over Softwood Lumber: The Continuing Dispute, 13 LAW & BUS. REV., 209, 214-16.
16. EU-Japan Economic Partnership Agreement (EPA), Article 2.15 (2) (b).
17. Panel Report, Argentina-Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 19 May 2003 (not appealed), 7.38.
18. Pauwelyn, Joost, How to Win a WTO Dispute Based on Non-Wto Law? Questions of Jurisdiction and Merits. Journal of World Trade, 37, 998, 1008.
19. European Commission, signed in 1951, Article 292.
20. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987, 336-7.
21. Peter R. Barnett, Res Judicata, Estoppel and Foreign Judgments, 2001, 92-8.
22. Id, 143
23. Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, 21 EUR. INT’L. L., 13.
24. Hillman, Jennifer, supra (n 13), 203.
25. Nguyen Tan Son, Towards a Compatible Interaction between Dispute Settlement under the WTO and Regional Trade Agreements, 5 MACQUARIE J. Bus. L. 113 (2008), 130.
26. Kyung Kwak and Gabrielle Marceau, Overlaps and Conflict of Jurisdiction Between The WTO and RTAS, conference on Regional Trade Agreements World Trade Organization, 26 April (2002), 7.
