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A product of fragmentation of international law, the issue of jurisdictional conflicts between the WTO and Regional Trade Agreements is of systemic importance. Not only does it raise the potential problem of inconsistent rulings for WTO/RTA Members, it requires the WTO Tribunal to confront the very nature and scope of its jurisdiction, the admissibility of cases and its applicable law, all highly controversial and unsettled issues in international law. This thesis aims to present a framework that can hopefully serve to offer solutions on the basis of the current WTO legal system. Under this framework, where WTO proceedings are initiated in a genuinely abusive manner, the WTO Tribunal would be able to dismiss the WTO complaint for lack of jurisdiction or on the grounds of inadmissibility. This does not mean a general deference to RTA Tribunals, but, rather, would reflect the WTO Tribunal's cognizance of the relevant WTO Members' true intentions; by giving effect to the Members' true intentions, the WTO Tribunal could mitigate fragmentation of international law, thereby securing and promoting the coherence in the international legal system.
In the last several decades there has been an exponential growth in the number of Regional Trade Agreements (RTAs). In addition to creating a wide overlap of substantive rights and obligations with the World Trade Organization (WTO), many RTAs also incorporate legalized mechanisms to resolve trade disputes, operating in parallel to the compulsory, automatic and exclusive system of dispute settlement under the WTO. This thesis sought to examine the possibility of jurisdictional conflicts between the regional and multilateral mechanisms and address potential ways to respond to this negative phenomenon. To verify the possibility of jurisdictional conflicts, the thesis examined the key features of WTO and RTA dispute settlement, the constituting elements of a jurisdictional conflict, and the practice of jurisdictional interaction between the two systems. This analysis demonstrated that it may be possible for the regional and multilateral mechanisms to exercise jurisdiction simultaneously or consecutively over essentially the same disputes. Importantly, even though this problem has not actually materialized to a substantial extent, future jurisdictional conflicts would still be quite likely, especially when RTA mechanisms may become more established and active over time. It is thus important to think through possible solutions to enhance the compatible coexistence between the WTO and RTA dispute settlement systems.Having determined the possible occurrence of jurisdictional conflicts, the thesis then investigated whether there are norms that can assist a determination as to which forum should have jurisdiction and which one has to give way in cases of jurisdictional conflicts. In doing so, the thesis developed the relevant frameworks to assess the applicability of RTA jurisdiction clauses and common jurisdiction-regulating norms, such as res judicata, lis pendens, forum non conveniens, comity, and abuse of rights, in WTO disputes. The examination revealed that these norms might not be satisfactorily applied in WTO disputes to regulate WTO-RTA jurisdictional conflicts. In the context of WTO law, where the relationship between WTO and RTA dispute settlement is not explicitly regulated, the studied inapplicability of norms determining jurisdictional priority means that multiple proceedings over essentially the same disputes before the WTO and RTA fora might be an unavoidable phenomenon. On the basis of this finding, the thesis turned to a new frontier and investigated whether there may be rules of international law that can enable tribunals to achieve a reasonable level of consistency between them in adjudicating essentially the same disputes. This inquiry established that principles of treaty interpretation, particularly Articles 31(3)(c) and 32 of the Vienna Convention on the Law of Treaties (VCLT), may facilitate the integration of WTO and RTA laws into each other in multiple proceedings, thereby reducing the risk of unreasonably inconsistent interpretations and findings over essentially the same disputes. In the absence of explicit WTO provisions regulating the jurisdictional interaction between WTO and RTA dispute settlement and effective rules to establish jurisdictional priority between the competing proceedings, the interpretative tools appear to provide a practical and promising way to mitigate some negative effects arising from conflicts of jurisdiction.
The last decade has seen an exponential growth in the formation of regional trade agreements (RTAs) and the development of regional dispute settlement mechanisms (DSMs). One of the most significant RTAs is the nascent ASEAN-China Free Trade Area (ACFTA) which has set-up its own untested DSM. There is often considerable overlap between a World Trade Organisation (WTO) Member's treaty obligations under a RTA and under the WTO covered agreements. Accordingly, it is not uncommon for a single trade dispute to give rise to claims for breaches of both regional and WTO treaty obligations. The WTO has a tested DSM for the adjudication of disputes under its multilateral agreements. Nevertheless, the rules it can and will apply to resolve jurisdictional conflicts with regional DSMs remain unclear. This paper explores the propensity for jurisdictional conflict between the WTO and ACFTA DSMs. It then examines the extent to which such conflict can be resolved by the forum selection clause of the ACFTA and the application of Article 41 of the Vienna Convention on the Law of Treaties (VCLT).
Regional Trade Agreements (RTAs) have proliferated at an unprecedented pace since the creation of the World Trade Organization (WTO). Although the WTO legally recognizes countries' entitlement to form RTAs, neither the WTO nor parties to RTAs have an unequivocal understanding of the relationship between the WTO and RTAs. In other words, the legal controversies, the result of uncertainty regarding the application of the WTO/GATT laws, risk undermining the objectives of the multilateral trade system. This research tackles a phenomenon that is widely believed to be heavily economic and political. It highlights the economic and political aspects of regionalism, but largely concentrates on the legal dimension of regionalism. The main argument of the book is that the first step to achieving harmony between multilateralism and regionalism is the identification of the legal uncertainties that regionalism produces when countries form RTAs without taking into account the substantive and procedural aspect of the applicable WTO/ GATT laws. The book calls for the creation of a legal instrument (i.e. agreement on RTAs) that combines all of the applicable law on RTAs, and simultaneously clarifies the legal language used therein. Likewise, the WTO should have a proactive role, not merely as a coordinator of RTAs, but as a watchdog for the multilateral system that has the power to prosecute violating RTAs. The author is aware that political concerns are top priorities for governments and policy makers when dealing with the regionalism problematic. Hence, legal solutions or proposals are not sufficient to create a better international trade system without the good will of the WTO Members who are, in fact, the players who are striving to craft more regional trade arrangements.
Die Arbeit untersucht die Interaktion zwischen den Streitbeilegungsmechanismen, die im Rahmen des SRÜ und des WTO-Abkommens eingerichtet wurden. Sie erforscht zugleich die Herausforderungen, die Streitigkeiten für internationale Gerichte mit begrenzter Zuständigkeit darstellen. Aus Sicht des WTO-Vertrages und des SRÜ gibt die Arbeit konkrete Antworten auf folgende Fragen: Inwieweit können die genannten Entscheidungsgremien angesichts ihrer begrenzten Zuständigkeit auf andere Regeln des Völkerrechts verweisen? Welche Auswirkungen haben die Äußerungen der Gerichte in Bezug auf den WTO-Vertrag und umgekehrt? Wie sollten Gerichte an Streitigkeiten herangehen, die sowohl WTO-Recht als auch Seerecht betreffen? Wie ist ihr Zusammenspiel geregelt? Die Arbeit bietet Lösungen für vielschichtige Streitigkeiten und trägt damit zur Diskussion über das internationale Verfahrensrecht und das Zusammenspiel von Verträgen und Streitbeilegungsmechanismen bei.
This volume contains a collection of studies examining trade-related issues negotiated in regional trade agreements (RTAs) and how RTAs are related to the WTO's rules. While previous work has focused on subsets of RTAs, these studies are based on what is probably the largest dataset used to date, and highlight key issues that have been negotiated in all RTAs notified to the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). New rules within RTAs are compared to rules agreed upon by WTO members. The extent of their divergences and the potential implications for parties to RTAs, as well as for WTO members that are not parties to RTAs, are examined. This volume makes an important contribution to the current debate on the role of the WTO in regulating international trade and how WTO rules relate to new rules being developed by RTAs.
Regional trade agreements (RTAs) have become an indelible feature of the international trading landscape. Most, if not all, RTAs contain provisions that establish procedures for resolving disputes among their signatory members. Yet, the design and functioning of these dispute settlement mechanisms (DSMs) and, more specifically, how they differ from the WTO dispute settlement system remain relatively unexplored. Existing academic literature has primarily focused on the narrow issue of jurisdictional conflict between DSMs of RTAs and the WTO dispute settlement system. Literature mapping out and classifying systematically the DSMs of RTAs is more limited. This research paper goes beyond considering the issue of jurisdictional conflict between the multilateral and "regional" regimes. We map out the DSMs in RTAs that have been notified to the WTO and were in force at the end of 2012, and consider a typology of these DSMs based on their nature and design. We also use the data obtained from our mapping exercise in two ways. First, we identify trends and patterns of use, either regionally or by individual countries, of the different types of DSMs in RTAs. Trends are analysed in relation to five key factors: (i) evolution over time, (ii) level of economic development, (iii) regional characteristics, (iv) level of integration (partial scope agreement, free trade agreement or customs union), and (v) configuration (bilateral or plurilateral). Second, we undertake a "nuts and bolts" analysis of the DSMs of RTAs by examining their approach to various issues in international dispute settlement. Our aim is to draw conclusions about the extent to which the predominant type of DSM in RTAs has features that are different from those of the WTO dispute settlement system.