On a Coherence Approach towards Jurisdictional Conflicts between the WTO and RTAs
Date Issued
2009
Date
2009
Author(s)
Chen, Chun-ming
Abstract
ABSTRACThe phenomenon of fragmentation of international law, both in its normative and institutional aspects, has generated much concern over the past decades, together with the surge of specialized rule-systems and various treaty-based international tribunals. Albeit that, the principle of harmonization in international law seeks to secure certain level of coherence and identify a meaningful relationship between different norms of international law. This is achieved mainly through the systemic integration as promoted by Article 31(3)(c) of the Vienna Convention on the Law of Treaties, as well as relevant conflict-resolution techniques that would serve to justify a choice of priority to norms of international law that genuinely conflict. As such, the normative aspect of fragmentation in international law can be alleviated, and coherence of the international legal system secured.s a specific facet of the institutional fragmentation in international law, the fragmentation between international tribunals is resulted from poor levels of coordination and interaction between different tribunals created by different treaty regimes. The most acute consequence is the risk of inconsistent and mutually conflicting judgments/rulings that may be rendered by different tribunals in respect to the same or similar matters.o increase coherence, international tribunals generally can resort to certain traditional jurisdiction-regulating norms, such as lis alibi pendens, res judicata and comity, so as to minimize jurisdictional conflicts. However, in the context of jurisdictional conflicts between the WTO Tribunal and RTA Tribunals, particular difficulties are encountered. As identified and classified in this thesis, certain types of RTA jurisdictional clauses not only preserve jurisdiction exclusively to RTA Tribunals, but also preclude RTA parties from instituting WTO litigation over a matter which is amendable to the jurisdiction of RTA Tribunals. In certain circumstances, a WTO Member may decide to initiate WTO litigation even though doing so would breach such RTA jurisdictional clauses, and upon legal analysis, the manner in which such WTO litigation is instituted may be considered to be genuinely abusive. Indeed, this is a real possibility, in light of past cases (e.g. Mexico – Taxes on Soft Drinks) as well as the proliferation of RTAs. When that happens, the manner in which the WTO Tribunal approaches such problem would be of cardinal and systemic importance. If the WTO Tribunal entertains such claims without paying any regard whatsoever to the abusive manner in which the WTO litigation is instituted, it would seem to depart from the principle of harmonization in international law and thereby undermine its own legitimacy, as the WTO Tribunal may ultimate rule in a way that is irreconcilable with a ruling by the relevant RTA Tribunal over the same dispute. On the other hand, if the WTO Tribunal wishes to confront this issue and take into consideration the abusive manner in which the WTO litigation is filed, the RTA jurisdictional clauses in question as well as contemplate the possibility of applying jurisdiction-regulating norms, the WTO Tribunal would need to face another highly controversial issue that has long divided commentators: whether, and if yes to what extent, can the WTO Tribunal apply these norms of international law that stand outside the four corners of the WTO legal system. Indeed, it appears that the WTO Tribunal would easily find its own hands tied up.o address these issues, this thesis first examines the jurisdictional scope of the WTO Tribunal. In the course of this, several significant points are made, including that the jurisdiction of the WTO Tribunal, as a treaty-based international tribunal, is also consent-based, and that there is a need to maintain a distinction between jurisdiction and admissibility, both of which can serve as legal basis for preliminary objections that would, if sustained, preclude the WTO Tribunal from entering into the merits of a dispute. Also, this thesis submits that the right to initiate WTO litigation, as provided for in Article 23.1 of the DSU, is by no means an absolute one.urning to one of the most controversial issue concerning the applicable law in WTO dispute settlement, this thesis surveys relevant academic views that seem to stand diametrically opposed to each other, and, upon engaging in critical analysis of these divergent views, this thesis seeks to identify unity within diversity and endeavors to bridge the chasm. The conclusion thus attained is: in the determination of procedural issues that are not dealt with anywhere in the DSU, the WTO Tribunal, for the purpose of discharging its judicial functions, is in the position to have recourse to norms of international law external to the WTO legal system. Though this, the WTO Tribunal is fully capable of applying certain jurisdiction-regulating norms as well as relevant RTA jurisdictional clauses for the purpose of ascertaining whether and how its jurisdiction is affected in situations where WTO litigation is being abused.n light of the desirability that the WTO Tribunal confront these issues of systemic importance, this thesis aims to present a framework, consisting of two tracks of analysis, that can hopefully serve to offer solutions on the basis of the current WTO legal system as it stands today. Under this framework, where WTO proceedings are initiated in a genuinely abusive manner, the WTO Tribunal would be able to, and indeed expected to dismiss the WTO complaint for lack of jurisdiction or on the grounds of inadmissibility. To do this is not to show 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 in both the normative sense and the institutional sense, thereby securing and promoting the coherence in the international legal system.
Subjects
admissibility
applicable law
coherence
conflict
jurisdiction
lex specialis
lex posterior
regional trade agreement (RTA)
systemic integration
treaty interpretation
World Trade Organization (WTO)
SDGs
Type
thesis
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