Overcoming jurisdictional isolationism at the WTO - FTA nexus: A potential approach for the WTO

European Journal of International Law

Volumn 19, Issue 3, 2008, Pages 571-599

  Henckels, Caroline ^a,b  

^a UNIVERSITY OF MELBOURNE   (Australia)

^b High Court of New Zealand ^*  (New Zealand)

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[No Author keywords available]

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EID: 48249138075     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn025     Document Type: Article

References (218)

1. See the Report of the Study Group of the International Law Commission, finalized by Martti Koskeniemmi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682, 13 Apr. 2006, at para 34.
2. This is exacerbated by the fact that treaties are negotiated by different clusters of states and are adjudicated on by a 'non-hierarchical proliferation' of judicial bodies: Kingsbury, 'Is the Proliferation of International Courts and Tribunals a Systemic Problem?', 31 NYU J Int'l L and Politics (1999) 679, at 680.
3. See also AbiSaab, 'Fragmentation or Unification: Some Concluding Remarks', 31 NYU J Int'l L and Politics (1999) 919.
4. North American Free Trade Agreement (NAFTA), opened for signature on 17 Dec. 1992, entered into force on 1 Jan. 1994, 32 ILM (1993) 289. NAFTA has similar dispute settlement provisions to the subsequent US-Chile and US-Singapore FTAs.
5. Treaty Establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Republic of Uruguay, 26 Mar. 1991, 30 ILM 1041 (establishing Mercosur Mercado Comun del Sur).
6. E.g., the Protocol on Trade to the Treaty of the Southern African Development Community, opened for signature on 17 Aug. 1992, entered into force on 24 Aug. 1996, 32 ILM 116.
7. E.g., the Andean, Caribbean, and Central American Courts of Justice; the Economic Court of the Commonwealth of Independent States, the Common Market of Eastern and Southern Africa, the Economic Community of West Africa. See Petersmann, 'Justice as Conflict Resolution: Proliferation, Fragmentation and Decentralization of Dispute Settlement in International Trade', 27 U Pennsylvania J Int'l Economic L (2006) 273, at 290.
8. More broadly, WTO jurisdiction overlaps with that of non-trade-focused dispute settlement fora, such as the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea, and the Permanent Court of Arbitration. WTO disputes may be linked to broader disputes before these tribunals, although the WTO may be seen as a more effective forum for resolving disputes given the relative speed of delivering judgments and perceived greater enforcement powers created by the threat of cross-sectoral retaliation. Because the WTO dispute settlement mechanism is competent to examine only breaches of WTO law, it does not prevent other fora such as the ICJ from successively or simultaneously examining other aspects of a particular dispute. Parallel proceedings in WTO and a non-trade law tribunal to date have had the effect of bringing proceedings to a standstill: See Nicaragua - Measures Affecting Imports from Honduras and Colombia (WT/DS188, WT/DS201, request for consultations received on 17 Jan. 2000 and 6 June 2000 respectively) began in 1999, although a panel has not yet been composed to examine the dispute;
9. and was lodged in parallel to the Case Concerning Maritime Delineation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). At the time of writing, hearings on the merits of the dispute had been heard and the Court was deliberating: See www.icj-cij.org/docket/index.php?pr=1908&p1=3&p2=1&case= 120&p3=6, last accessed on 27 July 2007.
10. The Case Concerning Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Communities) Case No 7, available at: www.itlos.org/start2_en.html, and Chile - Measures Affecting Transit and Importation of Swordfish dispute (WT/DS193, request for consultations received on 19 Jan. 2000) consists of claims before both the WTO and UNCLOS. Both aspects of the dispute are currently suspended by mutual agreement of the parties, pursuant to a provisional arrangement.
11. Pauwelyn, 'Going Global, Regional or Both? Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with the WTO and Other Jurisdictions', 13 Minnesota J Global Trade (2004) 231. A notable exception is Mercosur, in which parties have a choice of forum, including the WTO.
12. Ibid., at 285.
13. NAFTA Art. 2005(6). However, the respondent may compel certain types of disputes to be held under NAFTA: Art. 2005(3)-(4), relating to the environmental side agreements; sanitary and phyto-sanitary measures; or if a third NAFTA party requests the dispute to be settled under NAFTA.
14. United States-Central America Free Trade Agreement, Art. 20.3 (Choice of Forum).
15. Olivos Protocol for the Settlement of Disputes in Mercosur, opened for signature on 18 Feb. 2002, entered into force on 10 Feb. 2004, 42 ILM (2003) 1.
16. US bilateral FTAs such as US-Singapore, US-Australia, and US-Central America-Dominican Republic contain similar dispute settlement provisions. See www.ustr.gov/assets/trade_ageements/bilateral/, last accessed on 1 Jan. 2007.
17. See Petersmann, supra note 7, at 297
18. Pauwelyn, supra note 10, at 246.
19. See, e.g., Report of the Appellate Body, Canada - Certain Measures Concerning Periodicals WT/DS31/AB/R, 30 June 1997. 'Cultural industries' are excluded from the purview of NAFTA.
20. Petersmann, supra note 7, at 282.
21. 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), at 356.
22. See Koskeniemmi, supra note 1,
23. Petersmann, supra note 7.
24. Pauwelyn, 'Choice of Jurisdiction: WTO and Regional Dispute Settlement Mechanisms: Challenges, Options and Opportunities', speaker's notes, ICTSD/GIAN-RUIG dialogue, 'The Mexico-Soft Drinks Dispute: Implications for Regionalism and for Trade and Sustainable Development', 30 May 2006, available at: www.ictsd.org/dlogue/2006-05-30/2006-05-30-docu.htm, at 2
25. Koskeniemmi, supra note 1, at para 52.
26. While the WTO dispute settlement process has no formal system of stare decisis, in practice Appellate Body and Panel decisions are said to create legitimate expectations. See Report of the Appellate Body, Japan - Taxes on Alcoholic Beverages, WT/DS8,10-11/AB/R, 4 Oct, 1996, at 12.
27. Petersmann, supra note 7, at 358.
28. See, generally, Romano, 'The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent', 39 NYU J Int'l L and Politics (2007) 791.
29. E.g., the Appellate Body in United States - Import Prohibition of Certain Shrimp and Shrimp Products took into account a number of MEAs as a means both to define relevant treaty terms and to clarify parties' rights and obligations: WT/DS58/AB/R, 12 Oct. 1998, at paras 130-134.
30. United States - Tax Treatment for 'Foreign Sales Corporations' (Art. 21.5 - EC), WT/DS108/AB/RW, 14 Jan. 2002.
31. Paras 141-145. Agreement on Subsidies and Countervailing Measures, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (1994), at 264.
32. Chile-Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, 3 May 2002, at para. 7.84.
33. Economic Complementarity Agreement No 35 between Chile and MERCOSUR, signed on 25 June 1996, entered into force on 1 Oct. 1996.
34. Chile-Price Band, supra note 26, at paras 7.81-7.86.
35. European Communities - Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, 23 July 1998, at para. 83.
36. A bilateral agreement negotiated by the European Communities and Brazil under Art. XXVIII of the GATT 1947, as part of the resolution of the GATT dispute in European Economic Community - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-feed Proteins, adopted on 25 Jan. 1990, BISD 37S/86; and DS28/R, 31 Mar. 1992.
37. Imports of High-Fructose Corn Syrup Originating in the United States of America (Dumping), MEX-USA-98-904-01, 3 Aug. 2001, 15 Apr. 2002.
38. Available at: www.nafta-sec-alena.org/DefaultSite/ index_e.aspx?DetailID=380, last accessed on 1 Jan. 2007.
39. Charmody, supra note 9, at 674. This is not necessarily problematic if one views the Appellate Body as an epistemically superior forum and that its appellate nature adds legitimacy to the international dispute settlement regime.
40. Report of the Panel, Mexico - Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, 7 Oct. 2005
41. Report of the Appellate Body, Mexico - Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 6 Mar. 2006.
42. Panel Report, Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, 22 Apr. 2003, at para 7.38.
43. This dispute was one of many different sweetener-related disputes between Mexico and the US since NAFTA's inception, including anti-dumping litigation at the WTO and under NAFTA's investor - state dispute settlement provisions. See G.C. Hufbauer and J.J. Schott, NAFTA Revisited: Achievements and Challenges (2005), at 310-327.
44. See also Trujillo, 'Shifting Paradigms of Parochialism: Lessons for International Trade Law', 3 J Int'l L & Int'l Relations (2007) 41.
45. NAFTA, Art. 2011. See Pauwleyn, supra note 20
46. Davey, supra note 17, at 351
47. and de Mestral, 'NAFTA Dispute Settlement: Creative Experiment or Confusion?', in Bartels and Ortino (eds), supra note 17, at 363.
48. Mexico and the US have had two other disputes at the WTO concerning anti-dumping duties levied by Mexico on US imports of high-fructose corn syrup. Mexico - Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS) from the United States, WT/DS132/R, 22 June 2001
49. Mexico - Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS) from the United States, WT/DS101, request for consultations received on 4 Sept. 1997, currently inactive. Additionally, some US manufacturers instituted investor - state proceedings under Ch. 11 of NAFTA against the soft drinks tax, claiming that the tax constituted discrimination and expropriation.
50. Art. 2005(6) of NAFTA provides: '[o]nce dispute settlement procedures have been initiated under Article 2007 or dispute settlement proceedings have been initiated under the GATT, the forum selected shall be used to the exclusion of the other'.
51. Panel Report, Soft Drinks, supra note 3, at para. 7.13
52. Appellate Body Report, Mexico - Soft Drinks, supra note 3, at para. 44.
53. Panel Report, Mexico - Soft Drinks, supra note 3, at para. 4.182.
54. Panel Report, Mexico - Soft Drinks, supra note 3, at para. 4.103.
55. Understanding on Rules and Procedures Governing the Settlement of Disputes, opened for signature on 15 Apr. 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401, entered into force on 1 Jan. 1995.
56. Appellate Body Report, Australia - Measures Affecting Importation of Salmon, WT/DS18/AB/R, 20 Oct. 1998, at para. 223.
57. Panel Report, Mexico - Soft Drinks, supra note 3, at paras 7.4-7.9.
58. Ibid., at paras 7.11, 7.15.
59. DSU, Arts 7.2, 11 (emphasis added).
60. Appellate Body Report, Mexico - Soft Drinks, supra note 3, at para. 47.
61. The Appellate Body also noted another previous decision: '[i]n this regard, we further note the Appellate Body's statement that, "as a matter of due process, and the proper exercise of the judicial function, panels are required to address issues that are put before them by the parties to a dispute"': Appellate Body Report, Mexico - Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS) from the United States (Article 21.5 - US), WT/DS132/AB/RW, supra note 38, 22 Oct. 2001, at para. 36.
62. Ibid., at para. 45.
63. Ibid., at paras 48-53.
64. Appellate Body Report, Mexico - Soft Drinks, supra note 3, at para. 52.
65. Ibid., at para 46, noting its previous decision in India - Patents which stated: '[a]lthough panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU.... Nothing in the DSU gives a panel the authority either to disregard or to modify - explicit provisions of the DSU': Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products WT/DS50/AB/R, 19 Dec. 1997, at para. 92.
66. In terms of the meaning of Art. 23 of the DSU: Appellate Body Report, Soft Drinks, supra note 3, at para. 53.
67. At para. 7.19. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, entered into force on 27 Jan. 1980. In this regard Argentina argued that the MERCOSUR ruling was a relevant rule of international law applicable in the relations between parties, and should be taken into account 'for the purposes of interpretation of the current dispute' (at para. 6.6).
68. Art. 1 of the Protocol to Olivos provides that once a party decides to bring a case under either the MERCOSUR or WTO dispute settlement forums, that party may not bring a subsequent case regarding the same subject-matter in the other forum.
69. Panel Report, Argentina - Poultry, supra note 63, at para. 7.38. In this regard the Panel indicated that, in future, the WTO tribunal would recognize and give effect to these provisions. However, it has not yet had the opportunity to do so.
70. See J. Pauwleyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003)
71. Koskeniemmi, supra note 1.
72. These rules have varying degrees of prerequisites: E.g., requiring a dispute to be already decided by another forum; requiring another forum to have accepted jurisdiction, and so on. They do not appear to capture the circumstances where a party has blocked the establishment of a dispute settlement panel, such as in Soft Drinks. For analysis of the application of these rules to international trade and investment disputes see Shany, 'Contract Claims vs. Treaty Claims: Mapping Sources of Conflict between ICSID Decisions on Multisourced Investment Claims', 99 AJIL (2005) 835, at 844
73. Petersmann, supra note 7, at 355-365
74. Pauwelyn, supra note 10, at 290-296.
75. DSU, Art. 3.2.
76. Pauwelyn, 'How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law? Questions of Jurisdiction and Merits', 37 J World Trade (2003) 997, at 1003.
77. Koskeniemmi, supra note 1, at para. 45.
78. But see Trachtman, 'Jurisdiction in WTO Dispute Settlement', in R. Yerxa and B. Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten Years (2005), at 136
79. and Trachtman, 'Book Review of Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law', 98 AJIL (2004) 855.
80. WT/DS291, WT/DS292, WT/DS293, 29 Sept. 2006.
81. With regard to using exogenous rules of international law as a means of clarifying parties' rights and obligations under WTO law, a broader approach (espoused by Pauwelyn) is that the applicability of any such rule of international law is contingent on whether it reflects the 'common intentions' of WTO members.
82. See Henckels, 'GMOs in the WTO: A Critique of the Panel's Legal Reasoning in EC - Biotech,'7 Melbourne J Int.'l L (2006) 278, at 292.
83. Pauwelyn, supra note 58, at 1013.
84. See also Pauwelyn, supra note 20, at 4.
85. At the time of writing, the WTO tribunal has not yet had the opportunity to consider a dispute where there have been successive proceedings concerning the same subject matter, such as Argentina - Poultry.
86. Art. 30 VCLT, supra note 54.
87. Pauwelyn, 'Bridging Fragmentation and Unity: International Law as a Universe of Interconnected Islands', 25 Michigan J Int'l L (2004) 903, at 912-1015.
88. Pauwelyn, supra note 58, at 1015.
89. Pauwelyn, supra note 20, at 5.
90. Koskeniemmi, supra note 1, at paras 226, 233.
91. Ibid., at para. 58.
92. See India - Quantitative Restriction on Imports of Agricultural, Textile and Industrial Products, 6 Apr. 1999, WT/DS90/R, at para. 4.20: '[i]n any event, the principle of lex specialis is only subsidiary':
93. cited by Koskeniemmi, supra note 1, at para. 75.
94. Romano also notes that these principles' abstractness and generality renders them unlikely to provide practical assistance to questions of overlapping jurisdiction: Romano, supra note 22, at 847.
95. However, there is an informal hierarchy of norms, depending on the lens through which the dispute is being viewed: Koskeniemmi, supra note 1, at para. 86.
96. This is evidenced by, for example, NAFTA parties' tendency to take disputes to the WTO rather than use NAFTA dispute settlement procedures (particularly in relation to non-trade remedy cases).
97. C. Amerasinghe, Jurisdiction of International Tribunals (2003), at 50.
98. Romano, supra note 22, at 796.
99. Statute of the International Court of Justice, 26 June 1945, 59 Stat. 1031 [1976] Year Book of the United Nations, 1052, Ch. II, Art. 36: Competence of the Court. Additionally, states may make declarations accepting the Court's jurisdiction as compulsory (although only a minority of states have done so).
100. See Romano, supra note 22, at 817, noting that the ICJ's consensual jurisdiction is logically connected to its broad ratione materiae.
101. Amerasinghe, supra note 76, at 51.
102. Ibid., at 96.
103. Regarding international tribunals' possession of inherent powers see Case Concerning the Northern Cameroons (Cameroon v. United Kingdom) [1963] ICJ Rep 3. at 29
104. Nuclear Tests (Australia and New Zealand v. France) Judgment [1974] ICJ Rep 253, at 271.
105. Mitchell, 'The Legal Basis for Using Principles in WTO Disputes', (2007) 10 J Int'l Economic L (2007) 795, at 830.
106. Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 92, Separate Opinion of Judge Higgins, at para. 10.
107. As evidenced by the MOX Plant UNCLOS arbitral tribunal decision, discussed in the next section.
108. See the analysis of the emergence of the doctrine, chiefly in the US jurisdiction, in Paul, 'Comity in International Law', 32 Harvard Int'l LJ (1991) 1.
109. See also Slaughter, 'A Global Community of Courts', (2003) 44 Harvard Int'l LJ (2003) 191, at 205
110. Romano, supra note 22, at 849.
111. Slaughter, 'Court to Court', 92 AJIL (1998) 708.
112. Paul, supra note 8 5, at 6.
113. Romano, supra note 22, at 850-851.
114. Slaughter, supra note 85.
115. Paul, supra note 85, at 6.
116. Petersmann, supra note 7, at 360.
117. See Higgins, 'A Babel of Judicial Voices? Ruminations from the Bench', 55 Int'l and Comp LQ (2006) 791, at 799.
118. Romano, supra note 22, at 869.
119. Slaughter, supra note 85, at 193.
120. Ibid., at 194.
121. Ibid., at 206-210.
122. Slaughter describes it thus: 'it does not import subordination or even the more subtle constraints of ritual deference': Slaughter, supra note 86, at. 711.
123. Legality of Use of Force (Serbia and Montenegro v. Belgium) (Serbia and Montenegro v. Canada) (Serbia and Montenegro v. France) (Serbia and Montenegro v. Germany) (Serbia and Montenegro v. Italy) (Serbia and Montenegro v. Netherlands) (Serbia and Montenegro v. Portugal) (Serbia and Montenegro v. United Kingdom) Preliminary Objections. Judgment of 15 Dec. 2004 [2004] ICJ Rep 279.
124. Ibid.
125. Case Concerning Appication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 Feb. 2007, available at: www.icj-cij.org/docket/index.php?pl=3&p2=3&k=f4&case= 91&code=bhy&p3=4, last accessed on 2 5 Mar. 2008.
126. The judgment was contentious because it was arguably inconsistent with the approach taken earlier in the Bosnia Genocide case: Legality of Use of Force (Serbia and Montenegro v. Belgium) Preliminary Objections [2004] ICJ Rep. 279, at para 29.
127. See Gray, 'Legality of Use of Force', 54 Int'l and Comp LQ (2005) 787, at 792.
128. Legality of the USe of Force (Serbia and Montenegro v. Belgium), supra note, 98, Separate Opinion of Judge Higgins, at para. 10
129. Ibid., at para. 11.
130. Ibid., at para. 12
131. citing Nuclear Tests (Australia and New Zealand v. France) [1974] ICJ Rep 253, Joint Dissenting Opinion, at 322, para. 22.
132. Northern Cameroons (Cameroon v. United Kingdom) [1963] ICJ Rep 152.
133. Her reasoning was based on the fact that the applicant had not conformed with Art. 38(2) of the Statute of the ICJ, which requires an applicant to 'specify as far as possible the legal ground upon which the jurisdiction of the Court is said to be based: Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 92, Separate Opinion of Judge Higgins, at paras 12, 14.
134. Ibid., at para. 16.
135. Ibid., at paras 15-16.
136. Ibid., Separate Opinion of Judge Kooijmans, at para. 24.
137. Legality of the Use of force (Serbia and Montenegro v. Belgium), supra note 92, at para. 40.
138. Ibid., Separate Opinion of Judge Kooijman, at para. 9.
139. La Grand Case (Germany v. United States) [2001] ICJ Rep 104.
140. Ibid., at para. 102.
141. Art. 41, Statute ofthe International Court of Justice.
142. Kirgis, 'World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations'. (2001) ASIL Insights. American Society of International Law, available at: www.asil.org, last accessed 2 Jan. 2007.
143. LaGrand Case, supra note 105, at para. 102.
144. MOX Plant case, Request for Provisional Measures Order (Ireland v. United Kingdom), 3 Dec. 2001, 41 ILM (2002) 405. Arts 288(1) and 293(1) of the UN Convention on the Law of the Sea (UNCLOS) provide that the Law ofthe Sea Tribunal has 'Jurisdiction over any dispute concerning the interpretation and application of this Convention', requiring the Tribunal to 'apply this Convention and other rules of international law not incompatible with this convention'. However, there have been only 13 cases considered by the Tribunal: See www.itlos.org, last accessed on 2 Jan. 2007.
145. United Nations Convention on the Law of the Sea (UNCLOS), opened for signature on 10 Dec. 1982, Doc A/CONF. 62/122, entered into force on 16 Nov. 1994, 1833 UNTS 397. UNCLOS provides for partly compulsory arm partly consensual jurisdiction. Parties may choose any means by which to settle disputes, but if this does not resolve the dispute, either disputant may invoke the compulsory dispute settlement process provided in the treaty. However, UNCLOS also provides that if the disputants are parties to another instrument which provides for a dispute settlement procedure, that process applies instead of the UNCLOS procedures unless the parties to the dispute otherwise agree (Arts 280-282). The dispute settlement mechanisms provided under UNCLOS itself include recourse to the ICJ. to the International Tribunal for the Law of the Sea, or to an arbitral tribunal (Art. 287).
146. See Dispute Concerning Access to Information Under Article 9 of the Ospar Convention, Final Award (Ireland v. United Kingdom). 2 July 2003, 2 ILM (2003) 1118.
147. The constitutional relationship between the EPC and its Member States adds another level of complexity to choice of forum issues in relation to trade matters. The EC's common commercial policy is vested in the EC itself. (Art. 133 EC Treaty), meaning that EC Member States cannot take each other to WTO dispute settlement and must resolve the issue by way of the ECJ. If an EC Member State is aggrieved by the conduct of a third party, the EC must take the claim to the WTO on behalf of that Member State. However, in relation to some CATS nod TRIPS issues, the WTO and the EC share competence, meaning that there is potential for a dispute to arise where the scope of each forum's competence is less than clear. The divided competence may impact on the coherence of treaty rights and Obligations. See Koskeniemmi, supra note 1, at para. 219.
148. The Tribunal's orderto suspend proceedings was made under its rules of procedure, which state that 'subject to these rules, the Arbitral Tribunal may conduct the proceedings in such manner as it considers appropriate': MOX Plant case (Provisional Measures), supra note. 117, Art. 8, Rules of Procedure, Arbitral Tribunal Constituted under Art. 287 and Annex 1, Art. 1 of UNCLOS: See www.pca-cpa.org. last accessed on 2 Jan. 2007.
149. MOX Plant Case (Provisional Measures), supra note 117.
150. It also noted that even if the content of the rights and obligations under these conventions was similar or identical, their application by one tribunal might result in a different outcome from their application by another tribunal on account of: 'differences in the respective context, object and purpose, subsequent practice of parties and travaux preparatoires': MOX Plant Case (Provisional Measures), supra note 117, at para. 51.
151. Ibid.
152. MOX Plant Case, Order No. 3, Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures, 24 June 2003, available at: www.pca-cpa.org/upload/files/ MOX%200rder%20no3.pdf, at paras 21-28, last accessed on 25 Mar. 2008. Subsequently, the tribunal made a further order suspending the proceedings until any judgment of the ECJ: Order No 4. Further Suspension of Proceedings on Jurisdiction and Merits, 13 Nov. 2003, available at: www.pca-cpa.org/upload/files/MOX%200rder%2ONo4.pdf, last accessed on 25 Mar. 2008.
153. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan, Jurisdiction and Admissibility), Award of 4 Aug. 2000, XXIII UNRIAA (2004) 23, at paras 38(c) and 52. In doing so the tribunal revoked a previous order for provisional measures made by the International Tribunal for the Law of the Sea, which found that there was jurisdiction under UNCLOS as the parties had not been able to agree on settling the dispute under the Tuna Convention.
154. See the discussion of the case in Romano, supra note 22, at 831-834, noting that the arbitral tribunal found that its jurisdiction was contingent on the consent of the disputants. Romano also notes that this decision has attracted criticism and is unlikely to be considered of significant precedential value.
155. Havana Charter for an International Trade Organization, Final Act of the UN Conference on Trade and Development, Art. 1.
156. Preamble, Marrakesh Agreement Establishing the World Trade Organization, opened for signature on 15 Apr. 1994, entered into force on 1 Jan. 1995, 1867 UNTS 154.
157. DSU, Art. 3.2.
158. Ibid., Art. 3.7
159. Leathley, 'An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed an Opportunity?', 40 NYU J Int'l L and Politics (2007) 259, at 266.
160. Appellate Body Report, Japan - Alcoholic Beverages, supra note 21, at 31 (referring in that case to GATT Art. III, National Treatment).
161. DSU, Art. 3.2.
162. See Zang, Textualism in GATT/WTO Jurisprudence: Lessons for the Constitutionalization Debate', 33 Syracuse J Int'l L and Commerce (2006) 393.
163. Ibid., at 415.
164. In addition, Mitchell notes that the WTO tribunal 'may be inclined to distort provisions of the WTO agreements in order to find a textual basis for a particular norm rather than acknowledging that the norm derives from a principle that is not necessarily recorded explicitly in the agreements': Mitchell, 'The Legal Basis for Using Principles in WTO Disputes', (2007) 10 J Int'l Economic L (2007) 795, at 835.
165. Zang, supra note 133, at 425.
166. VCLT, supra note 56, Art. 31(1).
167. Appellate Body Report, United States - Shrimp, supra note 23.
168. Appellate Body Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/ R, 7 Apr. 2004.
169. GATT, GATT 1994, opened for signature on 15 Apr. 1994, entered into force on 1 Jan. 1995, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187, Art. 1.1.
170. GATT Doc L/4903, 28 Nov. 1979, BISD 26S/203.
171. Additionally the Panel in this case noted that 'the dictionary definition itself is not dispositive as to whether the enabling clause excludes the application of Article 1.1': Panel Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, 1 Dec. 2003.
172. Appellate Body Report, EC - Tariff Preferences, supra note 130, at paras 106-118. Based on this analysis, the Appellate Body found that rather than merely raising an allegation of inconsistency with the most favoured nation clause, as is usually required when a party's compliance with an exceptions provision is challenged, the complainant was required to identify specific provisions of the enabling clause against which the respondent party's conduct was impugned.
173. Appellate Body Report, EC - Tariff Preferences, supra note 130, at para. 106 (emphasis added).
174. Ibid., at paras 113-114.
175. See Mitchell, supra note 134, at 829.
176. See Mitchell, 'Good Faith in WTO Dispute Settlement', 7 Melbourne J Int'l L (2006) 339, at 358.
177. Some commentators dispute that the WTO's judicial organ possesses inherent powers, on the basis that the WTO tribunal is an atypical judicial body: See Weiss, 'Inherent Powers of National and International Courts', in F. Ortino and E.-U. Petersmann (eds), The WTO Dispute Settlement System 1995-2003 (2004), at 189.
178. Weiss is of the view that the power to accept amicus briefs and the Appellate Body's tendency to 'complete the analysis' do not indicate inherent powers because these powers are not 'necessary' for the functioning of the dispute settlement system. See also Bartels, 'The Separation of Powers in the WTO: How to Avoid Judicial Activism', 53 Int'l and Comp LQ (2006) 861, at 885, suggesting that the WTO's judicial organ does not possess inherent powers, on the basis of the expressed opinions of some WTO members and on the basis that its functions are too dependent on members' consent. However, Bartels is of the view that panels and the Appellate Body may suspend proceedings, pending the outcome of other proceedings, but not decline to hear a particular dispute.
179. Mitchell, supra note 135, at 831.
180. Report of the Appellate Body, United States - Anti-Dumping Act of 1916, WT/DS162/AB/R, 28 Aug. 2000, at para. 54, n. 30.
181. See also United States - Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) WT/DS217/AB/R, 16 Jan. 2003.
182. Appellate Body Report, Mexico - High Fructose Corn Syrup, supra note 36, at para. 36.
183. See also Pauwelyn, supra note 58, at 1006.
184. DSU, Art. 12.12: 'the panel may suspend its work at any time at the request of the complaining party for a period not to exceed 12 months ... if the work of the panel has been suspended for more than 12 months, the authority for the establishment of the panel shall lapse'.
185. Appellate Body Report, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom WT/DS138/AB/R, 7 June 2000, at para. 39.
186. Bartels, supra note 80, at 893. However, he notes that panels and the Appellate Body are supposed to comply with the time limits set out in Arts 12.8-9 and 17.5 of the DSU.
187. Report of the Appellate Body, EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, 13 Feb. 1998, at para. 152, n. 138.
188. Appellate Body Report, India - Patents, supra note 53, at para. 92.
189. Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 92, at para. 36
190. Nuclear Tests (Australia v. France) (Merits) [1974] ICJ Rep 253, at 262.
191. See also J. Pauwelyn, Conflict of Norms in Public International Law (2003), at 447-448.
192. Appellate Body Report, Mexico - High-Fructose Corn Syrup, WT/ DS132AB/RW, supra note 49, at para. 36.
193. See also Pauwelyn, supra note 58, at 1006.
194. Report of the Appellate Body, EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, 13 Feb. 1998, at para. 152, n. 138.
195. Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 92, Separate Opinion of Judge Kooijmans, at para. 22.
196. Romano, supra note 22, at 801.
197. See Shany, supra note 56, at 844.
198. Ibid., at 850.
199. Mexico, citing the Factory at Chorzów case, argued that, as a result of the US having prevented Mexico from having recourse to the NAFTA dispute settlement mechanism by 'illegally' refusing to nominate panelists to the NAFTA panel, the Panel should decline to exercise jurisdiction: PCIJ, Factory at Chorzów (Germany v. Poland) (Jurisdiction), 1927, PCIJ Series A, No 9, at 31
200. Appellate Body Report, Soft Drinks, supra note 3, at para. 56.
201. Bhala and Gantz, 'WTO Case Review 2006', 24 Arizona J Int'l and Comp L (2007) 299, at 329.
202. Panel Report, Soft Drinks, supra note 3, at para. 7.17.
203. Romano, supra note 22, at 869.
204. Amerasinghe, supra note 76, at 238.
205. See Weiss, supra note 80, at 177.
206. See also Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints', 98 AJIL (2004) 247, at 262.
207. Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 99,
208. Separate Opinion of Judge Higgins, at para. 12,
209. citing Nuclear Tests (Australia and New Zealand v France) [1974] ICJ Rep 253, Joint Dissenting Opinion, at 322, para. 22.
210. Legality of the Use of Force (Serbia and Montenegro v. Belgium), supra note 99.
211. Ibid.
212. Report of the Appellate Body, Mexico - Tax Measures on Soft Drinks and Other Beverages, supra note 34. Mexico's appellant's submission, at para. 73.
213. This is a higher threshold than that suggested by Mexico at the Panel stage: 'where the underlying or predominant elements of a dispute derive from rules of international law under which claims cannot be judicially enforced in the WTO': Panel Report, Mexico - Soft Drinks, supra note 3, at para. 4.103.
214. Appellate Body Report, EC - Tariff Preferences, supra note 130, at para. 106.
215. Romano, supra note 22, at 848.
216. See Kennedy, 'Parallel Proceedings at the WTO and Under NAFTA Chapter 19: Whither the Doctrine of Exhaustion of Local Remedies in DSU Reform?', (2007) 39 George Washington Int'l L Rev (2007) 47, at 50-51.
217. See WTO, New Negotiations on Dispute Settlement Understanding, available at: www.wto.org/english/tratop_e/dispu_e/ dispu_e.htm#negotiations, last accessed on 11 Jan. 2008.
218. See Abi-Saab, supra note 2, at 927.