Conflicts of jurisdiction between dispute settlement mechanisms of the World Trade Organization and regional trade agreements: possibility and potential responses

Abstract

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.