NORM CONFLICT BETWEEN WTO COVERED AGREEMENTS—REAL, APPARENT OR AVOIDED?

Abstract

AbstractThis article explores the issue of norm conflict in the context of specific multilateral agreements that are administered and enforced by the World Trade Organization (WTO), namely, the General Agreement on Tariffs and Trade 1994 (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Any discussion of norm conflict between treaty provisions must necessarily draw a critical distinction between an apparent conflict, on the one hand, and a real conflict, on the other hand. An apparent conflict is one where the content of two or more norms is at first glance contradictory, yet the conflict can be avoided, most often by interpretative means. A real conflict represents an irreconcilable divergence between norms which cannot be interpreted away and can only be solved by the application of a conflict rule. The notion of intra WTO conflict is largely unexplored and consequently under-theorized. It is explored here not as an abstract notion, but rather against the backdrop of the institutional and normative environment of the WTO. It is submitted that intra WTO norm conflict is hardly likely to arise as a legal issue under WTO law. This is because the normative and institutional environment of the WTO militates against treating overlapping WTO provisions as situations of real norm conflict. This environment allows for, and potentially mandates a judicial approach to intra WTO conflict that accords with the telos of the single undertaking nature of WTO rights and obligations. In the result, intra WTO conflict will possibly never be real; will often be deemed as merely apparent; and will sometimes be avoided.