The WTO and FCTC Dispute Settlement Systems: Friends or Foes?

Abstract

The paper examines the relationship between the World Trade Organization (WTO) and Framework Convention on Tobacco Control (FCTC) dispute settlement mechanisms. It concludes that since two regimes relate to distinctive legal obligations, one cannot describe the relationship between their dispute settlement mechanisms in terms of conflict of jurisdiction Even if one assumes that such conflict exists a mere existence of an alternative dispute settlement system (i.e. the FCTC) does not preclude a WTO panel from examining a case with respect to possible violation WTO law. The paper also notes that while the FCTC Parties may introduce in the future a new clause in the Convention that will prioritize, over other available alternative mechanisms, its dispute settlement system, this will not affect the jurisdiction of WTO panels (or make a particular case inadmissible). The Appellate Body in its recent report (Peru – Additional Duty on Imports of Certain Agricultural Products), while agreeing that WTO Members can waive their right in the extraneous agreement to have a recourse to the WTO dispute settlement system, also set very strict standards. In particular, such a decision needs to be clearly formulated and can be made only with respect to the settlement of a specific dispute rather than as a general clause. In addition, this cannot lead to the violation of applicable WTO provisions, meaning that a WTO panel will need to examine the contested measure as to its substance anyway. This obviously limits the relevance, under WTO law, of any exclusion clause that may be introduced by the FCTC Parties in the future.