Are WTO tariffs mandatory
The dispute over the forum - or: what actually belongs in front of WTO panels?
RIW 2002, 449 (Issue 6)
I. Introduction In the past, it was GATT panel reports that were often not accepted that aroused the greatest interest - for example those on tuna 2 See text below at footnote 17 or on the banana dispute3EEC Member States' Import Regime for Bananas, Panel Report from 3. 6. 1993, DS 32 / R, EEC-Import Regime for Bananas, Panel Report of February 14, 1994, DS 38 / R, printed in: International Legal Materials 34 (1995), 117; European Communities - Regime for the Importation, Sale and Distribution of Bananas, complaints by Ecuador, Guatemala, Honduras, Mexico and the United States (WT / DS27), Appellate Body report and the Panel report, as modified by the Appellate Body, adopted on Sep 25, 1997 (WT / DS27 / AB / R); European Communities-Regime for the Importation, Sale and Distribution of Bananas II, complaint by Guatemala, Honduras, Mexico, Panama, and the United States (WT / DS158 / 1). - So it could be, to put it in an exaggerated way, those disputes that do not lead to a panel report at all. The standardization of the dispute settlement regulations after the Uruguay Round has largely eliminated the GATT / WTO-internal "forum shopping." Within the framework of the GATT there were a large number of, in some cases considerably different, dispute settlement provisions for the various GATT subsidiary agreements. Art. 1 DSU now provides that the provisions of the DSU are applicable to all "agreements falling under the agreement" and are only supplemented or replaced by certain special provisions in the individual WTO agreements in exceptional cases. These are listed in Appendix 2 to the DSU as “Special or additional rules and procedures in the agreements covered by the agreement”, due to the quasi-compulsory competence of the WTO dispute settlement mechanism5 For WTO dispute settlement procedures see Palmeter / Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure, 1999; Pescatore / Davey / Lowenfeld (eds.), Handbook of WTO, GATT Dispute Settlement, loose-leaf, as of: 2000; Petersmann (Ed.), International Trade Law and the GATT / WTO Dispute Settlement System, 1997; ders, The GATT / WTO Dispute Settlement System, 1997. The question of the scope of the »substantive competence« or jurisdiction ratione materiae of WTO panels will probably be raised more often in the future. In the past, the consent of the GATT contracting parties was essentially a prerequisite for the establishment of a panel. It could therefore be assumed that the parties to the dispute also agreed to the substantive competence of a GATT panel. In the new DSU, however, the principle of "reverse consensus", which is already applicable when a panel is set up, ensures that the central procedural steps require the setting up of a panel and the acceptance of the panel. or appellate committee reports no longer require the unanimous consent of all contracting parties - as is customary according to GATT dispute settlement practice - but are set unless the dispute settlement body decides otherwise by consensus. for the fact that WTO members can no longer simply evade a WTO dispute settlement procedure. This means that potentially significantly more disputes reach WTO panels or the WTO Appellate Body. It is now all the more likely that members “unwilling to settle disputes” will seek to evade these institutions, citing their factual lack of competence. Admittedly, this problem has arisen for some time before other international forums. For example, in the area of international investment dispute settlement before the International Center for the Settlement of Investment Disputes (ICSID) or in the context of international (private) commercial arbitration, it is quite common to first question the jurisdiction of the decision-making body. Schreuer, The ICSID Convention. A Commentary, 2001; Reisman / Craig / Park / Paulsson, International Commercial Arbitration, 1997 .. The same applies to the practice before the intergovernmental dispute settlement body par excellence, the International Court of Justice (ICJ) in The Hague Judgments in Merito 8 See Rosenne, The Law and Practice of the International Court: 1920-1996. Vol. II (Jurisdiction), 3rd ed. 1997 ... The (provisional) status of the swordfish case briefly outlined below clearly demonstrates, however, what has only sounded sporadically in the previous WTO discussion. for example in Bronckers, 3 Journal of International Economic Law (JIEL) 2001, 4, 57; Petersmann, 3 JIEL 2001, 3, 8th, namely the possibility, yes probability, that there will be jurisdictional conflicts between the WTO dispute settlement system and other forums. II. The latest example of the open problem of the "correct" dispute settlement forum is the current "conclusion" of the swordfish controversy between the EC and Chile, which has been smoldering for a decade. The main issue was the question of conservation measures for the highly migratory fish species at issue in the southeastern Pacific. From a Chilean point of view, the lack of willingness to cooperate between the EC and the coastal state was a violation of relevant provisions of the UN Convention on the Law of the Sea from 1982. For the Europeans, on the other hand, some of the measures taken by Chile were violations of GATT 1994. When bilateral negotiations led to no result and Spanish fishing companies one Complaint under the European Trade Barriers Regulation (EC) No. 3286/94 of the Council of 22 December 1994 laying down the Community's procedures in the field of common commercial policy for the exercise of the rights of the Community under international trade rules, in particular the rules agreed within the framework of the World Trade Organization , OJ 1994 No. L 349, p. 71. 11Commission decision of April 5, 2000 on the basis of Council Regulation (EC) No. 3286/94 on the landing ban for swordfish in Chilean ports (announced under file number Kom [ 2000] 926), OJ 2000 No. L 9 6, p. 67., the Community brought the matter to the WTO in April 2000. After unsuccessful consultations, the WTO Dispute Settlement Body set up a panel in December 2000: Chile - Measures Affecting the Transit and Importation of Swordfish, complaint by the European Communities (WT / DS193 / 1). Panel established on December 12, 2000. See also BRIDGES Vol. 4 No. 9 (2000), 5 .. At the same time, the parties to the dispute agreed in November 2000 at the urging of Chile to set up a special five-judge chamber at the International Tribunal of the Law of the Seas, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile-European Community) (Order on Constitution of Chamber), Order 2000/3 (December 20, 2000), available at: http://www.un.org/Depts/los/ITLOS/Order3_2000Eng.pdf .. In January 2001, both dispute settlement proceedings were finally suspended. In a provisional agreement, Chile and the EC agreed on the (re-) establishment of a bilateral technical commission, on certain access rights to Chilean seaports and on the establishment of a multilateral fish conservation forum for the South Pacific14 See Orellana, The EU and Chile Suspend the Swordfish Case Proceedings at the WTO and the International Tribunal of the Law of the Sea, ASIL Insight Feb. 2001, available at: http://www.asil.org/insights/insigh60.htm .. So much for the procedure, but what was it actually about? The Community feels particularly burdened by the provisions of the Chilean Fisheries Act, which prohibit the unloading of swordfish in Chilean ports in order to reduce catches. In the opinion of the EC, this contradicts both Art. V (freedom of transit) and Art. XI (general elimination of quantitative restrictions) GATT. According to the Chilean view, these provisions would in any case be justified by Art Conservation of exhaustible natural resources, provided that such measures are applied in connection with restrictions on domestic production or domestic consumption «. The prerequisite for the application of this “general exception” provision of the GATT is of course, according to the introductory sentence of Art. XX GATT, that such measures “are not applied in such a way that they lead to arbitrary and unjustified discrimination between countries in which the same conditions exist, or lead to a disguised restriction on international trade «. This provision has already been a central subject of relevant GATT and WTO panel reports on several occasions, particularly in connection with environmental conservation measures. Nevertheless, there are still important questions unanswered. According to the Chilean view, however, the behavior of the EC contradicted various provisions of the UN Convention on the Law of the Sea, including Art. 64 (highly migratory species), Art. 116-119 (regulations on the conservation and management of the living resources of the Hohen See), Art. 297 (Limits to the applicability of Section 2) and Art. 300 (Good faith and abuse of rights). In particular, Chile complained that the Community (especially Spain as the flag state) had violated its obligation to keep fishermen and to cooperate with the coastal state. III. Other WTO cases whose disputes go beyond mere trade issues The facts on which the swordfish case is based shows very nicely that it often only depends on the perspective of whether a dispute is characterized as commercial or environmental law. At first glance, in any case, both the Geneva seat of the WTO appear to be. as well as Hamburg 16 seat of the International Tribunal for the Law of the Sea. to be responsible for settling this dispute, which holds a certain potential for conflicting results. This risk could then be counteracted if it could be shown, for example, that the WTO dispute settlement bodies interpret their material areas of competence narrowly. However, a quick look at previous practice shows that this is by no means the case. The question of the tension between the trade-liberalizing provisions of the GATT and environmental protection measures was first learned through the two tuna decisions17 United States - Restrictions on Imports of Tuna (Tuna I), ruling not adopted, circulated on September 3, 1991 (BISD 39S / 155) ; United States - Restrictions on Imports of Tuna (Tuna II), ruling not adopted, circulated on June 16, 1994 (DS 29 / R). The text of the two tuna panel reports (1991) and (1994), which were not adopted by the contracting parties, can be found in: International Legal Materials 30 (1991), 1594 ff., And International Legal Materials 33 (1994), 839 ff. By GATT Panels (before the Uruguay Round) received widespread attention. The two (not accepted) panel reports decided at the time that the American import ban on tuna from countries that did not stipulate adequate safety measures to prevent the killing of dolphins while fishing for tuna was a violation of Article III (equating foreign and domestic goods in the area of internal taxes and legal provisions) and XI (general elimination of quantitative restrictions) of the GATT. This could not be justified by Art. XX (b) or (g), since the American provisions were not about product-specific measures, but rather production-specific measures and that these were supposed to have an extraterritorial effect. Wirth, 9 Yearbook of International Environmental Law 1998, 40..2. The fuel case The first major environmentally relevant dispute before the reformed WTO dispute settlement system after the Uruguay Round was the decision of the panel and appellate body in the fuel case19United States - Standards for Reformulated and Conventional Gasoline, complaints by Venezuela (WT / DS2) and Brazil ( WT / DS4), Appellate report adopted on May 20, 1996 (WT / DS2 / AB / R) .. It is less noteworthy here, however, that both instances of the Venezuelan and Brazilian complaints against the USA were right and in the provisions of the American Clean Air Act, which stipulated stricter standards for imported fuel than for fuel produced in the USA, saw a violation of the national equal treatment obligation of Art. III GATT, but rather that the WTO Appellate Body in particular dealt in detail with the exception clause in Art. XX GATT set apart. In contrast to the panel, it considered a justification under Art. XX (g) in principle ("provisional") possible, but rejected this in the specific case using a two-step test because the conditions of the introductory sentence to Art XX considered GATT not fulfilled and saw "unjustified discrimination" and a "disguised restriction on international trade" in the specific design of the American measures. 20 See Appleton, 6 Review of European Community & International Environmental Law 1997, 131; Ziegler, 51 Foreign Trade 1996, 417..3. The shrimp / turtle case The so-called shrimp / turtle case21United States - Import Prohibitions of Certain Shrimp and Shrimp Products, complaint by India, Malaysia, Pakistan and Thailand (WT / DS58), Appellate report adopted on 6.11.1998 (WT / DS58 / AB / R). When it comes to culinary delicacies, which are the subject of WTO proceedings, you are sometimes spoiled for choice, at least as far as their German names are concerned. While the majority of German commentators seem to opt for “shrimps” or “prawns”, there are also supporters of “shrimp” or those who stick with the more internationally widespread “shrimp”. Cf. Hilf, NVwZ 2000, 481, 484., based on a complaint by various Asian WTO member states against the USA, continues the topic of the tuna panels. Here, too, it was a matter of unilateral American import bans, this time for shrimp and shrimp products that were applied to states that did not provide for any measures to protect sea turtles when fishing for shrimp, whereby the combination of American regulations resulted in other states essentially adopting the the same measures as the USA - such as the so-called TEDs ("turtle excluder devices"), which have meanwhile become internationally known - had to take in order to evade the import ban. Taking into account various international environmental agreements, the WTO Appellate Body came to the conclusion that the American measures served to protect an »exhaustible natural resource« and were applied »in connection with restrictions on domestic production«, thus meeting the requirements of Art. XX (g ) GATT and therefore prima facie the violation of the prohibition of quantitative import restrictions is justified. However, referring to the two-stage test developed in the fuel case, the WTO Appellate Body was forced to check that the requirements of the introductory sentence of Art. XX GATT were also met. In addition, it stated that it would examine the existence of a balance between the interests of the WTO members who invoke the exemption clause in Article XX GATT and those who insist on compliance with their rights under GATT. This review showed that the inflexibility of the American regulations and the fact that, in contrast to other states, there had been no serious international negotiations with the complainants about sea turtle protection, constituted "arbitrary and unjustified discrimination" within the meaning of the introductory sentence of Art. XX GATT were to be assessed 22 Cf. Jackson, 11 EJIL 2000, 303; Mavroidis, 34/1 Journal of World Trade (JWT) 2000, 73; Qureshi, 48 International and Comparative Law Quaterly (ICLQ) 1999, 199..4. Helms-Burton case Also in the dispute over the GATT / GATS conformity of the American Helms-Burton Act23 Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Public Law 104-114, H.R. 927; reproduced in: 35 International Law Magazine (ILM) 1996, 357. the question of the scope of the content of the WTO dispute settlement mechanism was discussed. Actually, it was about the question of the (extraterritorial) expansion of the American trade embargo against Cuba. Lowe, 46 ICLQ 1997, 378; Reinisch, 7 European Journal of International Law 1996, 545 .. The central mechanism of this expansion is an "investment ban" in relation to former American property in Cuba in the very indirect form of a possible penalty claim against investors. While the inadmissibility of such an extraterritorial regulation under international (custom) law can still be proven relatively easily, there is evidence of a specific GATT or GATS violation (Art. I, III, V and XXIII GATT as well as Art. II and XVII GATS) mainly discussed) already more difficult 25 Cf. Nissen, RIW 1999, 350 .. Interestingly, however, after the initiation of a panel procedure in autumn 1996, 26 United States - The Cuban Liberty and Democratic Solidarity Act, complaint by the European Communities (WT / DS38).Until its suspension in April 1997, the interest in a possible justification by invoking the so-called "security exception" of Art. XXI GATT and Art. XIV GATS. According to her, the respective provisions of the agreement do not prevent the contracting parties from "taking measures which, in their opinion, are necessary to protect their essential security interests (...) in times of war or other serious crises in international relations." XXI b iii GATT .. Based on this "security exception", but in some cases going beyond it, the USA has repeatedly emphasized that the Helms-Burton controversy is a political, not an economic, dispute for its settlement the WTO is not the right forum. IV. Reasons for “forum shopping” under international law If one realizes the importance that the WTO dispute settlement system played in the context of the Uruguay Round negotiations, and the importance given to it by the contracting parties - partly explicitly in the text of the WTO agreements. only Article 3 (2) DSU: "The WTO's dispute settlement system is a central element in creating security and predictability in the multilateral trading system." just about the statement of the WTO Secretary General Ruggerio on the WTO dispute settlement system of April 17, 1997, available at: http://www.wto.org/english/thewto_e/whatis_e/tif_e/displ_e.htm. - at first glance, it may be surprising: If dispute resolution is actually "the" or at least one of the central element (s) in the establishment of a functioning world trading system, why should the members try to evade this system ?1. The most significant - and in a certain sense also legitimate - motive for "forum shopping" is likely to be the anticipated chances of success among the possible dispute settlement procedures that are available. The swordfish case in particular clearly shows that the decisive factor is the materially applicable norms, implicitly determined with the choice of the dispute settlement forum, which decide whether a person can win or lose. A starting advantage or disadvantage can be seen in the procedural situation of the two parties to the dispute in the respective proceedings. Before a WTO panel, Chile would be clearly on the defensive, as it would have to justify the violation of GATT provisions with - generally restrictively interpreted - exemptions. Before the Tribunal for the Law of the Sea, on the other hand, Chile could aggressively reprimand the Community's failure to comply with relevant conservation obligations under the UN Convention on the Law of the Sea. In addition, the at least implicit recognition of the precautionary principle in the Bluefin Tuna decision of the Maritime Court of Justice of 199930 Kwiatkowska, 94 AJIL 2000, 150. In Chile, the expectation of a more positive attitude than, for example, in the context of the WTO31 only about the doubts of the WTO Appellate Body about the (international) customary law quality of the precautionary principle in European Communities - Measures Affecting Meat and Meat Products (Hormones), complaint by the United States (WT / DS26), European Communities - Measures Affecting Livestock and Meat (Hormones), complaint by Canada (WT / DS48), Appellate report adopted on March 13, 1998 (WT / DS26 / AB / R, WT / DS48 / AB / R), § 123. 2. The search for the actual subject of the dispute can, however, also have to do with the question of the actual "factual competence", not in the legal sense, but rather in the everyday sense, namely with the search for the relevant decision-making expertise, regardless of the predicted chances of success. Often enough in the past the lack of professional competence of some panels was criticized, as long as they did not only have to decide on trade issues. Institutionally, the "system" of GATT / WTO dispute settlement has so far only responded very hesitantly to this criticism, for example by including environmental experts in panels.32 See the appointment of the diplomat and environmental law expert Winfried Lang as a panel member in the second tuna case in 1992, which was primarily in response to criticism by Environmental NGOs are to be valued. Cf. Charnovitz, 17 University of Pennsylvania Journal of Int'l Economic Law 1996, 331, 352. or through the admission of NGO briefs as amicus curiae briefs33 Cf. Dunoff, 1 Journal of International Economic Law 1998, 433; Esty, 1 Journal of International Economic Law 1998, 123..An important reason for the wider range of questions to be answered by WTO panels lies in the success of trade liberalization through the GATT system to date, including the contribution made by the panel decisions. Originally the focus was on the reduction of customs tariffs and the removal of quantitative restrictions on the import and export of goods, today - after the largely successful realization or almost realization of these goals - it is primarily about so-called non-tariff trade barriers in the form national regulations that may have a trade-distorting or reducing effect. Tietje, Basic Normative Structures for the Treatment of Non-Tariff Trade Barriers in the WTO / GATT Legal System, 1998 .. These include technical norms, environmental and social standards as well as tax or consumer protection regulations. Sovereignty The tried and tested sovereignty remains as a stumbling block to international dispute settlement. But it would be too easy to argue here with the usual prejudice against the inadequate legal quality of international agreements. It is true: in the USA, on the occasion of the debate on the ratification of the results of the Uruguay negotiations and then in the wake of the fuel decision35 (see footnote 19 above), one of the first WTO panel reports ever and the first in which the USA was defeated , led a great "sovereignty debate" 36Jackson, 36 Columbia J. Transnat'l Law 1997, 157. which was by no means restricted to the professional guild, but rather occupied all published public opinion, as one could read in the editorials of most American newspapers . But the USA in particular - a largely unsuspecting candidate when it comes to not acting in one's own interest - has shown that an interest in maintaining a functioning WTO dispute settlement system can take precedence over one's own substantive interests. The same applies to the EC and other WTO members. Admittedly, wherever central political concerns, in the field of national security, health or the like, are actually at stake, WTO members also try to either initiate a procedure at all withdraw - think of the US position in connection with the controversy over the Helms-Burton Act - or prevent compliance with WTO dispute settlement decisions - think of the position of the EC in the hormone dispute. above footnote 31, but also of their hesitant steps towards shaping the common organization of the banana market in conformity with the WTO. There are actually a surprising number of dispute settlement forums that potentially compete with the WTO dispute settlement system. The reason for this is certainly also the "proliferation" of dispute settlement mechanisms in international law, which has already been lamented in various places. Charney, 271 Recueil des Cours 1998, 101; Hafner, in: Caflisch (Ed.), The Peaceful Settlement of Disputes between States: Universal and European Perspectives, 1998, p. 25; Kingsbury, 31 NYU Journal of International Law and Politics 1999, 679; Lowe, 20 Australian Year Book of International Law 1999, 191..A - at least in factual terms - kind of "subsidiary universal responsibility" can in any case claim for itself the ICJ, the ICJ statute for all according to Art. 36 Paragraph 2 lit. Legal disputes that have any questions of international law as their subject. Disputes about compliance with GATT or other WTO agreements are international legal disputes in this sense and could therefore be dealt with before the ICJ from the perspective of the ICJ. Particularly with regard to environmental disputes, the establishment of a separate ICJ chamber for environmental cases in 199339The ICJ made use of the authorization contained in Art. 26 ICJ statute, »one or more, depending on its decision, of three or more To set up an existing chamber for judges to decide certain types of matters «. See Rosenne (fn. 8), p. 1117. of particular importance. Although this chamber has not yet played a role in practice, overlaps are possible here. Ferrante, 5 Journal of Transnational Law & Policy 1996, 279, which discusses a possible ICJ jurisdiction in cases such as the tuna dispute. Whether in such a situation the "priority clause" in favor of the WTO dispute settlement system41 See footnote 80 of IGJ would be respected remains to be seen, but it is highly probable that in the future different aspects of a comprehensive and therefore multifaceted intergovernmental controversy will be brought before different forums, such as the WTO and the ICJ, more frequently. A certain foretaste of this is offered by the demand of Colombia and Honduras for the establishment of a WTO panel over import restrictions by Nicaragua42Nicaragua - Measures Affecting Imports from Honduras and Colombia (I), complaint by Colombia (WT / DS188 / 1); Panel erected on May 18, 2000; Nicaragua - Measures Affecting Imports from Honduras and Colombia (II), request by Honduras (WT / DS201 / 1)., Which were imposed in connection with a border conflict, which in turn is the subject of an ICJ proceeding43Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea, (Nicaragua v. Honduras), introduced on December 8, 1999. See http://www.icj-cij.org/icjwww/idecisions.htm..The competition problem is more acute (from the point of view of the WTO ) However, in relation to other, more specific dispute settlement mechanisms, such as the International Tribunal for the Sea, 44 whose jurisdiction in turn can again conflict with that of the ICJ. Cf. Treves, 31 NYU Journal of International Law and Politics 1999, 809. - as exemplified in the swordfish case outlined above - or in relation to various environmental dispute settlement mechanisms as provided for in various conventions. Although multilateral environmental agreements often focus on so-called compliance mechanisms. Schally, in: Lang (Ed.), The Ozone Treaties and Their Influence on the Building of International Environmental Regimes, 1996, p. 82. Some of them contain classic dispute settlement obligations that fall under the jurisdiction of an arbitration tribunal or the ICJ 46 Cf. the overview in WTO Committee on Trade and Environment, Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, 6. 6. 2001 (WT / CTE / W / 191) .. Finally, there would also be jurisdictional conflicts with ICSID or WIPO conceivable. It cannot be ruled out that investment disputes that are subject to the ICSID's jurisdiction under a bilateral investment protection treaty are also subject to the WTO dispute settlement system, insofar as they can also be viewed as a breach of the GATS most-favored nation or national equal treatment obligations. It would also be conceivable that disputes about the application and interpretation of multilateral treaties for the protection of intellectual property, which are subject to WIPO arbitration, are at the same time to be assessed as violations of the TRIPS Agreement and can thus be brought before the WTO dispute settlement system. Petersmann, 3 JIEL 2001, 3, 8 .. Overlaps have already occurred several times with regard to dispute settlement mechanisms of regional integration systems such as NAFTA in particular and the USA-Canada free trade agreement. Marceau, 31/2 JWT 1997, 25-81 .. However, this is primarily a matter of factually parallel responsibilities (in the case of partially overlapping contracting parties). Because the provisions in NAFTA and GATT are not only largely identical in content, in some cases the NAFTA provisions expressly refer to GATT rules. Therefore, the question of the delimitation of the content of jurisdictions is hardly relevant in practice. The issue of "jurisdiction delimitation" between NAFTA and WTO remains problematic, however, with regard to the possible exclusivity of one or even both systems49See footnote 80 below. In practice, however, there has not been any major dissonance because the states concerned, especially Canada and the USA, in their previous trade disputes over beer, wood and pork, have usually been able to agree on one of the two available forums and, in addition, different legal aspects were in the foreground in each case. the overview in Davey, Pine and Swine, Canada-United States Trade Dispute Settlement, 1996 .. Only the salmon / herring dispute was essentially about the same, but then reformed Canadian regulations for the protection of exhaustible resources. First, a GATT panel found that a Canadian export ban on unprocessed salmon and herring was a violation of Art. XI GATT, which could not be justified by Art. XX (g) GATT, as this measure was not primarily aimed at preservation and it was not set in connection with national measures aimed at greater effectiveness51 Canada - Measures affecting exports of unprocessed herring and salmon, BISD 35S / 98, adopted on March 22, 1988 .. The change of this export ban in question into an obligation in Checking salmon and herring caught in Canadian waters in Canadian ports before exporting them was then the subject of proceedings before an FHA panel52 West Coast Salmon and Herring from Canada, CDA-89-1807-01, October 16, 1989, available at : http://www.nafta-sec-alena.org/images/pdf/cc89010e.pdf .. This had to apply the same GATT provisions due to a reference in the FTA and decided that au ch these Canadian measures were probably not aimed primarily at the conservation of natural resources and in any case did so in a disproportionate manner. The Grain-Broom Controversy 53 In the Matter of the U.S. Safeguard Action Taken on Broom Corn Brooms from Mexico, USA-97-2008-01, January 30, 1998, available at: http://www.nafta-sec-alena.org/english/index.htm. is the only FTA case so far in which a party to the dispute explicitly referred to the lack of competence of the FTA panel called. The US argument that only WTO dispute settlement bodies are responsible for deciding on protective measures under Art. XIX GATT was, however, considered to be irrelevant by the FHA panel, since it was in a position to make its decision on the basis of a similar NAFTA provision To meet 54Ibid., § 50 .. In a certain sense, one can also speak of competition between the WTO dispute settlement system and national courts (in this context the ECJ is to be seen functionally as the national court of the WTO member EC). Because often national courts - for example at the request of private parties to the dispute - have to decide on GATT / WTO issues. This probability is of course reduced in those legal systems which GATT / WTO rules are deemed not to be directly applicable - such as the European 55 Cf. the Council decision on the occasion of the conclusion of the GATT 1994, according to which "the Convention establishing the World Trade Organization, including its annexes (...) is not designed in such a way that it can be cited directly before the judicial organs of the Community and the Member States", OJ 1994 No. L 336, p. 2. In the case, the ECJ has this position, which it has already developed for the GATT (verb. Case 21-24 / 72, Coll. 1972, 1219 - International Fruit Co./Produktschap voor Groenten en Fruit,), now continued, see judgment of November 23, 1999 - Case C-149/96 - Portugal v Council. See Egli / Kokott, 94 AJIL 2000, 740. - or as "non-self-executing" - like the US 56Sec. 102 of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994). - because it is only relevant here in rare exceptional cases - primarily in the international law-compliant interpretation of national law, which was passed in fulfillment of GATT / WTO obligations. A special feature of the "competing" application of GATT / WTO law Finally, forms the American project of monitoring WTO dispute settlement decisions by a separate WTO Dispute Settlement Review Commission.57 This legislative proposal, originally tabled by Senator Dole, was only repeated in the summer of 2000. Cardin seeks to ensure fairness for U.S. industries; HR 4706 Proposes Creation of WTO review commission, June 2, 2000, available at: http://www.house.gov/cardin/wto. review.htm. See also Herman, 47 The Hastings Law Journal 1996, 1635; Schaefer, 11 St. John's Journal of Legal Commentary 1996, 307., consisting of American appellate judges whose job it is to monitor the GATT / WTO compliance of panel and appeal body decisions. Since in these situations - in contrast to the Discussed at the beginning - but not about disputes between WTO members in various international forums, they will not be dealt with further here. Rather, the question of determining the content of the possible disputes before WTO dispute settlement bodies is to be investigated.The jurisdiction ratione materiae of WTO dispute settlement bodies The DSU does not contain any explicit regulations on the scope of the jurisdiction of WTO panels or the WTO appellate body. There are also no procedural rules in the event of a dispute about the jurisdiction of these dispute settlement bodies. However, various provisions of the DSU can be used to indirectly determine what it is or can be about. Art. 1 DSU, which speaks of "Scope and Application", suggests that it essentially concerns disputes between members with regard to their rights and obligations under the WTO Agreement, the multilateral (and plurilateral) trade agreements and the supplementary concretization agreements. Art. 1 Para. 1 DSU speaks of the “agreements covered by the agreement”, which are mentioned in the appendix to the DSU. This is confirmed by the determination of Art. 3 Para. 2 DSU, according to which the WTO dispute settlement system primarily serves to »preserve the rights and obligations of the members from the agreements covered by the agreement and the applicable provisions of these agreements in accordance with the to clarify conventional rules of the interpretation of international law ". Articles 7 and 11 DSU also indicate that the WTO dispute settlement system is not a dispute settlement mechanism with extensive substantive competence, but that it is rather the task of the WTO dispute settlement bodies to" in the light of the relevant provisions of the covered conventions «58Art. 7 DSU., "To make the recommendations provided for in the conventions covered by the agreement or to make decisions" 59Art. 11 DSU .. Also other provisions of the DSU lack a clear delimitation of the content of the possible disputes. Art. 3 Para. 3 DSU speaks of "situations in which a member is of the opinion that advantages that arise for the member directly or indirectly on the basis of the agreements covered by the agreement are diminished by measures taken by another member." This provision confirms the general reference to Art. XXII and XXIII of the GATT in Art. 3 Para. 1 DSU and at the same time reminds that it is the specialty of the WTO dispute settlement that here the determination of legal violations is less in the foreground, but that it is primarily a matter of balancing the mutual trade advantages from the agreements. As is well known, Art. XXIII GATT assumes that WTO members are entitled to raise ideas if they are of the opinion that concessions or other advantages that (should) result from the GATT will be nullified or diminished or that the Achievement of one of the goals of the GATT, be it through (a) breaches of contract, (b) non-violating measures by another member or (c) any other situation is hindered .. Art. 3 Para. 4 and 5 DSU speak of the »satisfactory regulation "Or" resolution "of" matters "in accordance with the" agreements covered by the agreement ". It follows that the relevant starting point for the question of the substantive competence of GATT / WTO panels or the WTO Appellate Body is the interpretation of the term the "convention covered by the agreement" is to be taken. also Palmeter / Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure, 1999, p. 19 ff., Which take the “conventions covered by the agreement” as the basis for Chapter 2, which is entitled “Jurisdiction”. Thus, this question depends largely on the scope of the material rules of GATT / As the DSU clearly shows, however, it is not just the disputes about rights and obligations that arise directly from the WTO agreements that can lead to WTO panels, but any measures of a WTO member that lead to a reduction in the trade advantages of another member, even if these advantages result only indirectly from the WTO agreements. Art. 3 Para. 3 DSU. For its wording, see the text in footnote 60 .. This means that by no means only measures that have a direct impact on international trade are covered, but rather a whole range of Member State regulations for the protection of the environment, social order, health or the Consumers can become the subject of trade disputes. From a WTO perspective, they can easily be seen as non-tariff barriers to trade. At the same time, it is conceivable that such member-state measures are also the subject of other international treaties. It is not for nothing that the WTO has already been referred to as a "Trade and ... Organization" 63Trachtman, 9 EJIL 1998, 32. See also Bronckers, 3 JIEL 2001, 4 , 41. whose activities no longer coincide exclusively with the narrow trade term in the sense of a mere cross-border exchange of goods. As the environmentally relevant disputes have clearly shown. recently Altemöller, RabelsZ 64 (2000), 213; Hohmann, RIW 2000, 88. and - as can be shown on the basis of the other relevant exception provisions, in particular Art. XX GATT - a whole series of non-directly trade-related aspects fall indirectly within the scope of the "conventions covered by the agreement". In addition, some of the “agreements covered by the agreement” contain explicit references to legal provisions outside the WTO, such as those of the International Organization for Standardization (ISO). Appendix 1 to the Convention on Technical Barriers to Trade., The Codex Alimentarius Commission 66 Cf. in particular No. 3a of Appendix A "Definitions" to the Convention on Sanitary and Phytosanitary Standards., the World Customs Organization67Cf. Art 18 Para. 2 Convention on the Interpretation of Art. VII GATT 1994 (Valuation Convention). or the United Nations 68 Cf. Art. XXI c and XXIII GATT .. If one also assumes that the GATT / WTO norms are by no means a "self-contained regime" 69Kuyper, 25 Netherlands Yearbook of International Law 1994, 227; Marceau, 33/6 Journal of World Trade 1999, 87. But see also Mavroidis, RIW 1991, 37., which finally regulates its legal consequences including enforcement, there is still an effect of general international law on various levels. A dictum in the fuel case70United States - Standards for Reformulated and Conventional Gasoline, adopted May 20, 1996 (WT / DS2 / AB / R), according to which WTO law is not to be interpreted in clinical isolation from other international law recently understood as confirmation of this view. That would mean that in certain cases WTO panels would be obliged not only to use the "conventions covered by the agreement" as a benchmark, but also to use general rules of international law. generally Palmeter / Mavroidis, 92 AJIL 1998, 398, which assume a comprehensive "incorporation" of general international law into WTO law on the basis of Art. 3 Para. 2 and Art. 7 DSU. Recently, Petersmann, for example, went so far as to infer from Article 31 of the Vienna Convention on the Law of Treaties that WTO panels should take human rights into account when interpreting and applying the WTO agreements, 3 JIEL 2001, 3, 8 .. In the case of Korea / Public Procurement, a WTO panel even stated that general customary international law was applicable to the extent that WTO treaties were not derogated from this 72Korea - Measures Affecting Government Procurement, complaint by the United States (WT / DS163 / 1). Panel report adopted on June 19, 2000 (WT / DS163 / R), § 7.96: "to the extent that the WTO treaty agreements do not 'contract out' from it." gain something for a substantive delimitation of the »WTO jurisdiction«. It is true that lip service can be referred to, according to which their activities are limited to GATT / WTO matters. the statement in Canada - Administration of the Foreign Investment Review Act, BISD 30S / 140, adopted on February 7, 1984, 141, § 1.4: "the panel would be limited in its activities and findings to within the four corners of GATT" published by Palmeter / Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure, 1999, p. 19, is rated as confirmation of a content-related restriction of jurisdiction. In fact, however, they assumed decision-making authority on all possible subjects, provided that these are only indirectly relevant as preliminary questions, which in view of the rejection of the »clinical isolation «of GATT / WTO law is only consistent and is also to be welcomed in terms of legal policy, insofar as it comes to a bona fide assessment of non-direct WTO norms. It usually only becomes problematic when a "trade bias" (prejudice in favor of trade liberalization) comes into play in the event of a conflict. Bronckers, 3 JIEL 2001, 4, 58 .. The shrimp / turtle case75See note 21 above is often used as a (positive) example of the use of multilateral treaties that are not part of the WTO (including the UN Convention on the Law of the Sea, the Washingtoner Convention on International Trade in Endangered Species (CITES), 993 UNTS 243 (1973)., The Convention on Biological Diversity and the Convention on the Protection of Migratory Animals) for the purpose of interpreting WTO law (Art. XX GATT). In the poultry case 77 European Communities - Measures Affecting Importation of Certain Poultry Products, complaint by Brazil (WT / DS69), Appellate Report adopted on July 23, 1998 (WT / DS69 / AB / R), § 83, the appeal body even used one bilateral agreement for this purpose. Whether, however, also trade restrictions to protect the environment, which can no longer be interpreted in accordance with the GATT provisions, but may go beyond them or are in open contradiction to GATT regulations78 See, for example, various relevant provisions of the Washington Convention on the Protection of Species, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal in 1989 and the Montreal Protocol for the Protection of the Ozone Layer of 1987, cf.Help, NVwZ 2000, 481, 482., will be given sufficient consideration by WTO dispute settlement bodies , seems uncertain 79 Cf. Trachtman, 40 Harvard International Law Journal 1999, 333, 340 ff. The question then arises all the more whether such disputes even belong before WTO dispute settlement bodies.VII. A priority clause in favor of the WTO dispute settlement system? Just as the DSU does not make a clear statement about the substantive competence of the WTO dispute settlement bodies, the question of the relationship to other dispute settlement mechanisms remains unclear. Art. 23 DSU - titled "Strengthening the multilateral system" - is generally viewed as a priority clause in favor of the WTO dispute settlement system, whereby its "exclusivity" is often referred to. 80 Petersmann, 31 Common Market Law Review 1994, 1154, 1208 .. In Art. 23 para. 1 DSU the WTO members undertake in the event of disputes about the "agreements covered by the agreement" to "[adhere] to and [obey] the rules and procedures of this agreement". Art. 23 para. 2 DSU also requires them not to make any WTO-relevant determinations "unless by using the dispute settlement in accordance with the rules and procedures of the present agreement." Relationship to the regional integration system NAFTA81 Loungnarath / Stehly, 34/1 JWT 2000, 1 .. In the old 1988 Free Trade Agreement (FHA) USA-Canada you can find what would be called the "court of jurisdiction". Art. 1801 FHA provided that it would be at the discretion of the complainant to determine whether a GATT or an FHA procedure would be carried out. 2005 of the North American Free Trade Agreement (NAFTA) of 1992 also provides that third states must be informed of a possible dispute and - should they want to join the procedure - an agreement must be reached on a uniform forum. If no such agreement is reached, Art. 2005 NAFTA provides that the dispute is normally to be settled under this agreement (i.e. NAFTA). Art. 2005 paras. 3 and 4 NAFTA also provide for an express exclusivity of the NAFTA dispute settlement for those cases in which the defendant state characterizes its measures as justified by environmental or health protection. If the complainant has already initiated a GATT procedure in such a case, he is obliged to withdraw immediately from participating in such a procedure in accordance with Art. 2005 Para. 5 NAFTA. So the conflict is preprogrammed. VIII. Institutional answers to the question of competition for dispute settlement The answers of the WTO itself to the open questions of possible overlaps of its own dispute settlement competence with that of other forums are only rudimentary. Originally there was obviously a comprehensive understanding of one's own responsibility, which was probably based on the fact that a virtually unlimited number of conceivable state measures can be qualified as trade barriers within the meaning of GATT. The primary objective of trade liberalization is, of course, to remove these obstacles. Since the agreements obviously contain relevant provisions for the exceptional justification of Member State decisions that are often politically very important - such as social standards or environmental protection measures - it makes sense to regard the WTO's own dispute settlement system as an adequate forum The practice of WTO dispute settlement in recent years - for which the organization has a quasi-official position on procedural competition problems, is that of trade and the environment. The WTO Committee on Trade and the Environment, established in 1996, 82 Cf. Tarasofsky, 3 Max Planck Yearbook of United Nations Law 1999, 471. takes the view - probably also under increasing pressure from various environmental protection organizations - that in the event of disputes about a trade measure taken under a multilateral environmental agreement, the dispute settlement mechanism of the environmental agreement concerned should primarily be used, provided that both parties to the dispute are also its contracting parties. If this is not the case, the WTO dispute settlement system is the only possible forum83 »Suppose a trade dispute arises because a country has taken action on trade (for example imposed a tax or restricted imports) under an environmental agreement outside the WTO and another country objects. Should the dispute be handled under the WTO or under the other agreement? The Trade and Environment Committee says that if a dispute arises over a trade action taken under an environmental agreement, and if both sides to the dispute have signed that agreement, then they should try to use the environmental agreement to settle the dispute. But if one side in the dispute has not signed the environment agreement, then the WTO would provide the only possible forum for settling the dispute. That does not mean environmental issues would be ignored. The WTO agreements allow panels examining a dispute to seek expert advice on environmental issues. "(Available at: http://www.wto.org/english/thewto_e/whatis_e/tif_e/bey4_e.htm#keyquestion.). Given the" Exclusivity «of the WTO dispute settlement procedure according to Art. 23 DSU84Cf. on footnote 80 above, this "voluntary" waiver of jurisdiction seems remarkable. But one should not overlook the fact that there has not yet been a case in which a WTO panel has renounced its jurisdiction in favor of an environmental dispute settlement procedure and that furthermore from this "openness" of the WTO dispute settlement system in a recent publication of WTO Committee on Trade and Environment85 Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, 6. 6. 2001 (WT / CTE / W / 191). doesn't find much anymore. There is no mention of the "primacy" of the dispute settlement mechanisms contained in environmental agreements, rather the presentation concludes with the statement that "the development of improved compliance mechanisms would be a way not only to improve the effective implementation of multilateral environmental agreements, but also to improve the emergence of related disputes before the WTO dispute settlement system «86Ibid., § 141:» developing more elaborate compliance systems (...) would be one way to enhance the effective implementation of MEAs, and to prevent MEA-related disputes from arising in the WTO dispute settlement system. ”This also makes it very unlikely that the previous practice of a gradual expansion of jurisdiction by the WTO dispute settlement bodies will change significantly. Any limits to the substantive jurisdiction of WTO panels are likely to have to be drawn ever further87Trachtman, 40 Harvard International Law Journal 1999, 333, 364, speaks in this context of the fact that the appellate body may “transform itself from a 'trade court' to a general international court in order to deal with intersections between trade values and other vital considerations such as environment «.. IX.Conclusion If one assumes that the question of the "right" forum for the settlement of interstate disputes is primarily about the correct characterization of the content or subject matter of the dispute, one could be of the opinion that only more precise criteria for determining this content are applicable would develop. But too much here obviously depends on the - in the truest sense of the word - perspective. However you look at these legal puzzles, they only confirm that the same facts can be characterized as completely different legal problems from different legal perspectives. It should therefore not come as a surprise that in a time of increasing "legalization" of cross-border areas of law, especially through the creation of sometimes highly specialized dispute settlement mechanisms, the question of the "most competent" forum arises, but cannot be resolved satisfactorily. The lack of a higher instance of international dispute settlement bodies is noticeable here. International courts will probably only be able to counter the “danger” of contradicting decisions in the future if they mutually “take into account” their opinions.
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