4. (최원엽) Legal Impediments to the Exercise of WTO Jurisdiction in light of Mexico -Soft Drinks (DS308) and Peru-Agricultural Products (DS457)

(최원엽) Legal Impediments to the Exercise of WTO Jurisdiction in light of Mexico -Soft Drinks (DS308) and Peru-Agricultural Products (DS457).pdf

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[Abstract]

 

Overlap or conflict of jurisdictions in dispute settlement may be defined as situations where the same dispute or related aspects of the same dispute could be brought to two distinct institutions or two different dispute settlement systems for a solution. As the number of different international regimes and tribunals has multiplied over the past years, overlaps of jurisdictions have become commonplace in the international arena. This phenomenon is part of the fragmentation of international law, which is a result of the rise of specialized regimes that have different interests and biases.   

Since the World Trade Organization (WTO) recognizes the right of Members to enter into Regional Trade Agreements (RTAs), an inherent tension exists between Members’ rights under their RTAs and their rights under the WTO’s Dispute Settlement Understanding (DSU). However, there are a limited number of cases in which clear judgments have been made on the conflicting jurisdiction between the WTO and RTAs. Until now, WTO adjudicators have been reluctant to unequivocally state “whether there may be other circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits before it”. This paper considers what potential legal impediments to the exercise of WTO jurisdiction exist if a party raises the question of a WTO panel’s jurisdiction as a preliminary issue, with a specific focus on two WTO dispute settlement cases – Mexico-Soft Drinks (DS308) and Peru-Agricultural Products (DS457). 

Keywords : jurisdiction, WTO dispute settlement, RTAs, forum selection, mutually agreed solution, legal impediments, Mexico-Soft Drinks (DS308), Peru-Agricultural Products (DS457) 

 

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