Fragmentation of International Law: Forum Shopping

The fragmentation of international law has recently taken a new and practical twist in a narrow field of international law.

 

WTO law is no stranger to fragmentation. The “trade and …” agenda is rife with debate over how international environmental law, international human rights law etc interacts with international trade law. But now, there is a re-newed discussion of how regional trade agreements (“RTAs”) interact with WTO law in a dispute settlement context.

 

First, where parties to a trade dispute are members to both the WTO and a RTA and the RTA in question provides for dispute settlement, which dispute settlement clause should prevail? The Mexico-Soft Drinks and Argentina-Poultry cases in the WTO show that this ambiguity allows disputants to forum shop. Moreover, concurrent jurisdiction between the two allows losers to have a second bite of the cherry.

 

In the most recent edition of Journal of International Economic Law, CL Lim and Henry Gao (in “Saving the WTO from the Risk of Irrelevance”) advocate that RTA disputes should be resolved through the WTO DSU system. In the context of recent WTO Panel and Appellate Body decisions in Mexico-Soft Drinks and Argentina-Poultry, they argue that the WTO DSB may be the most effective forum to resolve RTA disputes as it provides a multilateral solution without sacrificing the utility of bilateral consultations.

 

This leads to the second question. Which law should a tribunal apply? WTO law or RTA law? Lim and Gao suggest amending the DSU to allow WTO tribunals to apply RTA law. I refrain from commenting on the political viability of this suggestion for the moment. In the absence of such an amendment, what can tribunals do? The International Law Commission has suggested various principles such as allowing lex specialis to supercede lex generalis and having later law prevail over earlier law. This has been considered by WTO tribunals. Yet, these principles mask what appears to be the development of a body of jurisprudence concerning choice of international law.

 

Can existing principles which apply to conflicts of domestic law be used analogously in conflicts of international law? Prof. Trachtman explains the international allocation of jurisdiction between states in terms of property and liability rules. This assumes that states may or may not have an interest in having their law applied extra-territorially. But how about between international and/or regional institutions? Can it be said that there is jurisdictional competition between the WTO and RTA organizations to resolve disputes and apply their own law?

 

I know that more work on choice of international law is being carried out and will update accordingly. Meanwhile, I would love to hear any comments or views out there.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: