Research On The Possible Solutions For The Conflicts Of Jurisdiction Between WTO And FTA

Recently, as the proliferation of regional trade liberalization, many countries established free trade areas through the signing of free trade agreements(FTAs) and develop the regional economic cooperation. In the relationship between WTO and regional trade arrangements, the provisions of GATT1994 Article 24 shall be applied, that is to say, the development of the regional trade shall be under the multilateral framework of WTO. However, in practice, there are conflicts of jurisdiction between WTO and FTAs. Considering the rapid development of FTA in recent years and the substantial conflicts between FTA and WTO rules, solving the conflicts of jurisdiction has become an important part of international trade. With the advent of jurisdiction conflicts of international trade law, and the dispute settlement mechanism which has the compulsory jurisdiction(such as WTO) gradually rising, different decisions which are made based on similar facts and law applications by different dispute settlement mechanisms will inevitably reduce the legal security.Therefore, seeking solutions to settle such problems is extremely urgent, and the key lies in how to solve the relationships of dispute settlement mechanisms between WTO and FTA. At the same time, the WTO dispute settlement mechanism shall understand the dispute facts from a broader perspective, and refuse its jurisdiction or suspend relevant dispute litigation procedure of sentencing under appropriate conditions. In such relationship, WTO and FTA how to deal with the conflicts of the jurisdiction is quite crucial for effectively solving the legal problems and maintaining the availability of dispute settlement procedures.Compared with the domestic related research, this paper put aside too much analysis on WTO and FTA theory and focused on possible solutions on the conflicts of jurisdiction, summed up the international arbitration institutions on the usual methods to solve the related conflicts, and put forward feasible ways such as applying judicial comity through exercising the inherent power of judicial forums so as to solve the conflicts of jurisdiction between WTO and FTA. All above are very important for practical guiding.This thesis is divided into 4 parts:The first part of the article discussed the reasons of the conflicts of jurisdiction between WTO and FTA from two perspectives, which one is the provisions conflicts between the covered agreements of WTO and treaties of FTAs and the other is differences between dispute settlement systems of WTO and FTA, and pointed out the limitation to solve conflicts of jurisdiction between WTO and FTA through existing agreements.The second part proposed to use treaty interpretation to solve the conflicts of jurisdiction between WTO and FTA, which would be helpful to establish the jurisdiction of dispute related to both WTO agreements and FTA rules, and also analyzed the effectiveness and limitations of the application of the "Vienna Convention on the law of treaties" and other treaty interpretation rules to solve relevant dispute jurisdiction conflicts combined with cases.The third part analyzed the application and the feasibility of the jurisdiction clauses in FTA to solve the dispute jurisdiction conflicts of WTO and FTA, respectively analyzed the exclusive jurisdiction clause and the agreed jurisdiction clause to coordinate the role of the WTO and FTA dispute jurisdiction conflicts, at the same time points out the jurisdiction of the jurisdiction clauses can only create a single legal effect that excluding the one-way application of FTA and the incompleteness of the legal effect of the jurisdiction clauses.The fourth part creatively put forward a method of exercising the inherent power to apply the judicial comity, to solve the WTO and FTA dispute jurisdiction conflicts problem. First of all, this paper put forward the application of judicial comity comes from the enforcement of the inherent power of the dispute settlement `7body, and cited dispute cases that the international referee mechanisms solved by exercising the inherent power; second, studied the practical application of judicial comity and analyzed the implications of judicial comity for WTO and FTA dispute solution; finally, this paper considered that the application of judicial comity shall be restricted due to the self-limitation of WTO dispute settlement mechanism and dispute settlement mechanisms of FTAs so as to maintain the legitimacy of WTO dispute settlement mechanism and dispute settlement mechanisms of FTAs.