Research On The Jurisdictional Competition Between The WTO Agreement And Regional Trade Agreements

The legalization of international trade relations and the proliferation of international courts and tribunals contribute to the emergence of a global community of courts. While the increase in the role of international courts and tribunals implies increased resort to adjudication, the uncoordinated operation of multiple judicial fora has also generated some potential problems. These problems have attracted great attention of scholars and practitioners of international community. This paper does not intend to make a comprehensive examination of all issues, but rather to choose one of the protruding problems: the jurisdictional overlap and competition between the WTO agreement and RTAS and to carry out thorough discussion of it. The jurisdictional overlap between the WTO agreement and RTAS does increase options and opportunities of complainants, but at the same time, the jurisdictional competition represents challenges and problems. Multiple litigation wastes litigation resources of disputing countries and can be a huge burden on developing countries'limited budgets. Meanwhile, Multiple litigation brings with it the risk of conflicting rulings and reduces predictability of international trade rules and their application. In sum, the question of jurisdictional overlap and competition between the WTO agreement and RTAS is not only an academic question, but also a practical question; not only of interest to rich developed countries, but also of crucial importance for developing countries. In this meaning, the current research pertains to both academic and practical significance.Besides the parts of introduction and conclusion, the paper consists of five chapters.In the introduction, the author introduces the context of the research, the significance of the research, the scope of the research and methodology the author employs.Chapter one examines the jurisdictional competition between the WTO agreement and RTAS from the perspective of international law. First, the author identifies the potential jurisdictional overlap between the WTO agreement and the main RTAS in the world, and shows the international context in which the WTO agreement and RTAS interacts: international legal pluralism.Then the author moves to analyze the general relationship between the WTO agreement and RTAS in GATT article 24 framework. On this basis, forum shopping and multiple proceedings taking place before WTO and NAFTA are used as strong indications of the reality of jurisdictional overlap and competition between the WTO agreement and RTAS.Chapter two examines the institutional prerequisite underlying the jurisdictional competition between the WTO agreement and RTAS. It is argued that the litigation tactics of the parties depend on the differences of substantive norms and dispute settlement rules between the WTO agreement and RTAS, as well as whether the parties prefer to set a regional or multilateral precedent.Chapter three explores the jurisdiction provisions in RTAS, which should be resorted to in case the WTO agreement and RTAS proceedings compete. It is argued whether such clauses could play the crucial role relies on the WTO panels'attitude. The WTO should accept such provisions and when they are triggered against WTO jurisdiction, a WTO panel should find that the panel has no jurisdiction to hear the case.Chapter four surveys the traditional jurisdiction-regulating rules applicable under domestic law, and points out it is necessary and plausible to introduce them into the international sphere. The case law of the PCIJ, ICJ and other international judicial bodies indicates that these rules have been applied under international law. Dispute settlement bodies of WTO and RTAS shall gradually develop the standards for referring to such rules in their jurisprudence.In chapter five additional specific measures are recommended which can mitigate the jurisdictional competition between the WTO agreement and RTAS. These measures include the application of general principles of international law such as the theory of abuse of rights and comity, and judicial accommodation by RTAS judicial bodies to the WTO. When addressing the jurisdictional competition between WTO and NAFTA in the antidumping and countervailing field, the principle of exhaustion of local remedies shall be applied.