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WTO And Regional Trade Agreements, The Dispute Settlement Mechanism Of Overlapping Jurisdiction Issues

Posted on:2007-11-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y T DuFull Text:PDF
GTID:2206360182990851Subject:International Law
Abstract/Summary:PDF Full Text Request
Since World War 2, regional trade agreements have been on a growing stage andbecame one of the important legal forms of international cooperation in parallel withthe WTO. In contrast with the difficulties the WTO negotiation is facing with,regional trade agreements are expanding in size and scope with more and morecountries taking an active part in them including China. This phenomenon has calledgreat concern about how to encourage the RTAs to act as a stepping stone and preventthem from work as a stopping stone to the multi national trade mechanism of theWTO.There are two facets on the topic of the harmonization between the RTAs and theWTO, one is the angle of substantial rules the other is to look at it from the proceduralperspective. This article is to begin from analyzing the dispute settlement systems ofthe RTAs and the WTO, then point out that there is jurisdiction overlap between thetwo mechanisms since they have contracting parties and subject matters in common.The jurisdiction overlap leads to the parallel litigation and forum shopping by thedispute parties to these two different dispute settlement mechanisms which cause thewaste of judicial resources and confusion of international economic order. Afterinquiring into the factors causing jurisdiction overlap and its legal effects, Iconcentrate on putting forward the attitudes and measures that should be taken by theRTAs, the WTO and the dispute parties.This article consists of four parts and the main contents of each part are asfollows:Part one: the formation of the jurisdiction overlap between the dispute settlementsystem of the WTO and the RTAs. First I introduce the concepts about jurisdiction,jurisdiction overlap and the definite meaning of the jurisdiction overlap between thedispute settlement system of the WTO and the RTAs. The emphasis is to point out thethree factors leading to the formation of jurisdiction overlap: the statute regulations ofeach treaty in their jurisdiction scope, the character of parallel jurisdiction of eachmechanism and the qusi-automatic procedure to start the dispute settlement system.Part two: the legal effects of jurisdiction overlap. To those countries which areparties to the RTAs and the WTO as well, they are entitled to the right to choosewhich forum to go when a dispute break out with the subject matters belong to boththe RTAs and the WTO. Thus comes the problem of parallel litigation and forumshopping. Argentina -Definitive Antidumping Duties on Poultry from Brazil wascited in this part as an example of parallel litigation and the negative effects werepointed out as to parallel litigation and forum shopping.Pary three: the regulations of some RTAs to resolve the problem of jurisdictionoverlap. Some RTAs represented by NAFTA give the dispute party the right to choosewhich forum to go in case two or more dispute settlement mechanism both have thejurisdiction and once one procedure has been initiated, no party could refer the samedispute to the other dispute settlement mechanism. Such regulations play an activepart in preventing parallel litigation to some extent while it could not exclude thejurisdiction of WTO dispute settlement mechanism due to the reason that it is notlegally binding to the WTO dispute settlement mechanism.Part four: the attitudes and measures should be taken by the dispute settlementmechanism of the WTO and the RTAs and the dispute parties. Several schemes wereinspected such as the principles used in international private law to resolvejurisdiction overlap. After analysis, these rules are proved not feasible to resolve theproblem of jurisdiction overlap between the WTO and the RTAs. After researching theaim of the WTO on its relationship with the RTAs and the function of its disputesettlement, this article draws the conclusion that the jurisdiction of the WTO shouldbe exercised even in the case of parallel litigation. As to the RTAs, the representativeregulation on freedom to choose the dispute settlement mechanism by the disputeparties should be confirmed and popularized as it has positive effects on prevention ofparallel litigation. And the dispute parties should make reasonable decisions on whichforum to choose in resolving their dispute according to the analysis of substantial andprocedural factors of each mechanism to protect their rights and the coordination ofinternational economic order.
Keywords/Search Tags:WTO, RTAs, jurisdiction overlap, parallel litigation, forum shopping
PDF Full Text Request
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