Interferencias En El Mecanismo De Solucion De Diferencias De La Omc y Los Mecanimos Establecidos Por Los Acuerdos Comerciales Regionales

RISKS OF OVERLAPS BETWEEN THE WTO DISPUTE SETTLEMENT MECHANISM AND DISPUTE SETTLEMENT PROCEDURES INSTITUTED BY REGIONAL TRADE AGREEMENTS RESEARCH PAPER Roberto RECALDE
DECEMBER 2008
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Table of contents
1. INTRODUCTION .................................................................................................................. 2
2. OPENING COMMENTS........................................................................................................ 3
3. MEXICO – SOFT DRINKS...................................................................................................... 4
4. BRAZIL – TYRES ................................................................................................................... 7
5. LAST COMMENTS............................................................................................................... 9
6. CONCLUSION .................................................................................................................... 10
7. BIBLIOGRAPHY .................................................................................................................. 10
1. INTRODUCTION
One of the exceptions to the WTO fundamentalprinciple of non-discrimination is the possibility for its members to create the “so-called” regional trade agreements (RTAs). However, the mentioned agreements could create difficulties to manage the parallel consistency of WTO covered agreements and the obligations under the RTAs. One of these difficulties arises when members, respectively to the WTO or RTAs, seek to redress any obligations bybringing a certain claim to the relevant dispute settlement mechanism. In such situation, some overlaps could appear between the WTO dispute settlement and the mechanism instituted by the RTAs.
In order to analyze this fundamental risk, it is useful to remind the relevant provisions of the WTO in this matter and the main characteristics of two RTAs dispute settlement mechanisms, namely the NAFTA1and the MERCOSUR2. The analysis will follow by two cases brought before the WTO dispute settlement mechanism that have developed issues related to overlaps and it will finish by a few comments concerning the possible solutions to the problematic of the overlaps.
1 North American Free Trade Agreement. 2 Mercado Comun del Sur (Southern Common Market).
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2. OPENING COMMENTS
Article XXIV of theGeneral Agreement on Tariffs and Trade of 1994 (GATT), one of the agreements covered by the multilateral system governed by the WTO, authorizes the WTO members to form RTAs3. In the context of such agreements, certain obligations could be inconsistent with the WTO. The problem appears when the WTO and the RTAs provide similar obligations that could be brought to the Dispute Settlement Body (DSB) ofWTO or to the relevant mechanism before NAFTA or MERCOSUR, which are RTAs in the sense of Article XXIV GATT. The NAFTA agreement does not provide a single mechanism to settle a dispute between its members (Canada, Mexico and the USA, also members at the WTO). However, it provides identical rights as the WTO, which provokes a risk of overlap when a member seeks to redress a violation of its rights,the uncertainty being under which mechanism the member should proceed. The same problematic arises under the MERCOSUR agreement, also providing several dispute settlement mechanisms and identical rights as the WTO. However, Article 1.2 of the Protocol of Olivos relating to the settlement of disputes provides an exclusion of any other fora when a proceeding has been initiated according to thementioned protocol.
With regard to the Dispute Settlement Understanding (DSU), the relevant agreement governing the procedural steps at the WTO, there is no provision dealing with the priority or exclusivity of the DSB or any choice of forum’ rule. Instead, Article 23 DSU provides an “exclusive dispute resolution clause4”. The important consequence referring to the overlaps is that it allows no...