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Facing Fragmentation : Dispute Settlement in the World Trade Organization and Regime-Collisions

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Title: Facing Fragmentation : Dispute Settlement in the World Trade Organization and Regime-Collisions
Author(s): Mustamäki, Milla
Contributor: University of Helsinki, Faculty of Law
Discipline: International law
Language: English
Acceptance year: 2013
The World Trade Organization (WTO), established in 1994, has been criticized for not sufficiently accommodating other values of international law such as the environment or human rights. This study examines interaction and possible collisions between the WTO and other special regimes of international law from the viewpoint of the WTO dispute settlement mechanism. Both normative and jurisdictional conflicts are studied. The purpose is to analyze the means available in international law to solve these conflicts and whether they actually are working. There is no hierarchy between international tribunals and no codified rules on how to solve conflicts of jurisdiction. Treaty clauses may be of some help, but often the clauses are too vague to offer any guidance in practical situations. Traditional principles governing jurisdiction, such as res judicata and lis pendens, might solve conflicts inside one regime, but they seem to work poorly in conflicts of jurisdiction between different special regimes. Parallel proceedings can be avoided if one of the tribunals shows deference to the other, or if the parties manage to agree on the relevant tribunal. Paradoxically, politics and diplomacy seems to play an important role in solving conflicts of jurisdiction between international tribunals. Normative conflicts can be defined either narrowly or broadly. This study advocates a broad definition of conflict in order to realize conflicts between obligations and permissions, and to avoid solving conflicts by merely defining them narrowly. Conflicts can be avoided through interpretation in the light of other rules of international law applicable between the parties, also known as systemic integration. Systemic integration could be especially useful in smoothing friction in the interaction between the WTO and other special regimes. However, so far the WTO panels and the Appellate Body have not made use of systemic integration to the extent possible. Actual conflict rules become necessary when interpretation fails in providing harmony between two conflicting norms. It is concluded that conflict rules, such as lex posterior and lex specialis, can be of use when solving conflicts inside one regime, but their applicability to conflicts between special regimes is problematic. Possible conflicts between peremptory norms and WTO law are also discussed. It is concluded that solving jurisdictional and normative conflicts has more to do with political decision-making than with the application of legal rules. It is suggested that the interaction between the WTO and other special regimes could further be enhanced by a broad definition of conflict and the utilization of systemic integration to its full extent.

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