Browsing by Author "Kuoppamäki, Riikka"

The proliferation of preferential trade agreements has been significant since the establishment of the WTO. These agreements and regional integration schemes provide for rights and obligations that are often identical to those agreed upon in the WTO. Preferential trade agreements also provide for their own dispute settlement mechanism. Due to the parallelism of rights and obligations, trade disputes between members can often be settled under both the WTO dispute settlement mechanism as well as under the dispute settlement mechanism established by the preferential trade agreement. This overlap of jurisdictions may cause parallel or subsequent litigation concerning the same dispute. Members have attempted to solve this issue by including jurisdiction clauses in preferential trade agreements, which prohibit parties to the preferential agreement from initiating the WTO dispute settlement under certain conditions. This thesis examines whether the jurisdiction of a preferential trade agreement can override the jurisdiction of the WTO, and whether the WTO tribunals have the powers to decline to exercise jurisdiction on the basis of the jurisdiction of a preferential trade agreement. I will examine what effects such jurisdiction clauses included in preferential trade agreements could be considered to have on the jurisdiction of the WTO, and other possible ways to solve jurisdictional conflicts. This thesis argues that it is indeed possible for WTO panels to decline to exercise jurisdiction based on the jurisdiction of a tribunal established under a preferential trade agreement. To make this point, alternative solutions to overcome the conflicts are examined. The topic is divided into three main sections. These overlaps are first examined as a normative issue, concentrating on jurisdictional clauses and their potential effects. In this section the overall hierarchy of the two systems and the question of applicable law in the WTO dispute settlement system are studied. The question in this section is, can a PTA jurisdiction clause modify WTO member’s rights and obligations arising from the covered agreements. The second part concentrates on the procedural aspects of the overlaps. Here the focus is on rules of general international law established to govern the procedural issues in international adjudication. The question here is whether a parallel proceeding can by itself prevent WTO litigation. The third part focuses on the powers of the WTO tribunals and their abilities to decline to exercise jurisdiction. In this part the relevant WTO case law regarding this issue is also studied more carefully. The last part of this paper gives a brief outlook of the issue from a policy perspective while also addressing the challenges the situation causes to the whole system.