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Get At the Crossroads - The World Trading System and the Doha PDF

By Stefan Griller

ISBN-10: 3211224033

ISBN-13: 9783211224038

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Additional info for At the Crossroads - The World Trading System and the Doha Round

Example text

82 As a result, if the principle of issue estoppel were applied also before a WTO panel, then a WTO panel could preclude a SADC member from bringing, for example, a safeguards claim at the WTO in case substantively the same claim was previously decided upon by a SADC panel, as between the same parties. A WTO panel could also apply the principle of issue estoppel to the determination of specific facts or the legal characterization of facts by the previous SADC panel (or vice versa). The US doctrine of collateral estoppel could even go further and give res judicata effect also to a previous SADC panel finding on the same issue even if that panel was constituted at the request of another SADC member, different from the one now challenging the same measure at the WTO, in the event the former SADC member had ‘adequate opportunity to be heard’ before the original SADC panel.

59 57 58 59 Ibidem. On Argentina’s claim that Brazil was estopped from bringing the same matter to the WTO after bringing it to MERCOSUR, see infra text at footnote 83. 3). This may, indeed, be a wise addition in order to avoid exclusion in case the substantive claims under both procedures are markedly different. At the same time, it adds a complexity in that it will then be for the second panel or tribunal to decide whether the procedure before it raises ‘substantially separate and distinct rights or obligations’.

In the absence of explicit conflict clauses in either treaty70, the resolution of such conflict should then depend on normal conflict rules, in particular the principles of lex posterior and lex specialis. If, but only if, based on those rules, the DSU must give way to the other, non-WTO provision, then the WTO panel should find that it has no jurisdiction to examine the dispute. A second reason not to split the dispute into a WTO and an ICJ/UNCLOS component may be that the dispute not genuinely concerns WTO claims (even though such claims can technically be made) but, rather, other rules of international law that the WTO 69 70 6, para.

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At the Crossroads - The World Trading System and the Doha Round by Stefan Griller

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