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Jurisdiction Overlaps between the Dispute Settlement under the WTO and the RTAs
손안남,이양기,권정민 한국무역통상학회 2014 무역통상학회지 Vol.14 No.4
With a massive movement towards RTAs since the early 1990s, scholars have paid much attention on the issueof overlapping of jurisdiction between the dispute settlements of the WTO and of the RTAs. From the casestudy, we can find that the overlapping of jurisdiction is likely not only to impose substantive legal costs on thedefendant party but also to lead to conflict decisions, thereby undermining the security and predictability of themultilateral trading system. With the fear of incoherent jurisprudence and the threat to multilateral tradingsystem, this article tries to find an appropriate solution to deal with the overlapping of jurisdiction. In order to find an appropriate solution for the overlapping of jurisdiction, this article examined theapplication of some general principles such as Res Judicata or Lis Alibi Pendens, Comity or estoppel and ForumConveniens and Forum non Conveniens. However, as a result of the strict conditions for their application, theseprinciples seem to be difficult to be applied to deal with the overlapping of jurisdiction. A number of treaties provides for the choice of a form clause and the exclusive clause while setting up RTAs. The potential method for WTO DSB to deal with the jurisdictional overlapping is to decline to excise jurisdictionby using the jurisdiction exclusive clause contained in the RTAs.
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Interpretation and Application of the “Necessity” Test under the GATT/WTO Agreement
손안남,양정미,이양기 한국무역통상학회 2015 무역통상학회지 Vol.15 No.4
This paper examines the two approaches employed by the WTO adjudicating bodies in the application of the “necessity” test, including the least trade restrictive approach and the weighing and balancing approach. It discusses the problems resulting from the application of “necessity”. Firstly, the GATT Panel interpreted the term “necessary” narrowly, thereby, no challenged measures were justified under the GATT Art. XX. Secondly, the WTO adjudicating bodies failed to apply a weighing and balancing approach test because the freedom to choose their own level of protection was inconsistent with the weighing and balancing test. Thirdly, due to the difficulty on considering the proper interference into the national regulatory autonomy from the WTO adjudicating body, the application of the “necessity” test would likely cause a negative impact on domestic regulatory autonomy. This paper gives some suggestions to the WTO adjudicating bodies for a clear and definite interpretation on the “necessity” test. Considering the criticisms resulting from the application of the “necessity” test, it is very important to clarify the uncertainty of the “necessity” test and provide predictability for future cases.
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