IDEAS home Printed from https://ideas.repec.org/a/mof/journl/ppr16_05_11.html
   My bibliography  Save this article

FTAs in WTO Dispute Settlement

Author

Listed:
  • Kenta Hirami

    (Assistant Professor, Faculty of Social Sciences, Waseda University)

Abstract

Although the co-existence of the World Trade Organization (WTO) and free trade agreements (FTAs) has now become normal, the legal relationship between them is unclear from many aspects. In this respect, in light of the relevant WTO jurisprudence, the following points can be mentioned with respect to the status and function of FTAs in WTO dispute settlement. First, the jurisdiction of a WTO panel is firmly based on the Dispute Settlement Understanding (DSU) from the viewpoints of panel’s obligation to examine a case on the one hand and Members’ right to initiate WTO dispute settlement proceedings on the other hand. Therefore, even if a dispute brought to a WTO panel is related to an FTA, the existence of the panel’s jurisdiction is not denied. This also applies to the assessment of the consistency of FTAs themselves with WTO provisions. Even so, secondly, in specific cases, the presence of an FTA could affect the exercise of a WTO panel’s jurisdiction. To be more specific, it is theoretically possible for parties of an FTA to waive their right as WTO Members to initiate WTO dispute settlement proceedings when they adopt an alternative option in that FTA, such as a “mutually agreed solution” (MAS) under the DSU, a forum selection clause and so on. Attention needs to be paid to how the relationship between the WTO dispute settlement system and FTAs explained above will affect future FTA negotiations and the interpretation of specific FTA provisions, and how much the WTO dispute settlement system will be able to contribute to the ordering of the legal relationship between the WTO and FTAs under the current multi-layered economic governance structure.

Suggested Citation

  • Kenta Hirami, 2020. "FTAs in WTO Dispute Settlement," Public Policy Review, Policy Research Institute, Ministry of Finance Japan, vol. 16(5), pages 1-18, August.
    • Handle: RePEc:mof:journl:ppr16_05_11
    as

    Download full text from publisher

    File URL: http://www.mof.go.jp/english/pri/publication/pp_review/ppr16_05_11.pdf
    Download Restriction: no
    ---><---

    References listed on IDEAS

    as
    1. Busch, Marc L., 2007. "Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade," International Organization, Cambridge University Press, vol. 61(4), pages 735-761, October.
    2. Chase, Claude & Yanovich, Alan & Crawford, Jo-Ann & Ugaz, Pamela, 2013. "Mapping of dispute settlement mechanisms in regional trade agreements: Innovative or variations on a theme?," WTO Staff Working Papers ERSD-2013-07, World Trade Organization (WTO), Economic Research and Statistics Division.
    3. Geraldo Vidigal, 2017. "Why Is There So Little Litigation under Free Trade Agreements? Retaliation and Adjudication in International Dispute Settlement," Journal of International Economic Law, Oxford University Press, vol. 20(4), pages 927-950.
    4. Shaffer, Gregory & Winters, L. Alan, 2017. "FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law," World Trade Review, Cambridge University Press, vol. 16(2), pages 303-326, April.
    5. Cook,Graham, 2015. "A Digest of WTO Jurisprudence on Public International Law Concepts and Principles," Cambridge Books, Cambridge University Press, number 9781107102767, September.
    6. Zang, Michelle Q., 2019. "When the Multilateral Meets the Regionals: Regional Trade Agreements at WTO Dispute Settlement," World Trade Review, Cambridge University Press, vol. 18(1), pages 33-61, January.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Todd Allee & Manfred Elsig, 2016. "Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements," The Review of International Organizations, Springer, vol. 11(1), pages 89-120, March.
    2. Erin Hannah & James Scott & Rorden Wilkinson, 2018. "The WTO in Buenos Aires: The outcome and its significance for the future of the multilateral trading system," The World Economy, Wiley Blackwell, vol. 41(10), pages 2578-2598, October.
    3. Conconi, Paola & DeRemer, David R. & Kirchsteiger, Georg & Trimarchi, Lorenzo & Zanardi, Maurizio, 2017. "Suspiciously timed trade disputes," Journal of International Economics, Elsevier, vol. 105(C), pages 57-76.
    4. Kuenzel, David J., 2017. "WTO dispute determinants," European Economic Review, Elsevier, vol. 91(C), pages 157-179.
    5. Gregory Shaffer & L. Alan Winters, 2016. "FTAs as Applicable Law in WTO Dispute Settlement: Was the Appellate Body Wrong in Peru-Additional Duty (DS457)?," RSCAS Working Papers 2016/65, European University Institute.
    6. Hamanaka, Shintaro, 2012. "Evolutionary paths toward a region-wide economic agreement in Asia," Journal of Asian Economics, Elsevier, vol. 23(4), pages 383-394.
    7. Lee, Jiwon & Wittgenstein, Teresa, 2017. "Weak vs. Strong Ties: Explaining Early Settlement in WTO Disputes," ILE Working Paper Series 7, University of Hamburg, Institute of Law and Economics.
    8. Andrew Lugg, 2024. "Re-contracting intergovernmental organizations: Membership change and the creation of linked intergovernmental organizations," The Review of International Organizations, Springer, vol. 19(3), pages 545-577, September.
    9. Matias E. Margulis, 2023. "Backdoor Bargaining: How the European Union Navigates the Food Aid Regime Complex," Politics and Governance, Cogitatio Press, vol. 11(2), pages 29-38.
    10. Kyle Bagwell & Chad P. Bown & Robert W. Staiger, 2016. "Is the WTO Passé?," Journal of Economic Literature, American Economic Association, vol. 54(4), pages 1125-1231, December.
    11. Talya Bobick & Alastair Smith, 2013. "The impact of leader turnover on the onset and the resolution of WTO disputes," The Review of International Organizations, Springer, vol. 8(4), pages 423-445, December.
    12. Michael W. Manulak, 2017. "Leading by design: Informal influence and international secretariats," The Review of International Organizations, Springer, vol. 12(4), pages 497-522, December.
    13. Céline CARRERE & Marcelo OLARREAGA & Damian RAESS, 2017. "Labor Clauses in Trade Agreements: worker protection or protectionism?," Working Papers P200, FERDI.
    14. Mark Copelovitch & David Ohls, 2012. "Trade, institutions, and the timing of GATT/WTO accession in post-colonial states," The Review of International Organizations, Springer, vol. 7(1), pages 81-107, March.
    15. Staiger, Robert & Bagwell, Kyle & Bown, Chad, 2015. "Is the WTO Passé?," CEPR Discussion Papers 10672, C.E.P.R. Discussion Papers.
    16. Joy Kim & Suh-Yong Chung, 2012. "The role of the G20 in governing the climate change regime," International Environmental Agreements: Politics, Law and Economics, Springer, vol. 12(4), pages 361-374, November.
    17. James Hollway & Jean-Frédéric Morin & Joost Pauwelyn, 2020. "Structural conditions for novelty: the introduction of new environmental clauses to the trade regime complex," International Environmental Agreements: Politics, Law and Economics, Springer, vol. 20(1), pages 61-83, March.
    18. Karen Alter, 2016. "William Phelen. 2015. In place of inter-state retaliation: The European Union’s rejection of WTO-style trade sanctions (Oxford: Oxford University Press)," The Review of International Organizations, Springer, vol. 11(1), pages 145-149, March.
    19. Chad P. Bown, 2017. "Mega-Regional Trade Agreements and the Future of the WTO," Global Policy, London School of Economics and Political Science, vol. 8(1), pages 107-112, February.
    20. M. Rodwan Abouharb & David Cingranelli & Mikhail Filippov, 2019. "Too Many Cooks: Multiple International Principals Can Spoil the Quality of Governance," Social Sciences, MDPI, vol. 8(5), pages 1-22, May.

    More about this item

    Keywords

    WTO; FTAs; WTO dispute settlement; DSU; panel; Appellate Body; PeruAgricultural Products; standard of review;
    All these keywords.

    JEL classification:

    • F13 - International Economics - - Trade - - - Trade Policy; International Trade Organizations
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:mof:journl:ppr16_05_11. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Policy Research Institute (email available below). General contact details of provider: https://edirc.repec.org/data/prigvjp.html .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.