Interaction between regional trade agreements (RTAs) and the multilateral trading system established by the World Trade Organization (WTO) is an issue of significance but nevertheless remains unsettled. This article aims to explore the influence RTAs have generated had on the WTO system, with particular focus on the approach adopted by the adjudicators when dealing with irreconcilable RTA–WTO conflicts. During the development of 20 years’ jurisprudence, WTO adjudicators offered responses to a number of critical questions. On the one hand, direct endorsement of RTA provisions with the effect of prevailing over the counterpart WTO rules appears to be very difficult, either through legal interpretation or application. On the other hand, unlike often being argued, a close review of WTO case law does not reveal a biased adjudicatory approach against regionalism, as compared to other sources of public international law. When dealing with RTA-related matters, the Appellate Body has been advocating an all-encompassing approach featured by the emphasis on the common intention during the interpretative exercise and the promotion for the WTO built-in mechanisms for valid modification. Such an approach is, to a certain extent, misleading in the RTA –WTO context and has led to certain ill-founded adjudicatory choice.
Type Review Article Information World Trade Review , Volume 18 , Issue 1 , January 2019 , pp. 33 - 61 Copyright © Michelle Q. Zang 2018Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
I am very grateful for the critics and comments from the anonymous referees prior to the publication. All the mistakes remain mine.
1 Cottier , T. and Delimatsis , P. (eds.), The Prospects of International Trade Regulation: From Fragmentation to Coherence , Cambridge : Cambridge University Press , 2011 CrossRefGoogle Scholar ; Cottier , T. , ‘ Multilayered Governance, Pluralism, and Moral Conflict ’, Indiana Journal of Global Legal Studies , 16 ( 2 ) ( 2009 ): 647 – 679 CrossRefGoogle Scholar ; Hillman , J. , ‘ Conflicts between Dispute Settlement Mechanisms in Regional Trade Agreements and the WTO – What Should WTO Do ’, Cornell International Law Journal , 42 ( 2009 ): 193 Google Scholar ; Marceau , G. , Izaguerri , A. and Lanovoy , V. , ‘ WTO's Influence on other Dispute Settlement Mechanisms: A Lighthouse in the Storm of Fragmentation ’, Journal of World Trade , 47 ( 3 ) ( 2013 ): 481 – 574 Google Scholar ; C. Claude, A. Yanovich, J.-A. Crawford, and P. Ugaz, ‘Mapping of Dispute Settlement Mechanisms in Regional Trade Agreements – Innovative or Variations on a Theme?’, WTO Staff Working Paper, ERSD-2013-07, 10 June 2013; Martineau , A.-C. , ‘ The Rhetoric of Fragmentation: Fear and Faith in International Law ’, Leiden Journal of International Law , 22 ( 2009 ): 1 CrossRefGoogle Scholar .
2 It is argued that Article 31(3)(c) VCLT expresses a more general principle of treaty interpretation, namely that of systemic integration within the international legal system. The foundation of this principle is that treaties are themselves creatures of international law. However wide their subject matter, they are all nevertheless limited in scope and are predicated for their existence and operation on being part of the international law system. K. Matti, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission (2014); McLachlan , C. , ‘ The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention ’, International and Comparative Law Quarterly , 54 ( 2005 ): 279 CrossRefGoogle Scholar .
3 Salles , L. E. , Forum Shopping in International Adjudication: The Role of Preliminary Objections , Cambridge : Cambridge University Press , 2014 , p. 79CrossRefGoogle Scholar .