By Stefan Griller
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Extra resources for At the Crossroads - The World Trading System and the Doha Round
Faced with a situation that gave rise to claims under both a bilateral investment treaty (for which ICSID had jurisdiction) and a domestic concession contract (for which domestic courts had exclusive jurisdiction), the Committee found as follows, at paras. 98 and 101: ‘In a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the [international] tribunal will give effect to any valid choice of forum clause in the contract. … On the other hand, where ‘the fundamental basis of the claim’ is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state … cannot operate as a bar to the application of the treaty standard’.
WTO Violations Permitted (or Even Imposed) Pursuant to the Provisions of Another Treaty When another court, tribunal or commission has previously found that a trade measure is justified under another treaty, it is relatively easy for a WTO panel to give effect to such ruling: the justification under non-WTO law is then decided upon not by the WTO panel, but by the actors in charge of the other treaty. The WTO panel then only gives effect to a ruling very specific to the parties and subject matter in dispute, which is simply the result of a procedure explicitly agreed upon by both parties in another international organization or under another treaty.
The rules and procedures of this Understanding’ (emphasis added). The question is then which of those two norms prevails? In my view, if such genuine conflict does arise, it ought to be Article 292 of the EC Treaty that prevails as the more specific norm or lex specialis (both in terms of membership and subject matter) and arguably even as the later norm in time or lex posterior (the EC treaty was most recently re-concluded in Nice in 2001). Consequently, a WTO panel ought, in those circumstances, to decline jurisdiction.
At the Crossroads - The World Trading System and the Doha Round by Stefan Griller