CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

FROM TURKEY – TEXTILES

TO PERU – ADDITIONAL DUTY …

The positive WTO rules concerning RTAs -i.e. Article XXIV of the GATT (General Agreement on Tariffs and Trade) 1994, paragraphs 2(c) and 3(a) of the Enabling Clause, 8 and Article V of the GATS (General Agreement on Trade in Services)- have inspired much controversy, generated quite considerable uncertainty, and consequently have not been fully implemented. Therefore, the practice is far from producing satisfying mechanisms coordinating the multilateral and regional systems. The case-law, in particular, the WTO case-law, concerning the relations betweenWTO and RTAs systems becomes thus essential to provide for a clearer legal picture on the interaction of universal and regional trade rules, and so endow with a certain level of predictability the economic operators, stakeholders and civil society, and, more generally, all the interested and involved international actors. Such a contribution of clarity is nowadays particularly precious, because of the already emphasized unprecedented proliferation of RTAs having WTO Members as Contracting Parties. The present article hence intends to analyze the existing WTO case-law on the topic, after a brief presentation of the state-of-the-art of the WTO discipline and practice concerning RTAs. In fact, in spite of being really few, the WTO reports have already fixed some important principles also on the relation between treaty-systems, suggesting how to harmoniously combine the WTO and RTAs substantive and institutional-procedural rules through the application of the international customary rules for treaty interpretation, as indicated by Article 3, para. 2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). We will then propose some tentative conclusions, also considering the compatibility clauses and the so called forum rules adopted in one of the main mega-regionals, i.e. CETA, as such agreement has been very recently approved by the European Parliament and Canada’s House of Commons. 2. Distinctive Features of the RTAs Discipline and Practice in the WTO System RTAs, treaties through which governments aim to liberalize or facilitate trade on a regional basis or a group of countries, are promoted within the WTO system as long as they strengthen trade liberalization and sustainable economic development within the WTO Member Countries. Therefore, RTAs are conceived within the WTO system in order to build, complement and reinforce free-trade, as clearly stated in Article XXIV, para. 4, of the GATT, “[t]he contracting parties recognize the desirability of increasing freedom of trade by the development, through voluntary agreements, of closer integration between the economies of the countries parties to such agreements.” However, RTAs are by their nature discriminatory, while one of the cornerstones of the multilateral trading system is “the elimination of discriminatory treatment in international trade relations,” as solemnly declared in the Preamble of the Agreement establishing the WTO. The Marrakesh Agreements thus provide a set of exceptions specifically devoted to regional agreements, in order “to ensure that regional trade agreements create more trade than they divert.” 9 8 Decision on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries , GATT Document L/4903, BISD 26S/203 (28 November 1979) (Enabling Clause). 9 VAN DEN BOSSCHE, Peter, PRÉVOST, Denise, Essentials of WTO Law , Cambridge University Press, Cambridge, 2016, at p. 131.

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