CYIL vol. 8 (2017)

ELISA BARONCINI CYIL 8 ȍ2017Ȏ provisions specifically formulated to justify regional agreements. The burden to provide with concrete content those generic expressions is then left to the judicial pillar of the WTO. In the next paragraphs we will try to present the basic features of the relevant WTO case-law concerning RTAs. When the WTO entered into force, part of the doctrine claimed that in case the CRTA did not complete its evaluation on the WTO compatibility of a notified RTA, the WTO judges could not have jurisdiction to assess the overall consistency of such RTA with Article XXIV of the GATT 1994. Some scholars stressed that since WTO law reserved to a political body, i.e. the CRTA, the competence to review whether a RTA respected the Marrakesh requirements and was thus in harmony with trade liberalization rules, the intervention of a WTO judging body on a RTA not yet evaluated by the political pillar would have compromised and infringed the institutional balance determined by the WTO texts. 20 For those experts, the examination by a panel or the Appellate Body of a RTA “raised broad policy issues of concern for the WTO membership and could [thus] not be appropriately addressed in a dispute settlement proceeding normally involving only two Members.” 21 In the first dispute on which the Appellate Body had the chance to address such issue, i.e. the Turkey – Textiles case, 22 the WTO Permanent Tribunal, reversing the conclusions of the Panel on the point, 23 unequivocally affirmed the complete review power of the WTO judging 20 See ROESSLER, Frieder, The Relationship between Regional Integration Agreements and the Multilateral Trade Order, in BRONCKERS, Marco C.E.J., QUICK, Reinhard (eds.), New Directions in International Economic Law – Essays in Honour of John H. Jackson , Kluwer Law International , 2000, pp. 325-347. 21 WT/DSB/M/71, Minutes of the Meeting Held in the Centre William Rappard on 19 November 1999 , 11 January 2000, Statement by the Representative of India, at p. 19. 22 Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products , WT/DS34/R, adopted 19 November 1999; Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products , WT/ DS34/AB/R, adopted 19 November 1999. On this dispute see James Mathis, WTO, Turkey – Restrictions on Imports of Textile and Clothing Products , in LIEI , 2000, pp. 103-114; TRACHTMAN, Joel P., Decisions of the Appellate Body of the World Trade Organization, 11 Eur. J. Int’l L. 217 (2000); MARCEAU, Gabrielle, REIMAN, Cornelis, When and How Is a Regional Trade Agreement Compatible with the WTO?, 28 Legal Issues Econ. Integration 297 (2001). 23 In what has been rightly qualified as “an equivocal approach” to the question of how far-reaching should a WTO adjudicatory body’s RTA examination be (see HILPOLD, Peter, Regional Integration According to Article XXIV GATT – Between Law and Politics , 7 Max Planck Yearbook of United Nations Law 219 (2003), at p. 245), the Panel recalled first the function of the Committee on Regional Trade Agreements, noting that the CRTA “has been established, inter alia , to assess the GATT/WTO compatibility of regional trade agreements entered into by Members, a very complex undertaking which involves consideration by the CRTA, from the economic, legal and political perspectives of different Members, of the numerous facets of a regional trade agreement in relation to the provisions of the WTO” (Panel Report, Turkey – Textiles , para. 9.52, emphasis added). Therefore, because of the global interdisciplinary approach on RTAs’ evaluation characterizing the activity expressly conferred by the WTO system to the ad hoc special intergovernmental body, according to the Panel such a composite diplomatic assessment of a regional agreement could not be reduced to a technical legalistic exam by a WTO judicial body: “the issue regarding the GATT/WTO compatibility of a customs union , as such, is generally a matter for the CRTA since, as noted above, it involves a broad multilateral assessment of any such custom union, i.e. a matter which concerns the WTO membership as a whole ” ( ibid., emphasis added). However, immediately after, with an incoherent legal motivation, the Panel, while rejecting its competence on the overall assessment of RTAs, nevertheless declared to have jurisdiction on reviewing the WTO compatibility of the specific measures adopted 3. The power to adjudicate RTAs acknowledged by the Appellate Body in the Turkey – Textiles Case

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