CYIL vol. 8 (2017)

ELISA BARONCINI CYIL 8 ȍ2017Ȏ regulations of commerce on other WTO Members upon formation of the free-trade area.” 34 The defendant finally made reference to the documents presented and the discussions held within the CRTA on the compliance of NAFTA with Article XXIV of the GATT 1994, containing “further explanation of the US views” on the compatibility of NAFTA with the WTO system, and since such series of reports, submissions and minutes of the meeting were “voluminous materials,” the US decided not to “append them,” preferring to “incorporate them into this submission by reference.” 35 Korea claimed that NAFTA was not in compliance with Article XXIV of the GATT 1994 limiting its considerations to the fact that the CRTA was still considering the WTO compatibility of NAFTA, and “ha[d] not yet issued a final decision on the matter,” 36 a position reformulated by the Panel as Korea arguing that any RTA had to be automatically considered as WTO inconsistent until the CRTA would have issued “a final decision on the matter.” 37 Having considered the positions of claimant and defendant, the WTO judging body concluded that … the information provided by the United States in these proceedings, the information submitted by the NAFTA parties to the Committee on Regional Trade Agreements (“CRTA”) (which the United States has incorporated into its submissions to the Panel by reference), and the absence of effective refutation by Korea, establishes a prima facie case that NAFTA is in conformity with Article XXIV:5(b) and (c), and with Article XXIV:8(b). 38 5. The relation between RTA and WTO dispute settlement mechanisms in the AB Report of the Mexico – Taxes on Soft Drinks case RTAs also provide for dispute mechanisms to settle controversies among the contracting parties on the interpretation and application of RTAs’ rules. A very delicate issue of the relations between RTAs and WTO systems is of course the interaction between regional and multilateral dispute settlement proceedings. 39 The Appellate Body intervened on this highly sensitive aspect in the long trade war on sugar and alternative sweeteners between Mexico and the United States. 40 The latter attacked before the WTO adjudicatory bodies the so called Mexican “soft drink tax,” which raised a 20 per cent tax on the transfer or importation of soft 34 Panel Report, US – Line Pipe, 7.142. 35 Response to Panel Question 2 to the United States at the second substantive meeting (see Annex B-8). 36 Panel Report, US – Line Pipe, 7.143. 37 Panel Report, US – Line Pipe, 7.143. 38 Panel Report, US – Line Pipe, 7.144. 39 See ZOPPO, Laura, La soluzione delle controversie commerciali tra Stati tra multilateralismo e regionalismo , Jovene editore, Napoli, 2013. 40 Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , WT/DS308/AB/R, adopted 24 March 2006. On the facts and legal issues of the dispute see ALVAREZ JIMENEZ, Alberto, The WTO AB Report on Mexico – Soft Drinks, and the Limits of the WTO Dispute Settlement System, in Legal Issues of Economic Integration , 2006, pp. 319-333; ICTSD Dialogue on the Mexico Soft Drinks Dispute: Implications for Regionalism and for Trade and Sustainable Development , Geneva, Switzerland, May 30, 2006; KORNIS, Magda, US Corn Sweeteners and Mexican Sugar: Agreement at Last!, in US International Trade Commission Journal of International Commerce and Economics , December 2006; DAVEY, William J., SAPIR, André, The Soft Drinks Case: The WTO and Regional Agreements, World Trade Review , 2009, pp. 5-23; ROESSLER, Frieder, Mexico – Tax Measures on Soft Drink and Other Beverages (DS308), World Trade Review , 2009, pp. 25-30.

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