CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

FROM TURKEY – TEXTILES

TO PERU – ADDITIONAL DUTY …

Union and Canada which has recently been voted at the European Parliament, 66 there is a provision stating the primacy of WTO law, i.e. Article 1.5, devoted to the relation with the WTO and other agreements: “[t]he Parties affirm their rights and obligations with respect to each other under the WTO Agreement and other agreements to which they are party.” With reference to the dispute settlement mechanism set up by CETA, the EU / Canada Agreement contemplates a provision on the choice of forum, basically leaving to the claimant the choice of the forum where to start a dispute. 67 Furthermore, CETA requests to the regional arbitration panels to take into considerations the WTO case-law, in order to avoid divergent interpretative results. Article 29.17 of CETA, entitled “General rule of interpretation,” then establishes that “[t]he arbitration panel shall interpret the provisions of this Agreement in accordance with customary rules of interpretation of public international law, including those set out in the Vienna Convention on the Law of Treaties. The arbitration panel shall also take into account relevant interpretations in reports of Panels and the Appellate Body adopted by the WTO Dispute Settlement Body.” It is thus evident that, though not perfect, both the WTO and RTAs systems have provisions capable of avoiding conflicting applications of the two sets of rules. The elimination of any damaging discrepancy, and the affirmation of the primacy of WTO law to give unity, coherence, fairness and effectiveness to international trade are therefore a matter of good faith in the interpretation of both series of treaties, the principle which is at the basis of the international law and relations.

66 See the introductory paragraph. 67 See CETA Article 28.4, devoted to the “Choice of forum,” pursuant to which “[w]here a dispute regarding any matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. Once a complaining Party has requested the establishment of, or referred a matter to, a panel or other panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.”

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