29 (1928) (‘Reparation is the indispensablecomplement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself’); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, 16,para. 96 (‘it would be necessary to show that the mandates system …excluded the application of the general principle of law that a right oftermination on account of breach must be presumed to exist in respect of all treaties’); Elettronnica Sicula S.p.A (ELSI) case, ICJ Reports 1989, 42, para. 50 (in respect of the obligation to exhaust localremedies, ‘the Chamber finds itself unable to accept that an importantprinciple of customary international law should be held to have beentacitly dispensed with, in the absence of any words making clear anintention to do so’); and Permanent Court of Arbitration, DisputeConcerning Access to Information under Article 9 of the OSPARConvention (Ireland v United Kingdom), Final Award quoted suprain footnote 19.A provision repeated in Article 19.2 of the DSU.In support of this position, see, for example, McGinnis (2003). ForProfessor McGinnis, WTO rules can only be affected by amendment,interpretation and waiver procedures in the WTO treaty itself; not byother rules of international, created outside the WTO, even if thoserules have been agreed to and are binding on the disputing WTOmembers. He thus posits the WTO treaty as a completely self-contained regime, de-linked from other treaties and custom, and obscuresthe fact that treaty relations between states cannot only be affectedpursuant to, for example, the amendment procedures in the particulartreaty, but also by the conclusion of other treaties which (though notamending the prior treaty) may modify it as between the parties to the
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out above, this author thinks not. But what is then the purpose ofDSU Article 3.2? In my view, it does not limit the applicable lawbefore WTO panels, nor does it deal with the relationship betweenWTO covered agreements and all past and future law. Rather, itconfirms the rather obvious limits a WTO panel must observe ininterpreting WTO covered agreements. The phrase directly followsthe one quoted earlier, incorporating rules of interpretation of public international law. In exercising this judicial function of interpretation, WTO panels may clarify the meaning of WTO coveredagreements, but they may not ‘add to or diminish the rights and obligations provided in the covered agreements.’ To put it differently,as judicial organs, WTO panels may not create new rights and obligations; they must apply those that WTO members agreed to. However, stating what the judiciary can do with the law differs greatlyfrom stating what the legislature (i.e., WTO members) has done, orcan do, with the law. Article 3.2 specifies that the WTO judiciary,like any other judiciary, cannot ‘change’ the WTO treaty. However,that does not limit the extent to which WTO members may conclude or have concluded other treaties that can influence their mutual WTO rights and obligations. As important as the distinction isbetween panel jurisdiction (WTO claims only) and applicable law(potentially all international law), so too is the distinction betweennew treaty (Vienna Convention on the Law of Treaties, Articles 41and 58, see footnotes 25 and 26 below). He does so based on arguments that the WTO treaty has more legitimacy and ‘greater broadconsensus’ (p. 42). Though this may be true when comparing theWTO treaty to custom (see footnote 110 below), it does not apply tothe inter-action between the WTO treaty and other, non-WTO treaties. Rather than preserve the sovereign will of WTO members, not togive affect to such other treaties would undermine state sovereigntyand the democratic legitimacy of WTO rules. It would transform theWTO into a trade-only safe heaven, unaffected by other, equallyvalid expressions of state will enshrined in, for example, internationalhuman rights or environmental treaties (making available an exit option not only amongst branches of international law, but also fromdomestic law). However, this may well be the very objective of Professor McGinnis’ position when he states (McGinnis (2003), 36) that‘[t]he WTO represents a comprehensive code for the overriding purpose of expanding trade. Therefore, it is not amenable to supplementation by other rules with other objectives that will detract fromthis purpose’.
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interpreting WTO rules (and the prohibition to add or detract fromthose rules in the process) and examining WTO claims in the context of other applicable international law (where the expression ofstate consent and conflict rules of international law must decide theoutcome).The only remaining question relates then to the conditions thatnon-WTO rules of international law must meet to be applicable before a WTO panel in the examination of WTO claims.First, and most obviously, these other rules must be binding onboth disputing parties (and be invoked by either of them). If eitherof the two parties is not so bound, these other rules cannot be heldagainst it. In technical terms, this means that one either appliesother rules binding on the disputing parties as part of the applicablelaw on the ground that the WTO agreement, as a treaty under publicinternational law, must be applied in the context of such other treaties; or that one interprets the relevant WTO rules in the context ofsuch other treaties based on, for example, Article 31.3(c) of the Vienna Convention referring to ‘any relevant rules of internationallaw applicable in the relations between the parties’. The advantageof the latter approach is that DSU Article 3.2 offers an explicit linkto Article 31.3(c) of the Vienna Convention. The disadvantage ofthis approach is, however, that one risks giving too broad a meaningto the term interpretation. Indeed, what one is effectively doingwhen dis-applying a WTO norm to the advantage of another, nonWTO norm agreed upon only by the disputing parties (or evenwhen applying a rule of general international law to solve a question on which the WTO treaty itself remains silent) is not so muchinterpreting WTO terms in the light of other norms agreed upon byWTO members. Rather, one is then applying WTO norms togetherwith such other norms as they are binding (only) in the relationshipbetween the disputing parties. The discussion amongst commentators on whether the reference to other rules in Article 31.3(c) of theVienna Convention includes only other rules expressing the common intentions of all WTO members or also rules that are bindingon just the disputing parties, expresses this dilemma of which technique to use to refer to non-WTO rules. This author considers itmore appropriate to draw a line between interpretation with reference to other norms and application of other norms. Others end upwith the same result – that is, a panel can refer to non-WTO rulesbinding only on the disputing parties – based solely on a wider no-
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tion of treaty interpretation under Articles 31 and 32 of the ViennaConvention.24Second, for WTO panels to apply non-WTO rules in their decision on WTO claims, such other rules must be both valid and legal.Most importantly, their very conclusion may not be prohibited inthe WTO treaty (an example would be an agreement on voluntaryexport restraints explicitly prohibited in Article 11 of the WTOSafeguards Agreement25). Moreover, these other rules may not affect the rights or obligations of third parties (an example would be abilateral agreement in which a trade concession is explicitly reserved to the other party to the agreement, in breach of the MFNrights of other WTO members).26 In addition, a treaty altering WTOrights or obligations as between its parties only, may not be concluded by coercion, fraud or corruption nor be based on error; ifnot, it is invalid.27 In this respect, the risk of powerful WTO members ‘imposing’ bilateral treaties on weaker states is real. It couldeven be an argument against WTO panels taking account of nonWTO treaties altogether. Nonetheless, this risk is a reality inherent2425
26
27
Marceau (1999); Marceau (2001); Marceau (2002); Palmeter / Mavroïdis (1998); Bartels (2002), 366, fn. 723 (on file with the author).A distinction must be made, however, between, on the one hand, anagreement whose conclusion is explicitly prohibited in the WTOtreaty (such as voluntary export restraints under Article 11 of theSafeguards Agreement) and, on the other hand, non-WTO rules thatsimply contradict rules in the WTO treaty (say, an agreement inwhich the right of appeal is waived, contrary to Article 17 of theDSU or an agreement permitting trade restrictions otherwise notpermitted under GATT Article XX). The former agreement is ‘illegal’ (Article 41.1(b) of the Vienna Convention does not permit theinter se modification of a multilateral treaty if such modification is‘prohibited by the treaty’) and cannot, therefore, be applied in anyevent; the latter rules are ‘legal’ but conflict with WTO rules and thequestion is then which of the two rules – the WTO norm or the othernorm – prevails in the specific circumstances of the case.Article 41.1(b)(i) of the Vienna Convention on the Law of Treatiesprohibits the inter se modification of a treaty in case it ‘affect[s] theenjoyment by the other parties of their rights under the treaty or theperformance of their obligations’. The general principle of pacta tertiis nec nocent nec prosunt is stated in Article 34 of the Vienna Convention.Articles 48-52 of the Vienna Convention.
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in the process of international law making. It is present even in theconclusion of WTO agreements (where the risk of powerful statespressing their views on weaker states is as serious as it is in othermultilateral fora). Though panels ought to remain sensitive to thisreality, it should not become a scapegoat for neglecting non-WTOrules altogether.Third, for non-WTO rules to justify an otherwise WTO inconsistent measure, the other rule must prevail over the contradictoryWTO rule pursuant to conflict rules of international law. This maybe so because it is stated explicitly in the WTO treaty itself or in theother, non-WTO treaty, or because the non-WTO rule is later intime (lex posterior) or more specific to the circumstances (lex specialis) as compared to the WTO rule.28We next examine specific instances where WTO panels maythus be called upon to apply non-WTO rules in a way that can leadthe defendant to win a WTO dispute: first, for lack of jurisdiction(Section II); second, on the merits (Section III).III. Because of Non-WTO Law,the WTO Panel Has No JurisdictionIn April 1994, WTO members agreed to submit their disputes underWTO covered agreements to the compulsory jurisdiction of WTOpanels and the Appellate Body. Does this mean that since then alldisputes between WTO members that have the slightest trade component must necessarily be decided at the WTO? This would behard to imagine. A variety of reasons exist why WTO membersmay, by common agreement, decide not to go to the WTO: theymay prefer to settle a dispute amicably without resort to third-partyadjudication; they may consider that regional trade disputes are bestsettled before regional tribunals29; they may agree that certain disputes are better decided by non-trade tribunals, etc. In the event thattwo WTO members have thus agreed not to settle a particular dispute at the WTO, can a WTO panel simply ignore this agreement?Or should it take cognizance of it and, as the case may be, find thatit has no jurisdiction to decide the case? In my view, the latter ap2829
On those conflict rules of international law: Pauwelyn (2003a).On the interaction between WTO dispute settlement and disputesettlement under regional trade agreements, see Kwak / Marceau,(2002), 8 and Pauwelyn (2004).
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proach is the correct one. As a result, a defendant can effectivelywin a WTO dispute with reference to non-WTO law, in casu otheragreements or treaties that take away the jurisdiction of WTO panels or the Appellate Body for certain cases.Crucially, in this respect, a WTO panel, like all internationaltribunals, has the competence – even the obligation – to decide thequestion of its own jurisdiction.30 This is part of the so-called incidental jurisdiction of all international tribunals and need not be conferred explicitly to panels in the DSU. As a result, a panel is notonly entitled, it must examine whether its own jurisdiction remainsintact or has been undermined by some other agreement betweenthe disputing parties. If the latter, the panel must decline jurisdiction. This incidental jurisdiction of the competence de la competence provides a useful legal basis on which to justify the examination of other agreements. Yet, the underlying principle remains thesame as that applicable when a panel applies non-WTO law on themerits (Section III): in the examination of its own jurisdiction / ofthe merits of the WTO claims before it, the applicable law before aWTO panel ought not be limited to WTO covered agreements, itshould include also other relevant international law. The only difference between the effect of non-WTO law on panel jurisdictionand on the merits of a WTO dispute, is that when it comes to paneljurisdiction, a WTO panel may have to check at its own initiativewhether non-WTO law undermines its jurisdiction (even if none ofthe parties themselves refer to this non-WTO agreement); when it30
That WTO panels as well as the Appellate Body have the jurisdictionto decide on their own jurisdiction is firmly established. The Appellate Body referred to the ‘widely accepted rule that an internationaltribunal is entitled to consider the issue of its own jurisdiction on itsown initiative, and to satisfy itself that it has jurisdiction in any casethat comes before it’ (Appellate Body Report, United States – AntiDumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted26 September 2000, footnote 30). In the Appellate Body Report onMexico – Anti-Dumping Investigation of High Fructose Corn Syrup(HFCS) from the United States – Recourse to Article 21.5 of the DSUby the United States (WT/DS132/AB/RW, adopted 21 November2001, at para. 37), it was stated that panels must check the questionof their own jurisdiction at their own initiative (‘panels cannot simplyignore issues which go to the root of their jurisdiction … Rather,panels must deal with such issues – if necessary, on their own motion– in order to satisfy themselves that they have authority to proceed’).
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comes to the merits of the dispute, in contrast, the panel is subjectto the principle of non ultra petita, that is, it can only examine defences that have been raised explicitly by the defendant itself (thepanel cannot itself add defences).Let us illustrate the potential effect of non-WTO law on paneljurisdiction with reference to a number of examples that have arisenin practice either at the WTO itself or before other international tribunals. This section deals, in turn, with (1) a bilateral agreement notto appeal a WTO panel; (2) a bilateral agreement not to invokeWTO dispute settlement; (3) a treaty conferring exclusive jurisdiction to another tribunal; (4) a treaty providing for choice of forumbut making any choice exclusive; (5) a treaty providing for compulsory (but not exclusive) jurisdiction to another tribunal; and (6) therelated question of res judicata effect of rulings by other courts ortribunals.A. A Bilateral Agreement not to Appeal a WTO PanelSubsequent to the adoption of the original panel report on Australia– Leather, the United States and Australia agreed on how to proceed with the dispute under Articles 21 and 22 of the DSU. Point 4of this bilateral agreement read as follows:‘Both Australia and the United States will unconditionallyaccept the review panel report [pursuant to Article 21.5 ofthe DSU] and there will be no appeal of that report (emphasis added)’.31The review panel report then found in favor of the UnitedStates. Australia did not appeal the report, but the following question arises: Had Australia nonetheless decided to appeal the reviewpanel report, could the United States have relied on the bilateralagreement in which both parties gave up their right to appeal? Inother words, should the Appellate Body have declined to decide theappeal on the ground of this bilateral agreement, an agreement thatis not a WTO covered agreement? In my view, the answer must bein the affirmative: both the United States and Australia agreed notto appeal; they did not thereby affect third party rights; hence, theAppellate Body must respect this agreement and decline jurisdiction. By thus applying the bilateral agreement, the Appellate Body31
Australia – Subsidies Provided to Producers and Exporters ofAutomotive Leather, Recourse by the United States to Article 21.5 ofthe DSU, WT/DS126/8, 4 October 1999.
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would not expand its jurisdiction beyond WTO claims; rather, itwould expand the applicable law before it and on that basis declineto exercise its limited jurisdiction.B. A Bilateral Agreement not to Invoke WTO Dispute SettlementIn the case of India – Quantitative Restrictions, complaint by theEC, the parties reached a mutually agreed solution and notified thissolution to the DSB pursuant to Article 3.6 of the DSU.32 In thisbilateral agreement between India and the EC, dated 12 November1997, the following was agreed:the European Communities will refrain from action underGATT Article XXII or Article XXIII as regards those restrictions [maintained by India on import of industrial, agricultural and textile products] during the phasing-out period as defined below, as long as India complies with itsobligations under this exchange of letters (emphasisadded).Subsequent to this agreement, but before the end of the relevant phasing-out period, the EC initiated the dispute on India –Autos. Before the panel, India argued that this ‘new’ India – Autosdispute is covered by the bilateral settlement in India – QuantitativeRestrictions and that, therefore, the EC is precluded from invokingWTO dispute settlement procedures on this matter.33 In otherwords, in that case the question arose whether a bilateral settlementcan take away the jurisdiction of a WTO panel. The EC responsewas that the India – Autos dispute was not covered by the earliersettlement and that, in any event, the bilateral settlement was not aWTO covered agreement so that it could not be relied on by Indiabefore a WTO panel.34 The panel was able to avoid the systemicquestion of whether India could rely on the bilateral settlement byfinding that, as a question of fact, the settlement did not cover thematter in the India – Autos case. Hence, even if India could rely onthe bilateral settlement, the India – Autos case was in any event not32
33
34
India - Quantitative Restrictions on Imports of Agricultural, Textilesand Industrial Products, Notification of Mutually Agreed Solution,WT/DS96/8, 6 May 1998.Panel Report, India – Measures Affecting the Automotive Sector (‘India – Autos’), WT/DS146/R and Corr.1, WT/DS175/R and Corr.1,adopted 5 April 2002, at para. 4.30.Ibidem, para. 4.32 and footnote 71.
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covered by the EC’s promise in this settlement not to invoke WTOdispute settlement. The panel did note the following, however:At the very least, the Panel sees merit in India’s argument thatthe issue in this respect is not solely whether the mutually agreedsolution is a covered agreement, but rather, what effects it may haveon the exercise of procedural rights under the DSU in subsequentproceedings.35Indeed, had the new India – Autos dispute been covered by theEC promise in the bilateral settlement not to invoke WTO disputesettlement procedures, in my view, any WTO panel would havebeen under an obligation to respect this agreement and to declarethat by agreement of the parties it does not have jurisdiction to examine the case.Other instances where particular WTO members may agree notto rely on WTO dispute settlement can be imagined. Taiwan and,especially, China, for example, have sent out signals that they donot intend to resort to WTO dispute settlement to resolve trade disputes between mainland China and Taiwan.36 If a bilateral agreement or even a binding unilateral declaration to this effect can bedetected, then a WTO panel ought to respect it and apply it asagainst the member who made such commitment.C. A Treaty Conferring Exclusive Jurisdiction to Another TribunalArticle 292 of the EC Treaty confers exclusive jurisdiction to theEuropean Court of Justice and other EC bodies as follows:‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty toany method of settlement other than those providedtherein’.Similar provisions occur in other contexts, such as the AndeanCommunity37 and investment disputes.38 Does Article 292 prevent353637
Ibidem, para. 7.116.See Kong (2002), 755.Article 42.1 of the Cartagena Agreement establishing the AndeanCommunity – which is made up of Bolivia, Colombia, Ecuador, Peruand Venezuela – states the following:‘Member countries shall not submit any dispute that may arise fromthe application of provisions comprising the legal system of the Andean Community to any court, arbitration system or proceedingwhatsoever except for those stipulated in this Treaty.’
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an EU member from challenging other EU members before an international tribunal other than the European Court of Justice?39 Obviously not if the dispute does not concern also ‘the interpretationor application of the [EC] Treaty’. But what if the dispute raisesquestions under both the EC Treaty and another treaty, say theWTO agreement or the United Nations Convention on the Law ofthe Sea (UNCLOS)?This tension between EC courts and other international tribunals materialised most recently in the Mox Plant case (Ireland vUnited Kingdom). In that dispute, Ireland submitted claims of violation under UNCLOS concerning discharges into the Irish sea ofradioactive waste by a new processing plant (the so-called MOXplant) set up by the United Kingdom close to the Irish border. In anOrder on Provisional Measures dated 3 December 2001, the ITLOSfound that there was prima facie jurisdiction under Article 288.1 ofUNCLOS.40 The Arbitral Tribunal constituted subsequently underAnnex VII of UNCLOS (to decide on the merits of the case) decided, in contrast, to suspend its proceedings by Order of 24 June2003. It did so in response mainly to arguments by the UnitedKingdom that the dispute falls within the exclusive jurisdiction ofEC courts pursuant to Article 292 of the EC Treaty. The ArbitralTribunal was of the view that the question of whether and what aspects of the UNCLOS dispute fall under the exclusive jurisdictionand competence of the European Communities is a question ‘to bedecided within the institutions of the European Communities, and
38
3940
See, in particular, the exclusive jurisdiction clause often included ininvestment or concessions contracts in favor of the domestic courtsof the host state and how such clauses may play out against the compulsory jurisdiction of international arbitration tribunals granted under an investment treaty, discussed, inter alia, in the ICSID caseCompania de Aguas del Aconquija S.A. & Vivendi Universal v Argentine Republic 40 ILM 426 (2001) and 41 ILM 1135 (2002), atpara. 98: ‘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 inthe contract’.On the general question of overlapping jurisdictions, see Shany(2003); Lowe (1999); and the references supra, footnote 29.Order of 3 December 2001, at www.itlos.org, Case No. 10.
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particularly by the European Court of Justice’.41 Hence, the ArbitralTribunal considered it inappropriate to continue its proceedings ‘inthe absence of a resolution of the problems referred to’ within thecontext of the EC.42 Interestingly, the Order did so ‘bearing in mindconsiderations of mutual respect and comity which should prevailbetween judicial institutions both of which may be called upon todetermine rights and obligations as between two States’ and notedthat ‘a procedure that might result in two conflicting decisions onthe same issue would not be helpful to the resolution of the disputebetween the Parties’.43 Unless otherwise agreed or decided, the Arbitral Tribunal will resume its proceedings not later than 1 December 2003, in the hope that by then the dispute will be dealt with bythe European Court of Justice.44This Order to suspend UNCLOS proceedings based on provisions in another agreement (here, the EC Treaty) is in line with theapproach that this author would suggest for WTO panels. WTOpanels, as well, ought to take cognizance of other agreements inwhich the disputing parties may have taken away the jurisdiction ofa WTO panel to deal with particular cases. When it comes to disputes between EU member states that raise questions under bothEU law and WTO law, two problems must be distinguished.First, pursuant to Article 133 of the EC Treaty, the EC’s common commercial policy falls within the exclusive competence of the41
424344
Order No. 3 of 24 June 2003, at http://www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf, p. 8, para. 26. The EuropeanCommission actually initiated infringement procedures under the ECTreaty against Ireland claiming that Ireland’s initiation of the MoxPlant case under UNCLOS (as well as the OSPAR Convention) violates Ireland’s obligations under the EC Treaty (Ireland Threatenedover Sellafield Row, The Independent, 29 June 2003).Order No. 3 of 24 June 2003, p. 9, para. 28.Ibidem.Ibidem, p. 9, para. 30. Note, in contrast, the Award under the OSPARConvention (quoted supra in footnote 19) where jurisdiction wasfound, notwithstanding overlaps with EC treaties and directives.However, in that case the United Kingdom did not press its defenseunder EU law as hard as it did in the UNCLOS Mox Plant dispute.Yet, in my view, the OSPAR Tribunal, as well, should, like the UNCLOS Tribunal, have suspended its proceedings until further clarification was offered by EC institutions on the matter of overlap withEU law and potential exclusive competences of the EC.
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EC. This means that individual EU member states no longer havethe competence to act in this field.45 As a result, individual EUmembers not even have the legal capacity to invoke WTO disputesettlement procedures46, at least not in respect of WTO matters falling within the exclusive powers of the EC (for certain GATS andTRIPS matters the competences remain shared between EU member states and the EC47). The resulting lack of capacity to bring aWTO complaint applies not only for disputes between EU members, but also for procedures initiated by an EU member againstWTO members that are not members of the EU. Consequently, incase the complaining EU member thus lacks the legal capacity tosubmit a WTO complaint, any WTO panel ought to recognize thisand decline to exercise jurisdiction, even if this lack of capacityresults from EU law, not WTO law. As between EU members, theECJ could then decide the dispute; a WTO complaint by an EUmember against a non-EU member could then be re-initiated at theWTO by the EC itself (the EC being a WTO member in its ownright).Second, a WTO dispute between EU members may also activate Article 229 of the EC Treaty. On the premise that the WTOprovisions relied on by the complainant are a matter of exclusiveEC competence, any rights that the complainant thus asserts againstanother EU member exist – and are a matter of – EC law.48 Conse45
46
47
48
See Case 22/70, Commission v Council (‘ERTA’): ‘... each time theCommunity, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules,whatever form these may take, the Member States no longer have theright, acting individually or even collectively, to undertake obligations with third countries which affect those rules’ ([1971] ECR 263,paragraph 17).Ibidem, at paragraph 18: ‘As and when such common rules come intobeing, the Community alone is in a position to assume and carry outcontractual obligations toward third countries affecting the wholesphere of application of the Community legal system’.See Opinion 1/94, Competence of the Community to concludeinternational agreements concerning services and the protection ofintellectual property, [1994] ECR Page I-05267.Every international agreement entered into by the EC becomes, fromits entry into force, an integral part of EC law (Case 181/73, Haegeman v Belgium, [1974] ECR 449 at paragraph 5 and Opinion 1/91,[1991] ECR I-6079 at paragraph 37.
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quently, even if the complainant could frame its complaint exclusively in terms of a violation of WTO rules, the WTO dispute – inso far as it raises a matter within the exclusive competence of theEC – is necessarily also ‘a dispute concerning the interpretation orapplication of [the EC] Treaty’ which only the ECJ can resolve.49The subject matter of the WTO dispute is then covered fully alsounder EC law; as a matter of fact, under EC law as it applies between EU members, it is then an internal question only of EU law,not one of WTO law. In that event, a conflict would arise betweenArticle 292 of the EC Treaty, reserving exclusive jurisdiction to ECbodies to resolve the dispute, and Article 23 of the DSU, statingwith equal force that ‘[w]hen [WTO] Members seek the redress of aviolation of obligations ... under the covered agreements ..., theyshall have recourse to ... the rules and procedures of this Understanding’ (emphasis added). The question is then which of thosetwo 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 morespecific norm or lex specialis (both in terms of membership andsubject matter) and arguably even as the later norm in time or lexposterior (the EC treaty was most recently re-concluded in Nice in2001). Consequently, a WTO panel ought, in those circumstances,to decline jurisdiction. It would then be for the parties, or the European Commission, to re-initiate the dispute before the EuropeanCourt of Justice. The ECJ could then examine the dispute in termsof EU law as such, or even find violations of WTO obligationsgiven that the WTO treaty is an integral part of the EU legal systemand can be relied on directly before the ECJ by the Commission oran EU member in a dispute against another EU member.504