principle ofres judicata. We agree with Vaughan Lowe that there is no suchgeneral principle yet applicable between international tribunals.13Also, we doubt that the establishment of the WTO has changed thissituation. Furthermore, it would also be very difficult for the principle of res judicata to find application in the context of WTO dispute settlement between an international tribunal and a WTO panel,as the notion of ‘matter’14 pursuant to Article 7.1 of the DSU determines the panel's terms of reference, which in turn defines thescope of a panel's jurisdiction.15 Even between WTO litigants withinWTO dispute settlement, it would still be difficult for the respondent to invoke the principle of res judicata, as confirmed below bythe Panel in India – Autos:‘Because the policy underlying res judicata is to bringlitigation of a particular nature to an end at an appropriatestage, the key to its application should be to compare whathas already been ruled on to what is being brought beforethe adjudicating body in the subsequent proceedings. BothIndia and the United States have used a comparison between the ‘matter’ ruled on in the India - Quantitative Restrictions case and the ‘matter’ brought before this Panelin identifying the similarities or dissimilarities between121314
15
Infra, Lowe (1999), 12.Lowe (1999), 12; Sawaki (1979–80); Fawcett, 5 et seq. and 10. Seealso Lowe (1996).See the Appellate Body Report in the Guatemala – Cement I,WT/DS60/AB/R, at para. 72, where the Appellate Body stated thatthe ‘matter’ referred to the DSB consists of two elements: the specific measures at issue and the legal basis of the complaint (or theclaims).See the Appellate Body Report on India – Patents (US),WT/DS50/AB/R, at paras. 92-93.
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the two disputes for the purposes of assessing whether theissues before this Panel can be considered to be res judicata.16 [footnotes omitted][...]The Panel therefore considers that for res judicata to haveany possible role in WTO dispute settlement, thereshould, at the very least, be in essence identity betweenthe matter previously ruled on and that submitted to thesubsequent panel. This requires identity between both themeasures and the claims pertaining to them. There is also,for the purposes of res judicata, a requirement of identityof parties which is clearly met with regard to the UnitedStates in this instance.’17[footnotes omitted]Another issue that Pauwelyn addresses is bilateral agreementsbetween WTO Members not to invoke WTO dispute settlement. Inthis regard, Pauwelyn considers the European Communities’ decision to subsequently initiate a dispute in India – Autos, despitereaching a mutually agreed solution with India in the context of theIndia – Quantitative Restrictions18 dispute, whereby both partieshad agreed to refrain from any action during the phasing-out periodon the condition that India complied with its obligations under certain exchange of letters. Although the Panel in India – Autos wasable to avoid the issue of whether India could rely on the mutuallyagreed solution on the basis that the agreement did not cover thesame matter within the meaning of Article 7.1 of the DSU, Pauwelyn is of the view that ‘any WTO panel would have been under anobligation to respect this agreement and to declare that by agreement of the parties, it does not have jurisdiction to examine the issue’. We disagree with Pauwelyn that this is an example where aPanel would rule that it had no jurisdiction ‘because of non-WTOlaw’. In our view, the Panel would have been able to resolve thisissue without having to resort to applying substantive ‘non-WTOlaw’.The Panel seemed to agree with India’s argument that the issuerelated to the European Communities’ procedural rights under the161718
Panel Report on India – Autos, WT/DS146/R and Corr.1,WT/DS175/R and Corr. 1, para. 7.64.Ibidem, para. 7.66.Panel Report on India – Quantitative Restrictions, WT/DS90/R.
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DSU, rather than India’s substantive obligations under a coveredagreement. In this regard, the Panel was correct to point out that,‘the status of mutually agreed solutions under the DSU and theirimpact in subsequent dispute settlement proceedings is not expressly indicated in the DSU’19 and that the issue was ‘what effectsit may have on the exercise of procedural rights under the DSU insubsequent proceedings’.20 In other words, the issue was what effect does the agreement have on the ability of a Member to subsequently request the establishment of a panel. We believe that this isone of those instances where basic general principles of procedurallaw could be employed by a panel in a future dispute to determinewhether a mutually agreed solution negatively affects the procedural rights of a complainant in such a way that it bars that Member's ability to ‘re-litigate’ on a matter that has already been settled.In other words, as suggested by the Panel in India – Autos, a panelcould apply the principle of estoppel in such circumstances.21 Wealso hasten to add that this interpretation would be one in which apanel would be authorized to make under Article 11 of the DSU.Since WTO panels are obliged to presume that WTO Memberscomply with their international law obligations, they should interpret and apply WTO law accordingly. Moreover, since WTO panelsand the Appellate Body are quasi-judicial they must, and do complywith basic general principles of procedural law. Both panels and theAppellate Body have interpreted and applied Article 11 of the DSUto encompass general principles of procedural law and due processrules, which have evolved into rules on the burden of proof, on therepresentation of parties before panels, standing, judicial economyand so forth. Here, we generally agree with Pauwelyn’s assertionthat, ‘as important as those processes of references to non-WTOlaw may be, it is unlikely they determine the substantive outcomeof a WTO dispute [...] applying the largely procedural rules of general international law may eventually decide a case, but hardly influences its substantive merits.’Finally, it is also worth citing the following excerpt from India– Autos, where the Panel implies that it is not necessarily interpreting and applying non-WTO law (i.e., a non-covered agreement)when examining a mutually agreed solution:192021
Supra, India – Autos, para. 7.113.Ibidem, para. 7.116.Ibidem, footnote 364.
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‘[...] These possibilities suggest that the issue cannot necessarily be resolved simply through an acknowledgementthat an MAS [mutually agreed solution] is not a coveredagreement as was argued by the EC. That argument simply is another way of noting that the DSU does not expressly give a panel a mandate to consider whether a‘violation’ of such an agreement might exist as a distinctbasis for a dispute under the DSU. It does not necessarilyprove that a panel may not in some circumstances need toconsider the terms of such agreed solutions in order to fulfill its duties under the DSU. Here the Panel notes thatdisputes concerning the application of the DSU itself canbe the object of proceedings under the DSU. This mightpossibly include disputes concerning mutually agreed solutions, since these are expressly referred to in theDSU.’22III. Where Non-WTO Law JustifiesWhat Would Otherwise Be a Violation of WTO LawBefore discussing the relationship between WTO law and generalinternational law and the alleged capacity of WTO adjudicatingbodies to assess Members’ compliance with non-WTO treaty provisions, one must understand the manner in which the WTO disputesettlement process functions. In many ways, the WTO dispute settlement system is an attractive forum to settle disputes for Statesthat are members of the WTO as it can be triggered fairly easily andquickly. Also, another appealing feature is that panels and the Appellate Body are expected to render relatively quick decisions. Virtually any allegation would generally suffice to formally trigger theWTO dispute settlement process through a simple request for consultations in writing, copied to the DSB. All Members are presumedto have an economic and legal interest to initiate a WTO disputesettlement mechanism.23 As noted above, once triggered, the WTOdispute settlement system is automatic in view of the so-callednegative consensus rule found in Article 6.1 DSU.2223
Ibidem, footnote 364.However, in light of the negative consensus rule, nothing would prevent a Member from initiating a formal WTO dispute even if thatMember did not have either an economic or legal interest.
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As previously mentioned, Article 23 of the DSU is arguablyone of the most fundamental provisions of the DSU. One of theunique features of the WTO is that it has managed to regulate andlimit unauthorized unilateral countermeasures from powerful Members. The WTO system of law contains, inter alia, specific: (1)rights and obligations (2) claims and causes of action (3) violations(4) enforcement mechanisms and (5) remedies in case of violation.The DSU defines the jurisdiction, the capacity and the mandate ofpanels (and the Appellate Body) with reference to (1) allegations ofWTO violations by the complaining party(ies) (2) the specific typeof remedies/conclusions that panels and the Appellate Body mayrecommend and (3) the prohibition not to add to or diminish WTOlaw. Indeed, paragraph 1 of Article 23 of the DSU has been interpreted as being an ‘exclusive dispute settlement clause’.24The mandate of panels and the Appellate Body is to determinewhether provisions of the WTO ‘covered agreements’ have beenviolated. Pursuant to Article 1.1, the DSU applies to disputesbrought under the covered agreements. The covered agreementslisted in Appendix 1 of the DSU are all the WTO multilateral tradeagreements, (except the Trade-Related Review Mechanism) and theplurilateral agreements, to the extent that Members have adoptedthe latter. The covered agreements would also include WTO decisions and secondary legislation. Article 4 provides that consultations can be initiated on allegations of violations of any of the covered agreements. Article 7.1 states that the mandate of the panel is‘(t)o examine, in the light of the relevant provisions in (name of thecovered agreement(s) cited by the parties to the dispute), the matterreferred to the DSB by the Member in document [...] and to makesuch findings as will assist the DSB in making the recommendationsor in giving the rulings provided for in that/those agreement(s)’ (emphasis added). Article 7.2 adds that ‘Panels shall address the relevantprovisions in any covered agreement or agreements cited by the parties to the dispute’ (emphasis added). Article 11 of the DSU alsoprovides for a limited jurisdiction for panels, which is circumscribed by the covered agreements. It requires a panel to ‘make anobjective assessment of the matter before it, including an objectiveassessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other24
Panel Report on US – Section 301 Trade Act, WT/DS 152/R, at para.7.43.
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findings as will assist the DSB in making recommendations or ingiving the rulings provided for in the covered agreements’ (emphasis added).Finally, Article 19.1 of the DSU provides that the standard recommendation is that the losing Member ‘brings its measure intoconformity with that [covered] agreement(s)’. No other conclusionor remedy is envisaged. At most, WTO adjudicating bodies canmake ‘suggestions’25 as to the manner in which the measure shouldbe brought into conformity. However, we hasten to add that suchsuggestions are not binding and cannot be enforced. Therefore, aWTO adjudicating body could not enforce a suggestion regardingthe manner in which a Member could amend its laws, regulationsand the like, so as to bring them into conformity with non-WTOnorms, unless it could be related to compliance with a provision ofthe covered agreements.The limited jurisdiction of WTO adjudicating bodies is confirmed by the cautious jurisprudence of the Appellate Body. In EC– Poultry, Brazil claimed that the European Communities had notprovided it with the full allocation of a tariff quota on frozenchicken imports, contrary to obligations under the EC schedulesand their bilateral ‘Oilseeds Agreement’. Here, the Appellate Bodyacknowledged that the Oilseeds Agreement was not ‘applicable law’and thus could not be enforced by WTO dispute settlement mechanism. It stated:‘In our view, it is not necessary to have recourse to eitherArticle 59.1 or Article 30.3 of the Vienna Convention …As such, it [the Schedule of the EC] forms part of themultilateral obligations under the WTO Agreement. TheOilseeds Agreement, in contrast, is a bilateral agreementnegotiated by the European Communities and Brazil under Article XXVIII of the GATT 1947, as part of theresolution of the dispute in EEC – Oilseeds. As such, theOilseeds Agreement is not a “covered agreement” withinthe meaning of Articles 1 and 2 of the DSU. Nor is theOilseeds Agreement part of the multilateral obligationsaccepted by Brazil and the European Communities pursuant to the WTO Agreement, which came into effect on 125
Article 19.1 in fine reads as follows: ‘In additions to its recommendations, the panel or the Appellate Body may suggest ways in which theMember concerned could implement the recommendations.’
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January 1995. The Oilseeds Agreement is not cited in anyAnnex to the WTO Agreement. Although the provisions ofcertain legal instruments that entered into force under theGATT 1947 were made part of the GATT 1994 pursuantto the language in Annex 1A incorporating the GATT1994 into the WTO Agreement, the Oilseeds Agreement isnot one of those legal instruments.’26According to the Appellate Body, Schedule LXXX rather thanthe Oilseeds Agreement, contained the relevant obligations of theEuropean Communities under the WTO Agreement. Therefore, itwas Schedule LXXX, rather than the Oilseeds Agreement, whichformed the legal basis for this dispute and which must be interpreted in accordance with ‘customary rules of interpretation ofpublic international law’ under Article 3.2 of the DSU.27 This seemsto suggest that even agreements negotiated under the auspices ofthe WTO Agreement, such as those negotiated under ArticleXXVIII of GATT, remain useful tools of interpretation, but assuch, cannot be enforced by WTO adjudicating bodies (unless theWTO provision explicitly provides otherwise).28
2627
28
Appellate Body Report on EC – Poultry, WT/DS69/AB/R, at para.79.Appellate Body Report on EC – Poultry, WT/DS69/AB/R, at para.81. The Appellate Body continued and stated that the OilseedAgreement could be used pursuant to Article 32 of the Vienna Convention, as part of the circumstances of the negotiation of the Schedule.See the ruling of the Chairman in United States – Margin of Preferences, 9 August 1949, BISD II/11 to the effect that a bilateral agreement cannot be enforced by a GATT Panel. The issue of the WTOcompatibility of a regional trade agreement with WTO provisions,including Article XXIV, is not really different since, should panelshave wide jurisdiction to assess the overall compatibility of regionaltrade agreements, panels would still be examining whether a Member’s specific measure or its regional trade agreement with otherMembers is compatible with the WTO agreements, taking into account the possible exceptions authorized by Article XXIV. In allcases panels would not be ‘enforcing’ the provisions of the regionaltrade agreement, something that could be done by the parties to theregional trade agreement only pursuant to the dispute settlement procedures of the regional trade agreement itself. On the relationship
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Moreover, in EC – Bananas III, the Appellate Body upheld thepanel’s decision that it ‘had no alternative but to examine the provisions’ of a non-WTO agreement ‘in so far as it is necessary’ to interpret WTO rules (the Lomé waiver referred to the Lomé Convention and the panel was examining the scope of the Lomé Waiver).29The implication is that the role of non-WTO instruments is limitedto interpreting the non-WTO rule to extent necessary to decide thematter at hand. Similarly, a panel may be called upon in the futureto examine the Kimberley Certification Scheme for rough diamonds– a non-WTO agreement – ‘in so far as it is necessary’ to interpretthe scope of the Kimberley Waiver30 which refers to the KimberleyCertification Scheme.Having said that the WTO adjudicating bodies have a limitedjurisdiction – to interpret and apply the covered agreements – doesnot mean that the WTO should be interpreted and applied in isolation from the rest of international law. In its first report, US –Gasoline, the Appellate Body noted that the WTO agreements mustnot be interpreted in ‘clinical isolation’ from public internationallaw.31 In this regard, the Appellate Body cited Article 3.2 of theDSU which requires panels and the Appellate Body to use ‘customary rules of interpretation’ to interpret the provisions of the WTOagreements. Article 3.2 provides:‘[...]The dispute settlement system of the WTO] serves toclarify the existing provisions of those [WTO] agreementsin accordance with customary rules of interpretation ofpublic international law [...].’Customary rules of international law include (at least) Articles31, 32 and 33 of the Vienna Convention. Of particular interest isArticle 31.3(c) which provides that when interpreting the ordinarymeaning of treaty terms, an interpreter shall also ‘take into account’any applicable rule of international law. Article 31.3(c) would bring
2930
31
between the dispute settlement procedures under regional tradeagreements and that of the GATT or the WTO see Marceau (1997).Appellate Body Report on EC - Bananas III , WT/DS27/AB/R, atpara. 162.Waiver Concerning Kimberly Process Certification Scheme forRough Diamonds: Communication, G/C/W/432//Rev.1 (24 February,2003).Appellate Body Report on US – Gasoline, WT/DS2/AB/R at page17. See also McRae (1997), 99.
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into the interpretative analysis of any WTO provision a series ofrelevant international rights and obligations which may alter andinfluence the meaning of WTO provisions. Article 31.3(c) is a tool,an indicator of the norms/rules of international law that must betaken into account in the interpretation of specific treaty provisions,such as those of the WTO. In fact, Article 31.3(c) of the ViennaConvention can be viewed as an obligation on the interpreter to be‘aware of’ – and take into account – what is otherwise internationallaw between the WTO disputing parties. In sum, Article 31.3(c) ofthe Vienna Convention aims at promoting some ‘coherence’ in international law, so that the treaty being interpreted and other relevant international law rules are read in a way that mutually supportsand avoids conflicts with other treaties.The WTO Agreement, as any other treaty, should be interpreted in a fashion that takes into account other relevant and applicable rules of international law. In doing so in good faith, it shouldgenerally be possible to interpret WTO provisions in a way thatallow WTO Members to respect all their international law obligations and other States’ rights.We agree with Donald McRae that Article 3.2 of the DSU is amandate for interpreting the agreement and the real concern is:‘[...] whether the treaty obligations of the WTO Membersare to be supplemented by additional obligations derivedfrom customary international law. On the face of it, Article 3.2 of the DSU says they cannot. Dispute settlementcannot add to the obligations of the WTO Members as setout in the Agreements.’32‘Principles of customary international law do not leapfrog into treaty regimes an add to substantive obligationsunder those regimes. They exist alongside and are relevant to the interpretation and application of the substantive treaty rules.’33This distinction seems to have been recognized by WTO jurisprudence. Even if WTO applicable law seems to exclude the directapplication of rules on State responsibility,34 or some of them, these323334
McRae (2003), 713.Ibidem, 715See the Panel Report in US – Certain EC Products at para. 6.133:‘[…] In short the regime of counter-measures, reprisals or retaliatorymeasures has been strictly regulated under the WTO Agreement. It is
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rules – to the extent they are customary – bind WTO Members andremain a relevant benchmark for the interpretation of WTO lawwhich is presumed to evolve consistently with international law. InUS – Cotton Yarn, the Appellate Body, after analyzing the safeguard provisions of the WTO Agreement on Textiles and Clothing,stated:‘Our view is supported further by the rules of general international law on state responsibility, which require thatcountermeasures in response to breaches by states of theirinternational obligations be commensurate with the injurysuffered.’35In a nutshell, the mandate of panels and the Appellate Body isdefined and limited: to interpret WTO law and decide whether aprovision of the covered agreements has been violated. In doing sothey apply and enforce the WTO law. In accordance with their respective mandates, the WTO panels and the Appellate Body onlyhave the jurisdiction to interpret and apply WTO law. As such, theycannot interpret, let alone reach any legal conclusions of violationor compliance with other treaties or customs in complete isolationfrom the covered agreements. If and when they do so, it is only tothe extent necessary to interpret provisions of the covered agreements.As mentioned above, WTO panels and the Appellate Bodymust presume that WTO Members comply with their internationallaw obligations and therefore, they should interpret and apply WTOlaw accordingly. Moreover, since WTO panels and the Appellate
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now only in the institutional framework of the WTO/DSB that theUnited States could obtain a WTO compatible determination that theEuropean Communities violated the WTO Agreement, and it is onlyin the institutional framework of the WTO/DSB that the UnitedStates could obtain the authorization to exercise remedial action.’[footnote 170: ‘Therefore, in the WTO context, the provision of Article 60 of the Vienna Convention on the Laws of Treaties (1969) onthis matter does not apply since the adoption of the more specificprovisions of Article 23 of the DSU.’]Appellate Body Report on United States – Cotton Yarn,WT/DS192/AB/R, at para. 120. The same is true for the use of theprinciple of ‘due diligence’ in paras. 67, 76, 77 and 79 as with the useof ‘good faith’ in para. 81 of the same Report.
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Body are quasi-judicial they must, and do comply with basic general principles of procedural law.Pauwelyn, however, limits the scope for a coherent interpretation between WTO provisions and non-WTO provisions. To do so,Pauwelyn asserts as ‘conflicts’ differences between treaty provisions. For instance, he considers that in situations where a Memberinvokes compliance with an Multilateral Environmental Agreement(MEA) as justification under Article XX of GATT 1994 for abreach of a WTO rule, a ‘conflict’ may exist between the MEA andArticle XI of GATT 1994, which generally disallows trade prohibitions and restrictions other than duties, taxes or other charges, despite the existence and applicability of Article XX of GATT 1994.Since Article XX of GATT 1994 explicitly allows Members to givepriority to policies other than trade, including those policies affected by an MEA, it is erroneous to claim that there is conflictbetween a WTO rule that disallows trade prohibitions and restrictions and the MEA.In international law, for a ‘conflict’ to exist between two treaties, three conditions have to be met. First, the treaties must havesome overlap in membership. Second, the treaties must cover thesame substantive subject matter. Otherwise, there would be no possibility for conflict. Third, the provisions must conflict, in the sensethat the provisions must impose mutually exclusive obligations.36The general principle of good faith in the interpretation and application of treaties call for a presumption against conflicts. The presumption against conflict is especially reinforced in cases whereseparate agreements are concluded between the same parties, sinceit can be presumed that they are meant to be consistent with oneanother in the absence of any evidence to the contrary.37For a conflict to exist, it must be established that a provision ofthe WTO Agreement mandates an action that a provision of anothertreaty prohibits or vice-versa, when a provision of another treatymandates an action that the WTO Agreement prohibits. The occurrence of such a situation would be quite rare. In fact, one would berequired to demonstrate that compliance with the WTO necessitatesviolation of that other treaty.
3637
Jennings / Watts (1992), 1280; Fitzmaurice (1957), 237; Sinclair(1984), 97.See also Jenks (1953), 425 et seq.
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In the WTO context,38 the Appellate Body in Guatemala – Cement I elaborated on the issue of the possibility of conflicts betweenthe special or additional rules of procedures in Appendix 2 of theDSU with respect to anti-dumping disputes and the general provisions of the DSU and concluded as follows:‘[...] A special or additional provision should only befound to prevail over a provision of the DSU in a situationwhere adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflictbetween them. An interpreter must, therefore, identify aninconsistency or a difference between a provision of theDSU and a special or additional provision of a coveredagreement before concluding that the latter prevails andthat the provision of the DSU does not apply.’39Conflicts are concerned with situations where two ‘obligations’ cannot be reconciled. If the issue is one in which a treatycontains a right and the other an obligation a conflict cannot exist.‘Rights’ within a treaty and contained in other treaties, must also berespected and enforced by States at all times. There is, however, noneed to expand the concept of conflict as other rules of internationallaw ensure the respect, and in some circumstance the primacy ofprovisions allowing for rights over other provisions imposing ‘obligations’:‘[...] [T]echnically speaking, there is a conflict when two(or more) treaty instruments contain obligations whichcannot be complied with simultaneously. [...] Not everysuch divergence constitutes a conflict, however.[...] Incompatibility of contents is an essential condition of conflict.’4038
3940
We emphasize here that the Appellate Body has held that the WTOAgreement is a ‘single undertaking’ and a ‘inseparable package ofrights and disciplines’; See Brazil – Desiccated Coconut,WT/DS22/AB/R, 12 et seq. and Argentina – Footwear (EC)WT/DS121/AB/R, para. 81, respectively.Appellate Body Report on Guatemala – Cement I, WT/DS60/AB/R,para. 60.Karl (1984), 468; see also Jenks (1953), 425 et seq. For, in such acase, it is possible for a State which is a signatory of both treaties tocomply with both treaties at the same time. The presumption againstconflict is especially reinforced in cases where separate agreements
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‘[…] a conflict of law-making treaties arises only wheresimultaneous compliance with the obligations of differentinstruments is impossible. [...] There is no conflict if theobligations of one instrument are stricter than, but not incompatible with, those of another, or if it is possible tocomply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded byanother. […] The presumption against conflict is especially reinforced in cases where separate agreements areconcluded between the same parties, since it can be presumed that they are meant to be consistent with themselves, failing any evidence to the contrary.’41In taking into account explicit ‘rights’ provided for (within atreaty or in another treaty), one may use the lex specialis derogatgeneralis (lex specialis) principle of interpretation which favoursthe application of a more specific provision over a general one.Therefore, it may emerge from the intention of the parties and in theapplication of the lex specialis principle that a State exercises anexpress and more specific right provided for in an earlier or latertreaty, albeit appearing inconsistent with a subsequent or earliertreaty obligation drafted in general terms.Contrary to Pauwelyn’s argument, no conflicts exists betweenArticle XX of GATT and the basic market access provisions of theGATT (Articles I, II, III and XI). The Appellate Body has statedthat, in assessing the interpretation and application of Article XX,there is a need to maintain a ‘balance’ between these provisions andhas referred to this ‘balance’ in terms of weighing the ‘rights andobligations’ of Members under both sets of these provisions.42In increasing the number of possible conflicts, Pauwelyn givesthe impression that the identification of a conflict or several conflicts would facilitate the adjudicatory duties of panels and the Appellate Body and ensure an objective resolution of the matter andthe respect of international law. In expanding the jurisdiction of the
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are concluded between the same parties, since it can be presumedthat they are meant to be consistent with each other, failing any evidence to the contrary; see also Vierdag (1988), 100; Jennings / Watts(1992), 1280; Fitzmaurice (1957), 237; and Sinclair (1984), 97.Jenks (1953).See the Appellate Body Report on US – Shrimp, WT/DS58/AB/R,para. 142.
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WTO adjudicating bodies, and in encouraging them to resolve allpotential conflicts, Pauwelyn asks WTO panels and the AppellateBody to resolve issues that Members have not been able to reconcile (or may not want to reconcile). Pauwelyn seems to suggest thatin assessing potential conflicts, WTO panels and Appellate Bodywill be able to resolve the matter at issue more appropriately than ifit limits itself to interpreting the WTO provision coherently withother regimes of international law. This cannot be correct.Even in a rare occasion of conflict between two treaty provisions, determining which of the two provisions supersedes the otheris not a simple exercise. The WTO adjudicating body would need tointerpret the other treaty and decide whether the WTO Member inv