on the appropriate test that shouldbe adopted in the WTO legal system.III. WTO Panels on Treaty ConflictsThe question whether a narrow or wide definition of treaty conflictshould be adopted in WTO law has not yet been determined. Atpresent, one panel has opted for the wide view, another for thenarrow view, and the Appellate Body has not yet ruled on the issue,though some indications of its views may be gleaned from some ofits reports.The issue of treaty conflicts was first addressed by the panel inEC – Bananas III, which considered that there could be a situationof conflict between a right and an obligation.4 The Panel gave theexample, in a footnote, of the express right of a WTO Memberunder Article 2 of the Agreement on Textiles and Clothing toimpose quantitative restrictions that would be prohibited by ArticleXI:1 of the GATT.5By contrast, in the context of analyzing the relationship between the prohibition on local content rules in the TRIMS Agreement (an obligation) and the transitional period for local contentrules in the SCM Agreement (a right), the panel in Indonesia –Automobiles rejected this approach. This Panel limited the notion of‘conflict’ to a situation in which it is impossible for a party tocomply with different obligations at the same time. Specifically, thepanel said as follows:‘In international law for a conflict to exist between twotreaties, three conditions have to be satisfied. First, thetreaties concerned must have the same parties. Second, thetreaties must cover the same subject matter. … Third, the34
5
Cf ibidem, 160.WTO Panel Report EC – Bananas III (US), WT/DS27/R/USA,adopted as modified by the Appellate Body report on 25 September1997, para 7.159.Ibidem, fn 728.
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provisions must conflict, in the sense that the provisionsmust impose mutually exclusive obligations.’6The panel went on to adopt the following quotation from theEncyclopædia of Public International Law:‘Technically speaking, there is a conflict when two (ormore) treaty instruments contain obligations which cannotbe complied with simultaneously. … Not every such divergence constitutes a conflict, however, … Incompatibility of contents is an essential condition for conflict.’7In his paper, Professor Davey aligns himself with the view ofthe Bananas panel, although for a number of reasons he supportsthe result of the panel in Indonesia – Automobiles.8 This contribution will explore further the validity of the narrow definition oftreaty conflicts adopted by the panel in Indonesia – Automobiles,and for that matter subsequently approved in Turkey – Textiles.9IV. Problems with a Narrow Definition of ConflictsThere are a number of problems with the narrow definition of conflicts adopted by the panel in Indonesia – Automobiles. In the first678
9
WTO Panel Report, Indonesia – Automobiles, WT/DS54/R, adopted23 July 1998, para 14.28, fn 649.Encyclopædia of Public International Law, Vol 7 (North-Holland,1984) at 468, quoted ibidem, para 14.28, fn 649.Professor Davey distinguishes between the rights in the ATC (protected by the Bananas III panel) and those in the SCM Agreement(unprotected by the Indonesia – Automobiles panel), and argues thatwhereas the former are a clear expression of the intent of the parties,the latter are at best a minor part of that agreement, and thereforecould cede to the more important rules set out in the TRIMs Agreement. This is supported, according to Davey, by the temporal coordination between the SCM Agreement and the transitional period in theTRIMS agreement. In addition, Davey notes the different consequences of violation of the TRIMS and SCM Agreement after theexpiry of the transitional period. Finally, with reference to the principle of lex specialis, Davey refers again to the minor nature and different purpose of the transitional period in TRIMS Agreement.WTO Panel Report, Turkey – Textiles, WT/DS34/R, adopted asmodified by the Appellate Body report on 19 November 1999, paras9.92-9.95.
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place, the panel’s proposition that international law mandates anarrow definition of ‘conflict’ is not unambiguously true. Whilesome eminent authorities, most notably Wilfred Jenks, take thenarrow view, there are others equally eminent that have taken thewide view, including Humphrey Waldock, Hans Aufricht andHersch Lauterpacht.10 Even more importantly, perhaps, the jurisprudence of international tribunals is, at the very least, undecidedon the issue.11This is perhaps unsurprising, because there is a very strongpolicy argument in favour of a wide definition of conflict. This iswell explained by Joost Pauwelyn, who, in the context of discussing the narrow view of Wilfred Jenks, says as follows:‘[B]y refusing to recognise certain situations as conflicts –such as a contradiction between a prohibition to do X andpermission to do X) – Jenks’ strict definition indirectly resolves a number of contradictions in favour of the strictestnorm, in casu, in favour of the prohibition to do X, sincenot invoking the right to do X under the permissive normwill avoid breaching the prohibition to do X in the prohibitive norm. In those situations, the alleged conflict isthen not solved by a rule on how to solve conflict but bythe very definition of conflict.’12These observations are particularly pertinent in the context ofthe rights and obligations contained in the various WTO agreements, which, as the Appellate Body said in Argentina – Footwear(EC), form part of ‘one treaty, the WTO Agreement’.13 The consequence of this, as the Appellate Body said in the same paragraph, isthat ‘an appropriate reading of this “inseparable package of rightsand disciplines” must, accordingly, be one that gives meaning to allthe relevant provisions of these two equally binding agreements.’Allied to this understanding of the WTO ‘package’ is theproposition, accepted by the Appellate Body, that the provisions of10111213
For a comprehensive discussion see Pauwelyn (2003) 166-169 andVranes (2004).See Pauwelyn (2003), 340 et seq.; and Vranes 2004.Pauwelyn (2003), 170 et seq.WTO Appellate Body Report, Argentina – Footwear (EC), at para 81(referring to Article XIX GATT and the Safeguards Agreement).
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the WTO agreements represent a carefully negotiated ‘balance ofrights and obligations’ between WTO Members that must be respected.14 Indeed, in US – Shrimp the Appellate Body went so far asto refer to a balance between the competing rights of different WTOMembers when it would have been more natural to refer to abalance between the rights and obligations of the same WTO Member. In the context of describing the Chapeau to Article XX GATT,the Appellate Body said the following:‘Exercise by one Member of its right to invoke an exception, such as Article XX(g), if abused or misused, will, tothat extent, erode or render naught the substantive treatyrights in, for example, Article XI:1, of other Members.’15In the specific context of dispute settlement, this emphasis onpreserving the rights of WTO Members in dispute settlement isreinforced by Article 3.2 DSU, which states that‘[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements’ and Article 19.2 DSU, which states that ‘[i]n accordancewith paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish therights and obligations provided in the covered agreements.’If both WTO rights and WTO obligations are equally deserving of protection, then it seems fair to say that, in a situation inwhich it is not possible to protect both at the same time, at the veryleast a reasoned choice must be made between equally applicablerights and obligations. This possibility would be precluded by theapplication of a conflicts rule that ipso facto diminishes WTO rightsin favour of WTO obligations. This speaks very much in favour ofthe adoption of a wide definition of treaty conflicts in WTO law.
1415
See also Pauwelyn (2003) 197 et seq.WTO Appellate Body Report, US – Shrimp, at para 156. Later in thisparagraph the Appellate Body reformulated this sentence in moreconventional terms. The Appellate Body similarly refers to the balance of rights and obligations in its reports on US – Underwear, atpara 13 (concerning Article 6.10 ATC); EC – Bananas III, at para136 (concerning a Member’s right to bring a claim); and Brazil – Aircraft, at para 139 (in relation to Article 3.1(a) and 27.2 and 27.4SCM).
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It might also be added that a similar view seems to be taken bythe WTO Membership. It is otherwise very difficult to know whatto make of the notorious ‘sequencing’ problem, which concerns aconflict between the right of one Member to request authorisationfrom the Dispute Settlement Body to suspend concessions underArticle 22 DSU and the right of another Member to have its implementation of the recommendations and rulings of the DSB determined by a panel in accordance with Article 21.5 DSU.16 It simplymakes no sense to see this conflict in terms of a conflict betweentwo obligations. If WTO Members did not recognize that therecould be a conflict between the rights of WTO Members under thecovered agreements, then it is probably not going too far to say thatthe problem of sequencing would never have arisen.V. Appellate Body JurisprudenceThe Appellate Body has on a number of occasions considered howto reconcile apparently competing norms, but it has never actuallyfound it necessary to pronounce on the question whether a wide ornarrow definition of conflict should prevail in WTO law. Nevertheless, a survey of its practice tends to indicate that the AppellateBody would be unlikely to adopt the narrow view of the panel inIndonesia – Automobiles.A. A Right Subject to Cumulative Conditions(Argentina – Footwear (EC))One may begin with the two simultaneously adopted reports inArgentina – Footwear (EC) and Korea – Dairy.17 Both cases concerned the question whether the exercise of a right to take safeguards under the Agreement on Safeguards is subject to the condition, set out in Article XIX GATT, that safeguard measures mayonly be adopted if the increased imports are an ‘unforeseen development’. In both cases, the Appellate Body was able to deal withthis question without much difficulty, stating that the Agreement on16
17
See WTO Appellate Body Report, US – Certain EC Products, atparas 91-2, where the Appellate Body called these provisions ‘not amodel of clarity’. See, however, Mavroidis (2004) for an interpretation reconciling these two provisions.WTO Appellate Body Report, Argentina – Footwear (EC), and WTOAppellate Body Report, Korea – Dairy.
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Safeguards applied to measures that were both defined in andconformed to Article XIX GATT.18 This was justified on the basisthat Article 1 of the Safeguards Agreement clearly stipulates that:‘This Agreement establishes rules for the application ofsafeguard measures which shall be understood to meanthose measures provided for in Article XIX of GATT1994.’This was not therefore a situation in which a Member has aright to take an action under one agreement that would be nullifiedby a condition or obligation in another agreement. The right onlyever existed subject to the condition in Article XIX. Though lesselaborated, the same reasoning underlies the earlier ruling in Brazil– Desiccated Coconut, confirmed in US – Softwood Lumber, thatcountervailing duties may be imposed only in accordance with boththe SCM Agreement and Article VI of GATT.19B. A Right Subject to a Condition and a ‘Non-condition’(Guatemala – Cement I)A slightly more complicated situation arose in Guatemala – CementI.20 This case involved the express conflicts clause in Article 1.2DSU, according to which the ‘special or additional rules and procedures [in other covered agreements] shall prevail’ over the provisions of the DSU ‘[t]o the extent that there is a difference between’the two sets of provisions. On the notion of ‘difference’, the Appellate Body said this:‘In our view, it is only where the provisions of the DSUand the special or additional rules and procedures of acovered agreement cannot be read as complementingeach other that the special or additional provisions are toprevail. 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 viola-
1819
20
Argentina – Footwear (EC), para 83; Korea – Dairy, para 77.WTO Appellate Body Report, Brazil – Desiccated Coconut, 13 etseq.; WTO Appellate Body Report, US – Softwood Lumber, at para134.WTO Appellate Body Report, Guatemala – Cement I.
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tion of the other provision, that is, in the case of a conflictbetween them.’ 21The Appellate Body added, one paragraph later, that:‘It is, therefore, only in the specific circumstance where aprovision of the DSU and a special or additional provisionof another covered agreement are mutually inconsistentthat the special or additional provision may be read toprevail over the provision of the DSU.’22The allegedly ‘different’ provisions at issue were the specialdispute settlement rules and procedures in Article 17 of the Antidumping Agreement (ADP), on the one hand, and the normaldispute settlement rules and procedures in the DSU, on the other.The Appellate Body began its analysis of the relationship betweenthese provisions by making the following statement:‘Clearly, the consultation and dispute settlement provisions of a covered agreement are not meant to replace, asa coherent system of dispute settlement for that agreement, the rules and procedures of the DSU. To read Article 17 of the Anti-Dumping Agreement as replacing theDSU system as a whole is to deny the integrated nature ofthe WTO dispute settlement system established by Article1.1 of the DSU. … The Panel’s conclusion is reminiscentof the fragmented dispute settlement mechanisms thatcharacterized the previous GATT 1947 and Tokyo Roundagreements; it does not reflect the integrated dispute settlement system established in the WTO.’23What was critical, therefore, was that there is only one right torequest the establishment of a panel, and that right is found in theDSU.24 Consequently, it was open for the Appellate Body to findthat any conditions on the exercise of this right in either the DSU orthe ADP could be treated as cumulative, as was done in Argentina –Footwear (EC).21222324
Ibidem, para 65 (italics added).Ibidem, para 66.Ibidem, para 63.Presumably in Article 6.1 DSU, which states that ‘[i]f the complaining party so requests, a panel shall be established’, though the Appellate Body never actually referred to this provision.
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But this left another question: what happens when the presenceof a condition in one agreement is met with the absence of thatsame condition in the other? This was the question to be decided inthis case. Article 6.2 DSU requires a complainant to ‘identify thespecific measures at issue’, a condition that is not reflected in thespecial procedures under the Antidumping Agreement. Article 17.5of this agreement provides instead for these other conditions:‘The DSB shall, at the request of the complaining party,establish a panel to examine the matter based upon: (i) awritten statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly,under this Agreement has been nullified or impaired, orthat the achieving of the objectives of the Agreement isbeing impeded, and (ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.’The question was this: was the absence of the condition toidentify specific measures in the Antidumping Agreement significant? The panel held that it was;25 the Appellate Body disagreed.This was probably the correct result, given the AppellateBody’s earlier finding on the ancillary nature of the procedures inArticle 17 ADP. Unfortunately, however, the Appellate Body cameto its conclusion for what were arguably irrelevant reasons. Insteadof arguing that the absence of a condition in Article 17.5 does notrender inapplicable the presence of the condition in Article 6.2, theAppellate Body based its analysis on the ‘additional requirements’in Article 17.5 (concerning the written statement and facts providedto domestic authorities). It reasoned as follows:‘The fact that Article 17.5 contains these additional requirements, which are not mentioned in Article 6.2 of theDSU, does not nullify, or render inapplicable, the specificrequirements of Article 6.2 of the DSU in disputesbrought under the Anti-Dumping Agreement. In our view,there is no inconsistency between Article 17.5 of the AntiDumping Agreement and the provisions of Article 6.2 ofthe DSU. On the contrary, they are complementary and25
WTO Panel Report, Guatemala – Cement I, WT/DS60/R, adopted 25November 1998, as modified by the Appellate Body report.
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should be applied together. A panel request made concerning a dispute brought under the Anti-DumpingAgreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and theDSU. Thus, when a “matter” is referred to the DSB by acomplaining party under Article 17.4 of the Anti-Dumping Agreement, the panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-DumpingAgreement as well as Article 6.2 of the DSU.’26This is somewhat beside the point. It is true that the existenceof these additional requirements in Article 17.5 may be anotherreason for finding Article 17.5 not to prevail over Article 6.2 DSU.But it is not entirely irrelevant to ask whether these additionalconditions might ‘nullify, or render inapplicable, the specific requirements of Article 6.2’. For this reason, this passage cannotsimply be taken at face value.27How then are we to understand the refusal of the AppellateBody to draw any normative inferences from the absence in theAntidumping Agreement of the condition in the DSU to ‘identifythe specific measures at issue’? The most likely explanation is thatthe Appellate Body gave no normative weight to the absence of acondition in the Antidumping Agreement. In other words, it decidedthat a ‘difference’ between the provisions must be based on apositive norm, not simply the absence of a norm.C. A Right Subject to Cumulative Conditions (again) (US – FSC)A further case of potential conflict arose in US – FSC.28 In thiscase, there was a question whether there was a relevant ‘difference’between Article 4.4 DSU, which requires a request for consultationsto ‘give reasons for the request, including identification of the2627
28
Guatemala – Cement I, para 75.The Appellate Body also supported its reasoning by reference toArticle 17.4 ADP, which lists three types of antidumping measurewhich can be challenged under the dispute settlement procedures inArticle 17 ADP: Ibidem, para 79. But Article 17.4 merely stateswhich measures may be the subject of a claim under the Antidumping Agreement; it does not require these measures to be specificallyidentified in such a claim.WTO Appellate Body Report, US – FSC.
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measures at issue and an indication of the legal basis for the complaint’ and Article 4.2 SCM, which states that ‘[a] request forconsultations under paragraph 1 [of Article 4] shall include a statement of available evidence with regard to the existence and natureof the subsidy in question.’The question before the Appellate Body was whether a requestfor consultations had to comply with all three of these conditions.Quoting its test in Guatemala – Cement I, the Appellate Body saidthat ‘[i]t is clear to us that Article 4.4 of the DSU and Article 4.2 ofthe SCM Agreement can and should be read and applied together,so that a request for consultations relating to a prohibited subsidyclaim under the SCM Agreement must satisfy the requirements ofboth provisions.’29 This is a clear reiteration of the proposition thatthere is only one right to request consultations. Once this wasaccepted, then it followed from the above cases that such a rightmust be subject to all applicable conditions.D. Conflict between an Obligation and a ‘Non-obligation’(US – Hot Rolled Steel)In US – Hot-Rolled Steel the Appellate Body was again faced withthe more complicated situation arising in Guatemala – Cement I,although this time the alleged ‘difference’ was not between a condition and a ‘non-condition’, but between an obligation and a ‘nonobligation’. Specifically, the ‘difference’ was between Article 11DSU, under which panels are required to make ‘an objective assessment of the matter’, and Article 17.6 ADP, under which panelsare under obligations to review the factual findings (Article 17.6(i))and legal findings (Article 17.6(ii)) of domestic antidumpingauthorities.30 The question, as in Guatemala – Cement I, waswhether the absence of the obligation to ‘make an objective assessment of the matter’ in Article 17.6 ADP was significant. In bothcases, the Appellate Body held that it was not.Speaking of the first of these special provisions, the AppellateBody held that even though it contained no reference to the standard set out in Article 11 DSU, ‘it is inconceivable that Article17.6(i) should require anything other than that panels make an
2930
Ibidem, at para 160.WTO Appellate Body Report, US – Hot Rolled Steel.
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objective “assessment of the facts of the matter”.’31 As to the latter,the Appellate Body said, similarly, that ‘[n]othing in Article 17.6(ii)of the Anti-Dumping Agreement suggests that panels examiningclaims under that Agreement should not conduct an ‘objectiveassessment’ of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issuewith the Agreement.’32Following on from Guatemala – Cement I, this is perhaps not asurprising result. As in that case, the Appellate Body decided thatthere cannot be a ‘difference’ within the meaning of Article 1.2DSU, consisting of a norm in one set of dispute settlement rules andthe absence of that norm in the other.E. Conflict between an Obligation and a Right(Brazil – Aircraft; US – FSC)Two apparently more conventional cases are Brazil – Aircraft, inwhich the Appellate Body was once again confronted with a potential ‘difference’ between a special dispute settlement procedure andthe DSU, and US – FSC, which involved the substantive provisionsof the GATT and the Agreement on Agriculture. In both cases, theAppellate Body decided that an obligation in one agreement prevailed over a right in the competing agreement. However, it is notpossible to draw any broader conclusions from this – for instance,that the Appellate Body has decided in favour of a narrow definition of conflicts – because in both cases the agreement containingthe obligation was itself expressed to prevail over the agreementcontaining the right.1. Brazil – AircraftThe two provisions at issue in Brazil – Aircraft were Article 4.7 ofthe Agreement on Subsidies and Countervailing Measures andArticle 21.3 of the DSU. Article 4.7 SCM provides that:‘If the measure in question is found to be a prohibitedsubsidy, the panel shall recommend that the subsidizingMember withdraw the subsidy without delay.’Article 21.3 DSU states that:
3132
Ibidem at para 55.Ibidem, at para 62.
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‘If it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shallhave a reasonable period of time in which to do so.’Article 21.3 provides three methods of determining the reasonable period of time, and paragraph (c) states that if this period isdetermined by arbitration, it should normally be no longer than 15months. Also relevant is Article 4.12 SCM, which halves the timeperiod normally prescribed under the DSU for cases brought underthe SCM Agreement, except where a time period is expresslyprescribed in Article 4 SCM. The allegedly ‘different’ provisions asissue were the special dispute settlement rules and procedures inArticle 17 of the Antidumping Agreement (ADP), on the one hand,and the normal dispute settlement rules and procedures in the DSU,on the other.The question in this case was whether the panel was correct togive Brazil 90 days to withdraw its subsidy, under Article 4.7 SCM,as opposed to half of the longer period specified in Article 21.3(c)DSU (as read in accordance with Article 4.12 DSU). Unlike in thecases discussed above, the Appellate Body decided here that:‘there is a significant difference between the relevant rulesand procedures of the DSU and the special or additionalrules and procedures set forth in Article 4.7 of the SCMAgreement.’33Despite the fact that the Appellate Body did not refer to Article1.2 DSU, this language that it uses is clearly drawn from this provision. Indeed, it is only on this basis that the Appellate Body couldhave gone on to say that:‘… the provisions of Article 21.3 of the DSU are not relevant in determining the period of time for implementationof a finding of inconsistency with the prohibited subsidiesprovisions of Part II of the SCM Agreement.’34The Appellate Body can be faulted for not mentioning Article1.2 DSU, when this provision was clearly being applied, and for notexplaining in more detail why Article 4.7 SCM is relevantly ‘different’ from Article 21.3 DSU. What is more interesting, though, are3334
Brazil – Aircraft, at para 192.Ibidem, at para 192. The Appellate Body also noted in this paragraphthat Article 4.12 was not applicable in this case.
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the types of legal norms involved, and the Appellate Body’s choicebetween these norms.Both Article 4.7 SCM and Article 21.3 DSU establish time-periods within which a Member must comply with its obligation toimplement DSB rulings. Under Article 4.7 SCM a panel mustrequire the measure to be withdrawn ‘without delay’, which meansthat the affected Member has an obligation to withdraw its measurewithout delay. By contrast, under Article 21.3 DSU a Member hasnot only a right to a reasonable period of time for implementation ifit is impractical to comply immediately,35 but in addition a procedural right, in Article 21.3(c), to have this reasonable period of timedetermined by arbitration. The alleged conflict was not thereforebetween two obligations, but between an obligation (to withdrawthe measure without delay) and a right (to a reasonable period oftime for implementation). Concretely, then, the Appellate Bodyshould have asked whether the obligation flowing from the panel’sduty in Article 4.7 SCM could be read as erasing the express rightsset out in Article 21.3 DSU. The fact that it did not is regrettable,but there can be little controversy as to the result: the expresswording of Article 4.7 SCM makes it clear that this provision does,in fact, erase any other rights in Article 21.3 DSU.2. US – FSCIn US – FSC, the Appellate Body contrasted the ‘disciplines’ onexport subsidies under the Agreement on Agriculture with thepermissive exception for such subsidies on ‘primary products’under Article XVI:4 GATT. It said:‘Unquestionably, the explicit export subsidy disciplines,relating to agricultural products, contained in Articles 3,8, 9 and 10 of the Agreement on Agriculture must clearlytake precedence over the exemption of primary productsfrom export subsidy disciplines in Article XVI:4 of theGATT 1994.’36Although the Appellate Body did not refer to tem, the result isjustifiable on the basis of two conflicts provisions. First, the General Interpretive Note to Annex 1A states that:35
See Vranes (2004).
36
US – FSC, at para 117.
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‘In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provisionof another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to inthe agreements in Annex 1A as the ‘WTO Agreement’),the provision of the other agreement shall prevail to theextent of the conflict.’Second, Article 21 of the Agriculture Agreement states that:‘The provisions of GATT 1994 and of other MultilateralTrade Agreements in Annex 1A to the WTO Agreementshall apply subject to the provisions of this Agreement.’On this basis, this case resolves into a conflict between an obligation and a right, in which the former prevailed over the latter. Theweakness of the Appellate Body’s reasoning, as in Brazil – Aircraft,is that it did not state what it was doing.37VI. ConclusionsIf one looks at these reports as a whole, a number of propositionsemerge. First, the Appellate Body stated in Argentina – Footwear(EC) that where there is only one applicable right, it will be subjectto all conditions relevant to the exercise of that right. Second, theAppellate Body has indicated that there is no normative conflict insituations when a condition or obligation is present in one agreement (Guatemala – Cement I; US – Hot-Rolled Steel). In this sensea condition or obligation will necessarily prevail over an equallyapplicable ‘non-condition’ or ‘non-obligation’. And third, an obligation will prevail over a right, at least in case where the obligationis contained in an agreement which is expressly stated to prevailover the agreement containing the right (Brazil – Aircraft; US –FSC).From this we can draw the following general conclusions onthe definition of treaty conflicts in WTO law. While the AppellateBody has not ruled expressly on whether a narrow or wide definition of conflict should prevail in the WTO legal system, it doesrecognize (sometimes implicitly) that there is a wide variety ofnorms in the WTO legal system. Whether the Appellate Body willestablish a hierarchy of obligations over other norms is hard to37
See also Pauwelyn (2003), 197.
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predict, but on the basis of what has been done so far, it seemsunlikely.This would be a pleasing result. Not only is it questionablewhether public international law mandates any narrow test forconflicts, but a narrow test has the disadvantage that it ipso factodetermines any conflict between a right and an obligation in favourof the obligation. This is inadequate as a matter of general policy,but even more particularly it is problematic in the case of the WTOlegal system, which is based on a ‘