asures in response to something that is perfectly legal under internationallaw.To resolve WTO complaints within the four corners of WTOcovered agreements portrays the WTO as a self-contained regime and the field of public international law as a fragmentedsystem with sealed-off compartments. It puts fuel on the argument that the WTO is only concerned about economic welfare;not about other values that may be expressed with equal forcein other treaties.The panel declines jurisdiction on the ground of non-WTO law
Based on an agreement not to submit a certain dispute to a WTOpanel or to submit it rather elsewhere, a WTO panel may decidethat, by agreement of the parties, it does not have jurisdiction todecide the case. The panel may also decline jurisdiction on theground that the dispute is in fact not genuinely a dispute underWTO rules, but raises rather claims under non-WTO rules forwhich it has no jurisdiction:x In all of these cases, the status quo is confirmed in that theWTO does not condemn nor condone the measure that waschallenged.x The dispute can subsequently be brought before another courtor tribunal, either because the parties had agreed earlier to resolve it there or because in substance the dispute is one underanother treaty. In the latter case, any remaining WTO aspect ofthe dispute can then be referred back to a WTO panel, whichshould, in turn, take account of any rulings made under theother treaty.x Declining jurisdiction because the dispute is too intricatelylinked to non-WTO claims (and requires, for example, themaking of findings of violation under another treaty) in a situation where no compulsory dispute settlement mechanism isavailable under the other treaty, amounts in practice to the continuation of the allegedly WTO inconsistent measure (theWTO complainant cannot go anywhere, for example, to confirm that it is not violating human rights so that it should not besubjected to trade sanctions). This result – though regrettable
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in case the WTO complainant is in the right – ought to providean incentive for states to ameliorate the enforcement mechanism under other treaties.The panel takes account of a substantivedefense under non-WTO lawFor a panel to take account of a defense under non-WTO law is notthe same as accepting that defense. The WTO panel may find thatthe non-WTO rule does not require nor permit the challengedmeasure. Moreover, even if the opposite is true and a conflict arisesbetween a WTO prohibition and an obligation or explicit right under another treaty, the conflict may still be decided in favor of theWTO provision. If, but only if, the other treaty norm prevails, theonly consequence is that no finding of violation under the WTOtreaty can be made (in other words, status quo).x Irrespective of the legal arguments made earlier, are membersof WTO panels and the Appellate Body capable of interpretingnon-WTO treaties and applying them to the facts? What is theWTO’s legitimacy when deciding questions under, for example, environmental or human rights treaties? Does it risk tainting those treaties with an inherent trade-bias?From the perspective of the drafters, enforcement agencies andother stakeholders under other, non-WTO treaties, the situation mayboil down to choosing between two evils: either (1) the WTO completely ignores those treaties – thereby disregarding the sovereignwill of the disputing parties as expressed in those other treaties –and prohibits something called for under another treaty; or (2) theWTO takes account of these other treaties with the risk that it misinterprets or waters down the other treaty. In my view, the lattersolution constitutes, by far, the lesser evil (an evil that the WTO is,after all, engaging in already now when it regularly interprets, withcompetence and impartiality, non-WTO rules117). Moreover, thispotential evil can be minimized or prevented relatively easily:First, as is already happening to date, members of the Appellate Body can be selected based not only on their trade expertise,but also on their broader knowledge of public international law oreven domestic law generally speaking. Of the seven individualscurrently on the Appellate Body at least four are not specialized in117 See supra footnote 107 and recall, in this respect, the position expressed in the text supra at footnote 51.
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trade.118 When it comes to panels as well, room can be (and hasbeen) made to have generalists and specialists in non-trade fieldsserving as panel members. Second, when applying non-WTO rules,WTO panels and the Appellate Body can seek expert advice notonly from the disputing parties, third parties and the staff of theWTO secretariat, but also from other international organizations oreven other international tribunals.119 To this effect, WTO panelscould even suspend their proceedings.120 In this sense, they couldadopt what is called in EU law the doctrine of acte claire121: if themeaning and application of the non-WTO rule offers no complication, a WTO panel could apply it without much need for expert advice or input from other sources. If, in contrast, the non-WTO ruleoffers ambiguity, then advice or even decisions from other bodiescould be sought, not only to help the WTO in reaching the correctand most legitimate decision, but also to preserve the uniform interpretation of the other treaty.
ReferencesLorand Bartels (2001), Applicable Law in WTO Dispute Settlement Proceedings, in: Journal of World Trade 35 (2001), 499519.Lorand Bartels (2002), The Human Rights Clause in the International Agreements of the European Community, doctoral thesis(European University Institute), April 2002.118 These four are: Abi-Saab (expert in public international law, especially international human rights and international criminal law);Tanaguchi (expert in civil procedure); Lockhart (former Judge inAustralia); and Sacerdoti (public international law, focusing on international investment).119 See Pauwelyn (2002).120 As done by the UNCLOS Arbitration Tribunal in the Mox Plant case,supra footnote 15, discussed supra in text at footnotes 41 and 52.121 See Article 234 of the EC Treaty, setting out the procedure underwhich national courts can request preliminary rulings from the ECJon matters of EU law. A national court must thus refer to the ECJ ‘ifit considers that a decision on the question [under EU law] is necessary to enable it to give judgment’.
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Lucius Caflisch (2002), The Rome Statute and the European Convention on Human Rights, in: Human Rights Law Journal 23(2002), No. 1-4, 1-12.James Cameron / Kevin R. Gray (2001), Principles of InternationalLaw in the WTO Dispute Settlement Body, in: Internationaland Comparative Law Quarterly 50 (2001), 248-298.Meinhard Hilf (2001), Power, Rules and Principles – Which Orientation for WTO/GATT Law? in: Journal of InternationalEconomic Law 4 (2001), No. 1, 111-130.Qingjiang Kong (2002), Can the WTO Dispute Settlement Mechanism Resolve Trade Disputes Between China and Taiwan? in:Journal of International Economic Law 5 (2002), No. 3, 747758.Nancy Kontou (1995), The Termination and Revision of Treaties inthe Light of New Customary International Law, Oxford (Oxford University Press) 1995.Kyung Kwak / Gabrielle Marceau (2002), Overlaps and Conflictsof Jurisdiction between the WTO and RTAs, Conference onRegional Trade Agreements, WTO, 26 April 2002, available athttp://www.wto.org/english/tratop_e/ region_e / sem_april02_e/sem_april02_reading_e.htm.Vaughan Lowe (1996), Res Judicata and the Rule of Law in International Arbitration, African Journal of International Law 8(1996), 38-50.Vaughan Lowe (1999), Overlapping jurisdiction in internationaltribunals, in: Australian Year Book of International Law 20(1999), 191-204.Gabrielle Marceau (1999), A Call for Coherence in InternationalLaw – Praises for the Prohibition Against ‘Clinical Isolation’in WTO Dispute Settlement’, in: Journal of World Trade 33(1999), 87-152.Gabrielle Marceau (2001), Conflicts of Norms and Conflicts ofJurisdictions, The Relationship between the WTO Agreementand MEAs and other Treaties, in: Journal of World Trade 35(2001), 1081-1131.Gabrielle Marceau (2002), WTO Dispute Settlement and HumanRights, in: European Journal of International Law 13 (2002),No. 4, 753-814.
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John McGinnis (2003), The Appropriate Hierarchy of Global Multilateralism and Customary International Law: The Example ofthe WTO, Northwestern Law and Economics Research PaperNo. 03-09, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421661.David Palmeter / Petros Mavroïdis (1998), The WTO Legal System: Sources of Law, in: American Journal of InternationalLaw 92 (1998), 398-413.Joost Pauwelyn (2001), The Role of Public International Law in theWTO: How Far Can We Go?, in: American Journal of International Law 95 (2001), 535-578.Joost Pauwelyn (2002), The Use of Experts in WTO Dispute Settlement, in: International and Comparative Law Quarterly 51(2002), 325-364.Joost Pauwelyn (2003a), Conflict of Norms in Public InternationalLaw, How WTO Law Relates to Other Rules of InternationalLaw, Cambridge (Cambridge University Press) 2003.Joost Pauwelyn (2003b), WTO Compassion or Superiority Complex? What to Make of the WTO Waiver for ‘Conflict Diamonds’, in: Michigan Journal of International Law 24 (2003),1177-1207.Joost Pauwelyn (2003c), A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?, in: European Journal of International Law 14 (2003),907-951.Joost Pauwelyn (2004), Going Global or Regional or Both? Disputesettlement in the Southern African Development Community(SADC) and Overlaps with other Jurisdictions, in: MinnesotaJournal of Global Trade 13 (2004), 231-304.Eugene F. Scoles et al. (2000), Conflict of Laws, Saint Paul / MN(Westgroup) 32000.Yuval Shany (2003), The Competing Jurisdictions of InternationalCourts and Tribunals, Oxford (Oxford University Press) 2003.Joel Trachtman (1999), The Domain of WTO Dispute Resolution,in: Harvard International Law Journal 40 (1999), No. 2, 333377.Gaetan Verhoosel (2003), The Use of Investor-State Arbitrationunder Bilateral Investment Treaties to Seek Relief for Breaches
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of WTO Law, in: Journal of International Economic Law 6(2003), No. 2, 493-506.World Bank (2003), The Inspection Panel 10 Years on, Washington/ DC 2003.
Gabrielle Marceau and Anastasios Tomazos*
Comments on Joost Pauwelyn’s Paper: ‘How to Win aWTO Dispute Based on Non-WTO Law?’I. IntroductionII. Where Non-WTO Law Leads a Panel to DeclineJurisdictionIII. Where Non-WTO Law Justifies What Would OtherwiseBe a Violation of WTO LawIV. ConclusionReferences
5557667880
I. IntroductionWe have been asked to provide general comments on our colleague’s paper entitled, ‘How to win a WTO dispute based on nonWTO Law’.As the title suggests, the primary focus of Joost Pauwelyn’spaper is to examine how and in what circumstances non-WTO canbe applied by World Trade Organization (WTO) panels in disputes.In examining this issue, Pauwelyn distinguishes the following twotypes of situations, which in our view are nevertheless related: (1)where non-WTO law leads a panel to decline jurisdiction and (2)where non-WTO law justifies what would otherwise be a violationof WTO law.In the first situation, Pauwelyn argues that panels and the Appellate Body should decline jurisdiction when WTO Members havebilaterally agreed to set aside the jurisdiction of the WTO disputesettlement over WTO-related disputes and each time another inter-
*
Gabrielle Marceau is a Counsellor in the Cabinet of the DirectorGeneral of the WTO and Anastasios Tomazos at the time of writingthis comment was a Legal Consultant for the Legal Affairs Divisionof the WTO Secretariat. The views expressed in this paper are strictlythose of the authors and do not bind the WTO Secretariat or theWTO Members.
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national tribunal has been set up to resolve a dispute or has alreadyruled on a similar matter pursuant to another treaty provision.In our view, in arguing that WTO panels should decline jurisdiction when another treaty also grants jurisdiction, which disregards the compulsory and automatic nature of the WTO disputesettlement system and, in creating unnecessary conflict of normsthat facilitates pushing disputes outside the ambit of WTO law,Pauwelyn misconstrues fundamental aspects of the WTO disputesettlement system and overlooks the successful results of the Uruguay Round negotiations, where States (i.e., WTO Members)agreed to construct a more rule-based international trading system,primarily through the present dispute settlement system. In allowingWTO panels and the Appellate Body to recognize such treaties –which we suggest may be considered contrary to the automatic nature1 of the WTO dispute settlement system – one of the implications of Pauwelyn’s thesis is that it would leave weaker tradingpartners in the hands of more powerful States, capable of imposingother jurisdictional mechanisms that are less impartial, comprehensive and rule-orientated than that of the WTO dispute settlementsystem.In the second situation, Pauwelyn argues that in some instances, WTO adjudicating bodies should find, on the merits of adispute, that there is no WTO violation where non-WTO law prevails over WTO law. In reaching this conclusion, Pauwelyn suggests a very broad definition of conflict of norms and provides several examples of possible conflicts between WTO provisions andother international obligations. Pauwelyn broadens the notion ofconflict of norms by including conflicts between rights and obligations or exceptions under Article XX of GATT 1994. He also contends that WTO relations are bilateral by nature and therefore, twoMembers can agree to derogate from provisions of the WTO. Then,Pauwelyn suggests that WTO panels and Appellate Body are required to resolve any and all conflicts that may exist between WTOprovisions and other international obligations and rights of Stateswhen they are involved in a WTO dispute. Ostensibly, for Pauwelyn, identifying conflicts appears to ensure that panels and the Ap1
This term refers to the so-called negative consensus rule set out, interalia, in Article 6.1 of the DSU, whereby all Members present at aDSB meeting, including the complainant requesting the establishment of the panel, decide by consensus not to establish a panel.
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pellate Body are able to adjudicate the issue objectively as well asrespecting international law.In our view, Pauwelyn’s perspective overlooks the nature andthe state of public international law at present. States are bound atall times by all their international obligations and must always respect the rights of other States. Moreover, States must also negotiate and apply their international obligations in good faith at alltimes. Although Pauwelyn does acknowledge in his paper that itwould be exceptional if a harmonious interpretation of WTO lawand non-WTO law was not possible and the latter provided an ‘independent defence’ to a violation of the WTO treaty, we are of theview that WTO law and other provisions of international law cangenerally be applied harmoniously and effectively through goodfaith interpretation.Even though WTO panels and the Appellate Body cannotinterpret and enforce non-WTO law, other than to the extent necessary to interpret and apply WTO provisions, one should not underestimate the potential coherence that exists between WTO law andthe other systems of international law. We believe Pauwelyn overemphasizes the role of conflict of norms in resolving WTO disputes. Pauwelyn ignores the ‘chaotic’ nature of international lawand seeks to compartmentalize each system of international law insuch a manner that almost assures that conflicts will be created asissues often overlap between different sub-systems of internationallaw.If Pauwelyn’s argument is accepted, it would grant a specialized tribunal, such as a WTO panel, powers for which it has notbeen conferred or possess the capacity to address. More importantly, instead of favoring an evolving coherence and mutual respect between international legal systems, Pauwelyn’s viewpointwould require the WTO dispute settlement system and other international tribunals to compartmentalize, separate and dissociatefunctions and duties contrary to their overlapping mandates. Thiscannot be correct. Although no one would argue that the WTO isnot an important international organization, it is not a world government and its dispute settlement system even less so.II. Where Non-WTO Law Leads a Panel to Decline JurisdictionWTO panels are not courts of general jurisdiction; they have adelegated and limited jurisdiction. Therefore, panels must complywith the mandate received from WTO Members through the Dis-
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pute Settlement Body (DSB). Pursuant to Articles XXII and XXIIIof GATT 1994 and the Dispute Settlement Understanding (DSU)Members have delegated to panels and the Appellate Body thepower to adjudicate their disputes and make recommendations tothe DSB. The parameters of this delegation and the jurisdiction ofthe WTO adjudicating bodies are determined by the DSU and theMarrakesh Agreement Establishing the WTO. This may explainwhy GATT/WTO jurisprudence has established that panels and theAppellate Body may still rule on the WTO compatibility of measures that have been removed during proceedings. For instance, inArgentina – Textiles and Apparel, Argentina had changed the levelof its statistical tax during the proceedings. The Appellate Bodynevertheless examined the level of the tax as it was at the time thePanel was established:‘At the time the Panel proceeding commenced, there wasin effect in Argentina an ad valorem tax of 3 per cent onimports, without a minimum or a maximum charge, whichwas called a ‘statistical tax’ and was described as designed to cover the cost of providing a statistical serviceintended to provide a reliable data base for foreign tradeoperators.ii
According to Argentina’s statement at the oral hearing on 23 February 1998, this ad valorem statistical tax was modified to 0.5 per centin December 1997.’2
Likewise, in US – Certain EC Products, the Appellate Bodyconcluded that although the measure at issue was no longer in existence, it nonetheless found that the measure was inconsistent withArticle II:1 of GATT 1994. However, since the measure was nolonger in existence, no recommendation could be made to theDSB.3 Other panels and the Appellate Body have analyzed andreached conclusions on measures removed or modified at the timeof their rulings.4 This is further evidence, as elaborated below, thatWTO adjudicating bodies have a defined and limited jurisdiction.234
Appellate Body Report on Argentina – Textiles and Apparel,WT/DS56/AB/R, at para. 64Appellate Body Report on US – Certain EC Products, WT/DS165/AB/R, at paras, 81, 82 and 129.See for instance, the US - Gasoline Panel Report, WT/DS2/R, para.6.19; Panel Report on US - Shirts and Blouses, WT/DS33/R, at para.6.2; Panel Report on Indonesia – Autos, WT/DS54/R, WT/DS55/R,
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To examine the issue of the jurisdiction of WTO adjudicatingbodies discussed by Pauwelyn, we must first turn our attention toArticle 23 of the DSU.5 This provision is perhaps one of the mostfundamental provisions of the DSU. As a means of prohibitingunilateral measures, the purpose of Article 23 of the DSU is to‘multilateralize’ the dispute settlement system by obliging Membersto seek redress only through the DSU, as well as, renouncing theuse of unilateral trade countermeasures other than in conformitywith WTO law.In light of Article 23 of the DSU, which provides that a violation of the WTO Agreement can be addressed only according to theWTO/DSU rules, would the invocation of a Regional Trade
5
WT/DS59/R, WT/DS64/R;. Panel Report on EEC - Measures onAnimal Feed Proteins, adopted on 14 March 1978, BISD 25S/49; andPanel Report on US - Tuna and Tuna Products from Canada, adoptedon 22 February 1982, BISD 29S/91.Article 23 of the DSU reads as follows:‘Strengthening of the Multilateral System1. When Members seek the redress of a violation of obligations orother nullification or impairment of benefits under the coveredagreements or an impediment to the attainment of any objectiveof the covered agreements, they shall have recourse to, and abideby, the rules and procedures of this Understanding.2. In such cases, Members shall:(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that theattainment of any objective of the covered agreements hasbeen impeded, except through recourse to dispute settlementin accordance with the rules and procedures of this Understanding, and shall make any such determination consistentwith the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;(b) follow the procedures set forth in Article 21 to determine thereasonable period of time for the Member concerned to implement the recommendations and rulings; and(c) follow the procedures set forth in Article 22 to determine thelevel of suspension of concessions or other obligations andobtain DSB authorization in accordance with those proceduresbefore suspending concessions or other obligations under thecovered agreements in response to the failure of the Memberconcerned to implement the recommendations and rulingswithin that reasonable period of time.’
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Agreement (RTA) provision be sufficient to stop the automatic nature of the WTO dispute settlement system? How can Article 23and the automatic nature of the DSU be reconciled with the preference and, in some circumstances, the exclusivity given to the RTAdispute settlement process concerning obligations which are similarin the RTA and in WTO for the same facts?Pauwelyn argues that if a RTA panel has ruled on a matter between the parties, the WTO panel should decline to rule on thesimilar WTO claim; and that if the RTA process is ongoing, theWTO process should be halted. Although we would do not in principle disagree with Pauwelyn’s suggestion, it does not reflect thepresent state of international law.Rather, it is our view that in light of the automatic nature of themechanism, once a dispute is initiated under the DSU, it is unlikelythat a WTO panel would give any consideration to the respondent'srequest to halt the procedures just because similar or related procedures are being pursued under a RTA. Parties could de facto notbring the matter to the WTO, but we think that it would be difficultfor a WTO panel to refuse to hear a WTO Member complainingabout a measure claimed to be inconsistent with the WTO Agreement on the ground that the complaining or responding Member isalleged to have a more specific or more appropriate defence or remedy in another forum concerning the same legal facts. In practice,the WTO panel will most likely read and consider the related RTAruling(s) and may even use it to confirm its own interpretation ofthe WTO provisions and their application to the matter at issue.However, to decline jurisdiction because a RTA dispute ruling hasalready been rendered or ongoing is a totally different matter.In initiating a parallel WTO dispute, a RTA party may befound to be violating the obligation under the RTA not to initiate adispute outside the RTA. In these circumstances, the RTA partyopposed to the parallel WTO panel (the ‘opposing RTA party’)would claim that the WTO panel initiated by the other RTA party isimpairing some of its benefits under the RTA. The opposing RTAparty would arguably win this claim before the RTA panel. Theoretically, that opposing RTA party would then be entitled to someretaliation, the value of which could probably correspond to (partof) the benefits that the other RTA party could gain in initiating itsWTO panel. In other words, even if it may not be practical or usefulfor a RTA party to duplicate a dispute that should be dealt with inRTA, there would be no legal obstacle against such a possibility,
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since, legally speaking, the RTA tribunal and WTO panel would beconsidering different ‘matters’, and different ‘applicable law’ inmechanisms that offers different remedies, implementation and enforcement rules.6There could be an overlap or conflict of jurisdiction betweenthe dispute settlement mechanism of the WTO and that of RTAs.The wording of Article 23 of the DSU seems to make it clear that aWTO adjudicating body always has the authority (and even the obligation) to examine claims of violations of WTO obligations. WTOrights and obligations can be challenged only pursuant to the WTOdispute settlement procedures and only before a WTO adjudicatingbody.7 In addition, WTO jurisprudence has decided that any WTOMember that is a ‘potential exporter’ has the sufficient legal interestto initiate a WTO panel process.8 That is to say, in the context of adispute between two WTO Members involving issues covered byboth an RTA and the WTO Agreement, any WTO Member whichconsiders that any of its WTO benefits have been nullified or impaired has the absolute right to trigger the WTO dispute settlementmechanism and to request the establishment of a panel on this matter.9 Such a WTO Member cannot be asked (and arguably cannoteven agree) to take its WTO dispute to another forum, even if thatother forum appears to be more relevant or better equipped to dealwith the issues involved.Tensions may also arise from the availability of RTA noncompulsory dispute settlement mechanism with no binding effecteven in the absence of strict de jure conflicts (but when faced withoverlaps of jurisdictions). For instance, trade measures taken pursuant to non-compliance with an RTA adjudication process could be6
7
8
9
However, it is worth pondering on the potential issue of how a WTOarbitration panel would deal with retaliation already enforced underthe North American Free Trade Agreement if the potential WTO retaliation is to be exercised on the same trade flows.Even an arbitration pursuant to Article 25 of the DSU would be aWTO arbitration, and thus covered by the exclusivity provision ofArticle 23 of the DSU.Appellate Body Report on EC – Bananas III, WT/DS27/AB/R atpara. 136; See also the Panel Report on Korea – Dairy, WT/DS98/R,at para. 7.13.Appellate Body Report on US – Shirts and Blouses, WT/DS33/AB/R,at p. 13.
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argued to be inconsistent with Article 23 of the DSU and Article XIof GATT. The benefits gained from such RTA countermeasuresmay be nullified by the consequences of a violation of Article 23 ofthe DSU and Articles II and XI of GATT 1994. It is therefore forWTO Members to negotiate how they want to allocate jurisdictionbetween RTAs and the WTO, and how the dispute settlementmechanism of RTAs and those of the WTO will operate. Otherwise,they will evolve in parallel. If so, they should be used and operatedin good faith. As of now, they generally appear to be doing so.In recent years, treaties and organs of jurisdiction havedramatically increased in number. An obvious example is that ofthe multiplicity of treaties, organs and jurisdictions involved inhuman rights issues.10 It seems accepted practice that States mayadhere to different but parallel dispute settlement mechanisms forparallel or even similar obligations. As stated by the Arbitral Tribunal (ICSID/ITLOS) in the recent Southern Bluefin Tuna case:But the Tribunal recognizes as well that there is a commonplace of international law and State practice for morethan one treaty to bear upon a particular dispute. There isno reason why a given act of a State may not violate itsobligations under more than one treaty. There is frequently a parallelism of treaties, both in their substantivecontent and in their provisions for settlement of disputesarising thereunder. [...] the conclusion of an implementing convention does not necessarily vacate the obligationsimposed by the framework convention upon the parties tothe implementing convention.11 (emphasis added)There may be situations where two Members agree not to bringone or several disputes to the WTO. However, if a Member brings adispute to the WTO, contrary to a bilateral agreement or to an exclusive jurisdiction clause in another treaty, that Member willprobably argue that the bilateral agreement or the exclusive jurisdiction clause is not applicable or does not cover the matter at issuebefore the WTO on the bases that the applicable law, the remediesavailable and the enforcement mechanisms, etc. are not the same.Thus, a panel would need to examine the substance of the claims ofWTO violation to assess whether and how they overlap with the1011
See Roucounas (1987), 197.Award on Jurisdiction and Admissibility of 4 August 2000, SouthernBluefin Tuna Case, Australia and New Zealand v Japan, at p. 91.
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provisions of the bilateral agreement or the treaty. After all thiswork, it is doubtful that in the present state of international law, apanel would simply decline jurisdiction and rule that another judicial or quasi-judicial body is the most appropriate forum to examinethe issue, or has already solved the dispute. Moreover, in the absence of an agreement among states, the principle of forum nonconveniens seems not to be applicable in the present state of international law.12The same holds true for an allegation based on the