US would violate the MFN clause if it applied CVDson India products without considering whether they caused any injury. The case was settled (GATT, GATT Activities in 1981, at 5051). Some of the Tokyo Round agreements, such as the one on government procurement, could not be analyzed in this way since ArticleI would not seem to apply.
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taking’ approach, pursuant to which all WTO members are requiredto adhere to all WTO agreements, with a couple of minor exceptions.4 Unfortunately, while this approach brought virtually allWTO commitments under a single umbrella, it did not succeed increating one coherent system of legal obligations. This failure wasdue in large part to two factors: First, although some of the WTOagreements expressly deal with the problems of conflict betweenWTO agreements, not all of the agreements deal with this fundamental issue. Second, while the agreements were all negotiated inone round of negotiations, they were negotiated in many separatenegotiating groups, which made the possibility of conflicts morelikely than it might have otherwise been since negotiators in onegroup were not necessarily aware of the details of the negotiationsin other groups.The problems of consistency and conflicts in the WTO agreements may well increase, at least in the short term. The recent failure of the WTO’s Cancún ministerial meeting,5 which was intendedto give direction and impetus to the ongoing Doha DevelopmentAgenda negotiations, does not bode well for improving the coherence of international economic law based on the WTO agreements.While it is too early to know what the precise consequences of theCancún failure will be, two results seem likely. First, in order to4
5
WTO Members must accept all of the so-called multilateral tradeagreements annexed to the WTO Agreement. Adherence to the plurilateral agreements is optional. As of 2004, there were only two suchagreements – on government procurement and on civil aircraft.The fifth WTO ministerial conference held at Cancún in midSeptember 2003 was intended to define more precisely the negotiating parameters for the Doha Development Agenda, the round of negotiations launched at the fourth WTO ministerial conference held inDoha in November 2001. The meeting was terminated following aninability to reach consensus on whether to start negotiations on theso-called Singapore issues – competition, investment, trade facilitation and transparency in government procurement. A decision to startsuch negotiations at Cancún had been taken at Doha, subject toagreement on modalities at Cancún, but the disagreement at Cancúnseemed to involve more fundamental issues than modalities. Therewas also broad disagreement over the basis for proceeding with negotiations on agricultural issues, which could well have led to abreakdown at Cancún even if the Singapore issues had been dealtwith satisfactorily.
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gain agreement to negotiate on issues that are new to the WTOsystem, such as competition and investment, it is quite possible thatthe single undertaking approach of the Uruguay Round will beabandoned, with the result that the interrelationship of the generallyapplicable WTO agreements and WTO plurilateral agreements maybecome more important and complex. Second, as has been typicalwhen GATT or WTO negotiations are significantly delayed, manyWTO members – such as the US, the EC, Brazil and such Asiancountries as Japan and Korea – have already announced their intention to pursue additional regional trade agreements while the multilateral process is blocked.6 To the extent that this actually occurs,it also will undermine and complicate the coherence of internationaleconomic law.This paper will focus on the current problems of conflict andoverlap among WTO agreements. It will leave to one side the related and very interesting problem of how conflicts between theWTO agreements and other international agreements should bedealt with.7 It begins with an examination of the structure of theWTO agreements and the way that they deal explicitly with conflicts and overlaps. It then considers how conflicts between WTOagreements that are not dealt with explicitly in those agreementsshould be resolved, particularly in light of international law rules onconflicts, taking into account any special circumstances applicablebecause of the particular nature of WTO agreements. In that connection, WTO jurisprudence dealing with this issue is examined.Third, it considers the related problem of overlapping obligationsand how WTO dispute settlement has approached that issue. Finally, it briefly treats problems of consistency and coherence in in-
6
7
See, e.g., Robert Zoellick, Op-ed: America will not wait for thewon’t-do countries, The Financial Times, Sept. 22, 2003. SinceCancún, the US has in fact completed FTA negotiations with Australia, five Central American countries, the Dominican Republic andMorocco. See also Pascal Lamy, Result of the WTO Ministerial Conference in Cancún, Speech to a Plenary Session of the European Parliament, Strasbourg, Sept. 24, 2003, at 5 (‘The second question: dowe remain attached to the priority for multilateralism? … Are bilateral or regional agreements still a complement to multilateral disciplines or must come to substitute for them in the event of a standstill[at the WTO]?’).This topic is dealt with in Joost Pauwelyn’s paper, supra.
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ternational economic law that may arise from the failure of theCancún ministerial meeting.I. The WTO Agreements and the Treatment of ConflictsThe potential for problems of overlap and internal conflicts withinand among the WTO agreements is significant, in large part because of the basic structure of WTO obligations. At the top of thestructure is the Agreement Establishing the World Trade Organization (the ‘WTO Agreement’) – a relatively brief agreement thatestablishes the WTO and its principal organs and deals with variousinstitutional issues such as decision-making and accession.8 Annexed to this agreement are three general agreements: First, in Annex 1A, the General Agreement on Tariffs and Trade 1994, simplyreferred to as GATT, which is essentially the 1947 GATT textmodified by a half dozen understandings on specific GATT provisions.9 Second, in Annex 1B, the General Agreement on Trade inServices, known as GATS.10 Third, in Annex 1C, the Agreement onTrade-Related Aspects of Intellectual Property Rights, known as theTRIPS Agreement.11 Annex 1A, which contains GATT 1994, alsocontains twelve other agreements concerned with trade in goods. Inmany cases, these additional agreements deal with issues also dealtwith in GATT 1994, including those in respect of agriculture, sanitary measures, textiles and clothing trade, technical barriers, importlicensing, customs valuation, dumping, subsidies, safeguards andtrade-related investment measures. A few of these agreements dealwith subjects that are largely not dealt with in GATT rules, such asthe agreements on rules of origin and pre-shipment inspection.This structure means at a minimum that there will be significant overlaps. That is obviously the case where both GATT and oneof the other agreements on trade in goods deal with the same subject matter. The GATT rules on safeguards in GATT Article XIXwill obviously be impacted by the Agreement on Safeguards. However, the potential for overlap is in fact much broader. For example,rules on intellectual property may affect the sale of goods, and891011
The WTO Agreement is available at the WTO website –www.wto.org – and is also found in WTO (1995), 6-18.Ibidem, at 21-38. The text of GATT 1947 is at 485-558.Ibidem, at 325-364.Ibidem, at 365-403.
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thereby bring into play GATT rules that limit a Member’s rights toaffect the sale of goods. The broad reach of GATT Article III:4,which requires national treatment in respect of laws, regulationsand requirements affecting the internal distribution of goods, maywell affect distribution services, which are for most part subject toregulation under GATS.Despite these overlaps and potential for conflict, the WTOagreements generally do not recognize, let alone deal with, theproblem of overlapping obligations and contain relatively few rulesresolving conflicts. Moreover, even those agreements which purportto resolve conflicts by specifying the agreement that has priority inthe event of a conflict, do not define what is meant by the term‘conflict’.The principal rules that do exist are as follows: First, as to theWTO Agreement itself, it provides in Article XVI:3 that in theevent of a conflict, which as noted above is a concept that is notdefined, between the WTO Agreement and any of the annexed tradeagreements, the WTO Agreement shall prevail to the extent of theconflict. Given that the WTO Agreement deals mainly with institutional issues, not many such conflicts – however defined – arelikely to arise. Second, in respect of the agreements in Annex 1Adealing with trade in goods, a general interpretative note to Annex1A specifies that in the event of a conflict, here too undefined, between a provision of GATT 1994 and a provision of any other Annex 1A agreement, the provision of the other agreement will prevail.12 Thus, if there is a conflict between a provision of the Agreement on Safeguards and a provision of GATT 1994, the SafeguardsAgreement provision applies. Third, a number of Annex 1A agreements – that is, those dealing with trade in goods – have specificprovisions dealing with the priority of agreements. For example,Article 21.1 of the Agreement on Agriculture stipulates that GATT1994 and the other Annex 1A agreements apply subject to the provisions of the Agriculture Agreement. This provision clarifies thepriority and effectiveness of certain provisions of the agricultureagreement, which allow measures such as certain subsidies andsafeguards that would violate the otherwise applicable rules. A second example is found in the Agreement on Sanitary and Phytosanitary Measures – the so-called SPS Agreement, which provides thatit applies to SPS measures to the exclusion of the Agreement on12
Ibidem, at 20.
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Technical Barriers to Trade, which would otherwise seem to overlap in part with the SPS Agreement. Finally, the Understanding onthe Settlement of Disputes – known as the DSU – provides that itsrules apply subject to certain special or additional rules and procedures that are contained in other WTO agreement and that arespecified in an Annex to the DSU. It is specifically provided that tothe extent there is a ‘difference’ (as opposed to a conflict) betweenthe DSU rule and the special or additional rule, the latter shall prevail.It is obvious from what I have outlined, that there is much regarding overlaps and conflicts that is not dealt with in the WTOAgreement. One can ask why are the rules so incomplete? Why isthere no definition of conflict? Why are there rules governing therelationships of some agreements specified but not others? Thereseems to be no clear answer to these questions beyond the obviousproblem of uncoordinated negotiating groups alluded to above. Ofcourse, some of the most obvious conflict problems were treated – Iwould include in that category the relationship between GATT1994 and the more specialized agreements on GATT-related issuesin Annex 1A and the relationship of the DSU and the special provisions on dispute settlement in the various WTO agreements. Butother obvious problems were not addressed – such as the interrelationship between GATT, GATS and TRIPS and the relationship ofthe Agreement on Trade-Related Investment Measures and theAgreement on Subsidies, both of which deal with local content requirements, albeit in different ways. Thus, for better or worse, thereare difficult outstanding issues with regard to the principles governing the interrelationships of the WTO agreements.
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II. WTO Jurisprudence and the Treatment of Conflicts13A. Conflicts in Public International LawGiven the paucity of clear rules for treating conflicts in the WTOagreements, it is not surprising that WTO jurisprudence on the issuehas not developed in an entirely satisfactory and coherent matter.To analyze this issue, it is first necessary to define what is meant by‘conflict’. Since the WTO agreements provide no real guidance onthe issue, it is useful to consider how that concept is handled inpublic international law.14 Of course, the first rule when dealingwith an alleged conflict of obligations is that the treaty interpretershould try to interpret the relevant obligations so that they are not inconflict.15 The second rule is that as between the same parties themost recent obligation prevails over an earlier obligation.16 But neither of these rules is particularly helpful in the event of an actualconflict in the WTO context – an actual conflict cannot be interpreted away; the rule that the last in time prevails is not useful sincethe whole complex of WTO agreements entered into force at thesame time.What more then can we learn from public international law onthe definition and resolution of conflict problems? Quite interestingly, for me at least, is that an examination of what has been written on this issue in public international law seems to be rather unhelpful. It appears that most of the eminent authorities in publicinternational law have defined ‘conflict’ as meaning what some calla ‘true’ conflict. By that they mean that a conflict exists only wherea country has undertaken two obligations and that it is impossible
13
141516
I will focus in this section on conflicts among the Annex 1A agreements – the agreements involving trade in goods. For an analysis ofthe conflict issues presented at the level of the general agreements,i.e. GATT vs. GATS vs. TRIPS, see Davey / Zdouc (2003). For themost part, I will not consider panel and Appellate Body decisions regarding the relationship between the DSU and other dispute settlement provisions in the WTO agreements. For those cases, see generally Lorand Bartels, infra this volume.See generally Pauwelyn (2003).Ibidem, at 240-244.Ibidem, at 335.
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for it to comply with both at the same time.17 For example, it hasundertaken in one case to do an act ‘X’ and in another case to notdo ‘X’.18 While no one would dispute that this situation represents aconflict, the harder question is whether this exhausts the meaning of17
18
Various authorities are cited for this proposition in the Panel Reporton Indonesia – Certain Measures Affecting the Automobile Industry,WT/DS54/R, adopted by the WTO Dispute Settlement Body on 23July 1998. For example, in footnote 649 at page 329-330, the reportquotes Wolfram Karl, Conflicts Between Treaties, in: R. Bernhardt etal. (eds.), Encyclopedia of Public International Law, vol. 7, Amsterdam (North Holland) 1984, at 468: (‘[T]echnically speaking, there isa conflict when two (or more) treaty instruments contain obligationswhich cannot be complied with simultaneously’). See also Jenks(1953), 430 (‘[A] conflict in the strict sense of direct incompatibilityarises only where a party to the treaties cannot simultaneously comply with its obligations under both treaties’).There is an interesting US Supreme Court case that considers the ideaof true conflict in an international setting. In Hartford Fire InsuranceCo. vs. California, 509 U.S. 764 (1993), a group of British insurershad engaged in a certain activity in London that was lawful in theUnited Kingdom, but that was arguably unlawful in the United Statesbecause of the effect it had on insurance markets in the US. Whilethe insurers did not challenge the jurisdiction of the United States,they did argue that US courts should decline to exercise their jurisdiction because there was a conflict between the US and UK rulesand the insurers’ behavior was lawful under the rules of the placewhere it occurred. The Supreme Court rejected the argument on thegrounds that there was no true conflict – in its view, the insurerscould have complied with US law without violating UK law. Theysimply had to refrain from the activity that was illegal in the US. Tomake the example clearer – what was presented was not the situation,which could easily arise, where a foreign defendant was prohibitedfrom doing what a US court or regulator required it to do. Accordingly, the Supreme Court declined to require US courts to decline toexercise jurisdiction under comity principles.Pauwelyn cites a number of different formulations of the definitionof conflict that have been advanced in doctrinal writing in public international law. See Pauwelyn (2003), at 166-169. To me, his reviewtends to establish that the prevailing view is to limit the concept ofconflict to mutually exclusive obligations, although a number of authorities he quotes are susceptible of being interpreted less narrowly.Pauwelyn himself takes a broad view of conflict (ibidem, at 169188).
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conflict. In particular, what if a country has undertaken not to do‘X’ under one agreement, but it has entered into another agreementthat explicitly permits it to do ‘X’.B. Resolving Conflicts in the WTO Agreements1. The EC Bananas Case: GATT Article XI and the ATCPerhaps the true-conflict rule makes sense in some contexts, but itsapplication would raise serious problems in the WTO context. Totake a concrete WTO example – GATT Article XI bans the use ofquotas, while the Agreement on Textiles and Clothing permits certain WTO members to maintain quotas on textile and clothingproducts until 2005. If the concept of ‘conflict’ is limited to ‘true’conflicts, as described earlier, then there is no conflict betweenthese provisions. The WTO members authorized to impose quotasunder the ATC – the Agreement on Textiles and Clothing – are notrequired to do so. Thus, they can comply with that agreement andthe GATT rule by not imposing quotas. But does that make sense inthe WTO context?It clearly does not. There is one treaty framework to which allWTO members are parties. To require those parties authorized bythe ATC to forego their right under that agreement to impose quotasbecause quotas are banned by GATT would effectively defeat theentire purpose of the ATC, which was designed, subject to specifiedconditions, to provide a ten-year phase-out for such quotas.19 Such aresult would fly in the face of basic principles of treaty interpretation. As the WTO Appellate Body has said, a treaty interpreter isnot permitted through interpretation to reduce a provision to inutility, a result that it characterized in the Gasoline case to be in violation of the principles of treaty interpretation.20 Rendering a wholeagreement inutile could never be countenanced. While this particular issue involving Article XI and the ATC has never arisen, it wasused by the panel in the famous Bananas case to inform its discussion of what constituted a conflict.21 As such, that panel reached the1920
21
See Croome (1999), at 88-92, 192-199, 268-270.Appellate Body Report on United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, at 23, adopted bythe WTO Dispute Settlement Body on 20 May 1996.Panel Report on European Communities – Regime for the Importation, Distribution and Sale of Bananas, WT/DS27/R, paras. 7.1587.162, adopted by the WTO Dispute Settlement Body on 25 Septem-
Principles Governing the Interrelation of the WTO Agreements 111
conclusion that limiting the notion of conflict to true conflict, asdescribed above, would be inappropriate. In was, in the panel’sview, necessary to include within the scope of the definition of conflict the situation where one agreement proscribed what anotheragreement explicitly permitted. Not to do so would clearly frustratethe intentions of the parties, as it could not be argued seriously thatthey intended one agreement to have no effect. The resolution ofthe meaning of conflict was not crucial to the Bananas case. Indeed,it was dealt with by the panel in a footnote, and the discussion wasnot among the numerous issues appealed by the parties.2. The Indonesia Autos Case: GATT and the Subsidies AgreementA year later in the 1997 Indonesia Autos case, the definition of conflict was crucial.22 In the Autos case, which was not appealed, Indonesia argued that there were conflicts between GATT Article IIIand the TRIMs Agreement, i.e., the Agreement on Trade-RelatedInvestment Measures, on the one hand, and the Subsidies Agreement, on the other hand. Focusing on the TRIMs – SubsidiesAgreement conflict, Indonesia noted that subsidies conditioned onmeeting minimum local content requirements were normally prohibited by the Subsidies Agreement, but that developing countriessuch as Indonesia were not subject to that prohibition during a transition period that was still in effect at the time of the Autos case. Atthe same time, Indonesia noted that the TRIMs Agreement prohibited local-content measures generally, whether they were a condition for subsidies or not. For Indonesia, this meant that applying theTRIMs Agreement prohibition would render the Subsidies Agreement transition period inutile. The analogy to the GATT-ATCsituation discussed in the Bananas case seems clear.The panel, however, refused to recognize this situation as aconflict. Rather, it took the position that for a conflict to be found,there had to be a true conflict and that this situation was not a trueconflict, since Indonesia could comply with its obligations underboth agreements by not providing a subsidy conditional on meetinga local-content requirement. Moreover, the panel argued that the
22
ber 1997. The discussion of conflicts was not appealed and consequently was not discussed in the Appellate Body’s report.Panel Report on Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, adopted by the WTO Dispute SettlementBody on 23 July 1998.
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two agreements covered different types of obligations and differentsubject matters. To quote the panel:‘In the case of the Subsidies Agreement, what is prohibited is the grant of a subsidy contingent on the use of domestic goods, not the requirement to use domestic goodsas such. In the case of the TRIMs Agreement what is prohibited are TRIMs – trade-related investment measures –in the form of local content requirements, not the grant ofan advantage, such as a subsidy.’23The panel went on to note that a violation of the SubsidiesAgreement could be cured even if a local content requirement wasmaintained, while the TRIMs violation could be removed by simplychanging the conditions for the subsidy, which could remain in effect.While the panel’s arguments are not at all unreasonable, theyare not completely persuasive if one accepts, as I do, the correctnessof the Bananas example of the GATT-ATC relationship. However,for a number of reasons, the result of the Indonesia panel seemscorrect to me. I would not base the result on a mechanical application of the no true conflict rule. Rather, I would recognize the possibility of a conflict under the broader definition of conflict. But Iwould ultimately find no conflict because of consideration of suchfactors as the structure of the agreements and the obligationstherein, i.e. in the terms of the Vienna Convention on the Law ofTreaties – the context in which the obligations appear and the objectand purpose of the agreements24 – which I think can be examined toensure a result that is consistent with the likely intent of the parties.In that vein, I would note first, as noted earlier in the discussion ofthe Bananas panel’s analysis, the key reason for giving effect to theTextiles Agreement over GATT’s quota ban is to give effect towhat seemed to be the clear intent of the parties – to fail to do sowould render an entire agreement meaningless. That would not be
2324
Ibidem, at para. 14.50.Article 31 of the Vienna Convention provides a general rule ofinterpretation as follows: ‘A treaty shall be interpreted in good faithin accordance with the ordinary meaning to be given to the terms ofthe treaty in their context and in the light of its object and purpose.’ Itis accepted that DSU Article 3.2 specifies that this rule shall be usedin interpreting the WTO Agreement.
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the result, however, in the Indonesia Autos case if the TRIMsAgreement were given effect.Second, in examining the overall structure of WTO obligationson TRIMs and subsidies that are conditioned on a local content requirement, it is important to note that for developing countryTRIMs of any kind existing as of the date of WTO Agreement’seffectiveness, if notified to the WTO, those TRIMs would be validfor five years – exactly the period for which the Subsidies Agreement rule on prohibited subsidies containing local content requirements would not apply to developing countries.25 Thus, to a considerable degree the provisions of the two agreements are coordinated and it is only as to new measures that were implemented after1995 or measures that were not notified that a potential conflict exists. To the extent of this coordination, it is arguable that the agreements should not be viewed as being in conflict such that theTRIMs obligation is trumped by the Subsidies Agreement exception.Third, it is instructive to consider that once the relevant transition periods have expired, the measures at issue in Indonesia Autoswould violate both the TRIMs Agreement and the SubsidiesAgreement. However, the consequences of the violations would bedifferent. For the part of the measure that violated the SubsidiesAgreement, the provisions of the Subsidies Agreement on expediteddispute settlement and the requirement of prompt withdrawal of thesubsidy would apply, while for the part of the measure that violatedthe TRIMs Agreement, the normal DSU rules would apply. Seen inthat way, one could conclude that a no-conflict finding would not atall render an agreement or provision inutile. That is to say that inthe case of new or non-notified TRIMs, during a five year periodthey would be subject to normal dispute settlement, but would notbe subject to the expedited procedures and prompt withdrawal requirement of the Subsidies Agreement. Thus, all of the relevantprovisions would have significant meaning at all times, suggestingthat the potential minimal conflict existing after the above-described coordination provisions were taken into account would arguably disappear.Finally, and somewhat related to the concept of lex specialis, Iwould note that it would be odd to think that a longstanding GATT
25
TRIMs, art. 5.2; Subsidies Agreement, art. 27.3.
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rule – the prohibition of local-content requirements26 – could benegated by what I would characterize as a minor provision in awholly unrelated agreement. It seems acceptable to conclude thatthe Textiles Agreement, which deals only with the administrationfor ten years of textile and clothing quotas, was intended to supplant temporarily the GATT quota ban. Likewise, if the TRIMsAgreement were to provide a right to provide TRIMs for a specifiedperiod (as in fact it does), then I would have no problem concludingthat Article III would not apply during that period. It seems strangethough that a long-standing ban on TRIMs in two other agreements– one dealing explicitly and only with TRIMs – should be negatedby a time-limited exception to the ban on prohibited subsidies in theSubsidies Agreement, since that agreement deals principally withquite distinct issues that are unrelated to TRIMs in general.In any event, I find the Indonesia Autos result to be appropriate. As outlined above, however, I would not base the decision somuch as on defining ‘conflict’ as including only ‘true’ conflicts. Iwould accept potentially a broader conflict definition, but wouldultimately find no conflict based on an examination of the structureof the agreements and the effects of the various provisions. Thus, aflexible approach to ‘conflicts’ is needed – both in terms of interpreting agreements so as to avoid finding conflicts no matter howdefined and in defining the notion of conflict so as effectuate theintent of the parties, as demonstrated by the structure and operationof the agreements in question. Ascertaining that intent seems to meto be the key of dealing with alleged conflicts and to do so it will benecessary to examine closely the structure and interaction of therelevant agreements, as well as their wording.27
26
27
The obligations in the TRIMs Agreement are generally viewed asrestating GATT jurisprudence, not creating new obligations. SeeGATT Panel Report on Canada – Administration of the Foreign Investment Review Act, BISD 30S/140, adopted by the GATT Councilon 7 February 1984.For conflicting views on the correctness of the Indonesia Autos case,see Pauwelyn (2003), at 193-194 and Marceau (2001), at 1085. TheAppellate Body has not spoken clearly on the issue, although I tendto think that its jurisprudence to date under the DSU suggests that itwould support a true-conflict approach. Accord, Pauwelyn (2003), at194; but see Bartels, infra.
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3. GATT and the TBT AgreementThe most interesting conflict situation that has become apparent todate involving GATT and the other agreements relating to goodstrade probably involves GATT Articles III and XX, on the onehand, and Article 2 of the Agreement on Technical Barriers toTrade – the TBT Agreement, on the other. Although this conflicthas been implicitly presented in two cases – US Gasoline and ECAsbestos – it was avoided by the panels, which resolved the caseson the basis of Article III.28The first potential conflict is between GATT Article III – thebasic national treatment rule, which is subject to the exceptions ofArticle XX (health and safety, conservation, etc.) – and TBT Article2.1, which imposes a national treatment obligation in respect oftechnical requirements, which is not subject to any exceptions sincethe TBT Agreement has no general exceptions clause. Assuming, asI think is necessary, that GATT Article III and TBT Article 2.1 impose the same national treatment obligation in respect of technicalrequirements,29 then the two agreements are usually in harmony,28
29
The panel in US Gasoline simply noted after having considered theGATT issues raised that it was not necessary to consider the TBT issues (Panel Report on United States – Standards for Reformulatedand Conventional Gasoline, WT/DS2/R, para. 6.43, adopted by theWTO Dispute Settlement Body on 20 May 1996). The panel in Asbestos concluded that the challenged measure did not fall within thecoverage of the TBT Agreement, a conclusion reversed by the Appellate Body (Appellate Body Report on European Communities –Measures Affecting Asbestos and Asbestos-Containing Products,WT/DS135/AB/R, paras. 59-83, adopted by the WTO Dispute Settlement Body on 5 April 2001). The Appellate Body has generallytaken the view that the more specific agreement should be examinedfirst (see Appellate Body Report on European Communities – Regime for the Importation, Distribution and Sale of Bananas,WT/DS27/AB/R, para. 204, adopted by the WTO Dispute SettlementBody on 25 September 1997) (panel