9
50
Crucially in this respect, WTO panels, like all other internationaltribunals, have the incidental jurisdiction ‘to interpret the submissions of the parties’ in order to ‘isolate the real issue in the case andto identify the object of the claim’ (Nuclear Test cases, ICJ Reports1974, 262, para. 29 and 466, para. 30 and Fisheries Jurisdiction case(Spain v Canada), ICJ Reports 1998, 437). Based on these powers,the WTO panel may find that the dispute is not only one under WTOcovered agreements, but also one ‘concerning the interpretation orapplication of [the EC] Treaty’.This issue of the enforcement of WTO obligations by the ECJ as between two EU members (or at the request of the Commission againstan EU member) – confirmed in, for example, Commission v Germany, C-61/94, Jur., 1996, I-3989, r.o. 52 – must be distinguished
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In most WTO cases, the existence of exclusive EC/ECJcompetences will be clear so that a WTO panel can apply relevantEC law directly without much interpretation, based on unambiguous EC treaty provisions and ECJ case law. Note, in this respect,that reserving exclusive jurisdiction to EC courts for certain disputes under EC law (as Article 292 does) should not prevent othercourts or tribunals – here a WTO panel – from applying relevantrules of EC law in the examination of their own jurisdiction.51 Incases where the situation under EU law is less clear (say, in respectof certain GATS and TRIPS matters for which EU members and theEC share competences), it may be wise for the WTO panel to suspend its proceedings – much like the UNCLOS Arbitral Tribunaldid in the Mox Plant case – in the hope that the parties themselvessort out the EC questions before the competent EC bodies. TheUNCLOS Tribunal did so based on Article 8 of its Rules of Procedure, providing that ‘[s]ubject to these Rules, the Arbitral Tribunalmay conduct the arbitration in such a manner as it considers appropriate, provided that the Parties are treated with equality and that atany stage of the proceedings each Party is given a full opportunityto be heard and to present its case’. Arguably, a WTO panel, aswell, is given sufficient flexibility to suspend its own proceedings,even without the agreement of the complainant52, pursuant to Article 12.1 of the DSU, stating that ‘[p]anels shall follow the WorkingProcedures in Appendix 3 unless the panel decides otherwise afterconsulting the parties to the dispute’.
51
52
from the general lack of direct effect of WTO law as it can be invoked before the ECJ by private parties or against the EC (Portugal vCouncil, C-149/96, 1999, ECR I-8395).In support: Decision on Annulment in Compania de Aguas del Aconquija S.A. & Vivendi Universal v Argentine Republic 41 ILM 1135(2002), at para. 105: ‘it is one thing to exercise contractual jurisdiction (arguably exclusively vested in the administrative tribunals ofTucuman by virtue of the Concession Contract) and another to takeinto account the terms of a contract in determining whether there hasbeen a breach of a distinct standard of international law, such as thatreflected in Article 3 of the BIT’.The suspension of WTO panel proceedings at the request of the complainant is dealt with in Article 12.12 of the DSU.
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D. A Treaty Providing for Choice of Forum butMaking any Choice ExclusiveWhereas Article 292 of the EC Treaty reserves exclusive jurisdiction to EC courts, Article 1.2 of the 2002 Olivos Protocol – themost recent dispute settlement mechanism set up within MERCOSUR, replacing the earlier Brasilia Protocol – provides a choice offorum in respect of disputes that can be referred to both the WTOand MERCOSUR:Disputes falling within the scope of application of this Protocolthat may also be referred to the dispute settlement system of theWorld Trade Organisation or other preferential trade systems thatthe MERCOSUR State Parties may have entered into, may be referred to one forum or the other, as decided by the requesting party.Provided, however, that the parties to the dispute may jointly agreeon a forum. (emphasis added)Article 1.2 of the Olivos Protocol continues, however, as follows:‘Once a dispute settlement procedure pursuant to the preceding paragraph has begun, none of the parties may request the use of the mechanisms established in the otherfora …’Chapter 20 of NAFTA sets out a similar regime. Where a dispute regards a matter arising under both NAFTA and the WTO, inprinciple, the choice of forum is left to the discretion of the complaining party53 (although for certain types of disputes, such asthose related to environmental or health protection, the defendantcan insist that the dispute be decided under NAFTA54). However,once a forum is chosen, it must be used to the exclusion of all others.5553
5455
NAFTA Article 2005, paragraph 1 (entitled ‘GATT Dispute Settlement’) reads: ‘Subject to paragraphs 2, 3 and 4, disputes regardingany matter arising under both this Agreement and the GeneralAgreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in eitherforum at the discretion of the complaining Party’ (emphasis added).NAFTA Article 2005, paragraphs 3-5.NAFTA Article 2005, paragraph 6: ‘Once dispute settlement procedures have been initiated under Article 2007 or dispute settlementproceedings have been initiated under the GATT, the forum selectedshall be used to the exclusion of the other unless a Party makes a re-
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For present purposes, the question arises what a WTO panelshould do in case a WTO member first pursues its complaint underMERCOSUR or NAFTA and thereafter re-submits it to the WTO,in violation of the MERCOSUR/NAFTA exclusion provision referred to above.This type of situation arose recently before the WTO panel onArgentina – Definitive Anti-Dumping Duties on Poultry from Brazil. In that dispute, Brazil invoked WTO dispute settlement procedures, after it had unsuccessfully relied on MERCOSUR arbitration(a MERCOSUR arbitration panel had rejected Brazil’s claims ofviolation in respect of the very same anti-dumping measure imposed by Argentina). In that case, however, the old Brasilia Protocol was still applicable. The panel noted that this earlier Protocol‘imposes no restrictions on Brazil’s right to bring subsequent WTOdispute settlement proceedings in respect of the same measure’. 56However, the panel also went on to note the following:We note that Brazil signed the Protocol of Olivos in February2002. Article 1 of the Protocol of Olivos provides that once a partydecides to bring a case under either the MERCOSUR or WTO dispute settlement forums, that party may not bring a subsequent caseregarding the same subject-matter in the other forum. The Protocolof Olivos, however, does not change our assessment, since thatProtocol has not yet entered into force, and in any event it does notapply in respect of disputes already decided in accordance with theMERCOSUR Protocol of Brasilia. Indeed, the fact that parties toMERCOSUR saw the need to introduce the Protocol of Olivos suggests to us that they recognised that (in the absence of such Protocol) a MERCOSUR dispute settlement proceeding could be fol-
56
quest pursuant to paragraph 3 or 4’ (emphasis added). See also theso-called ‘fork in the road’ provision in many bilateral investmenttreaties, offering a choice to investors to either submit disputes to thedomestic courts of the host state or international arbitration, but stating explicitly that once an avenue is chosen, it is to the exclusion ofthe other (see, for example, Compania de Aguas del Aconquija S.A.& Vivendi Universal v Argentine Republic 40 ILM 426 (2001) and41 ILM 1135 (2002), in particular, at paras. 55, 60 and 113).Panel report on Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 19 May 2003 (not appealed), para. 7.38.
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lowed by a WTO dispute settlement proceeding in respect of thesame measure.57These considerations indicate a willingness on behalf of theWTO panel to apply exclusion clauses in other, non-WTO treaties.Indeed, if such non-WTO rules could not ever play a role before aWTO panel then surely the panel would not have bothered explaining and assessing their impact.
If the MERCOSUR dispute had been dealt with under theOlivos Protocol and the MERCOSUR exclusion clause wouldthus have been triggered, a WTO panel should, in my view,give effect to this exclusion clause. A WTO panel must examine its own jurisdiction. MERCOSUR parties agreed totake away this jurisdiction when two conditions are fulfilled:(i) the dispute is one ‘falling within the scope of application of[the Olivos] Protocol that may also be referred to the disputesettlement system of the [WTO]’; and (ii) the dispute is, orhas been examined already by a MERCOSUR panel.58 Consequently, if both of these conditions are met, any WTO panelmust come to the conclusion that – by agreement of the disputing parties – it does not have jurisdiction to re-examine thedispute.5957
58
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Ibidem. On Argentina’s claim that Brazil was estopped from bringingthe same matter to the WTO after bringing it to MERCOSUR, see infra text at footnote 83.Interestingly, in this respect, the Japan-Singapore Economic Partnership Agreement (JSEPA) adds a third condition to be fulfilled beforethe invocation of one procedure excludes the other (not present undereither NAFTA or MERCOSUR), namely the exclusion does not apply ‘if substantially separate and distinct rights or obligations underdifferent international agreements are in dispute’ (Chapter 21, Article139.3). This may, indeed, be a wise addition in order to avoid exclusion in case the substantive claims under both procedures are markedly different. At the same time, it adds a complexity in that it willthen be for the second panel or tribunal to decide whether the procedure before it raises ‘substantially separate and distinct rights or obligations’.Along the same lines, see Compania de Aguas del Aconquija S.A. &Vivendi Universal v Argentine Republic 40 ILM 426 (2001) and 41ILM 1135 (2002), at para. 113, referred to supra in footnote 55.
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E. A Treaty Providing for Compulsory (but not Exclusive)Jurisdiction to Another TribunalInstead of reserving exclusive jurisdiction to, for example, the ECJor offering a choice of forum between NAFTA/MERCOSUR andthe WTO which once decided upon becomes exclusive, other, nonWTO treaties may also confer compulsory (though not exclusive)jurisdiction to another tribunal to resolve certain disputes with aWTO component. A dispute may, for example, raise questions under both the WTO treaty and a regional trade arrangement withcompulsory (though not exclusive nor exclusionary) jurisdiction.60It may also concern a question of maritime delimitation for whichjurisdiction has been conferred to the ICJ and raise trade questionsunder the WTO agreement for which a WTO panel can be established (witness the Case concerning Maritime Delimitation betweenNicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras),61 the trade aspect of which was brought also before a WTOpanel62). A dispute can also raise questions under both UNCLOSand the WTO agreement, witness the WTO case on Chile—Measures Affecting Transit and Importation of Swordfish,63 brought alsobefore the International Tribunal for the Law of the Sea (ITLOS).64Should the fact that a dispute, or part of a dispute, can bebrought also to compulsory dispute settlement procedures underanother agreement, prevent a WTO panel from examining the WTOclaims before it? In my view, not necessarily so. Rather, in mostcases it will be possible to split up the WTO component of the dis60
6162
6364
See, for example, the dispute settlement mechanism under the Protocol on Trade of the Southern African Development Community(SADC), discussed in Pauwelyn (2004).See the records of this ongoing case at http://www.icj-cij.org/icjwww/idocket.htm.Nicaragua – Measures Affecting Imports from Honduras and Colombia, WTO documents WT/DS188/2 and WT/DS202/1 (although apanel was established on this matter, its proceedings have been suspended by mutual agreement).WTO document WT/DS193 (suspended by mutual agreement onMarch 23, 2001).Conservation and Sustainable Exploitation of Swordfish Stocks in theSouth-Eastern Pacific Ocean (Chile v Eur. Com.) (Mar. 15, 2001) athttp://www.un.org/Depts/los/ITLOS/Order1_2001Eng.pdf (currentlysuspended on the basis of a provisional arrangement).
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pute from the ICJ/UNCLOS component of the dispute so that theformer be decided by a WTO panel and the latter by theICJ/ITLOS. Examples of cases where the court or tribunal separated the different aspects of a dispute, finding that although it hadno jurisdiction to look at one aspect, it continued to have jurisdiction to examine another, are:(i) the Nicaragua case where the ICJ declared that it did havejurisdiction over certain claims under customary internationallaw even though the United States had not accepted ICJ jurisdiction in respect of ‘disputes arising under a multilateraltreaty, unless … all parties to the treaty affected by the decision are also parties to the case before the Court’ and the relevant multilateral treaty rules largely overlapped with the customary law,65(ii) the ICSID Award in Compania de Aguas del Aconquija S.A. &Vivendi Universal v Argentine Republic where the Tribunal accepted jurisdiction over certain claims under a bilateral investment treaty between France and Argentina, even though theseclaims overlapped with claims under a concession contract forwhich exclusive jurisdiction had been reserved to domestic Argentine courts,66 and(iii) Order No. 3 of the Arbitral Tribunal constituted under AnnexVII of UNCLOS in the Mox Plant case (Ireland v UnitedKingdom), finding that a concurrent proceeding before anOSPAR67 tribunal limited to claims under the OSPAR convention in relation to the same MOX plant, did not prevent theUNCLOS tribunal from having jurisdiction over the UNCLOSclaims in dispute.6865666768
Jurisdiction and Admissibility, ICJ Reports 1984, para. 73 and Merits, ICJ Reports 1986, para. 175.40 ILM 426 (2001), at paras. 53-4.OSPAR refers to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).The Tribunal explained its approach as follows: ‘[T]he Tribunal doesnot consider that this [relevance of the OSPAR Convention] altersthe character of the dispute as one essentially involving the interpretation and application of the [UNCLOS] Convention. Furthermore,the Tribunal is not persuaded that the OSPAR Convention substantially covers the field of the present dispute’ (Order No. 3 of 24 June2003, at http://www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf,
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Such splitting-up or ‘salami-slicing’ of the dispute, thoughpossible in most cases, may be unwarranted in others. First, in exceptional circumstances, the WTO dispute may be so similar to theICJ/UNCLOS dispute, both in terms of subject matter and substance and scope of the applicable rules, that the two disputes are,in effect, but one and the same.69 A conflict may then arise between, on the one hand, the rule conferring jurisdiction over thedispute to the ICJ/UNCLOS and, on the other hand, the DSU conferring jurisdiction over substantially the same dispute to the WTO.In the absence of explicit conflict clauses in either treaty70, the resolution of such conflict should then depend on normal conflict rules,in particular the principles of lex posterior and lex specialis. If, butonly if, based on those rules, the DSU must give way to the other,non-WTO provision, then the WTO panel should find that it has nojurisdiction to examine the dispute.A second reason not to split the dispute into a WTO and anICJ/UNCLOS component may be that the dispute not genuinelyconcerns WTO claims (even though such claims can technically bemade) but, rather, other rules of international law that the WTO
69
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6, para. 18). Subsequently, the OSPAR Tribunal issued its own FinalAward, notwithstanding the concurrent UNCLOS proceeding, seesupra footnote 19.This situation was acknowledged, for example, in the Decision onAnnulment in Compania de Aguas del Aconquija S.A. & VivendiUniversal v Argentine Republic. Faced with a situation that gave riseto claims under both a bilateral investment treaty (for which ICSIDhad jurisdiction) and a domestic concession contract (for which domestic courts had exclusive jurisdiction), the Committee found asfollows, at paras. 98 and 101:‘In a case where the essential basis of a claim brought before aninternational tribunal is a breach of contract, the [international] tribunal will give effect to any valid choice of forum clause in the contract. … On the other hand, where ‘the fundamental basis of theclaim’ is a treaty laying down an independent standard by which theconduct of the parties is to be judged, the existence of an exclusivejurisdiction clause in a contract between the claimant and the respondent state … cannot operate as a bar to the application of the treatystandard’.UNCLOS Art. 282 does, for example, provide for a conflict rule,making UNCLOS jurisdiction subject to certain dispute settlementprocedures under other treaties.
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claims are inextricably linked to and that these WTO claims aredependent on to be decided.71 In such extreme cases it could then besubmitted that the history, prior procedures, and substantive contentof the dispute indicate that the real issue of the case (i.e., the genuine object of the claim) is related to non-WTO claims as to which aWTO panel does not have jurisdiction.72 On these grounds, theWTO panel could then decide that it does not have substantive ju71
72
Imagine that the complainant makes a non-violation complaint underGATT Art. XXIII:1(b) arguing that the defendant has nullified itstariff concessions on, for example, the import of footballs, by suddenly no longer complying with the ILO prohibition on child labor inits domestic production of footballs (making it harder for the complainant to compete). Can the complainant rely on these non-WTOrules even if this would imply that the WTO panel would first have tofind a violation of ILO obligations before it could accept the complainant’s non-violation case under WTO rules? Here, the WTOcomplaint could be said to no longer concern WTO claims but ratherILO claims so that the panel could find that it has no jurisdiction tohear the case.See supra footnote 49 on the power of international tribunals to ‘redefine’ a dispute. It was on these grounds that the ICSID Tribunal inCompania de Aguas del Aconquija S.A. & Vivendi Universal v Argentine Republic (40 ILM 426 (2001), at p. 3 of the Award), thoughhaving accepted jurisdiction over Vivendi’s claims, refused to makefindings on the merits:‘the nature of the facts supporting most of the claims presented inthis case make it impossible for the Tribunal to distinguish or separate violations of the BIT from breaches of the Concession Contractwithout first interpreting and applying the detailed provisions of thatagreement. By Article 16.4, the parties to the Concession Contractassigned that task expressly and exclusively to the contentious administrative courts of Tucumán. Accordingly, and because the claimsin this case arise almost exclusively from alleged acts of the Provinceof Tucumán that relate directly to its performance under the Concession Contract, the Tribunal holds that the Claimants had a duty topursue their rights with respect to such claims against Tucumán inthe contentious administrative courts of Tucumán as required by Article 16.4 of their Concession Contract’.This Tribunal finding was, however, subsequently (and, based on thefacts, in my view correctly) overruled by the Annulment Committee(41 ILM 1135 (2002), at paras. 115 and 105, quoted supra in footnote 51).
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risdiction over the dispute based on the compulsory jurisdictionconferred to another tribunal.73The following are examples of cases where it was found that adispute cannot be split in two and, as a result, the tribunal declinedto exercise jurisdiction:(i) the ICJ Fisheries Jurisdiction case (Spain v Canada), wherethe ICJ ‘re-defined’ Spain’s complaint relating to Canada’s‘lack of entitlement to exercise jurisdiction on the high seas’into a dispute ‘arising out of or concerning conservation andmanagement measures’ for which Canada had made a reservation to its grant of jurisdiction to the ICJ. On that basis, theCourt found that it did not have jurisdiction to hear the case;74and(ii) the UNCLOS Arbitration Award on Southern Bluefin Tuna. Inthe latter case, the tribunal found that the dispute ‘while centered in the 1993 [trilateral Convention for the Conservation ofSouthern Bluefin Tuna], also arises under [UNCLOS]’. It continued, nonetheless, by saying that ‘[t]o find that, in this case,there is a dispute actually arising under UNCLOS which isdistinct from the dispute that arose under the [1993 Convention] would be artificial’.75 Since the tribunal later declared notto have jurisdiction over the 1993 Convention part of the dispute, it automatically declined jurisdiction also over the UNCLOS part (notwithstanding the compulsory jurisdiction inPart XV of UNCLOS) on the ground of its ‘single dispute’theory.
73
7475
Advocating that WTO panels decline jurisdiction in certain caseswhere non-WTO rules are at stake, see Marceau (2001). Note the difference between this second reason to reject jurisdiction (no jurisdiction to begin with, since no WTO claims at issue) and the earlier, firstreason to reject jurisdiction (a conflict between two rules conferringjurisdiction to different tribunals decided, as the case may be, in favor of the non-WTO tribunal).ICJ Reports 1998, 437.Southern Bluefin Tuna case (Australia and New Zealand v Japan,Jurisdiction and Admissibility), Arbitral Tribunal constituted underAnnex VIII of UNCLOS, posted on the internet at www.worldbank.org/icsid/bluefintuna/main.htm, paras. 52 and 54.
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F. Res judicata Effect of Rulings by Other Courts or TribunalsFinally, a WTO panel may have to decline jurisdiction based on anearlier ruling by another court or tribunal on the same matter (say,based on a panel under the Southern African Development Community (SADC) which does not have an exclusion clause similar tothe one in NAFTA or the Olivos Protocol discussed earlier76). As aresult, the defendant can win a WTO dispute, not so much with reference to another, non-WTO treaty, but based on the so-called resjudicata effect of a judgment or ruling by another court or tribunal.There are, however, three conditions for the principle of res judicata to apply. They are:(i) identity of parties;(ii) identity of object or subject matter (it must be the very same issue that is in question); and(iii) identity of the legal cause of action.77It is undisputed that WTO panel and Appellate Body reports,once adopted by the DSB, have binding legal effect as between theparties to the particular dispute. The Appellate Body recently confirmed the above three conditions in respect of WTO panel reportswhen it stated as follows:‘… in our view, an unappealed finding included in apanel report that is adopted by the DSB must be treated asa final resolution to a dispute between the parties in respect of the particular claim and the specific componentof a measure that is the subject of that claim’.78The Appellate Body also confirmed the principle of res judicata in respect of its own reports.79
767778
79
See Pauwelyn (2004).See Lowe (1996), 40.Appellate Body report on EC – Anti-Dumping Duties on imports ofCotton-Type Bed Linen from India, Recourse to Article 21.5 of theDSU by India, WT/DS141/AB/RW, 8 April 2003, para. 93. For a discussion of the res judicata effect of WTO panel reports, see also thePanel Report on India – Autos, supra footnote 33.Appellate Body report on United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of theDSU by Malaysia WT/DS58/AB/RW, 22 October 2001, paras. 9296.
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Obviously, for a WTO panel to give res judicata effect to another WTO panel or Appellate Body report is one thing; to give thesame effect to a ruling or report by another court or tribunal (say, aSADC panel), is quite another. Two hurdles must be passed in thisrespect. First, WTO panels must recognize that res judicata is aprinciple of general international law that WTO panels must applyirrespective of whether the earlier ruling in question comes fromwithin or outside the WTO. In my view, this hurdle is easy to pass:the applicable law before WTO panels includes general principlesof law and it is widely accepted that res judicata is such a principle.80 Second, the ruling or report by the other court or tribunalmust meet the three conditions referred to earlier. In other words,the parties, subject matter and legal cause of action before the othercourt or tribunal must be the same as those before the WTO panel.Even if another tribunal may have dealt with the same subject matter as between the same parties (say, a SADC panel may have decided a safeguards dispute between South Africa and Mozambique),it is unlikely that it will have examined the matter under the samecause of action, that is, as a question of violation of WTO rules: theSADC panel will have examined claims of violation of SADC safeguard rules; the WTO panel will be asked to examine claims ofviolation of the WTO safeguards agreement.Does this mean that WTO panels will never have to give resjudicata effect to other courts or tribunals? Not necessarily so. Incase both the SADC and the WTO provision under which the respective claims are made, are in substance the same (say, both raisea violation of the MFN principle in respect of safeguard measures),the argument could be made that the doctrine of ‘issue estoppel’ or‘collateral estoppel’ applies. The English law requirements for issueestoppel have been explained as follows:‘(1) that the same question has been decided; (2) that thejudicial decision which is said to create the estoppel is final; and, (3) that the parties to the judicial decision ortheir privies were the same persons as the parties to theproceedings in which the estoppel is raised or their privies’.81
8081
See Lowe, Res Judicata, supra footnote 77.Carl Zeiss Stiftung v Rayner & Keeler Ltd. (No. 2) [1967] A.C. 853at 935 (per Lord Guest).
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In other words, in English law, the requirements for issueestoppel are the same as those for the traditional res judicata principle to apply, minus the requirement of identity of legal cause ofaction. In US law, a similar doctrine is known as collateral estoppel:‘Collateral estoppel extends the res judicata effect of ajudgment to encompass the same issues arising in a different action (‘issue preclusion’) and even to differentparties where the issue has been determined in prior litigation with adequate opportunity to be heard for the partyto be precluded’.82As a result, if the principle of issue estoppel were applied alsobefore a WTO panel, then a WTO panel could preclude a SADCmember from bringing, for example, a safeguards claim at theWTO in case substantively the same claim was previously decidedupon by a SADC panel, as between the same parties. A WTO panelcould also apply the principle of issue estoppel to the determinationof specific facts or the legal characterization of facts by the previous SADC panel (or vice versa). The US doctrine of collateral estoppel could even go further and give res judicata effect also to aprevious SADC panel finding on the same issue even if that panelwas constituted at the request of another SADC member, differentfrom the one now challenging the same measure at the WTO, in theevent the former SADC member had ‘adequate opportunity to beheard’ before the original SADC panel.Note, however, that in a recent panel report, the panel refusedto apply the basic principle of estoppel in respect of a claim by thedefendant Argentina that the same measure had earlier been decidedin MERCOSUR arbitration. In Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, Argentina argued, indeed, thatthe fact that Brazil had challenged the same measure previouslybefore MERCOSUR estopped Brazil from bringing the case againbefore the WTO.83 Argentina explicitly refused, however, to invokethe principle of res judicata.84 Although the panel refused to decideon whether or not the principle of estoppel can apply before a WTO8283
84
Scoles et al. (2000), 1141.Panel report on Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 13 May 2003 (not appealed), paras. 7.37 et seqq.Ibidem, fn. 53.
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panel85, it used the following three conditions for estoppel to be activated:‘(i) a statement of fact which is clear and unambiguous,and which (ii) is voluntary, unconditional, and authorized,is (iii) relied on in good faith’.When applying the first condition, the panel did not consider‘that Brazil has made a clear and unambiguous statement to the effect that, having brought a case under the MERCOSUR dispute settlement framework, it would not subsequently resort to WTO dispute settlement proceedings. … This is especially because the Protocol of Brasilia [unlike the Olivos Protocol discussed earlier], under which previous MERCOSUR cases had been brought by