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Resolving Conflicts of Norms in the WTO Dispute Settlement Body: On the Relationship between WTO Agreements and Non-WTO Treaties
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WTO 분쟁해결절차에서의 규범 충돌의 해결 : WTO 협정과 非 통상 조약과의 관계를 중심으로

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Academic journal
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Journal
법무부 국제법무정책과 통상법률 No.109 KCI Accredited Journals
Published
2013.2
Pages
88 - 124 (37page)

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Resolving Conflicts of Norms in the WTO Dispute Settlement Body: On the Relationship between WTO Agreements and Non-WTO Treaties
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There is no doubt that the WTO Agreements and other legal norms together are the parts of 'the international law' as one legal order. Nevertheless, it is still unclear how one can solve conflicts between the norms of different international legal areas. This paper attempts to address how the WTO Dispute Settlement Body(DSB) will cope with the conflicts between the WTO Agreements and other treaties in resolving a dispute between WTO member states. This is closely related to the way in which the WTO panel and appellate body consider or apply non-WTO treaties. In order to address this issue, one needs to articulate the concept of conflict of norms. Given the current discussions of the concept of conflict of norms, this research argues that there is no necessary reason why one should understand the conflict between Agreements and non-WTO treaties as a narrow meaning. It is because one should consider not only a real conflict of norms but also a potential one in order to secure the effectiveness of behaviour control as a ultimate goal of the treaty. If this broad approach to the concept of conflict of norms is taken, conflicts between many multilateral environmental agreement and WTO Agreements could cause disputes. In the case that such a dispute would be submitted to the WTO DSB, the panel could not recognize, as an applicable law, the non-WTO agreement which is colliding with WTO Agreements. As a result, the WTO panel or appellate body would resolve the norm conflicts by simply refusing to apply these non-WTO treaties. It is not a desirable solution that only one of two conflicting treaties can be exclusively applicable to the dispute settlement because it might ignore an intention of parties to the other treaty. Therefore, it looks more resonable that the WTO DSB takes into account the non-WTO treaties in interpreting the Agreements. However, the WTO panel and appellate body are reluctant to recognize the non-WTO treaty as a fact, an evidence or an obligatory consideration under Article 31(3) of Vienna Convention on the Law of Treaties. The WTO panel and appellate body need to persue harmonizing interpretation which allows an interpreter to enjoy broader discretion in order to enhance the coherence of the international law.

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UCI(KEPA) : I410-ECN-0101-2017-360-002331119