07-Shaffer-Winters.pdf (658.46 kB)
FTA law in WTO dispute settlement: Peru–additional duty and the fragmentation of trade law
journal contribution
posted on 2023-06-09, 06:33 authored by Gregory Shaffer, L. Alan WintersL. Alan WintersThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.
History
Publication status
- Published
File Version
- Accepted version
Journal
World Trade ReviewISSN
1474-7456Publisher
Cambridge University PressExternal DOI
Issue
2Volume
16Page range
303-326Department affiliated with
- Economics Publications
Full text available
- Yes
Peer reviewed?
- Yes
Legacy Posted Date
2017-06-06First Open Access (FOA) Date
2017-06-06First Compliant Deposit (FCD) Date
2017-06-06Usage metrics
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