Dispute Settlement Under the WTO and RTAs: An Uneasy Relationship

The proliferation of RTAs is a recognized feature of our time. While such agreements are permitted under Article XXIV of the GATT, this has not been without controversy and one aspect which remains unclear concerns the role decisions rendered by RTA dispute settlement bodies play in WTO cases. Are RTA dispute settlement systems in competition with and possibly even in contradiction to the WTO DSU or are they complementary? Can they co-exist or are they cast in eternal opposition? Are they equal or are they inherently subordinate to the WTO DSU? The article considers the WTO's treatment of RTAs in GATT and WTO case law, and weighs arguments for and against the consideration of RTA decisions by the DSB. The article submits that the DSB should not be blind to the equities of a situation where two states have reached an agreement in an RTA selecting dispute settlement under that body. This is more than a theoretical argument, it has happened, and the increasingly complex co-existence of the WTO with some 400 RTAs suggests that similar problems can arise in the future. Furthermore, these issues deserve a much more open and careful analysis than they have had to date.