Multilevel Judicial Governance between Global and Regional Economic Integration Systems: Institutional and Substantive Aspects

European University Institute Max Weber Programme Working Paper No. 2009/41

75 Pages Posted: 1 Dec 2009

See all articles by Ramon Marimon

Ramon Marimon

European University Institute

James H. Mathis

European University Institute

Roderick E. Abbott

European University Institute

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW)

Nikos Lavranos

European Federation for Investment Law and Arbitration (EFILA)

Date Written: November 30, 2009

Abstract

The Brazilian Tyres case that was adjudicated by both MERCOSUR and WTO dispute settlement bodies illustrates the issues raised by multilevel judicial governance. The relationship between regional and global trading systems has become increasingly complex, raising the question whether Article XXIV GATT is still sufficient. Similarly, the way Article XX GATT is applied to balance trade and non-trade issues is increasingly disputed. Underlying these issues are more fundamental aspects of delivering justice while at the same time preserving the world trading system.

In his contribution Lavranos takes the view that the WTO Appellate Body failed to show sufficient respect to the MERCOSUR dispute settlement body decision. More specifically, Lavranos argues that trade interests were wrongly given primacy over the health and environmental concerns of Brazil.

Mathis’ paper discusses in more detail Article XXIV GATT and the question whether this could serve as an exception for Brazil being a member of MERCOSUR to give precedence over its GATT obligations. Mathis also analyzes Article XX GATT in this regard, concluding that Brazil finally is presented with the option to comply with its own regional law and compensate its WTO partners accordingly, or to comply with the WTO ruling and disregard its own regional law.

Abbott’s indicates some of the lessons to be drawn from past experience in applying Art.XXIV during the 1970s and 1980s, as well as some problems associated with Art.XX, and looks ahead to an important future debate - potentially - on trade and non-trade factors: the measures that may be taken in association with measures to reduce greenhouse gas emissions and to control the effects of global warming and climate change.

Finally, Petersmann’s outlook criticizes Lavranos critique on the Appellate Body by arguing that at the end of day justice was delivered according to the present WTO rules.

In sum, this collection of very different views on multilevel judicial governance offer a tour d’horizon, which hopefully stimulates further discussion and analysis.

Keywords: Brazilian Tyres, competing jurisdiction, MERCOSUR, WTO, dispute settlement

Suggested Citation

Marimon, Ramon and Mathis, James H. and Abbott, Roderick E. and Petersmann, Ernst-Ulrich and Lavranos, Nikos, Multilevel Judicial Governance between Global and Regional Economic Integration Systems: Institutional and Substantive Aspects (November 30, 2009). European University Institute Max Weber Programme Working Paper No. 2009/41. Available at SSRN: https://ssrn.com/abstract=1515718 or http://dx.doi.org/10.2139/ssrn.1515718

Ramon Marimon

European University Institute ( email )

Via delle Fontanelle 18
San Domenico di Fiesole, 50014
Italy
00390554685809 (Phone)

James H. Mathis

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

Roderick E. Abbott

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

Nikos Lavranos (Contact Author)

European Federation for Investment Law and Arbitration (EFILA) ( email )

Brussels
Belgium

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