The WTO and FCTC Dispute Settlement Systems: Friends or Foes?

Abstract

This article examines the relationship between the dispute settlement mechanisms of the World Trade Organization (“WTO”) and the Framework Convention on Tobacco Control (“FCTC”). It concludes that since the two regimes relate to different international legal obligations, no conflict of jurisdiction exists between their dispute settlement bodies. In any case, the mere existence of an alternative dispute settlement system (i.e., the FCTC) does not preclude a WTO panel from examining a dispute with respect to any alleged violation of WTO obligations.

The article also notes that the relevant WTO case law clearly establishes that an extraneous agreement concluded between WTO Members may constitute a legal impediment to the exercise of jurisdiction by a panel only if it clearly reveals such intention, relates to a specific dispute, and does not lead to the violation of applicable WTO provisions. This means that even the amended version of Art. 27.2 of the FCTC, which precludes recourse to other dispute settlement mechanisms with respect to national tobacco control measures, will not have any legal consequences for the jurisdiction of a WTO panel.

Keywords: FCTC, WTO, conflict of jurisdictions, competing jurisdictions, tobacco control