Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO


by Pieter Jan Kuijper

Issue Paper 10

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Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO 3.98 MB Dialogue Report 0.38 MB

With an ever increasing number of international agreements addressing a wide range of issues, clashes between such agreements and international courts have become more likely if not avoidable. Whether it concerns the relation of labour law and competitiveness, climate change mitigation and tariffs on environmental goods and services, the protection of the sea and maritime transportation, or biodiversity conservation and the green economy - trade law and with it the WTO touches upon a myriad of areas regulated by international agreements other than the WTO.

Professor Pieter Jan Kuijper from Amsterdam University explores this relation in his recent study “Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO” published by the International Centre for Trade and Sustainable Development (ICTSD). In this paper, the tool kit available under international law to solve such disputes is discussed through a large number of references to exiting or potential cases.
Professor Kuijper concludes his paper with a list of concrete recommendations to negotiators, litigators, courts and countries. Amongst others, he proposes increased attention on the principle of mutual supportiveness - an wording found in an increasing number of environmental agreements. Moreover, he makes some concrete observations on so called “fork-in-the-road provisions” in free trade agreements and develops recommendations for the inter-regime coordination of international tribunals and the application of comity or litispendence in international courts:

“The application of WTO law may require that the interpretative principle of mutual supportiveness is applied to the relevant WTO rules, which does not imply non-application of WTO law, but application in a restrained way that would not harm the object and purpose of the WTO Agreements.”

“In the interest of the stability of international rule making and governance, international courts and tribunals in neighboring fields, like trade, investment, the environment etc. need to develop a doctrine of “forum non conveniens” between themselves, or at the very least use their inherent powers to abstain from exercising jurisdiction or rule on admissibility if there are serious reasons to do so.”

Please access the study here.
The study will also be presenting during ICTSD’s upcoming event on “Coherence and Compliance: MEAs, FTAs and the WTO” on 12 November, 2010 at 12:30 at the WTO Room A. Please enter the event web page here.

2 responses to “Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO”

  1. Hossein Shahbaz

    Day by day the number of UN organizations are increasing as well as the agrrements between them which some of them not only are not supporting but also against each other. It seems that UN should undertake more on agreements among its organizations.

  2. Emmanuel Msoffe

    I think it is high time to make a way forward on rules, regulations and laws which will support global biodiversity on better ways of utilizition and protection.International laws should also seek to know the real situation of country or region so as to make applicable and practical laws over the area in question.

  3. Anonymous

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