Limiting Jurisdictional Fragmentation in International Trade Disputes

There is an increasing risk of overlapping jurisdictions and conflicting decisions due to the growth of preferential trade agreements (PTA) containing dispute settlement mechanisms. This study examines legal techniques to be used for dealing with conflicts of jurisdictions and other ways of promoting coordination between forums. Based on an analysis of principles of international law applied by domestic and international tribunals, we identify legal techniques that can be used by WTO adjudicating bodies based on their inherent powers to decide on matters related to their own jurisdiction. While the principle of estoppel gives a more solid basis for halting proceedings, the suspension of proceedings based on comity may be applied under certain circumstances as soft way of promoting coordination. For future PTA, the inclusion of an explicit forum selection clause may avoid duplication and prevent misuses. We thus examine under what legal basis forum selection clauses could be taken into consideration in the WTO. It is argued that the good faith obligation contained in the DSU as well as the international rules on state responsibility could serve for that purpose provided the rights and interests of other participants in the dispute or the integrity of the process are not adversely affected