The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview
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19
Judicial supremacy, judicial restraint, and the issue
of consistency of preferential trade agreements
with the WTO: The apple in the picture*
PETROS C. MAVROIDIS

1
The issue

The panel report on TurkeyRestrictions on Imports of Textile and Clothing Products1 confronted the issue of judicial review of preferential trade agreements (PTAs). The facts, in a nutshell, could be described as following: Turkey, following the conclusion of its customs union with the European Community (EC), raised its protection for textile products. India complained that the Turkish measures at hand were inconsistent with Turkey's obligations under the World Trade Organization (WTO).

Both parties to the dispute argued explicitly (¶9.45) that the Panel should not assess the compatibility of the Turkey–EC customs union with the provisions of Article XXIV General Agreement on Tariffs and Trade (GATT). Things got awry, though, when Turkey added in its second submission that the Panel could not assess the WTO compatibility of any specific measure adopted in the context of the formation of a PTA separately and in isolation from an assessment of the overall compatibility of this PTA with Article XXIV GATT. Hence, Turkey was de facto arguing that invocation of Article XXIV GATT is tantamount to a waiver from GATT obligations.

India disagreed and urged the Panel to pronounce on the issue.2 The Panel rejected Turkey's argument. It did not go the “full nine yards” though. In a carefully drafted passage (¶9.56), the Panel rejects the view that it has to assess the overall compatibility of the PTA in order to reach judgment on the compatibility of the specific Turkish measures at hand with the WTO. Indeed, the whole of the Panel report is predicated on the assumption that the PTA between Turkey and the EC is compatible with Article XXIV GATT (¶9.55).

In a self-interpreting passage (¶¶9.52 & 9.53), the Panel advances its thoughts as to the extent of judicial review with respect to PTAs. In the Panel's view, panels are

____________________
*
I acknowledge very helpful comments on previous drafts by Bill Davey, Bob Hudec, Pieter-Jan Kuijper, Damien J. Neven, Ernst-Ulrich Petersmann, André Sapir, T. N. Srinivasan, and Frieder Roessler. Serra Ayral pointed out to me a series of relevant WTO documents that I have used in this paper. Her assistance is greatly appreciated.
1
WTO doc. WT/DS34/R (May 31, 1999). The next several citations in the text are to paragraphs of this panel report.
2
Interestingly, India followed a different approach in a comparable case as will be shown later.

-583-

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