CLEER Paper 2019/1 - Furculita
Fork-in-the-Road Clauses in the New EU FTAs: Addressing Conflicts of Jurisdictions with the WTO Dispute Settlement Mechanism
The paper investigates whether the jurisdictional clauses contained in the new EU FTAs, that are fork-in-the-road clauses, could prevent and solve conflicting jurisdictions with the WTO. The main question that it answers is: could jurisdictional clauses contained in these new EU FTAs prevent and resolve conflicting jurisdictions with the WTO Dispute Settlement Mechanism (‘DSM’), so that the EU’s multilateral and bilateral endeavors can coexist without jeopardizing the DSMs contained therein? The paper will deal with conflicts of jurisdictions between FTA and WTO DSMs and will argue that these conflicts could be addressed by using jurisdictional clauses. It will analyze the fork-in-the-road clauses contained in the new EU FTAs and whether they could be given consideration under WTO rules. It will be shown that jurisdictional clauses could achieve their aim if invoked in WTO proceedings only on a very limited basis – that of establishing the violation of good faith obligation in case of a relinquishment of the right to initiate proceedings expressed through these clauses. The paper will perform an analysis of the fork-in-the-road clauses contained in the new EU FTAs and will show that with respect to obligations that are ‘equivalent in substance’ they could comply with the conditions that have a legal basis or are narrowly interpreted and were established by the case law for a relinquishment of the right to initiate proceedings.