The WTO and the New Generation EU FTA Dispute Settlement Mechanisms: Interacting in a Fragmented and Changing International Trade Law Regime (European Yearbook of International Economic Law, 19)

Contents
Chapter 1: Introduction
	1.1 Interactions Between the New Generation EU FTA and the WTO DSMs in a Fragmented International Trade Regime
	1.2 Objective
	1.3 Overview
	1.4 The Research Approach
	References
Part I: Context and Concepts
	Chapter 2: Setting the Context
		2.1 Proliferation of RTA DSMs
			2.1.1 Proliferation of RTAs and Especially FTAs
			2.1.2 Proliferation of DSMs Contained in RTAs
			2.1.3 The Importance of RTA DSMs Regardless of Their Risks
			2.1.4 Perceived Risks of Fragmentation of the International Trade Law Regime
		2.2 The New Generation EU FTA DSMs: In Focus
			2.2.1 EU FTAs and Their DSMs
			2.2.2 The EU Commitment to the Multilateral Trading Regime
			2.2.3 The Choice in Favor of EUKFTA, CETA, EUJEPA, EUSFTA, and EUVFTA
		2.3 General Description of the WTO and the New Generation EU FTA DSMs
			2.3.1 Dispute Settlement Under the WTO DSU
			2.3.2 The Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU
			2.3.3 Dispute Settlement Under the New Generation EU FTAs
		References
	Chapter 3: Conceptual Framework
		3.1 Fragmentation and Other Concepts
			3.1.1 `Fragmentation´ and Its Causes
			3.1.2 The Debate on Fragmentation
			3.1.3 The Meaning of the Term `Fragmentation´
			3.1.4 Assumptions Underlying `Fragmentation´
			3.1.5 Forum Shopping
			3.1.6 Limited Coherence in a Fragmented International Legal System
		3.2 Fragmentation of the International Trade Law Regime
			3.2.1 Types of Fragmentation
			3.2.2 Judicial Interactions: The Original Contribution
			3.2.3 The Critique of the Judicial Interactions Perspective
			3.2.4 Types of Judicial Interactions Between the DSMs of the FTAs and the WTO
			3.2.5 The Issue of the `Same Dispute´
		References
Part II: Competing Interactions Between the WTO and the New Generation EU FTA DSMs
	Chapter 4: The Changing Context
		4.1 The Rare Use of RTA DSMs Until Recently
		4.2 The Unprecedented Crisis of the WTO DSM
		References
	Chapter 5: Substantive Coverage and Considerations
		5.1 Areas Covered by the New Generation EU FTAs
		5.2 Substantive Coverage of the New Generation EU FTA DSMs
		5.3 Substantive Aspects Affecting the Competition Between the New Generation EU FTA and the WTO DSMs
		5.4 Conclusions: Wider Consequences Resulting from the Substantive Coverage Considerations
		References
	Chapter 6: Competing Procedural Considerations
		6.1 Preliminary Remarks
		6.2 Types of Complaints
		6.3 Time Frames
			6.3.1 Time Frames in the WTO DSM
			6.3.2 Time Frames in New Generation EU FTA DSMs
			6.3.3 Implications of the Time Frames for the Competition Between the New Generation EU FTA and the WTO DSMs
		6.4 The Panel Composition Process
			6.4.1 The Composition of WTO Panels and the AB
			6.4.2 The Precedent Set by NAFTA
			6.4.3 Panel Composition Under the New Generation EU FTA DSMs
				6.4.3.1 Composing Panels When Lists of Arbitrators Are Established and Complete
				6.4.3.2 Composing Panels When the Lists of Arbitrators Are Not Established or Are Incomplete
			6.4.4 Implications of the Panel Composition Process for the Competition Between the New Generation EU FTA and the WTO DSMs
		6.5 Qualifications and Obligations of Panelists, Arbitrators and AB Members
			6.5.1 Qualifications and Obligations of Panelists and AB Members
			6.5.2 Qualifications and Obligations of Arbitrators Under the New Generation EU FTAs
			6.5.3 Implications of Qualifications and Obligations of Arbitrators, Panelists and AB Members on the Preference for a DSM
		6.6 Rules of Procedure
			6.6.1 WTO Rules of Procedure
			6.6.2 Rules of Procedure Under the New Generation EU FTAs
			6.6.3 Implications of the Rules of Procedure for the Competition Between the WTO and the New Generation EU FTA DSMs
		6.7 Decisions and Reports
			6.7.1 WTO Panel and AB Reports and MPIA Arbitral Awards
			6.7.2 Decisions and Panel Reports in the New Generation EU FTAs
			6.7.3 Implications of the Rules on Decisions and Reports for the Competition Between the WTO and the New Generation EU FTA DSMs
		6.8 Appellate Stage
		6.9 Administrative and Legal Support
			6.9.1 Support Provided by the WTO and AB Secretariats
			6.9.2 Administrative and Legal Support to Panels Under the New Generation EU FTAs
			6.9.3 Implications for the Competition Between the DSMs of the WTO and the New Generation EU FTAs
		6.10 Transparency
			6.10.1 Transparency of the WTO Proceedings
			6.10.2 Levels of Transparency in the New Generation EU FTAs
			6.10.3 The Influence of Transparency on Choosing a DSM
		6.11 Amicus Curiae Briefs
			6.11.1 Amicus Curiae Briefs in WTO Proceedings
			6.11.2 Amicus Curiae Briefs Under the New Generation EU FTA DSMs
			6.11.3 Implications of the Rules on Amicus Curiae Briefs for the Competition Between the WTO and the New Generation EU FTA DSMs
		6.12 Implementation
			6.12.1 Implementation of Panel and AB Recommendations and Rulings Under the DSU
				6.12.1.1 Implementation Procedures Under the DSU
				6.12.1.2 Temporary Remedies Under the DSU
				6.12.1.3 Sequencing and Compliance Post-Retaliation Under the DSU
			6.12.2 Implementation of Panel Reports and Rulings Under the New Generation EU FTAs
				6.12.2.1 Implementation Procedures Under the New Generation EU FTAs
				6.12.2.2 Temporary Remedies Under the New Generation EU FTAs
				6.12.2.3 Addressing the Issues of Sequencing and Compliance Post-Retaliation
			6.12.3 The Implications for the Competition Between the WTO and the New Generation EU FTA DSMs
		6.13 Conclusions: Learning Lessons
		References
	Chapter 7: Competing Political Considerations
		7.1 The Value of Jurisprudence
		7.2 Pressure to Induce Compliance
		7.3 Reputation
			7.3.1 Reputational Costs and the Risk of Immediate Retaliation
			7.3.2 Limited Role of Reputation: Other Important Factors for Compliance
		7.4 Public Opinion
		7.5 Likelihood of Reaching Mutually Agreed Solutions
		7.6 Legitimacy
		7.7 Previous Experience and Financial Costs
		7.8 Conclusions on Political Aspects
		References
	Chapter 8: Conclusions on the Competing Interactions Between the WTO and the New Generation EU FTA DSMs
Part III: Conflicts of Jurisdiction Between the WTO and the New Generation EU FTA DSMs
	Chapter 9: Conflicts of Jurisdiction Between the DSMs of the WTO and FTAs in General
		9.1 Introduction
		9.2 Tools Available to Deal with Conflicting Jurisdictions
			9.2.1 Public and Private International Law Tools
				9.2.1.1 Res Judicata and Lis Alibi Pendens
				9.2.1.2 Forum Non Conveniens and Comity
				9.2.1.3 Good Faith, Abuse of Process, and Estoppel
			9.2.2 Jurisdictional Clauses
				9.2.2.1 Definition, Types, and Implications of Jurisdictional Clauses
				9.2.2.2 Legal Avenues for Jurisdictional Clauses
					9.2.2.2.1 Article 45(a) of the ILC Articles on State Responsibility
					9.2.2.2.2 Using International Rules on Conflicts of Norms
					9.2.2.2.3 Other Legal Venues
		9.3 Using Tools on Conflicting Jurisdictions Within the WTO
			9.3.1 Jurisdiction of the WTO Panels
			9.3.2 The Exception Under Article XXIV of GATT
			9.3.3 Applicable Law Within the WTO DSM
				9.3.3.1 Articles 7 and 11 of the DSU
				9.3.3.2 Articles 3.2 and 19.2 of the DSU
				9.3.3.3 Using International Law Not As Applicable Law
			9.3.4 WTO Panels Declining or Not Exercising Jurisdiction
				9.3.4.1 Inherent Powers
				9.3.4.2 Mexico - Soft Drinks and Legal Impediments to the Exercise of Jurisdiction
		9.4 WTO Members´ Rights to WTO Proceedings Limited by the Breach of DSU Good Faith Obligations
			9.4.1 Argentina - Poultry
			9.4.2 EC - Bananas III (Article 21.5 - Ecuador II / Article 21.5 - US)
			9.4.3 Peru - Agricultural Products: Clarity or More Confusion?
		9.5 Evaluation
		References
	Chapter 10: Assessment of the Jurisdictional Clauses in the New Generation EU FTAs
		10.1 Areas Presenting the Risk of Conflicting Jurisdictions Between the WTO and the New Generation EU FTA DSMs
		10.2 Introduction to Jurisdictional Clauses in the New Generation EU FTAs
			10.2.1 Types of Jurisdictional Clauses in the New Generation EU FTAs
			10.2.2 The Relevance of Choice
			10.2.3 The Moment of Selection
			10.2.4 Additional Jurisdictional Clauses on Countermeasures
			10.2.5 Preliminary Remarks
		10.3 Conditions for Jurisdictional Clauses
		10.4 The Clarity and Unambiguity of the Jurisdictional Clauses in the New Generation EU FTAs
			10.4.1 The Clarity and Unambiguity of the Relinquishment of the Right to Initiate WTO Proceedings
			10.4.2 The Clarity and Unambiguity of the Category of Disputes
		10.5 Relating to DSU Rules and Procedures
		10.6 `Consistent with the Covered Agreements´
		10.7 Not Going `Beyond the Settlement of Specific Disputes´
		10.8 Jurisdictional Clauses in the Context of the AB Crisis
		10.9 Conclusion
		References
Part IV: Cooperative Interactions Between the WTO and the New Generation EU FTA DSMs
	Chapter 11: Judicial Communication
		11.1 The Concept and Pre-conditions of Judicial Communication
		11.2 Functions of Judicial Communication
		11.3 Factors Encouraging Judicial Communication
		11.4 Types of Judicial Communication
		11.5 Increased Importance of and the Limits to Coherence in Case of the Communication Between the DSMs of the WTO and the New ...
		11.6 Judicial Communication Within the WTO DSM
			11.6.1 General Attitude of the WTO DSM Towards RTAs
			11.6.2 RTA Rulings in WTO Jurisprudence
			11.6.3 Reference to Other International Tribunals´ Jurisprudence Within WTO Proceedings
		11.7 Judicial Communication Within RTA Proceedings
		11.8 Legal Avenues for Judicial Communication Between the New Generation EU FTA and the WTO DSMs
			11.8.1 Inherent Powers as Avenues for Judicial Communication
			11.8.2 Facts and Evidence
			11.8.3 Judicial Decisions Determining Customary Rules and Principles of Interpretation
			11.8.4 FTA Judicial Decisions Under Article XXIV of GATT
			11.8.5 Judicial Decisions in the Process of Interpretation
				11.8.5.1 The Ordinary Meaning of Terms
				11.8.5.2 Any Relevant Rules of International Law Applicable in the Relations Between the Parties
					11.8.5.2.1 Article 31(3)(c): Purpose, Elements, and Weight
					11.8.5.2.2 `Rules of International Law´ and `Relevant´
					11.8.5.2.3 `Applicable Between the Parties´
				11.8.5.3 FTA Rules on Interpretation Expressly Referencing WTO Jurisprudence
		11.9 Conclusion
		References
	Chapter 12: Prospective Developments for Contemplation
		12.1 Using the WTO Secretariat for Supporting WTO Panels
			12.1.1 Introducing the WTO Secretariat
			12.1.2 Advantages and Drawbacks of the Potential Use of the WTO Secretariat During FTA Proceedings
			12.1.3 The Relevant New Generation EU FTA and WTO Legal Frameworks
			12.1.4 Preliminary Conclusions
		12.2 Using the WTO DSM to Solve FTA Disputes
			12.2.1 Assessing the Existing WTO Rules
			12.2.2 Assessing the Likelihood of FTA Disputes Being Resolved Under WTO Rules
		12.3 Conclusion
		References
	Chapter 13: Conclusion