Judicial accommodation: NAFTA, the EU and the WTO

Abstract:

This article explores the normative interplay between systems of regional integration and the WTO. It is intended to provide an analysis of the response of the dispute settlement mechanisms within the NAFTA and the EU to the normative claims and challenges posed by the WTO Appellate Body, such as the claim of normative supremacy. It tries to highlight the way and processes by which such judicial or quasi-judicial institutions mediate claims and conflicts vis-à-vis the WTO.

The article starts by focussing on what are considered to be the fundamentals of judicial accommodation. It will be argued that NAFTA arbitrators and EU judges have made a strong case for accommodation or, at least, to the awareness of accommodation, because of their concern with normative coherence and system integrity. Arbitrators and judges alike are driven by the idea of coherence and integrity of law when accommodating competing or conflicting normative claims. This will be followed by a focus on the distinctive character of judicial accommodation. Because of the arbitral nature of NAFTA Panels and the judicial nature of EU courts, the argument continues, arbitrators and judges respectively have a distinct, and perhaps even unique, way of accommodating different claims as compared to other institutions and actors operating within NAFTA and the EU, such as the legislature and trade officials. Two models of judicial accommodation are contrasted.

The NAFTA strategy of judicial accommodation as regards WTO law will be described as an attempt to define a common ground between both trading systems. By contrast, the European courts have mainly focused on the determination or assertion of jurisdictional boundaries between the EU and the WTO.