Os sistemas de resolução de litígios da Organização Mundial de Comércio e dos acordos regionais de comércio

• Autor(a) principal: Loreto, Marta Macedo
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/42983
• topic: Acordos Regionais de Comércio; Organização Mundial de Comércio; Sistema de Resolução de Litígios; Sobreposição e Conflito de Jurisdições; Regional Trade Agreements; World Trade Organization; Dispute Settlement Mechanism; Overlapping and Conflicting Jurisdiction; Direito

Over the last years, the regional trade agreements have been growing in number and complexity. These agreements, besides the fact that they create most favourable conditions for trade between the contracting-parties, they create discrimination in relation to other states that, despite being parties to the World Trade Organization, are not parties to these agreements. Among the various problems that these agreements create, it has been highlighted the fact that, most of them, contains their own dispute settlement mechanisms. The coexistence of such mechanisms with that of World Trade Organization has created a phenomenon known as “overlapping and conflicting jurisdiction”. The big concern about the overlapping and conflicting jurisdictions is the fact that it can cause multiple litigation (simultaneous or subsequent), which can lead to two different and, perhaps, contrary decisions about the same subject matter. And if that happens, the dispute may be left unresolved because no decision eliminates the other. To avoid that, regional trade agreements have been establishing forum choice clauses. Those clauses, usually establish exclusive jurisdiction to one of the available forum, or a free choice to the complainant, meaning that, once the proceedings are initiated in one of the available forum, that choice excludes the possibility to initiate proceeding concerning the same matter in the other forum. Due to the lack of similar clauses in the World Trade Organization, the forum choice clauses have been insufficient and inefficient to deal with problems raised by overlapping and conflicting jurisdictions. That said, many authors and scholars have been defending the adoption of several measures that could solve the problem. Despite some of them defend the necessity of World Trade Organization reforms, most of them suggest the application of general legal principles like, abuse of rights, good faith, res judicata, lis alibi pendens, forum conveniens / non conveniens and comity. However, the application of these principles has been quite sparse in international law. Due to the particularities of World Trade Organization and regional trade agreements jurisdictions, their application reveals itself almost impossible, leaving the problem unsolved.