WTO體制에서의 FTA紛爭解決制度

Abstract

The current proliferation of FTAs has raised an important legal issue concerning the coherency of dispute settlement mechanisms between FTAs and the WTO. Any specific principle under international trade law or public international law in general does not squarely address the potential overlapping and conflicting jurisprudence of FTAs and WTO Agreements. As the Korean government pushes actively FTA initiatives with various trading partners including Chile, Japan and China, the legal problems to establish less conflicting and incoherent dispute settlement systems in the FTA become no longer merely theoretical. In this paper, two FTAs - NAFTA and Japan-Singapore Economic Partnership Agreement (J-S EPA) - are examined to draw implications for future Korean FTAs, in particular the Korea-Japan FTA. Although elaborated dispute settlement systems under NAFTA may serve better to address divergent legal issues for different subject matters, somewhat simplified forms of dispute settlement system adopted in the J-S EPA seems more suitable for the Korea-Japan FTA. It is partly because both countries share similar legal culture to resolve disputes without actual litigation. But, more importantly, the nature of the Korea-Japan economic cooperation may not demand such a fine tuned dispute settlement mechanism that should be supported by sufficient human as well as financial resources. Nevertheless, as in other FTAs, investment would require a special mechanism for dispute settlement.