Affirmation and Incorporation of WTO Agreements in Preferential Trade Agreements: Congruence or Conflict?

Abstract

The proliferation of preferential trade agreements (PTAs) has already fragmented the World Trade Organisation (WTO) law. Of late, there has been a plethora of scholarly discussions on issues such as conflict of jurisdiction between PTAs and WTO dispute settlement. Scholars have been wary of the consequences of this proliferation, often highlighting the issues caused by the preferential rules such as the increasing uncertainty in law, incoherent jurisprudence and splintering of the multilateral trading system. Several countries have apparently been attempting to avoid the conflict by cross-referencing to the WTO treaty provisions. Incorporation or affirmation of rights and obligations have been the commonly used drafting techniques to avoid this conflict. This article poses the question whether these drafting techniques which are ostensibly carried out to achieve congruence of PTA regimes with the WTO legal regime are, in themselves, spawning more conflict. The incorporation or affirmation provisions can have unintended consequences and can lead to complications unless carefully thought through. The article examines the key differences between incorporation and affirmation and their treatment under public international law. It also undertakes an assessment of these issues under customary international law, especially the rules on treaty interpretation. While examining these issues, the article also highlights the provisions of contemporary treaties which might serve as suitable templates for States desiring to refer to their WTO commitments in PTAs.