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By Stefan Griller

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If the MERCOSUR dispute had been dealt with under the Olivos Protocol and the MERCOSUR exclusion clause would thus have been triggered, a WTO panel should, in my view, give effect to this exclusion clause. A WTO panel must examine its own jurisdiction. 59 57 58 59 Ibidem. On Argentina’s claim that Brazil was estopped from bringing the same matter to the WTO after bringing it to MERCOSUR, see infra text at footnote 83. 3). This may, indeed, be a wise addition in order to avoid exclusion in case the substantive claims under both procedures are markedly different.

WTO document WT/DS193 (suspended by mutual agreement on March 23, 2001). Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v Eur. ) (Mar. pdf (currently suspended on the basis of a provisional arrangement). 28 Joost Pauwelyn pute from the ICJ/UNCLOS component of the dispute so that the former be decided by a WTO panel and the latter by the ICJ/ITLOS. A. & Vivendi Universal v Argentine Republic where the Tribunal accepted jurisdiction over certain claims under a bilateral investment treaty between France and Argentina, even though these claims overlapped with claims under a concession contract for which exclusive jurisdiction had been reserved to domestic Argentine courts,66 and (iii) Order No.

98 and 101: ‘In a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the [international] tribunal will give effect to any valid choice of forum clause in the contract. … On the other hand, where ‘the fundamental basis of the claim’ is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state … cannot operate as a bar to the application of the treaty standard’.

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