OVERLAPPING JURISDICTIONS OF ICJ AND WTO

Jurisdiction

Exclusive jurisdiction

The dispute between the parties that concern the imposition of tariffs is a matter within the exclusive jurisdiction of WTO panels. The ICJ has also stipulated that it would limit its jurisdiction where there is exclusive jurisdiction of another body. Moreover, the Court must reject adjudicating any application if it deems that doing so would compromise its judicial role.

However, ICJ asserted that WTO practices lack relevance in determining the admissibility of request for litigation due to their specific grounding in distinct WTO Agreement provisions. This refutation emphasizes the Court's autonomy in addressing trade disputes. Moreover, the WTO’s decision in the Argentina Poultry case highlights that the WTO does not hold exclusive jurisdiction over trade dispute resolution, underscoring the importance of recognizing alternative avenues for settling such disputes beyond the confines of the WTO framework. 

Lex specialis

Jurisdictional powers of two different forums for one dispute creates a conflict, which is regulated by the principle of lex specialis. The principle of lex specialis stipulates that specific jurisdiction takes precedence over general jurisdiction. The WTO panels have jurisdiction over trade disputes specifically, while the ICJ’s jurisdiction is broader. Therefore, the jurisdiction of the WTO panels supersedes that of the ICJ in this case.

Res judicata

The principle of res judicata addresses the problem of different forums examining disputes involving identical parties, fact patterns and legal claims. The main purpose of the principle is to prevent the re-initiations of the same dispute between the same parties after it has already been settled by one tribunal. Recognition of awards as res judicata means acknowledging that the terms of that award are definitive and obligatory.

The doctrine of res judicata bars the re-litigation of a previously resolved dispute by another tribunal. To apply the principle of res judicata, all three conditions must be cumulatively fulfilled: the parties involved in the dispute must be identical, the relief sought must remain consistent, and the basis for the legal claim must also be unchanged. However, res judicata is not applicable in the cases when defenses available to parties and their procedural character differ. In the present dispute, the tribunal and the Court have different characters. The WTO is an adjudicative body, while the ICJ is a judicial organ.

Moreover, res judicata has no binding effect except between the parties of the dispute. There is no enforceable principle of res judicata between international tribunals. In the present case, even though parties and claims brought are identical, the parties enjoy different legal defenses and the Court is not bound by WTO’s decision. Therefore, in the present dispute, res judicata does not bar the ICJ’s jurisdiction. 

Admissibility

Principle of comity 

Based on the doctrine of comity, a tribunal can decline to exercise jurisdiction when it considers that the matter would be more conveniently or inappropriately settled in another forum, or until the case has been first resolved in another forum. Having proceedings in two different forums could lead to conflicting judgments and questions about the finality of decisions.

The doctrine of comity is meant to apply in two situations: when the matter would be more convenient to resolve in a different jurisdiction, or only after the case has been resolved in another forum. However, the principle of comity does not create legal obligations and therefore does not bind courts and tribunals. The Appellate Body of WTO rejected the application of the principle by stating that exercise of the jurisdiction cannot be declined, except in situations that involve a legal impediment. Therefore, a non-binding notion cannot limit the Court’s jurisdiction. 

Abuse of process 

The concept of prohibiting the abuse of rights is considered a fundamental legal principle. This principle applies to situations where a right is intentionally used for a different purpose than intended, leading to arbitrary actions by a state. Initiating a second legal proceeding on the same matter could be viewed as acting in bad faith and harassing the other party. Bringing the same case before another tribunal could be seen as an abuse of procedural rights, resulting in the declining jurisdiction due to the burdensome character of the proceedings.

Lis pendens

The principle of lis pendens prevents a court from hearing a case which is already pending before another competent court. The purpose of lis pendens is to avert the risk of contradictory judgments between two organs. For the principle of lis pendens to be applicable, when a dispute is presented before a second jurisdiction, the other court has not yet rendered its decision.