By Stefan Griller
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82 As a result, if the principle of issue estoppel were applied also before a WTO panel, then a WTO panel could preclude a SADC member from bringing, for example, a safeguards claim at the WTO in case substantively the same claim was previously decided upon by a SADC panel, as between the same parties. A WTO panel could also apply the principle of issue estoppel to the determination of specific facts or the legal characterization of facts by the previous SADC panel (or vice versa). The US doctrine of collateral estoppel could even go further and give res judicata effect also to a previous SADC panel finding on the same issue even if that panel was constituted at the request of another SADC member, different from the one now challenging the same measure at the WTO, in the event the former SADC member had ‘adequate opportunity to be heard’ before the original SADC panel.
The relevant covered agreements’. 2 of the DSU to ‘make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)’, further acknowledges that WTO panels may need to resort to and apply rules of international law beyond WTO covered agreements as long as it assists the DSB in resolving the WTO claims before it. It may be useful to distinguish four types of situations where a non-WTO defense can be raised on the merits of a WTO claim, of increasing order of complexity (in that each time it becomes more difficult to justify why a WTO panel should accept the defense): (1) defenses under non-WTO law explicitly incorporated into the WTO legal system; (2) measures allegedly violating the WTO treaty but specifically permitted (or even imposed) pursuant to the dispute settlement provisions of another treaty; (3) measures that a WTO member must enact (or is explicitly permitted to enact) pursuant to the provisions of another treaty; (4) measures normally in breach of WTO rules but permitted under another treaty on condition that the WTO panel finds that this other treaty is respected/violated.
29 Such splitting-up or ‘salami-slicing’ of the dispute, though possible in most cases, may be unwarranted in others. 69 A conflict may then arise between, on the one hand, the rule conferring jurisdiction over the dispute to the ICJ/UNCLOS and, on the other hand, the DSU conferring jurisdiction over substantially the same dispute to the WTO. In the absence of explicit conflict clauses in either treaty70, the resolution of such conflict should then depend on normal conflict rules, in particular the principles of lex posterior and lex specialis.