untangling the mutatis mutandis expression in free … 11...untangling the mutatis mutandis...

[ 315 ]Noviembre 2016 - ISSN: 0122-0799 - Bogotá, Colombia - pp. 315 - 336

Untangling the Mu tatis Mu tandis Expression in Free Trade Agreements. Using

the WTO to Understand FTAs

Desentrañar la expresión mu tatis mu tandis en los Acuerdos de Libre Comercio. Uso de la OMC

para entender los TLC

Desentranhar a expressão mu tatis mu tandis nos Acordos de Livre Comércio. Uso da OMC

para entender os TLC

Juan David Barbosa Mariño1

Director del área de Aduanas y Comercio Exterior en Posse Herrera Ruiz - Bogotá, Colombia

Fecha de recepción: 15 de septiembre de 2016Fecha de aprobación: 22 de noviembre de 2016

Página inicial: 315Página final: 336

abstractIt is common to find in the texts of Free Trade Agreements (FTAs) around the globe, provisions incorporated mu tatis mu tandis from the World Trade Organiza-tion (WTO) agreements. The incorporation of a WTO provision under this expres-sion makes it necessary to determine the likely effects of such inclusion in FTAs. Little has been written about this issue despite more and more treaties use this expression to incorporate WTO provisions. This document presents an approach to this matter, concluding that the use of mu tatis mu tandis provision potentially in-crease the interplay between the WTO and the FTAs.

1 Abogado de la Pontificia Universidad Javeriana, Especialista en Derecho Tributario de la Universidad Javeriana, Máster en Negocios Internacionales y Derecho Económi co de la Facultad de Derecho de la Universidad de Georgetown. Una primera versión de este artícu lo fue presentada en calidad de ponencia en Singapur en la Tercera Conferencia del Society of International Economic Law.

* Este artícu lo puede citarse de la siguiente forma: Juan David Barbosa. Untangling the mu tatis mu tandis expression in Free Trade Agreements. Using the WTO to understand FTAs. Revista Instituto Colombiano de Derecho Tributario, núm 75. Noviembre 2016. At. 315.

« Juan David Barbosa Mariño »

[ 316 ] Revista Instituto Colombiano de Derecho Tributario - Núm. 75 - Año 53

KeywordsMutatis mu tandi, Free Trade Agreement’s interpretation, National Treatment, Sa-feguards, Exceptions.

resumenEs común encontrar en los textos de los Acuerdos de Libre Comercio (TLC) en todo el mundo, disposiciones incorporadas mu tatis mu tandis de los acuerdos de la Organización Mundial del Comercio (OMC). La incorporación de una disposi-ción de la OMC bajo esta expresión hace necesario determinar los efectos pro-bables de tal inclusión en los TLC. Poco se ha escrito sobre este tema a pesar de que cada vez más tratados utilizan esta expresión para incorporar las disposi-ciones de la OMC. Este documento presenta un enfoque de este asunto, conclu-yendo que el uso de la disposición mu tatis mu tandis potencialmente aumenta la interacción entre la OMC y los TLC.

Palabras claveMutatis Mutandi, Interpretación del Tratado de Libre Comercio, Tratamiento Na-cional, Salvaguardias, Excepciones.

resumoÉ comum encontrar nos textos dos Acordos de Livre Comércio (TLC) no mundo todo, disposições incorporadas mu tatis mu tandis dos acordos da Organização Mundial do Comércio (OMC). A incorporação de uma disposição da OMC sob esta expressão faz necessário determinar os efeitos prováveis de tal inclusão nos TLC. Pouco se tem escrito sobre este tema apesar de que cada vez mais trata-dos utilizam esta expressão para incorporar as disposições da OMC. Este docu-mento apresenta um enfoque deste assunto, concluindo que o uso da disposição mu tatis mu tandis potencialmente aumenta a interação entre a OMC e os TLC.

Palavras-chaveMutatis Mutandi, Interpretação do Tratado de Livre Comércio, Tratamento Nacio-nal, Salvaguardas, Exceções.

summaryIntroduction; 1. The “Mu tatis Mu tandis” Expression as a Provision; 2. Reasons to Incorporate a WTO Provision Mu tatis Mu tandis, 2.1. The Policy Reason, 2.2. The

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« Untangling the Mu tatis Mu tandis Expression in Free Trade Agreements »

Noviembre 2016 - ISSN: 0122-0799 - Bogotá, Colombia - pp. 315 - 336

Interpretation Reason, 2.3. The Reconciliation Reason; 3. Examples of Provisions Commonly Incorporated Making Use of Mu tatis Mu tandis, 3.1. National Treatment (NT) and the Mirror Effect of Mu tatis Mu tandis, 3.2. Exceptions Regarding Goods and Services and the Necessity to Establish what Certain Variations are Ne- cessary to Fit into the New Circumstances, 3.3. Applying WTO Safeguard’s Disci-pline to Bilateral Safeguards; 4. Conclusion; 5. Bibliography.

introductionIn international law, the mu tatis mu tandis application of a provision indicates that certain provisions from one treaty should apply to another treaty, but with varia-tions necessary to fit the new circumstances2. A tendency in numerous Free Trade Agreements (FTA) is to use this mu tatis mu tandis expression to describe how a provision from the WTO is incorporated into and forms an integral part of such FTA.

This document identifies and analyzes the effects of using mu tatis mu tandis to incorporate certain WTO provisions in a bilateral treaty negotiated under the scope of GATT Article XXIV, or GATS Article V. Specifically, it demonstrates how the use of this expression increases the institutional relationship between FTAs and the WTO. Also, this document analyzes the additional interpretative burden-some that this provision represents in the application of WTO provisions under an FTA. Indeed, a strict mu tatis mu tandis interpretation of certain WTO provisions might lead to their inapplicability when found under the scope of the FTA3..

2 According to the sixth edition of Black’s Law Dictionary, this Latin phrase means, “With the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like”. Black’s Law Dictionary, 1019 (6th ed. 1990). In international law, this term is used “to indicate that a particu lar set of principles should be applied to another area law, but with variations to fit into the idiosyncratic features of that other area of law”. Gillhams, Legal meanings, (Feb. 24, 2011, 12:38 pm) http://www.gillhams.com/dictionary/449.cfm. Professor Robert J. Beck of the University of Wisconsin-Milwaukee mentions in his Dictionary how mu tatis mu tandis is “when what must be changed has been changed, after making the necessary changes; with alterations to fit the new circum-stances. For example: The new provisions governing the tribunal’s operations are to apply as well to the court’s operations, mu tatis mu tandis”. Beck’s Law Dictionary, Foreign Affairs Online, (Feb. 22, 2011, 9:54 pm) http://people.virginia.edu/~rjb3v/latin.html. The Oxford Dictionary defined this principle as “With the necessary changes; with due alteration of details (used when comparing two or more cases or situations)”.Oxford English Dictionary, (Feb. 22, 2011, 10:24 pm) http://0dictionary.oed.com.gull.georgetown.edu/cgi/entry/00319655?single=1&query_type=word&queryword=mu tatis+mu tandis&first=1&max_to_show=10 Finally, the Dictionary of International Trade defines mu tatis mu tandis: (law) Meaning changing what needs to be changed; used when cases are nearly the same except from minor details. A statute that governs one type of transaction, for example, may also be applied to another transaction with minor exceptions, in which event the statute applies mu tatis mu tandis. A country may apply its trademark law mu tatis mu tandis to service marks, in which event the same law will apply except for changes to account for such details as the sue of the mark to distinguish services instead of goods. (8th Edition By Edward G. Hinkelman)

3 The burdensome of making use of mu tatis mu tandis relies on the treaty negotiators but will be only de-tected when the FTA controversy arises involving the specific provision. On that issue, Professor Qureshi states that “the circumstances of the negotiations can lead to incomplete arrangements or confusion over



With the purpose of addressing the effects of a mu tatis mu tandis incorpo-ration of a WTO provision, this article is divided in three sections. Section I com-prises a brief explanation of the expression mu tatis mu tandis in order to illustrate its use in international treaty drafting, including its increased use in FTAs. There-after, Section II presents some policy; interpretation and reconciliation reasons negotiators might have for introducing WTO provisions mu tatis mu tandis into an FTA. Section III exposes the legal effects arising from the use of the recurrent provisions incorporated mu tatis mu tandis as an example of the reasons above mentioned.

1. the “Mu tatis Mu tandis” expression as a Provision4

The mu tatis mu tandis expression was first used in common law with the purpose of avoiding the difficulty of having to rewrite the entire contract when minor chan-ges had been made, for instance, to account for corrections in the name or gender of one of the parties. Thus, the use of this expression allowed the parties to pro-vide instructions to the reader simply to bear in mind that the new document was the same as the old document except for those details5. In that sense, for instan-ce the parties have the guarantee in the U.S. Courts, that judges will acknowledge what mu tatis mu tandis means and that they will recognize and interpret its effects in contract applications6.

In international law, there are several purposes that might encourage the in-sertion of the mu tatis mu tandis expression in the text of a treaty as a provision to deal with sensitive issues of international law. For instance, it has been used to specify the allocation of jurisdiction on a particu lar dispute settlement body of a treaty when dealing with interpretation and application of the provisions covered under the expression of another treaty.

This is the case of using mu tatis mu tandis in the Kyoto Protocol to the United Nations Framework Convention on Climate Change where Article 19 of such Pro-tocol determined that the provisions contained in the mentioned Convention on Climate Change regarding the settlement of disputes, applied mu tatis mu tandis to

the nature of the provisions of the arrangement”Asif H. Qureshi, Interpreting WTO Agreements, 5 (Cam-bridge University Press, 2006).

4 Other authors refer to the mu tatis mu tandis as a principle. See, Gary Horlick and June Shih, Article 12 ADA, in WTO Trade Remedies, 172 (Rudiger Wolfrum, Peter-Tobias Stoll and Michael Koebele, Eds. 2008).

5 Brian Madigan, Blog (March 3, 2011, 10:23am) http://activerain.com/blogsview/1437448/the-meaning-of-mu tatis-mu tandis-

6 See, Housman v. Waterhouse, 191 A.D. 850, 182 N.Y.S. 249, N.Y.A.D. 1 Dept. 1920 and In re McMahon, 235 B.R. 527, S.D.N.Y.,1998.

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such Protocol. 7, Therefore, disputes related to both instruments are considered to be under the scope of Article 14 of the Convention.

This is also the case of the Agreement for the implementation of the provi-sions of the United Nations Convention on the Law of the Sea, related to the con-servation and management of Straddling Fish Stocks and Highly Migratory Fish Stocks8. In that particu lar case, Article 30 of the mentioned Agreement determi-ned that “provisions relating to the settlement of disputes set out in Part XV of the Convention [on the Law of the Sea] apply mu tatis mu tandis to any dispute bet-ween States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to the Convention (...)”.

An additional purpose is found when some WTO agreements include the mu-tatis mu tandis expression into their texts, providing the application of certain pro-cedural obligations to other provisions contained in the same agreement. This is the case of the Antidumping Agreement (Art. 12.3) or the Subsidies and Counter-vailing Measures Agreement (Art. 21.5 and Art. 22.7).

Such purpose has been developed by WTO case law, specifically in the US-Carbon Steel dispute, where the Appellate Body analyzed the use of mu tatis mu-tandis in the Subsidies and Countervailing Measures Agreement, considering that it imposes a “mirror effect” between the expressions incorporated, as follows:

“112. Article 22.7 applies the provisions of Article 22 ‘mu tatis mu tandis to the initiation and completion of reviews pursuant to Article 21’. To us, in the same way that Article 22.1 imposes notification and public notice requirements on investigating authorities that have decided, in accor-dance with the standards set out in Article 11, to initiate an investigation, Article 22.1 (by virtue of Article 22.7) also operates to impose notifica-tion and public notice requirements on investigating authorities that have decided, in accordance with Article 21, to initiate a review. Simi-larly, in the same way that Article 22.1 does not itself establish evidentiary standards applicable to the initiation of an investigation, it does not itself es-tablish evidentiary standards applicable to the initiation of sunset reviews. Such standards, if they exist, must be found elsewhere”9 (Emphasis added).

7 Article 19. The provisions of Article 14 of the Convention on settlement of disputes shall apply mu tatis mu-tandis to this Protocol. Kyoto Protocol to the United Nations Framework Convention on Climate Change.

8 Article 30. Procedures for the settlement of disputes. 1. The provisions relating to the settlement of dispu-tes set out in Part XV of the Convention apply mu tatis mu tandis to any dispute between States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to the Convention.(....)”. Agreement for the implementation of the provisions of the United Nations Convention on the law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, 1995.

9 Appellate Body Report on US — Carbon Steel, WT/DS213/AB/R, para. 112.



On the other hand, WTO case law, when dealing with the interpretation of the Antidumping Agreement10 has recognized that mu tatis mu tandis also implies that certain variations are necessary to fit into the new circumstances:

“7.33 Paragraph 3 of Article 12 states that the provisions of that Article apply mu tatis mu tandis to reviews under Article 11. Therefore, it is clear that the public notice requirements of Article 12 apply mu tatis mu tandis to sunset re-views. However, the use of the term “mu tatis mu tandis” demonstrates that the drafters foresaw that certain provisions of Article 12 could not be applied, at all, or at the very least not in an identical manner, in the case of sunset reviews. The provisions of Article 12 apply in sunset re-views, with whatever changes the nature of sunset reviews may necessita-te. Thus, just as Article 12.1 imposes notice requirements on investigating authorities that have decided, in accordance with the standards established in Article 5, to initiate an investigation, Article 12.1 (by virtue of Article 12.3) imposes notice obligations on investigating authorities that have decided, in accordance with Article 11, to initiate a review. However, just as Article 12.1 does not itself establish evidentiary standards applicable to the initiation of investigations, so too it does not itself establish evidentiary standards appli-cable to the initiation of sunset reviews”. 11(Emphasis added)

It is interesting how both parties, in this particu lar case, considered their un-derstanding to be correct under the scope of mu tatis mu tandis, despite the con-flicting effects derived from the application of the expression under either one of both interpretations. On the one hand, Japan claimed that the “mu tatis mu-tandis application of one provision requires interpreters to apply all the obligations of one article to the other” 12. Indeed, Japan argued that the expression requi-red the substitution of the term “investigation” for “review” in Article 12.3 of the Antidumping Agreement13. Meanwhile, the United States argued that “[C]onsis-tent with the ordinary meaning of “mu tatis mu tandis,” this simply means that the public notice and explanation provisions are applicable to reviews, but with “ne-

10 In this dispute, Japan argued that the mu tatis mu tandis in article 12.3 required the application of article 12 to the sunset review in article 11. Thus, article 5 evidentiary standards, which are mentioned in article 12, must also apply to sunset review and so the United States practice was inconsistent with the AD. The Panel rejected this argument, considering that the reference to article 5 in article 12.1 does not establish an evidentiary requirement. See, Horlick & Shih, supra note 4, at 172.

11 Panel Report on United States – Sunset review of anti-dumping duties on corrosion-resistant carbon steel flat products from Japan, WT/DS244/R, 14 August 2003, para. 7.33.

12 Executive Summary of the Second Written Submission of Japan, Annex C-1, Panel Report on United Sta-tes – Sunset review of anti-dumping duties on corrosion-resistant carbon steel flat products from Japan, WT/DS244/R, para 14.

13 Replies of Japan to questions of the Panel-First meeting, Annex E-1, Panel Report on United States – Sunset review of anti-dumping duties on corrosion-resistant carbon steel flat products from Japan, WT/DS244/R, paras 61-63.

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cessary changes” or “changes as appropriate”.”. On that specific issue, the United States counter argued Japan’s interpretation, considering that the statement ac-cording to which Articles 12.1 and 12.3 were vehicles for making the evidentiary requirements of Article 5.6 for self-initiation of investigations applicable to Article 11.3 sunset reviews “(...) ignores the obvious meaning of the text of Article 12”14 (emphasis added).

In this case, the Appellate Body, quoting US-Carbon Steel, agreed with the Panel, considering that the mu tatis mu tandis application must recognize that provisions differ in certain essential aspects15.

Let it be mentioned that there is no cross-reference between WTO provisions of two different agreements expressly using mu tatis mu tandis. However, in the above mentioned US-Carbon Steel Report, the Appellate Body considered that if the parallel wording contained in two different texts of two different agreements has just changed the names of the particu lar agreements, the previous interpreta-tion of one article applies mu tatis mu tandis to the simi lar provision contained in a different Agreement, as follows:

“We note that Article 11.3 is textually identical to Article 21.3 of the SCM Agreement, except that, in Article 21.3, the word “countervailing” is used in place of the word “anti-dumping” and the word “subsidization” is used in place of the word “dumping”. Given the parallel wording of these two arti-cles, we believe that the explanation, in our Report in US – Carbon Steel, of the nature of the sunset review provision in the SCM Agreement also serves, mu tatis mu tandis, as an apt description of Article 11.3 of the Anti-Dumping Agreement”. 16 (Emphasis added).

A final purpose, and the reason of this article, is when FTAs include the expression mu tatis mu tandis into their texts, providing the application of WTO provisions. The insertion of such kind of mu tatis mu tandis provision has been in-creasingly generalized in the FTAs signed after NAFTA. For instance, Table 1 in-dicates how FTAs around the world have started to incorporate some of the most relevant WTO provisions on the basis of mu tatis mu tandis. This is especially noto-rious in the case of provisions like Article III, Article XI and Article XX of the GATT and Article XIV of the GATS, or Articles 3 and 4 of the Agreement of Safeguards.

14 First Written Submission of the United States of America, United States – Sunset review of anti-dumping duties on corrosion resistant carbon steel flat products from Japan, Para 95 (April 23, 2011, 8:23 am)

15 Appellate Body Report on United States – Sunset review of anti-dumping duties on corrosion-resistant carbon steel flat products from Japan, paras 106-109.

16 Appellate Body Report on United States – Sunset review of anti-dumping duties on corrosion-resistant carbon steel flat products from Japan, Footnote 14 (Appellate Body Report, US – Carbon Steel , paras. 63 and 88)”



table 1. Mutatis Mutandis Principle or Provision

Mutatis Mutandis (m); Wto provision incorporated by reference (y); Provision explicitly mentioned w/out any reference to Wto (e); no provision (-); Wto Plus (x)

agreement name nat. treatment

restric-tions art xi

excep-tions

art. xx

excep-tions

art. xiv

bil. sa-feguard Proce-dure

bil. sa-feguard.

injury

us israel - Y Y - - -

naFta Y Y Y E E E

us Jordan Y Y Y Y m m

canada - chile Y Y Y - E E

us chile m m m Y m m

chile- Korea Y Y Y Y - -

australia-singa-pore Y E E X X

us singapore Y Y m m m m

australia.-thai-land. Y Y m m E E

us australia Y Y m m m m

chile-china m - m - m E

chile-colombia m m m Y m m

chile-Panama m m m Y m m

chile-Japan m Y m m Y E

chile –australia m m m m - -

chile-turkey m m m - - -

Japan.-india Y Y* m m Y E

Peru-singapore m X m m E E

Peru - Japan m - m m m E

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table 1. Mutatis Mutandis Principle or Provision

Mutatis Mutandis (m); Wto provision incorporated by reference (y); Provision explicitly mentioned w/out any reference to Wto (e); no provision (-); Wto Plus (x)

agreement name nat. treatment

restric-tions art xi

excep-tions

art. xx

excep-tions

art. xiv

bil. sa-feguard Proce-dure

bil. sa-feguard.

injury

china - new Zealand m - m m m m

us-colombia m m m m m m

eu - Korea, repu-blic of m M m - m m

Hong Kong, china - new Zealand m - m m E E

new Zealand - ma-laysia m - M m Y E

Peru - Korea, republic of m m E E m E

nicaragua-taiwan m m m m E E

Korea, republic of - us m m m m m m

Pacific Alliance m m m m - -

Note: All these FTAs have a Dispute Settlement Chapter. (*) This article just mentions “under the relevant provi-sions of the WTO Agreement”. Source: For purposes of this Table the text was consulted in each of the FTAs. The methodology was the same that Professor Gantz uses in his book. Gantz, David A, Regional trade agreements: law, policy and practice, 2009, Durham, N.C. Carolina Academic Press.

On general basis, several conclusions can be made from the analysis of the in-formation contained in Table 1. On the one hand, there is a clear trend in those countries that have signed FTAs with the United States. It can be noticed that cou-ntries that have not included WTO provisions on the basis of mu tatis mu tandis in previous trade agreements, begin to do so after having negotiated their FTA with the United States. On the other hand, there is an evident mu tatis mu tandis “boom”



in FTAs involving Asian countries such as Singapore, Japan, Korea or China. It might be considered that Asian willingness to incorporate WTO provisions in their FTAs may be encouraged by accession process of China, or the WTO case law in-terpretation specifically related to National Treatment and the General Exceptions contained in Article XX of the GATT.

On the analysis of particu lar cases, some preliminary conclusions arise from this benchmarking. First, mu tatis mu tandis is also being used in south-south FTAs, such as Chile-Colombia or Chile-Panama. Second, countries like Australia, which initially did not incorporate certain provisions (National Treatment or Quan-titative Restrictions) mu tatis mu tandis in its FTA (e.g. US FTA) has subsequently done so in later agreements (e.g. Chile FTA). Finally, the increasing use of refe-rence to WTO provisions also reflects the growing confidence in the WTO and its provisions as an institution that in a future will interplay parallel to these treaties17, for instance it is the case of countries like Chile, which have started to make use of mu tatis mu tandis for incorporating entire WTO agreements in its FTAs (i.e. Cus-toms Valuation Agreement).

2. reasons to incorporate a Wto Provision Mu tatis Mu tandis

The mu tatis mu tandis is just one of the alternatives negotiators have to incorpora-te a WTO provision in a FTA18. There are other possibilities, such as i) incorpora-ting by reference one of the WTO provisions without the use of mu tatis mu tandis;19 ii) replicating the wording of a WTO provision; or iii) explicitly including langua-ge evocative of WTO jurisprudence language20. All these techniques indicate that countries desire these bilateral agreements to relate to existing multilateral trade agreements and to international law more generally21.

However, the reason to use the mu tatis mu tandis’ provision seems to go fur-ther. It seems to be an attempt to avoid unintended consequences in interpre-ting and applying certain WTO provisions in other treaties. For instance, its use regarding the analysis of “damage” in safeguard provisions evokes certain uni-

17 Alberta Fabbricotti argues that the interplay between the WTO and RTAs can equally be interpreted as a practical case of interrelation between different sources of international law. See, Alberta Fabbricotti, The WTO and RTAs, in International Economic Law and National Autonomy, 139 (Meredith Kolsky Lewis and Susy Frankel Eds, 2010).

18 Locknie Hsu, Applicability of WTO in Regional Trade Agreements: Identifying the Links in Regional trade agreements and the WTO legal system, 540 (Lorand Bartels and Federico Ortino, eds. Oxford; New York: Oxford University Press, 2006).

19 For example, Art. 2.2 and 2.9.1 of the US Australia FTA, see Table 1 of this Paper.20 Locknie Hsu, supra note 16, at 540..21 Simon Lester and Bryan Mercurio, Introduction in Bilateral and Regional Trade Agreements, Commentary

and Analysis, 5 (Lester and Mercurio eds., 2009).

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formity and coherence between the WTO and FTAs. Nevertheless, that does not mean that this principle establishes a blind or slavish reference to WTO articles22. Each FTA is a separate treaty, equally subject to international law’s interpretation rules23. For that reason, “the necessary changes in points of detail” that the mu-tatis mu tandis implies have to be carefully considered in each FTA and in each provision that makes use of it24.

The following section covers some of the possible policy, interpretation and reconciliation reasons encouraging the use of mu tatis mu tandis to incorporate a WTO provision into an FTA.

2.1. the Policy reasonMutatis mu tandis reflects how different countries prefer these new agreements to relate to the WTO25. According to Table 1, the insertion of WTO provisions by means of mu tatis mu tandis in an FTA constitutes a recognizable trend. Once a country incorporates a provision mu tatis mu tandis in an FTA, in most of the cases, it will continue to do so in further FTA negotiations.

The inclusion of a WTO provision mu tatis mu tandis foresees the inclusion of the text of such provision that is considered to be applicable at the moment of the entry into force of the respective FTA26. Thus, future amendments of the provision of the WTO’s text will not apply among the parties27. This has to be analyzed with the Amendment of the WTO’s provision clause that numerous FTAs include, es-tablishing that “If any provision of the WTO Agreement that the Parties have in-corporated into this Agreement is amended, the Parties will consult on whether to amend this Agreement”28.

22 Locknie Hsu, supra note 16, at 541.23 Id. at 54124 According to the sixth edition of Black’s Law Dictionary, this Latin phrase means, “With the necessary

changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like”. Black’s Law Dictionary, 1019 (6th ed. 1990).

25 Simon Lester and Bryan Mercurio, Introduction in Bilateral and Regional Trade Agreements, Commentary and Analysis, 5 (Lester and Mercurio eds., 2009).

26 An interesting discussion arise with those FTA as Colombia or Panama with the United States that have more than five years of difference between the final negotiation of the text and the approval and entry in force. Both treaties include mu tatis mu tandis provisions of WTO provisions.

27 The use of the mu tatis mu tandis expression in incorporating a WTO provisions may avoid the conflict that arise for instance in the Tariff Applied by Canada to Certain US Origin Agricultural Products’ case - CDA-95-2008-01, December 2,1996. The issue in this case was whether the customs duties imposed by Ca-nada on certain U.S.-origin agricultural products following “tarification” in accordance with the agreements reached as a result of the Uruguay Round were in breach of the relevant provisions of the NAFTA. Among the questions that the Panel analyzed was whether the forward-looking character of FTA Article 710 was changed when it was incorporated into the NAFTA. (Paras 146-154).

28 This clause is usually included in the Final Provisions of the FTA, and it is called Amendment of the WTO Agreement.



It would be necessary to review if the incorporation of a WTO provision mu-tatis mu tandis in an FTA denotes the purpose of one or both parties to limit any innovation of such provision in the WTO. Also, why, within the same treaty, other WTO provisions are included without using mu tatis mu tandis?29 In most of the FTAs, what is reflected with the incorporation mu tatis mu tandis of certain provi-sions is the willingness of one or both parties to have some coherence with these issues under multilateral agreements, providing some consistency with the WTO most controversial issues30.

Another policy reason for making use of mu tatis mu tandis can be established by the fact that countries are responding to dispute settlement decisions in cases involving an FTA provision using a WTO wording31. For instance, in the dispute concerning cross-border trucking services (1995) in NAFTA, Mexico “challenged the US moratorium on the processing of applications by Mexican-owned trucking firms for authority to operate in the US border-states”32. In its defense, the United States contended that its position was confirmed by NAFTA’s Article 2101, one of the general exceptions regarding safety concerns,33 arguing that the WTO’s Appe-llate Body decisions supported its interpretation34. However, the Panel agreed with Mexico that “any moratorium must secure compliance with some other law or re-gulation that does not discriminate; be necessary to secure compliance; and must not be arbitrary or unjustifiable discrimination or a disguised restriction on trade”35.

29 E.g. Is the case of Article 3.10, DR-CAFTA which establishes that “ Each Party shall ensure, in accordance with Article VIII:1 of the GATT 1994 and its interpretive notes, that all fees and charges of whatever cha-racter (other than customs duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III:2 of the GATT 1994, and antidumping and countervailing duties) imposed on or in connection with importation or exportation are limited in amount to the approximate cost of services ren-dered and do not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes”.

30 It would be very interesting to see how the Theory of Hegemonic Stability expose by Jarrod Wiener in his book Making Rules in the Uruguay Round of the GATT, could be use to explained why was the United Sta-tes apparently the first to start using the mu tatis mu tandis in their FTAs. Jarrod Wiener, Making Rules in the Uruguay Round of the GATT, A Study of International Leadership (Darmouth, 1995). It is interesting that as part of their “competitive liberalization”, the US is adopting in its FTA GATT/WTO plus commitments, but also its seems to maintain certain WTO essential provisions mu tatis mu tandis. For an analysis of the competitive liberalization strategy, See, Cintia Quiliconi and Carol Wise, The US as a Bilateral Player in Competitive Regionalism, FTA Diffusion in the Pacific Rim,104-108 (Mireya Solis, Barbara Stallings and Saori N. Katada Eds. 2009)

31 Joost Pauwelyn mentions how “Treaty negotiators should keep this in mind and explicitly regulate potentia-lly overlapping jurisdictions”. Adding Sweeteners to Softwood Lumber: The WTO-NAFTA “Spaghetti Bowl” is Cooking, 11-12 (March 17, 2011, 11:37am) http://lsr.nellco.org/duke_fs/32/

32 Jorge Alberto Huerta-Goldman, Mexico in the WTO and NAFTA, Litigating International Trade Disputes, 77 (Wolters Kluwer, 2010).

33 North American Free Trade Agreement Arbitral Panel established pursuant to Chapter Twenty in the matter of Cross-border Trucking Services (Secretariat File No. Usa-Mex-98-2008-01), Final Report of the Panel February 6, 2001, Para 186.

34 Id para 191.35 Id, para 269.

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Interestingly, the Panel considered among its arguments that the GATT/WTO history, liberally cited by the Parties, and the FTA’s language, were both instructi-ve and that “the general exception in Article 2101:2 invoked by the United States closely tracks the GATT Article XX language”36. After this 2001 Panel report, the United States changed the wording of this exception37, incorporating WTO Article XX mu tatis mu tandis in all the FTAs that have been negotiated since then38.

2.2. the interpretation reason

Mutatis mu tandis is one of the techniques negotiators use to establish the “ordi-nary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”39. In such sense, it must be acknowledged that mu tatis mu tandis is an attempt to minimize future conflicts of interpretation by guarantying a level of coordination between treaties that are applying a simi lar provision40.

On the one side, WTO provisions and FTA ones, which have simi lar standing in international law41, must be considered to endure the greatest chance of colli-sion when both are found to be present in the respective texts of the treaties. In

36 Id, para 260.37 The FTA US Chile, 23.1(2), signed in 2003 does not include the mu tatis mu tandis. However, negotiations

were concluded in December 2002, and most of the negotiation process occurred during 2001 (ten of the fourteen rounds). Osvaldo Rosales V., Chile-US FTA The Negotiation Process, Seoul, S.Korea, November 2006. (April 10, 2011, 7:45 am) (Korea Institute for International Economic Policy, www.kiep.go.kr).

38 FTA US Bahrain, 20.1(2) signed in 2004. FTA US DR-CAFTA, 21.1(2), FTA US Australia, 22.1(2),. FTA US Peru, 22.1(2),. FTA US KORUS, 23.1(2), ; FTA US Colombia, 22.1(2).

39 Vienna Convention, Article 31(1).40 At the end, this level of coordination will be decided by the dispute settlement body that it is resolving the

dispute. The MOX Plant Case is a good example of the possible arguments that a Tribunal may use to re-solve the existence of potentially simi lar obligations, despite there was not a mu tatis mu tandis expression that linked the different obligations established under the Convention for the Protection of the Marine Envi-ronment of the North-East Atlantic (OSPAR), the European Communities treaties and the Euratom treaties. In this case the International Tribunal for the Law of Sea in the Request for Provisional Measures decided that they have jurisdiction to adjudicate the dispute using the following considerations: “49. Considering that the dispute settlement procedures under the OSPAR Convention, the EC Treaty and the Euratom Treaty deal with disputes concerning the interpretation or application of those agreements, and not with disputes arising under the Convention; 50.Considering that, even if the OSPAR Convention, the EC Treaty and the Euratom Treaty contain rights or obligations simi lar to or identical with the rights or obligations set out in the Convention, the rights and obligations under those agreements have a separate existence from those under the Convention; 51. Considering also that the application of international law rules on interpre-tation of treaties to identical or simi lar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires; 52. Considering that the Tribunal is of the opinion that, since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispu-te;” (emphasis added) The MOX Plant Case (Ireland v United Kingdom)(Request for Provisional Measures and Statement of Case of Ireland, 9 November 2001) International Tribunal for the Law of Sea (April 15, 2011, 10 pm) http://www.itlos.org/start2_en.htm

41 Thomas Cottier and Marina Foltea, Constitutional Functions of the WTO and RTAs, in Regional Trade Agreements: Identifying the Links in Regional trade agreements and the WTO legal system, 51 (Lorand Bartels and Federico Ortino, eds. Oxford; New York: Oxford University Press, 2006).



this case, several considerations must be taken into account. First, the use of mu-tatis mu tandis does not imply an application of lex posterioris of the FTA provisions over the WTO commitments,42 neither means that in a potential conflict between treaties with non-identical parties, “the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty”43. In fact, some FTAs re-affirmed this with the inclusion of a clause named “relation to other agreements”44. The mu tatis mu tandis is just one of the specific tools of the language that negotia-tors use for establishing an appropriate relationship between treaties45.

It is also important to consider if the fact that it is the same provision means that it is the “same subject matter”46. The Vienna Convention –Article 30- offers guidance to resolve a substantive conflict between an FTA and another treaty re-lating to the “same subject matter”, in this case the WTO47. Neither Article XXIV of the GATT or Article V of the GATS´ substantially all the trade rule explicitly oblige the contracting parties to incorporate any specific WTO provisions such as natio-nal treatment in an FTA. However, once a WTO provision is included in an FTA whether or not it uses mu tatis mu tandis, even without making any reference to

42 See, United Nations, Fragmentation of International Law: Difficulties arising from the diversification and expansion of International law Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, Paras 243-244. Also, see Thomas Cottier and Marina Foltea’s analysis of the supremacy of WTO Law and its relation with Article 41 VCLT, Constitutional Functions of the WTO and RTAs, in Regional Trade Agreements: Identifying the Links in Regional trade agreements and the WTO legal system, 53-57 (Lorand Bartels and Federico Ortino, eds. Oxford; New York: Oxford University Press, 2006).

43 Vienna Convention, Article 30(3) and (4).44 The Relation to Other Agreements’ clause in the US FTAs contains different obligations depending of the

other Party. However, over time the position apparently adopted is that an FTA is not lex posterioris. In NAFTA, “Article 103: Relation to Other Agreements. 1. The Parties affirm their existing rights and obliga-tions with respect to each other under the General Agreement on Tariffs and Trade and other agreements to which such Parties are party.2. In the event of any inconsistency between this Agreement and such other agreements, this Agreement shall prevail to the extent of the inconsistency, except as otherwise provided in this Agreement”. Then in the US Chile FTA the parties only agree that “Article 1.3: Relation to Other Agreements. The Parties affirm their existing rights and obligations with respect to each other under the WTO Agreement and other agreements to which both Parties are party”. Finally, the FTA KO-RUS establishes: “Article 1.2: Relation to Other Agreements. 1. The Parties affirm their existing rights and obligations with respect to each other under existing bilateral and multilateral agreements to which both Parties are party, including the WTO Agreement. 2. For greater certainty, this Agreement shall not be construed to derogate from any international legal obligation between the Parties that provides for more favorable treatment of goods, services, investments, or persons than that provided for under this Agree-ment”. (Emphasis added).

45 Thomas Cottier and Marina Foltea do not mention mu tatis mu tandis but they analyze the relationship between WTO and RTAs, Thomas Cottier and Marina Foltea supra note 40, at 51-53.

46 Koskenniemi establishes that: “the test of whether two treaties deal with the “same subject matter” is resolved through the assessment of whether the fulfilment of the obligation under one treaty affects the fulfilment of the obligation of another. This “affecting” might then take place either as strictly preventing the fulfilment of the other obligation or undermining its object and purpose in one or another way”. United Nations, Fragmentation of International Law: Difficulties arising from the diversification and expansion of International law Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, Para 254.

47 Andrew D. Mitchell and Tania Voon, PTAS and Public International Law in Bilateral and Regional Trade Agreements, Commentary and Analysis, 134 (Lester and Mercurio eds., 2009).

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the WTO, it is clear that there is a potential conflict between “trade” obligations with the “same subject matter”48. Nevertheless, the mu tatis mu tandis expression might facilitate settling the conflict - for example by seeking a “mutually supportive solution”,49 through eliminating any incompatibility between both treaties50. In that sense, professors Andrew D. Mitchell and Tania Voon have pointed that the rea-soning and conclusions adopted by Panel and Appellate Body Reports may shed light “on the correct interpretation of particu lar WTO provisions, which may be re-levant in interpreting related FTA provisions”51.

Finally, it must be considered that through mu tatis mu tandis, parties incorpora-te a provision and its interpretative notes. However, it is not clear if they also agree to incorporate the interpretation the Appellate Body makes of such provision. It is also not clear what are the effects of incorporating a provision through mu tatis mu-tandis if the WTO Appellate Body changes its interpretation or establishes a new test. In any case, the provisions contained in Articles 3.2 and 19.2 of the DSU, limit the interpretation of a WTO provision incorporated mu tatis mu tandis in an FTA es-tablishing that neither the Panels nor the Appellate Body can “add to or diminish the rights and obligations provided in the covered agreements”52. In that sense, it should be understood that if the Appellate Body’s interpretation is unable to “add or dimi-nish” the rights and obligations of the parties under WTO provisions, an FTA Panel would also be unable to do so when applying the WTO provision inserted in the FTA on mu tatis mu tandis basis. If these stipu lations in an FTA are going to lead to a pe-trification on the interpretation of certain WTO provisions among countries within an FTA network is still something that must be analyzed in the future.

2.3. the reconciliation reasonThe use of mu tatis mu tandis provides a framework to resolve conflicts between parties of an FTA and the WTO Agreement. Most of FTAs are negotiated between

48 Regarding this, the Arbitral Panel in the NAFTA’s Chapter XX dispute, Tariffs applied by Canada to certain U.S.-Origin Agricultural Products, mentioned, “The interpretation of these agreements is complicated by a number of factors. The NAFTA incorporates obligations from other agreements including both the FTA and the GATT. The terminology used in the drafting of various provisions, both within and across these agreements, is not marked by uniformity or consistency. As discussed more fully below, words like “exis-ting”, “retain” or “successor agreements”, appear in some contexts yet do not appear in others where their presence might have been thought apposite. As a result, the Panel has been faced not only with the task of determining meaning from the presence of certain words, but also with the more difficult task of divining meaning from the absence of particu lar words”. Final Report of the Panel, Secretariat File No., CDA-95-2008-01, December 2, 1996 Para 123 (emphasis added).

49 United Nations, Fragmentation of International Law: Difficulties arising from the diversification and expan-sion of International law Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, Paras 243-256.

50 Vienna Convention, Article 30 (3).51 Andrew D. Mitchell and Tania Voon, supra note 46, at 118.52 Articles 3.2. and 19.2 of the DSU.



countries that are already bound by WTO Agreements53. On that issue, it should be considered that one of the purposes of FTAs, aside entailing new obligations, is to gain an effective implementation of existing obligations under the WTO on a bilateral basis. Thus, a future incorporation of certain WTO provisions mu tatis mu-tandis may result in a more intensive debate of such provisions within the forum of Free Trade or Regional Agreements than the WTO itself. In any case, the parties will have a bilateral structure on the one hand, and a multilateral structure on the other one, without any hierarchical relationship between them54.

The use of mu tatis mu tandis might help clarifying, within an FTA or a WTO dispute settlement, whether there is or is not res judicata on the subject matter55. On that issue, Professors Mitchell and Voon suggest that the “incorporation of WTO provisions in PTAs may have implications for the compulsory nature of the WTO dispute settlement system, given that the same issue may have been liti-gated under a PTA instead of the WTO”56. Simi larly, Locknie Hsu mentions how a “RTA tribunal may find itself “dealing with the same or very simi lar issues” as what a WTO Panel has dealt with (for example, because the interpretation of text is common to the RTA and a WTO Agreement)”57.

It is worth mentioning that the use of mu tatis mu tandis might also oblige the respective FTA Panel to consider the relation between the two normative structu-res, mitigating the risk of an overlapping dispute58. In this case, mu tatis mu tandis complements the choice of forum clause that has also been regulated in some FTAs59. In conclusion, one of the advantages of the mu tatis mu tandis is that it es-tablishes communication between the two structures creating and increasing an institutional relationship with the WTO.

53 Locknie Hsu, supra note 16, at 524.54 Julia Ya Quin, Managing Conflicts between WTO and RTA Rulings, 602 in Making Transnational Law work

in the Global Economy (Pieter H. F. Bekker, Rudolf Dolzer and Michael Waibel Eds. 2010).55 Traditionally, for the principle of res judicata to apply and, therefore, for two rulings to be genuinely in

conflict, “the overlapping proceedings must involve (1) the same parties, (2) the same subject matter, and (3) the same legal claims”. Joost Pauwelyn, Adding Sweeteners to Softwood Lumber: The WTO-NAFTA “Spaghetti Bowl” is Cooking, 5 (March 17, 2011, 11:37am) http://lsr.nellco.org/duke_fs/32/

56 Andrew D. Mitchell and Tania Voon, supra note 46, at 119.57 Locknie Hsu, supra note 16, at 528.58 The mu tatis mu tandis reduces the possibilities that a dispute could be re-cast. Thus, a Party that choose to

initiate first a dispute settlement action in the WTO would have more difficulties in claiming the same alle-ged violation of WTO Law in an FTA. See, David Morgan, Dispute Settlement under PTAs in Challenges to Multilateral Trade, The Impact of Bilateral Preferential and Regional Trade Agreements, 253-254 (Ross Busckley, Vai lo Lo and Laurence Boulle Eds.2008).

59 See, e.g. Australia-United States FTA, ARTICLE 21.4: CHOICE OF FORUM Where a dispute regarding any matter arises under this Agreement and under another trade agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.

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3. examples of Provisions commonly incorporated making use of Mu tatis Mu tandis

Even though the WTO Agreement encompasses the existence of different agre-ements, some specific provisions frequently are incorporated in the text of FTAs on a mu tatis mu tandis basis60. Legal institutions like the ones contained in GATT Articles III, XI, XX; GATS Article XIV; or certain procedures contained in the Safe-guard Agreement, are usually “preferred” by negotiators when making use of mu-tatis mu tandis in the texts of their FTAs. In that sense, it is useful to analyze some of those frequently applied WTO provisions, exposing their likely effects and pre-senting some arising concerns.

3.1. national treatment (nt) and the mirror effect of Mu tatis Mu tandis

The mu tatis mu tandis incorporation of Article III of the GATT reinforces that par-ties are not going to afford a less favorable standard of NT to its imported products than the general principle that applies under the WTO to the national products of each party and the products of other countries under the WTO, including the other party or parties of the FTA as member of the WTO61. It also has the advantage of incorporating all the discussions about NT interpretations in the AB of the WTO62. However, negotiators or adjudicators must consider the effects of certain varia-tions between the WTO NT text and the one that incorporated mu tatis mu tandis in the FTA. For instance, if the exception regarding national subsidies (Article III:8

60 Examples of other provisions incorporated mu tatis mu tandis are, as follow: i) An entire WTO Agreement: e.g. FTA Chile Turkey, Article 7 Classification and Valuation of Goods (.....) “2.For the purposes of deter-mining the customs value of goods traded between the Parties, provisions of Part I of the Agreement on Implementation of Article VII of the GATT 1994, as may be amended, shall apply mu tatis mu tandis”. ii) Copyright and Article 14.6 of the TRIPS Agreements: e.g. FTA, Peru US, Article 16.7: Obligations common to copyright and related rights (...) 2. Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mu tatis mu tandis, to the subject matter, rights, and obligations in Articles 16.5 through 16.7”.

61 It is essential to consider that this does not mean that Most Favored Nation applies. The mu tatis mu tandis provision establishes is a reference to the National Treatment bearing in mind that the NT under the spe-cifically FTA is the same as the NT under the WTO except for those details specifically established in each FTA.

62 For instance, in Japan – Alcoholic Beverages II, the Appellate Body establishes that “the purpose of Article III “is to ensure that internal measures “not be applied to imported or domestic products so as to afford pro-tection to domestic production. Toward this end, Article III obliges Members of the WTO to provide equality of competitive conditions for imported products in relation to domestic products.... It is irrelevant that “the trade effects” of the tax differential between imported and domestic products, as reflected in the volumes of imports, are insignificant or event non-existent; Article III protects expectations not any particu lar trade volume but rather of the equal competitive relationship between imported and domestic products...”. Ja-pan – Alcoholic Beverages II, pp.16-17, DSR 1996:I, 97, at 109-110 (WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R).



b) applies to the FTA, although most of the FTAs establish that Parties retain their rights regarding countervailing duties63 or the relation between the exception of government purchase obligation of Article III:8a and the Government Procurement Chapter of some FTAs64.

Also, could a measure be inconsistent with NT under an FTA and consistent with the same NT in the WTO or vice versa? For instance, in some FTAs the Par-ties have made reservations establishing that the NT shall not apply under the treaty in certain measures65. This is the case of the US Colombia FTA, in which Colombia established that NT shall not apply to the measures relating to the taxa-tion of alcoholic beverages until four years after the date of entry into force of this Agreement66. What if in a WTO panel between Colombia and a third country, the panel considers that the measure relating to the taxation of alcoholic beverages is inconsistent with the NT under the WTO?67 Given that it is the same NT provision mu tatis mu tandis, could it be two different interpretations of the same measure?68 In fact, because the provision is simi lar, almost identical, to the WTO treaty lan-guage, a subsequent FTA panel might have to interpret the NT language in accor-dance with these principles69. Moreover, once there is a decision of the WTO what

63 US Colombia FTA Article 8.8: Antidumping and Countervailing Measures.64 Some of the US FTAs include a Government Procurement Chapter, that establishes that “ With respect to

any measure covered by this Chapter, each Party shall accord unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favorable than the most favorable treatment the Party accords to domestic goods, services and supplies”. Article 9.2: General Principles, National Treatment and Non-Discrimination.

65 E.g. The FTA U.S. Peru, Annex 2.2 National Treatment and Import and Export Restrictions. Articles 2.2 and 2.8 shall not apply to: (a) measures of Peru governing the importation of used clothing and footwear, used vehicles and automotive motors, parts and replacements, and used goods, machinery, and equipment which utilize radioactive sources implementing Law No. 28514, Legislative Decree No. 843, Urgent Decree No. 079-2000, Supreme Decree No. 003-97-SA, and Law No. 27757 and any amendment to these laws or decrees, provided that the amendment does not decrease the conformity of the law or decree with the Agreement;3 and (b) actions authorized by the Dispute Settlement Body of the WTO.

66 United States Colombia FTA, Annex 2.2. Section A: Measures of Colombia, a).67 In Turkey Restrictions on Imports of Textile and Clothing Products, India argued, “the formation of a cus-

toms union is not “prevented” by the obligations set out in Article XI of the GATT 1994 and Article 2.4 of the ATC (25). WT/DS34.

68 To the extent that more and more commercial relations between countries are simultaneously under the WTO and FTAs, the chances that the same measure will be dispute in these two forums by two different countries are higher. For instance, in the NAFTA Chapter 20 case regarding the US Safeguard on Broom Corn Brooms from Mexico (USA-97-2008-01), the same measure was challenged by Colombia in the WTO. However, the case was only consulted. See WT/DS78/1.

69 Andrew D. Mitchell in his book Legal Principles in WTO Disputes analyzes the case of good faith and inherent jurisdiction: estoppel. He mentions how in the EC-Bed Linen (Article 21.5 – India), “India claimed that the European Communities was estopped “from advocating before us an interpretation of a provision of the AD Agreement which is different from the interpretation by the European Court of First Instance of a provision in the EC’s municipal anti-dumping law which is identical to the AD Agreement provision”” In this case, the Panel stated that “estoppel” based on national court decisions interpreting municipal laws does not limit the decisions of WTO panels interpreting a covered agreement. He argues that the Panel “could have dismissed this claim quite easily in the exercise of its inherent jurisdiction, relying on the doctrine of estoppel as part of the principle of good faith in international law”. In the case of a provisions incorporated

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would happen to the reserve in the FTA?70 Can Colombia continue to apply it to the other party under an FTA? Could a party reservation of a WTO provision in a FTA be inconsistent with Article XXIV GATT or Article V GATS? All the answers to these questions are beyond the scope of this document and have to be analysis on case-by-case basis. However, the mu tatis mu tandis effects might have some effects in the decision.

3.2. exceptions regarding goods and services and the necessity to establish what certain variations are necessary to Fit into the new circumstances

In numerous FTAs the Article XX, GATT, and Article XIV, GATS, are incorporated mu tatis mu tandis and applied to certain chapters of the treaty, respectively71. The use of these provisions mu tatis mu tandis allows the Parties to adopt the same structure than the WTO, avoiding differences that might lead to different interpre-tation of the exceptions72.

Depending on how narrowly or broadly the interpretation of the mu tatis mu-tandis and its certain variations from the WTO provisions be applied, it can lead to incomplete arrangements or confusion over the nature of the provisions73. Let’s consider the requirements of the Chapeau and the application of a measure in an FTA. The Appellate Body has stated, the word “discrimination” in Article XX GATT covers discrimination between products from different supplier countries and dis-crimination between imported and domestic products74. Therefore, under an FTA it will be necessary to establish what discrimination in application qualifies as ar-

mu tatis mu tandis, this argument seems stronger. See, Andrew D. Mitchell, Legal Principles in WTO Dispu-tes, 129-130 (Cambridge, 2009).

70 Other exceptions that usually has been included is that the NT established in an FTA shall not apply to the retaliatory actions by the Party authorized by the Dispute Settlement Body of the WTO. Thus, the power of the WTO DS in a dispute between the two parties of an FTA remains intact avoiding a potential conflict. (See, FTA Chile United States Annex 3.2.)

71 Article XX, GATT, generally applies to chapter regarding National Treatment and Market Access for Goods, Textiles and Apparel, Rules of Origin and Origin Procedures, Customs Administration and Trade Facilita-tion, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade. Article XIV, GATS, generally applies to Cross-Border Trade in Services, Telecommunications, and Electronic Commerce. Usually, in the US FTA this exception does not applied to Financial Services. (e.g. US Singapore FTA, Article 21.1.2).

72 For example, Bradly J. Condon,in his article The EU – Mexico FTA, concludes that the changes in Article 22 of that treaty made to the interpretative context of GATT Article XX may result in divergent interpreta-tions of these two provisions and the general exceptions they contain. It is important to mention that this FTA does not incorporate these exceptions mu tatis mu tandis. See, Bradly J. Condon, EU – Mexico FTA: Case Study, in Bilateral and Regional Trade Agreements: Commentary, Analysis and Case Studies, 74-96 (Simon Lester and Bryan Mercurio, eds, London: Cambridge University Press, 2009).

73 E.g. Some FTAs incorporated the entire Article, other as the FTA Australia-Thailand establish that “Article XX (e) — (g) of GATT 1994 is incorporated into and made part of Chapter 9, mu tatis mu tandis”. (Article 1601). The question here will be to establish if the chapeau applies or not.

74 US-Gasoline, WT/DS2/AB/R, para 23.



bitrary or unjustifiable. However, if only the other Party in an FTA is the one trea-ted differently, does only the discrimination between FTAs products the one that qualifies as arbitrary? What about the discrimination between products from diffe-rent supplier countries? How the “between countries where the same condition prevail” of Article XX, GATT, applies in an FTA? Is it one of the mu tatis mu tandis’ variations that have to be adjusted? For a country with several FTAs, does that means that it will have to impose the measure to various FTAs in which the same conditions prevail?

3.3. applying Wto safeguard’s Discipline to bilateral safeguards

Strengthening adherence to WTO disciplines is one possible explication of esta-blishing the mu tatis mu tandis procedure and injury provisions of the Agreement on Safeguards in the FTA’s bilateral safeguards. Interestingly, it was with the sa-feguard provisions that the mu tatis mu tandis incorporation of WTO provisions first began to be used in FTAs, specifically in the US Jordan FTA.

Probably, as a result of the NAFTA decision on US Safeguard Action taken on Broom Corn Brooms from Mexico, US FTA began to include mu tatis mu tandis as an option. In that dispute, Mexico claimed that the measure violated articles 801 (1) and 805 NAFTA, or 4 of the WTO Safeguard Agreement75. At the end, Mexico won the case, but the important thing for purpose of this document is that one of the findings was that “since the NAFTA (Annex 803.3(12)) and WTO ver-sions of the rule (3.1. of the WTO Safeguards Code) are substantively identical, application of the WTO version of the rule would have in no way change the legal conclusion reached under NAFTA”76. Future will tell us if the mu tatis mu tandis pur-pose and the reason to include it in FTAs will follow the same path under a dispu-te that those who were sought by FTA’s negotiators.

4. conclusionThe use of the mu tatis mu tandis provision increases the institutional relations-hip between FTAs and the WTO. Nevertheless, its use represents an additional interpretative burdensome in the application of WTO provisions under an FTA in an eventual controversy. Indeed, a strict mu tatis mu tandis interpretation of certain WTO provisions might lead to their inapplicability when found under the scope of the FTA. However, even in the recently signed Transpacific Partnership Treaty (TPP), this expression is being used as a relevant tool to incorporated WTO arti-

75 USA-97-2008-01 US Safeguard Action Taken on Broom Corn Brooms from Mexico.76 Id, 283.

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cles such as national treatment77; import and export restrictions78 or certain Safe-guard provisions79 to the treaty.

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