In the new draft SCM, Annex VIII on fisheries Subsidies appears, as indicated by its name, as a simple Annex which is an integral part of the draft SCM by virtue of Article 32.8 of this draft.
This is however a fiction since Annex VIII on fisheries subsidies is in fact a mini-treaty which is inserted in the SCM.
What is then the relationship between this mini-treaty and the rest of the SCM? The new draft SCM is silent on this point. There is a conflict clause between GATT 1994 and the SCM which gives precedence to the SCM to the extent of a particular conflict, and in my view, negotiators should include in Annex VIII a conflict clause giving precedence to Annex VIII in case of a particular conflict with the rest of the SCM. This would avoid many headaches in the future to panel and AB members, who in the absence of a conflict clause, would have to resort to a tortuous reasoning invoking the not very well established lex specialis doctrine in order to give precedence to Annex VIII in case of a limited conflict with the rest of the SCM and its case law.
In sum, it must be clear that, in case of a conflict, the most recent rights and obligations relating to the discipline of fisheries subsidies are to be found in Annex VIII.
