Intrigued by the Faroe Islands simultaneous WTO and UNCLOS complaints, I think I finally understand that the Faroe Islands hopes to benefits from a feature of UNCOS that is completely absent in the WTO dispute settlement process.
The fact is that the International Tribunal for the Law of the SEA (ITLOS) may be asked to prescribe suspensive provisional measures. Article 290 of UNCLOS specifies that “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction... the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”. These provisional measures are also possible “pending the constitution of an arbitral tribunal”, an unusual feature in the context of international Tribunals.
In contrast, at a 13 November 2002 meeting of the special session of the WTO’s Dispute Settlement Body (DSB), Mexico presented a proposal to address what Mexico said is the "fundamental problem" of the WTO dispute settlement system, namely the "period of time which a WTO- inconsistent measure can be in place without the slightest consequences" to the offending party. It is interesting to note that we have not heard recently a single word about this proposal.
I am wondering: Does a WTO panel has the competence to prescribe provisional measures suspending the contested measure during the panel process, in order to protect the complaining country?
