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105 Imagine that the United States and Malaysia had settled the Shrimp/turtle dispute and agreed, among other things, that the United States can continue the imposition, as against Malaysia, of otherwise WTO inconsistent measures. S. measures, not take account also of this bilateral settlement and on that basis decline to find a WTO violation? In my view, it should. This position implies the qualification of WTO obligations as essentially bilateral obligations, see Pauwelyn (2003c). 106 A WTO panel should examine whether this is, indeed, the case and may thereby have to interpret the provisions of the other treaty.

Second, a WTO dispute between EU members may also activate Article 229 of the EC Treaty. 48 Conse45 46 47 48 See Case 22/70, Commission v Council (‘ERTA’): ‘... each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’ ([1971] ECR 263, paragraph 17).

2000), 1141. Panel report on Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 13 May 2003 (not appealed), paras. 37 et seqq. Ibidem, fn. 53. How to Win a WTO Dispute Based on Non-WTO Law? 35 panel85, it used the following three conditions for estoppel to be activated: ‘(i) a statement of fact which is clear and unambiguous, and which (ii) is voluntary, unconditional, and authorized, is (iii) relied on in good faith’. When applying the first condition, the panel did not consider ‘that Brazil has made a clear and unambiguous statement to the effect that, having brought a case under the MERCOSUR dispute settlement framework, it would not subsequently resort to WTO dispute settlement proceedings.

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