Dispute Settlement in the WTO

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Dispute Settlement in the WTO

• a central element in providing security and
  predictability to the multilateral trading
  system
• Article 3.2 DSU

Presented by Peter Morrison Trade in Services
Division WTO Secretariat
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Dispute Settlement in the WTOOverview

• Overall aim
• to secure compliance with the Agreements

• Quasi-judicial Nature
• Secured access
• Detailed procedures
• Automaticity in the proceedings
• Deadlines
• Possible appeal

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Dispute Settlement in the WTOScope

• An integrated system

• Applies to all the multilateral agreements
• A single set of rules for all disputes
• Only a few specific rules in some agreements

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Dispute Settlement in the WTOMain players

• Dispute Settlement Body (DSB)
• Panel and Appellate Body
• Parties WTO Members
• WTO Secretariat

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Dispute Settlement in the WTORelationship of
players
Ministerial Conference
Appellate Body
Dispute Settlement Body (General Council)
Panel
Request for Panel by WTO Member
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Dispute Settlement in the WTOMain Procedures
60 days
9 months
90 days
15 months
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Dispute Settlement in the WTOConsultations the
request

• Indicates reasons for the request identification
  of
• the measures
• legal basis for complaint
• Notified to DSB and circulated to all Members

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Dispute Settlement in the WTOConsultations
function

• to accord sympathetic consideration to and
  accord adequate opportunity for consultation
• confidential, only between the Members concerned

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Dispute Settlement in the WTOConsultations
third parties

• But, in some instances, other Members can request
  to be joined in the consultations Article 4.11
  DSU
• substantial trade interest

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Dispute Settlement in the WTOConsultations if
not successful

• If consultations fail to resolve the matter
  within 60 days from receipt of request..
• Or if no response or no entering into
  consultations
• . A request for establishment of a panel can be
  made

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Dispute Settlement in the WTOEstablishment of
panels

• Request for establishment
• must identify the specific measures at issue and
  provide a brief summary of the legal basis of the
  problem sufficient to present the problem
  clearly
• Establishment
• at the latest at the second DSB meeting at which
  the request is made decided by negative consensus

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Dispute Settlement in the WTOTerms of reference
and composition of panels

• Terms of reference
• (Article 7 DSU)
• Standard, or
• Special terms of reference

• Panel Composition
• (Article 8 DSU)
• well-qualified government and/or
  non-governmental individuals
• Secretariat proposals
• indicative list of panelists
• nomination by DG

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Dispute Settlement in the WTOPanels how they
function

• Functions of the Panel
• a panel should make an objective assessment of
  the
• matter before it, including an objective
  assessment of the
• facts of the case and the applicability of and
  conformity
• with the relevant covered agreements
• Functions of the dispute settlement system
• to preserve the rights and obligations of
  Members under the covered agreements, and to
  clarify the existing provisions of those
  agreements in accordance with customary rules of
  interpretation of public international law
  Art. 3.2 DSU

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Dispute Settlement in the WTO Panel Procedures
main steps

• Oral hearings (usually 2), on basis of written
  submissions
• Descriptive part of report issued to parties
• Interim review based on draft report
• Final report issued to parties
• Final report circulated to all Members

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Dispute Settlement in the WTOPanel Procedures
other sources of input

• Third parties have make presentations
• need substantial interest (Article 10 DSU)
• Panels may seek
• factual information from any relevant source
  (Article 13 DSU)
• scientific or technical advice from an Expert
  review group (Appendix 4 DSU)
• Requirement of confidentiality (Article 14 DSU)

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Dispute Settlement in the WTOPanel Procedures
duration

• As a general rule, 9 months from establishment of
  panel to consideration of report for adoption (if
  no appeal)
• 12 months where report is appealed
• (Article 20 DSU)

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Dispute Settlement in the WTOPanel procedures
Adoption of Panel Reports

• Adoption within 60 days of circulation, by
  negative consensus.

• Except if appealed

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Dispute Settlement in the WTOAppellate Review

• Appellate Body
• 7 members
• members to have recognized authority and
  expertise in international trade law
• members unaffiliated with any government

• Appeals limited to issues of law and legal
  interpretations developed by the panel
• Appeal only open to parties to the dispute

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Dispute Settlement in the WTOAppellate Review
report and adoption

• Report of the Appellate Body
• may uphold, modify or reverse the legal findings
  and conclusions of the panel (Art. 17.12 DSU)
• Adoption of Appellate Body report by reverse
  consensus within 30 days of circulation to Members

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Dispute Settlement in the WTOImplementation
If there is a finding of violation

• Member must bring the measures into conformity
  with its WTO obligations
• (Article 19 DSU)

• Member must inform DSB of its intentions in for
  implementation of the recommendations
• (Article 1 DSU)

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Dispute Settlement in the WTOImplementation
reasonable period of time

• Determination of reasonable period of time for
  implementation
• proposed by Member, and approved by DSB, or
• mutually agreed by the parties, or
• determined through arbitration
• guideline for the arbitrator 15 months from
  the date of adoption (Article 21.3 DSU)

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Dispute Settlement in the WTOImplementation
surveillance

• Surveillance by the DSB
• Status reports on implementation
• Temporary measures
• If Member fails to bring measure into conformity
  within reasonable period of time, possibility
• compensation or
• suspension of concessions (retaliation)

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Dispute Settlement in the WTO Implementation

• Compensation
• (Article 22 DSU)
• Voluntary
• Negotiated
• Compatible with WTO Agreements
• If no compensation agreed within 20 days after
  expiry of reasonable period of time.

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Dispute Settlement in the WTO Implementation

• Suspension of concessions
• when authorized?
• on expiry of 20 days after the end of the
  reasonable period of time
• which products?
• same sector/other sector/ other agreement
• level of suspension?
• equivalent to the level of nullification or
  impairment (Art. 22.4 DSU)
• arbitration on level of suspension, or principles
  of Art. 22.3 DSU

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Dispute Settlement in the WTO Performance to Date

• Requests for consultations 315
• Adopted reports 82
• Mutually agreed solutions 45
• Adopted compliance reports 12
• Authorization for suspension 7
• (retaliation)