Dispute settlement in the World Trade Organization

Dispute settlement is regarded by the World Trade Organization (WTO) as the central pillar of the multilateral trading system, and as the organization's "unique contribution to the stability of the global economy".[1] A dispute arises when one member country adopts a trade policy measure or takes some action that one or more fellow members considers to a breach of WTO agreements or to be a failure to live up to obligations. By joining the WTO, member countries have agreed that if they believe fellow members are in violation of trade rules, they will use the multilateral system of settling disputes instead of taking action unilaterally — this entails abiding by agreed procedures (Dispute Settlement Understanding) and respecting judgments, primarily of the Dispute Settlement Body (DSB), the WTO organ responsible for adjudication of disputes.[2] A former WTO Director-General characterized the WTO dispute settlement system as "the most active international adjudicative mechanism in the world today."[3]

Dispute Settlement Understanding

Prompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.
— World Trade Organization, Article 21.1 of the DSU

In 1994, the WTO members agreed on the Understanding on Rules and Procedures Governing the Settlement of Disputes or Dispute Settlement Understanding (DSU) (annexed to the "Final Act" signed in Marrakesh in 1994).[4] Pursuant to the rules detailed in the DSU, member states can engage in consultations to resolve trade disputes pertaining to a "covered agreement" or, if unsuccessful, have a WTO panel hear the case.[5] The priority, however, is to settle disputes, through consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the full panel process.[2]

Duration of a Dispute Settlement procedure
These approximate periods for each stage of a dispute settlement
procedure are target figures
The agreement is flexible. In addition, the countries can settle
their dispute themselves at any stage.
Totals are also approximate.
60 daysConsultations, mediation, etc.
45 daysPanel set up and panellists appointed
6 monthsFinal panel report to parties
3 weeksFinal panel report to WTO members
60 daysDispute Settlement Body adopts report (if no appeal)
Total = 1 year (without appeal)
60–90 daysAppeals report
30 daysDispute Settlement Body adopts appeals report
Total = 1 year 3 months (with appeal)
Source:Understanding the WTO: Settling Disputes - A unique contribution

The operation of the WTO dispute settlement process involves the parties and third parties to a case and may also involve the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts, and several specialized institutions.[6] The General Council discharges its responsibilities under the DSU through the Dispute Settlement Body (DSB).[7] Like the General Council, the DSB is composed of representatives of all WTO Members. The DSB is responsible for administering the DSU, i.e. for overseeing the entire dispute settlement process. It also has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize the suspension of obligations under the covered agreements.[8] The DSB meets as often as necessary to adhere to the timeframes provided for in the DSU.[9]

From complaint to final report

If a member state considers that a measure adopted by another member state has deprived it of a benefit accruing to it under one of the covered agreements, it may call for consultations with the other member state.[10] If consultations fail to resolve the dispute within 60 days after receipt of the request for consultations, the complainant state may request the establishment of a Panel. It is not possible for the respondent state to prevent or delay the establishment of a Panel, unless the DSB by consensus decides otherwise.[11] The panel, normally consisting of three members appointed ad hoc by the Secretariat, sits to receive written and oral submissions of the parties, on the basis of which it is expected to make findings and conclusions for presentation to the DSB. The proceedings are confidential, and even when private parties are directly concerned, they are not permitted to attend or make submissions separate from those of the state in question.[12] Disputes can also arise under Non-violation nullification of benefits claims.[13]

The final version of the panel's report is distributed first to the parties; two weeks later it is circulated to all the members of the WTO. In sharp contrast with other systems, the report is required to be adopted at a meeting of the DSB within 60 days of its circulation, unless the DSB by consensus decides not to adopt the report or a party to the dispute gives notice of its intention to appeal.[14] A party may appeal a panel report to the standing Appellate Body, but only on issues of law and legal interpretations developed by the panel. Each appeal is heard by three members of the permanent seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. Members of the Appellate Body have four-year terms. They must be individuals with recognized standing in the field of law and international trade, not affiliated with any government. The Appellate Body may uphold, modify or reverse the panel's legal findings and conclusions. Normally appeals should not last more than 60 days, with an absolute maximum of 90 days.[15] The possibility for appeal makes the WTO dispute resolution system unique among the judicial processes of dispute settlement in general public international law.[16]

Members may express their views on the report of the Appellate Body, but they cannot derail it. The DSU states unequivocally that an Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties, unless the DSB decides by consensus within thirty days of its circulation not to adopt the report.[17] Unless otherwise agreed by the parties to the dispute, the period from establishment of the panel to consideration of the report by the DSB shall as a general rule not exceed nine months if there is no appeal, and twelve months if there is an appeal.[18]

Compliance

The DSU addresses the question of compliance and retaliation. Within thirty days of the adoption of the report, the member concerned is to inform the DSB of its intentions in respect of implementation of the recommendations and rulings. If the member explains that it is impracticable to comply immediately with the recommendations and rulings, it is to have a "reasonable period of time" in which to comply. This reasonable amount of time should not exceed 15 months.[19] If no agreement is reached about the reasonable period for compliance, that issue is to be the subject of binding arbitration; the arbitrator is to be appointed by agreement of the parties. If there is a disagreement as to the satisfactory nature of the measures adopted by the respondent state to comply with the report, that disagreement is to be decided by a panel, if possible the same panel that heard the original dispute, but apparently without the possibility of appeal from its decision. The DSU provides that even if the respondent asserts that it has complied with the recommendation in a report, and even if the complainant party or the panel accepts that assertion, the DSB is supposed to keep the implementation of the recommendations under surveillance.[20]

Compensation and retaliation

If all else fails, two more possibilities are set out in the DSU:

While such "retaliatory measures" are a strong mechanism when applied by economically powerful countries like the United States or the European Union, when applied by economically weak countries against stronger ones, they can often be ignored.[24] Whether or not the complainant has taken a measure of retaliation, surveillance by the DSB is to continue, to see whether the recommendations of the panel or the Appellate Body have been implemented.[25]

Developing countries

Like most of the agreements adopted in the Uruguay Round, the DSU contains several provisions directed to developing countries.[26] The Understanding states that members should give "special attention" to the problems and interests of developing country members.[27] Further, if one party to a dispute is a developing country, that party is entitled to have at least one panelist who comes from a developing country.[28] If a complaint is brought against a developing country, the time for consultations (before a panel is convened) may be extended, and if the dispute goes to a panel, the deadlines for the developing country to make its submissions may be relaxed.[29] Also, the Secretariat is authorized to make a qualified legal expert available to any developing country on request. Formal complaints against least developed countries are discouraged, and if consultations fail, the Director-General and the Chairman of the DSB stand ready to offer their good offices before a formal request for a panel is made.[30] As to substance, the DSU provides that the report of panels shall "explicitly indicate" how account has been taken of the "differential and more favorable treatment" provisions of the agreement under which the complaint is brought. Whether or not a developing country is a party to a particular proceeding, "particular attention" is to be paid to the interests of the developing countries in the course of implementing recommendations and rulings of panels.[31] In order to assist developing countries in overcoming their limited expertise in WTO law and assist them in managing complex trade disputes, an Advisory Centre on WTO Law was established in 2001. The aim is to level the playing field for these countries and customs territories in the WTO system by enabling them to have a full understanding of their rights and obligations under the WTO Agreement.[32]

Notes

  1. ↑ WTO "Understanding The WTO", World Trade Organization, accessed December 1, 2010.
  2. 1 2 Settling Disputes:a Unique Contribution, World Trade Organization
  3. ↑ S. Panitchpakdi, The WTO at ten, 8
  4. ↑ Stewart-Dawyer, The WTO Dispute Settlement System, 7
  5. ↑ A list of covered agreements is included in Appendix 1 to the DSU
  6. ↑ WTO Bodies involved in the dispute settlement process, World Trade Organization
  7. ↑ Article IV:3 of the WTO Agreement
  8. ↑ Article 2.1 of the DSU
  9. ↑ Article 2.3 of the DSU
  10. ↑ A.F. Lowenfeld, International Economic Law, 152
  11. ↑ Article 6.1 of the DSU
  12. ↑ A.F. Lowenfeld, International Economic Law, 153
  13. ↑ Faunce TA, Neville W and Anton Wasson A. Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas in a Rule-Based WTO Dispute Settlement System in Bray M (ed) Ten Years of WTO Dispute Settlement: Australian Perspectives. Office of Trade Negotiations of the Department of Foreign Affairs and Trade.Commonwealth of Australia. 123-140
  14. ↑ Article 6.1 of the DSU
  15. ↑ Article 17 of the DSU.
  16. ↑ M. Panizzon, Good Faith in the Jurisprudence of the WTO, 275
  17. ↑ Article 17.14 of the DSU.
  18. ↑ Article 20 of the DSU.
  19. ↑ Baker McKenzie (2013). "A4ID Legal Guide: Dispute Resolution at the WTO" (PDF). Advocates for International Development. Retrieved 15 August 2013.
  20. ↑ Article 21 of the DSU.
  21. 1 2 Article 22.2 of the DSU
  22. ↑ Article 22.3 and 22.4 of the DSU
  23. 1 2 Article 22.6 of the DSU
  24. ↑ Obijiofor Aginam, Food Safety, South-North Asymmetries, and the Clash of Regulatory Regimes, 40 Vand. J. Transnat'l L. 1099, 1112 (2007).
  25. ↑ Article 22.8 of the DSU
  26. ↑ A.F. Lowenfeld, International Economic Law, 174
  27. ↑ Article 4.10 of the DSU
  28. ↑ Article 8.10 of the DSU
  29. ↑ Article 12.10 of the DSU
  30. ↑ Article 24 of the DSU
  31. ↑ Article 12.11 of the DSU
  32. ↑ K. Van der Borght, The Advisory Center on the WTO Law, 723-728

References

See also

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