08wtodsuremy
•
3 likes•399 views
The document provides an overview of dispute settlement in the World Trade Organization (WTO). It describes the structure and key features of the WTO dispute settlement system, including the following: - Disputes are settled through consultations, panel proceedings, appeals, and implementation under surveillance of the Dispute Settlement Body. The aim is to reach a mutually agreed solution or authorize retaliation as a last resort. - The process aims to preserve members' rights and obligations under WTO agreements through compulsory jurisdiction, strict deadlines and procedures, and quasi-judicial resolution of disputes. - The Appellate Body, comprised of 7 independent experts, can review issues of law in panel reports to provide security and predictability in
Recommended
More Related Content
What's hot
What's hot (19)
Viewers also liked
Similar to 08wtodsuremy
Similar to 08wtodsuremy (20)
Recently uploaded
Recently uploaded (20)
08wtodsuremy
- 1. 1 Presented by: Jan Yves Remy Appellate Body Secretariat Enforcing the Agreements:Enforcing the Agreements: DDISPUTEISPUTE SSETTLEMENT IN THEETTLEMENT IN THE WTOWTO
- 2. 2 Structure of the WTO AgreementStructure of the WTO Agreement WTO Agreement GATT GATS TRIPS Trade Policy Review Dispute Settlement A A A A A A A A
- 3. 3 • Agriculture • Sanitary and Phytosanitary Measures • Technical Barriers to Trade • Trade-related Investment Measures • Anti-Dumping • Rules of Origin • Valuation • Import Licensing • Subsidies and Countervailing Measures • Safeguards WTO GATT GATS TRIPS TPRMDSU
- 4. 4 Dispute Settlement under the GATT 1947Dispute Settlement under the GATT 1947 • Articles XXII and XXIII of GATT 1947Articles XXII and XXIII of GATT 1947 – Very limited rules – Central concept was “nullification and impairment” of benefits flowing from the agreement • Diplomatic character of dispute settlementDiplomatic character of dispute settlement: No judicial arm, rather all matters were within powers of GATT Contracting Parties • ““Evolved” practice under GATT 1947Evolved” practice under GATT 1947
- 5. 5 Dispute Settlement in the WTO: AimAim • Dispute Settlement Understanding:Dispute Settlement Understanding: – Mechanism aimed at securing compliance with the Covered Agreements (CA) – Preserves the rights and obligations of Members under the CA (Art 3.2 DSU)
- 6. 6 New innovations of the DSUNew innovations of the DSU • More detailed procedures for the various stages of dispute • Appellate review of panel reports and surveillance of implementation by the DSB
- 7. 7 Dispute Settlement in the WTO: ObjectivesObjectives To secure a “positive solution” to the dispute. (Art. 3.7 DSU) • Preferred outcome:Preferred outcome: – To reach a mutually agreed solution • If not,If not, – Panel Proceeding …. – [….and AB review.] • And then,And then, – Implementation, or …. – Retaliatory trade sanctions may be imposed
- 8. 8 Dispute Settlement in the WTO: ScopeScope • An integratedAn integrated systemsystem: • Applies to all the WTO multilateral agreements (Appendix 1) • A single set of rules for all disputes (Art 23) • Only a few special or additional rules in some CA (Appendix 2)
- 9. 9 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Main FeaturesMain Features • compulsory jurisdictioncompulsory jurisdiction • detailed procedures and deadlinesdetailed procedures and deadlines • ““complainant-driven”complainant-driven” • ““quasi-judicial”quasi-judicial” • ““automaticityautomaticity”
- 10. 10 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Main charactersMain characters • Parties to the dispute: WTO Members onlyParties to the dispute: WTO Members only • Dispute Settlement Body (all the Members)Dispute Settlement Body (all the Members) • Panel ( 3 or 5 panelists)Panel ( 3 or 5 panelists) • Appellate Body (7 persons)Appellate Body (7 persons) • WTO & AB SecretariatsWTO & AB Secretariats
- 12. 12 Dispute Settlement in the WTO: ConsultationsConsultations • Who?Who? – One or more Members (complainants) against another Member (respondent) – Possibility for third party Members to join • Confidential processConfidential process • Minimum time limits for complainantMinimum time limits for complainant
- 13. 13 Dispute Settlement in the WTO: PanelsPanels • Establishment of aEstablishment of a panelpanel: Automatic • CompositionComposition “well-qualified government and/or non- governmental individuals” • 6 months or 9 months to issuance of final report • Process confidential, report public
- 14. 14 Dispute Settlement in the WTO:Dispute Settlement in the WTO: The “matter” in disputeThe “matter” in dispute • The specificThe specific measures at issuemeasures at issue • TheThe legal basislegal basis (claims)(claims)
- 15. 15 Dispute Settlement in the WTODispute Settlement in the WTO: The MandateThe Mandate Panel RequestPanel Request Measures Claims MandateMandate JurisdictionJurisdiction Inform the partiesInform the parties for their defencefor their defence Matter
- 16. 16 Dispute Settlement in the WTO: Panel Procedures: deadlines Establishment of a panel Composition of a panel Final Report circulated max. 6 months max. 9 months
- 17. 17 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Adoption of Panel Reports Art. 16 DSUArt. 16 DSU • Panel reports not considered for adoption until 20 days after circulation • Adoption within 60 days of circulation, unless negative consensus…. … ExceptExcept ifif appealedappealed
- 18. 18 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Appellate Review • WTO dispute settlement system innovation • Rules applicable to Appellate Review – Dispute Settlement Understanding (Article 17; Article 16.4; Articles 1, 3, 18 and 19) – Working Procedures for Appellate Review – Rules of Conduct
- 19. 19 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Appellate Body Members • A standing body of 7 Members • Appointment by DSB • 4-year term, renewable once • Requirements – authority and expertise in international trade law – “unaffiliated with any government”
- 20. 20 “broadly representative of membership” – Art. 17.3 DSU Dispute Settlement in the WTO:Dispute Settlement in the WTO: Appellate Body Members
- 21. 21 Dispute Settlement in the WTO: Appellate BodyAppellate Body
- 22. 22 Dispute Settlement in the WTO:Dispute Settlement in the WTO: Article 17 DSUArticle 17 DSU • WHAT?WHAT? appeals limited to “issues of law and legalappeals limited to “issues of law and legal interpretations” developed by the panel, includinginterpretations” developed by the panel, including “cross-appeals”“cross-appeals” • WHO?WHO? appeal only open to parties to the disputeappeal only open to parties to the dispute • WHEN?WHEN? Appeal must be commenced no later thanAppeal must be commenced no later than 60 days after the Panel Report is circulated to60 days after the Panel Report is circulated to Members; takes 60-90 daysMembers; takes 60-90 days
- 23. 23 • Notice of AppealNotice of Appeal • Written SubmissionsWritten Submissions • Oral HearingOral Hearing • Exchange of ViewsExchange of Views • Circulation of the ReportCirculation of the Report Dispute Settlement in the WTO:Dispute Settlement in the WTO: Appellate ProcedureAppellate Procedure 60/90 days
- 24. 24 • Adoption by the DSB of the Panel Report, as upheld, modified or reversed, by the Appellate Body Report • Within 30 days circulation (60 days if no appeal) • Negative consensus Dispute Settlement in the WTODispute Settlement in the WTO: Adoption by the DSBAdoption by the DSB
- 25. 25 Dispute Settlement in the WTO: ImplementationImplementation • What if it cannot be implementedWhat if it cannot be implemented immediately?immediately? Determination of “reasonable period of timereasonable period of time” for implementation (Guideline: 15 months) • Is it properly implemented?Is it properly implemented? If there is disagreement, refer to compliance panel (original panel preferred) under Article 21.5
- 26. 26 Dispute Settlement in the WTO: Surveillance and ImplementationSurveillance and Implementation • Surveillance by the DSBSurveillance by the DSB: Status reports on implementation • If Member fails to bring measure into conformity within reasonable period of time, possibility of temporary measures : compensationcompensation or “suspension of concessionssuspension of concessions” (retaliation)
- 27. 27 Dispute Settlement in the WTO: Facts and FiguresFacts and Figures • Requests for consultations: 363 • Mutually agreed solutions: 83 • Panels established: 148 • Panels composed: 129 • Panel reports: 110 • Appellate Body reports: 68 • Compliance panels: 23 • Appeals from compliance panels: 14 • Arbitrations on "retaliation" : 16 • Authorizations to "retaliate" : 7
- 28. 28 Dispute Settlement in the WTO Selected Disputes in ProgressSelected Disputes in Progress • Continued EC Hormones Dispute • New Bananas dispute • Zeroing disputes • EC/US cases on aircraft subsidies
- 29. 29 Dispute Settlement in the WTO Trends?Trends? • Increasing composition of panels by DG • Increasing number of compliance cases • Decreasing rate of appeal • Increasing use of dispute settlement system by developing countries • Private lawyers / pro bono / ACWL
- 30. 30 Dispute Settlement in the WTO: The Doha MandateThe Doha Mandate • Doha Declaration, paragraph 30: – “improvements and clarifications” – Original May 2003 deadline, extended to May 2004, then July 2004 Package. Negotiations suspended second half 2006, then resumed. • Continued negotiations outside the single undertaking, but on what basis and what timeframe?
- 31. 31 Dispute Settlement in the WTO: Selected Issues in the NegotiationsSelected Issues in the Negotiations • Streamlining procedures at consultation and panel stages • “Transparency” • Remand? • Enhance Special & Differential treatment? • Implementation – Sequencing – Remedies (compensation, retaliation)
- 32. 32 Dispute Settlement in the WTODispute Settlement in the WTO Final ThoughtsFinal Thoughts • What changes needed and how extensive? • Relationship dispute settlement/decision- making? • Relationship dispute settlement/rule-making (negotiations)? • Bottom line: system is being used and is working -- security and predictability
Editor's Notes
- Under the old GATT dispute settlement process, there were very limited rules on dispute settlement. These rules, set out in Articles XXII and XXIII of the GATT, called for consultations to be held on disputed matters, and, in the event that consultations did not lead to a satisfactory resolutions, for bilateral disputes to be referred to and settled by all of the contracting parties to the GATT. The central concept in GATT dispute settlement was the concept of "nullification and impairment" of the benefits that should flow from the agreement. Normally, when there is a breach of the rules contained in the GATT by one party, it was presumed that such a breach will cause "nullification and impairment", or have an adverse impact on, another GATT party or parties. The adversely affected country could then bring the matter to dispute settlement. It is worth noting that this early form of dispute settlement involved multilateral resolution of disputes, that is, dispute settlement was on a GATT-wide basis, that involved all of the contracting parties. A second point to note is that the original GATT did not involve any separation of the dispute settlement process from the usual business of the parties. There was no judicial arm that acted independently under its own authority. Rather, all matters, including dispute resolution, were within the powers of the GATT contracting parties. In a sense, then, the original GATT system was relatively informal, mainly because, at the time, dispute settlement was viewed as much more a matter of diplomacy, rather than a matter of law alone. Over time, this system evolved through practice. The CONTRACTING PARTIES to the GATT delegated the examination of disputes to specialist sub-committees, known, first as working parties, and then later called panels. Gradually, procedures became more formal and panels began to base themselves on the legal rules contained in the GATT and in subsequent agreements, and to build up a body of interpretative guidance for the parties. Dispute settlement was based on an independent examination of particular problems by trade specialists. However, the GATT system of dispute settlement retained an important diplomatic character. Panel reports had no independent binding authority. Rather, panels always reported back to the GATT parties, which were then faced with a decision as to what to do with each panel report. Inevitably, that decision often became very political. Under the GATT system, the findings made by a panel would only have legal effect and become binding on the parties to the dispute if the panel's report was adopted by the CONTRACTING PARTIES. A report could only be adopted by consensus. In other words, if a single party to the GATT objected, the report was not adopted. As a result, many panel reports were not adopted because they were blocked – often by the losing party – for political reasons. This mechanism created a large degree of uncertainty for countries using the GATT dispute settlement mechanism, since even if they were to prevail on the merits of the case, a single objection could prevent the report from becoming binding. The principle of a rules-based system was often sacrificed due to political impasse. Some people also believe that this structure created a strong incentive for panels deciding cases to try to reach an outcome that would have "a little bit of something for everyone". In other words, if panels did not identify clear winners or clear losers, there would be a greater chance of achieving the political consensus necessary to adopt a report.
- Brazil – Deseccated Coconut, Pgs. 21-22 WT/DS22/AB/R A panel's terms of reference are important for two reasons. First, terms of reference fulfil an important due process objective -- they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute. We agree, furthermore, with the conclusions expressed by previous panels under the GATT 1947, as well as under the Tokyo Round SCM Code and the Tokyo Round Anti-dumping Code, that the "matter" referred to a panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference.[1] We agree with the approach taken in previous adopted panel reports that a matter, which includes the claims composing that matter, does not fall within a panel’s terms of reference unless the claims are identified in the documents referred to or contained in the terms of reference. [1]United States - Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, BISD 39S/128, adopted 19 June 1992, para. 6.2; EC - Imposition of Anti‑dumping Duties on Imports of Cotton Yarn from Brazil, ADP/137, adopted 30 October 1995, para. 456; United States - Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, SCM/153, adopted 28 April 1994, para. 212; United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87, adopted 26-27 April 1994, para. 336. India – Patents (US), WT/DS50/AB/R, para. 92 The jurisdiction of a panel is established by that panel's terms of reference, which are governed by Article 7 of the DSU. A panel may consider only those claims that it has the authority to consider under its terms of reference. A panel cannot assume jurisdiction that it does not have.