Dispute Settlement
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Transcript of Dispute Settlement
Dispute SettlementGeneral Aspects of WTO Dispute Settlement
Russian Federation, September 2012Susan Hainsworth, ITTC, WTO
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Part 1: The historic roots of the WTO Dispute Settlement System(GATT 1947)
Part 2: The basic characteristics of the WTO Dispute Settlement System
In this session you will learn about...
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Historic roots of the WTODispute settlement System
(DS under the GATT 1947, 1947-1994)
Part 1
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How were disputes settled under the GATT 1947?
Nearly 50 years of dispute settlement under the GATT 1947 ...
Positive consensus in the GATT Council to refer a dispute to a Panel, and to adopt a Panel report
Articles XXII and XXIII of the GATT 1994
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Challenges under the GATT 1947 dispute settlement system
• Rule of positive consensus
– Referring a dispute to a panel, adopting a panel report, authorizing countermeasures
– Risk of veto– Diplomatic character
• Yet, good results
– 101 adopted reports / 132 issued reports– Empirical research
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Basic characteristics ofthe WTO DisputeSettlement System (1995 – currently)
Part 2
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What is the Dispute Settlement Understanding (DSU)?
• 1986 – 1994 Uruguay Round– Punta del Este Ministerial Declaration
• 1995 Establishment of the WTO
Annex 2 to the WTO Agreement: Dispute Settlement Understanding
Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement)
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DSU builds on Articles XXII and XXIII of the GATT 1947
Members affirm their adherence...
To the principles for the management of disputes applied under Articles XXII and XXIII of GATT 1947...
And the rules and procedures as further elaborated and modified in the DSU
Article 3.1 of the DSU
Main actors in the WTO Dispute Settlement System
Art 2 DSU, The Dispute Settlement Body (DSB) Administers the WTO Dispute Settlement SystemEstablishes panelsAdopts panel and Appellate Body reportsMaintains surveillance of implementationNon-implementation? Authorizes retaliatory measures
The panel 3 – 5 panelists, ad hoc body
The Appellate Body Standing body of 7 members, 4-year term
WTO and AB Secretariat Assist panels and the AB
Main actors in the WTODispute Settlement System
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How the Dispute Settlement System works
Panel Report Appellate Body
Establishes No appeal? DSB adopts the report
DSB adopts the reports
The Dispute Settlement Body,
All Members
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developments in the DSU
• Standing Appellate Body
• DSB establishes panels and adopts panel reports by negative or reverse consensus
– Difference from dispute settlement under the GATT 1947?
– Under the GATT 1947: positive consensus
• Surveillance of implementation
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Only WTO Members (153 as of November 2009)
Recourse to WTO dispute settlement: Who?
NOT NGOs, individuals (although may lobby governments – indirect access)
Right to bring claims
Appellate Body:– No DSU provision requiring “legal interest”– Members have a broad discretion whether or not to bring a case
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Recourse to WTO dispute settlement: Regarding what?
Disputes under the following agreements (so-called covered agreements, “CA”), must be resolved pursuant to the DSU WTO Agreement Multilateral Trade Agreements (GATT 1994 + 12 other agreements on trade in goods) GATS TRIPS DSU (Plurilateral Trade Agreements – subject to decision)
Appendix 1 to the DSU
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Recourse to WTO dispute settlement: When?
DS provisions of the Covered Agreements When recourse to dispute settlement
For example: Article 17 of the Anti-Dumping Agreement... Article 11 of the SPS Agreement... Article 14 of the TBT Agreement ...
DSU Rules concerning dispute settlement
procedure
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Integrated system for Dispute Settlement
Article 23 of the DSU ... A single set of rules for all disputes
Article 1.2 of the DSU, Appendix 2 to the DSU … Only a few special or additional rules in the covered agreements which prevail over the DSU. For example:
Article 4.4 of the SCM Agreement ... Consultation period 30 days rather than the standard 60 days
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Nature
• Compulsory jurisdiction
– Members obliged to bring disputes under the Covered Agreements to WTO dispute settlement
– Accession: Consent to accept jurisdiction
• Exclusive jurisdiction
– No other fora– No unilateral action
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Objectives
Security and predictability in international trade
Preserving Members’ rights and obligations
Clarifying the existing provisions of the CA
Article 3.2 of the DSU
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Objectives
Positive solution to a dispute
Preferred outcome: Mutually acceptable solution
Withdrawal of measures inconsistent with the covered agreements
Article 3.7 of the DSU
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• Panel proceedings
• (Appellate Body review)
• Inconsistent measures...
– Withdrawal– Compensation / Suspension of concessions
...and if no mutually agreed solution reached
Measure
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Alternative ways to resolve a dispute
Informal means of assisting in reaching a mutually acceptable solution ...At any time after request for consultations, parties’ agreement ...
Parties’ agreement ... Notification to all Members ...
Good offices, conciliation, mediation Article 5 DSU
Arbitration Article 25 DSU
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special and differential treatment
Consultations: Members should give special attention to the particular problems and interests of developing countries... Article 4.10 of the DSUExtending consultation periods and according “sufficient time” to prepare argumentation... Article 12.10 of the DSUPanel composition: Panelist from developing country Member... Article 8.10 of the DSUAll stages: Members “shall give” particular consideration to the special situation of LDCs... Article 24 of the DSUAdditional legal advice from the Secretariat... Article 27 of the DSURight to invoke the provisions of the Decision of 5 April 1966 ... Article 3.12 of the DSU
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Main Stages
Good offices, conciliation and
mediation possible at any
moment
Consultations60 days
Panel review6 – 9 monthsAB review 60 – 90 days
Adoption of report by the DSB
Implementation
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Thank you!