Dispute Settlement under the World Trade Organisation

Ms. Prewprae CHUMRUM

Dept. of Trade Negotiations

Ministry of Commerce

6/27/2012

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Dispute Settlement under the World Trade OrganisationMs. Prewprae CHUMRUMDept. of Trade NegotiationsMinistry of Commerce

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Dispute Settlement in the WTO:Aim

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)

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Dispute Settlement in the WTO: ObjectivesThe WTO dispute settlement system serves to preserve the rights and obligations of Members under the WTO Agreement and to clarify the existing provisions of the WTO Agreement in accordance with customary rules of interpretation of public international law.

Preferred outcome:

• To reach a mutually agreed solution

If not,

• Panel Proceeding ….

• *….and AB review.]

And then,

• Implementation, or ….

• Retaliatory trade sanctions may be imposed

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Dispute Settlement in the WTO:Scope

An integrated system:

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)

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Dispute Settlement in the WTO:Main characters

Parties to the dispute: WTO Members only

Dispute Settlement Body

(all the Members)

Panel

( 3 or 5 panelists)

Appellate Body

(7 persons)

WTO & AB Secretariats

Complainants

Respondents

*This statistics counts only standard DSU complaints, not those brought under Article 21.5 and counts each DS Number assigned by the WTO Secretariat as a separate complaint. Also, note that some complaints have been filed by multiple Members acting jointly.

*This statistics counts only standard DSU complaints, not those brought under Article 21.5. Also, not that the statistics counts each DS Number assigned by the WTO Secretariat as a separate complaint.

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Consultations

Panel

Appeal

Adoption

Implementation

How are disputes settled?Consultation

EstablishmentOf a Panel

Panel Report

Appellate Review

Implementation

Compliance Panel

Compensation/Suspension

Of Concession

Mutually agreed solutionduring Consultations: SettlementMutually agreed solution

during Panel Procedure: Settlement Party complaint against

wins and no Party appeals: Settlement

Party complaint against wins : Settlement

Complaining Party winsand no Party appeals

Complaining Party acceptsimplementation: Settlement

Complaining Partyasks for compliance Review

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Dispute Settlement in the WTO:Consultations

• Who?

– One or more Members (complainants) against another Member (respondent)

– Possibility for third party Members to join

• Confidential process

• Minimum time limits for complainant

Consultations• The objective is to allow parties to obtain satisfactory

adjustment (to solve the dispute amicably) of the matter before resorting to further actions.

• The complaining party may make a written request for

consultations to the party complaint against and enter into consultations in good faith.

• Reply within 10 days /enter into consultations within 30 days after receipt of such request unless otherwise agreed.

• Parties fail to settle a dispute within 60 days/ Parties jointly consider that consultations have failed to settle the dispute.

• Trigger the right of the complaining Party to proceed directly for establishment of the Panel.

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3rd Party in consultations

The member other than parties to the dispute may request to join the consultations if:

• that member has a substantial trade interest

• The party complaint against agrees to

Consultations According to Agreement at Issue

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Good Offices, Conciliation and Mediation

• To be taken voluntarily

• Confidential and does not preclude either Party to continue dispute settlement procedures.

• May be requested / terminated at any time.

Establishment 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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3rd party in Panel process

The member other than parties to the dispute may request to join the consultations if:

• that member has a substantial interest (different to the consultations stage)

Panels

• Where the Members concerned cannot find a mutually agreed solution through consultations, the DSB must, at the request of a party to the dispute,

establish a panel of three to five independent trade experts appointed on an ad hoc basis.

• The panel must review the factual and legal aspectsof the case and submit a report to the DSB.

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Terms 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

Functions of the Panels

“…a panel should make an objective assessmentof 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…”

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Panel Procedures

• 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 WTO:Panel Procedures: deadlines

Establishment of a panel

Composition of a panel

Final Report circulated

max. 6 months

max. 9 months

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Panel 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)

Panel Procedures: duration

• As a general rule, 9 months from establishment of panel to consideration of report for adoption (if no appeal)

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Adoption of Panel Reports

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

• Unless either/ both parties appeal

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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”

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Appellate Body

• Appellate Body composed of a permanent group of seven experts in trade issues and trade law. Three of them (called a Division) serve on any one case.

• If a party files an appeal against the report of the panel, the Appellate Body shall review the issues of law only

• Only parties to the dispute (not 3rd party) can appeal

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• Notice of Appeal

• Written Submissions

• Oral Hearing

• Exchange of Views

• Circulation of the Report

Dispute Settlement in the WTO:Appellate Procedure

60/90 days

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Appellate 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 negative consensus within 30 days of circulation to Members

Implementation

• DSB adopt the Appellate Body report

• The party complaint against must bring the certain measures or actions into conformity with WTO regulations within “Reasonable Period of Time: RPT”

• RPT length is within 15 months or not later than 18 months.

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Dispute Settlement in the WTO:Implementation

• What if it cannot be implemented immediately?

Determination of “reasonable period of time” for implementation (Guideline: 15 months)

• Is it properly implemented?

If there is disagreement, refer to compliance panel (original panel preferred) under Article 21.5

Non-Compliance

• In case rulings are not implemented within the

RPT, the parties to the dispute shall enter into negotiations on mutually acceptable

compensation.

• If no such compensation has been agreed upon within 20 days after expiry of the RPT, complaining party may seek authorisation from the DSB to suspend concessions or obligations vis-à-vis the party complaint against.

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Dispute Settlement in the WTO:Surveillance and Implementation

• Surveillance by the DSB: Status reports on implementation

• If Member fails to bring measure into conformity within reasonable period of time, possibility of temporary measures : compensation or “suspension of concessions” (retaliation)

Disputed Compliance

• Complaining party may request the original panel (Compliance Panel) to consider whether the alleged measures has been correctly implemented

• The compliance panel should circulate

its report within 90 days after such request.

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Dispute Settlement cases of Thailand under DSU

• Thailand brings dispute cases to WTO, till now; 19 cases (including as a 3rd party)

• Dispute cases recently ended

(1) EC-Sugar

(2) EC-Salted boneless chicken cuts

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Dispute Settlement in the WTO:Facts 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

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Dispute Settlement in the WTOTrends?

• 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 Case Studies

DISPUTES ON AGRICULTURE PRODUCTS

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EC Customs Classification of Frozen Boneless Chicken Cuts

Parties

• Complainants: Brazil and Thailand

• Respondent: EC

• Third Parties: Brazil (in complaint by

Thailand), China, Thailand (in

complaint by Brazil), U.S.

Product at issuefrozen boneless chicken cuts that have been deeply and homogeneously impregnated with salt, with the salt content of 1.2%-3%

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Background

• On July 2002, the EC enacted the new regulations resulting in reclassifying frozen boneless chicken cuts impregnated with salt from item no. 02 10 90 20 which are subject to a final bound duty rate of 15.4% ad valorem to item no. 02 07 41 10 which are subject to a bound specific rate of 1024 ECU/T (or approx. 53%).

• The EC considered that “salting” within the meaning of heading 0210, is a process used for long-term preservation.

Complainants’ argumentThrough EC regulations, the EC acted inconsistently with GATT Article II by according less favorable

treatment to the products at issue that provided for in the EC Schedule.

• Whether the concession includes the requirement that salting is for preservation and, more particularly, is for long-term preservation

– Complainants: the preparation– Respondent: the preservation

The main issue

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The Panel/AB’s consideration

• The Vienna Convention Art.31 and 32

– Ordinary meaning

– Context

– Matters to be taken into account together

with the context: Subsequent practice

– Object and purpose

– Supplementary means of interpretation

Findings (1)

• The term “salted” includes the product at issue.

• Reject the EC’s argument that the key element of heading 0210 is the preservation.

• The product at issue is covered by the concession contained in heading 0210 of the EC’s schedule.

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Findings (2)

• The EC measures treat the products at issue as if they are under heading 0207 and subject them to the tariff which is potentially higher than that provided in heading 0210 and which has exceeded the tariff rate set out in heading 0210.

• The products at issue are not being accord the treatment provided for the heading 0210 of the schedule. The EC is, thus, violated Article II GATT.

Implementation

• The EC shall bring its measure into conformity with its obligation under the GATT by 27 June 2006.

• The EC has published Commission Regulation (EC) No.949/2006 adopted on 27 June 2006 in order to bring its measure into conformity.

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ECTrade Description of Sardines

Parties• Complainant: Peru

• Respondent: EC

• Third Parties: Canada, Chile, Colombia, Ecuador, Venezuela, U.S.

Product at issue

• Sardina pilchardus Walbaum

• Sardinops sagax sagax

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Background

• The EC has adopted Council Regulation (EEC) No.2136/89 of 21 June 1989 laying down common marketing standards for preserved sardines.

• The regulation concerned prevents Peruvian exporters to continue to use the trade description “sardines” for their product.

• Peru claimed the Codex Stan 94 as a relevant international standard to be used as the basis for the regulation.

Complainant’s argument

The EC regulation at issue is inconsistent with Article 2.4 of TBT Agreement as the EC did not use the

naming standard provided in Codex Stan 94 as a basis for its Regulation even though that standard

would be an effective and appropriate means to fulfil the legitimate objectives pursued by the Regulation.

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Points of Consideration (1)

• Whether the EC regulation at issue is a technical regulation under the TBT Agreement.

• Whether the Regulation does not contain a labeling requirement and does not concern preserved Sardinops Sagax.

• Whether Codex Stan 94 is a relevant international standard.

Points of Consideration (2)

• Whether Codex Stan 94 is used as a basis for the technical regulation.

• Whether Codex Stan 94 would be an ineffective or in appropriate means for the fulfilment of the legitimate objectives pursues.

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Findings

The EC Regulation is inconsistent with Article 2.4 of the TBT Agreement.

USImport Prohibition

of

Certain Shrimp and Shrimp product

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Parties

• Complainants: India, Malaysia, Pakistan and Thailand

• Respondent: U.S.

• Third Parties: Australia, Colombia, Costa Rica, El Salvador, EC, Guatemala, Hong Kong, Japan, Mexico,

Nigeria, the Philippines, Senegal, Singapore, Sri Lanka, Venezuela

Background

The U.S. enacted Section 609 of Public Law 101-102 which prohibits the importation, to the U.S., of shrimp harvested, in all foreign nations, with technology that may affect certain sea turtles unless such harvesting nations are certified that they use the means specified in the Guideline which includes turtle excluder devices (TEDs) or other regulatory program comparable to that of the U.S..

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Complainants’ argument

The embargo applied by the U.S. on the basis of Section 609 constitutes a prohibition or restriction on the importation of shrimp or shrimp products under Article XI:1 GATT.

The main issues

• Whether the U.S. prohibition on imported shrimp and shrimp products violates Article XI GATT

• Whether the import prohibition is not justified under Article XX GATT

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The Panel/AB’s considerations (1)

• Under Article XX GATT, it must be first determined whether a measure is justified under one of the sub-paragraph (a) – (j). If it is, the measure must then be evaluated for compliance with Article XX chapeau.

The Panel/AB’s considerations (2)

(1) Article XX(g) GATT

• the sea turtles constitute “exhaustible natural resources”.

• Section 609 is a measure “relating to” the conservation of an exhaustible natural resources.

• Section 609 is a measure made effective in conjunction with the restrictions on domestic harvesting of shrimp.

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The Panel/AB’s considerations (3)

(2) Article XX Chapeau

“ The purpose and object of the Article XX chapeau is generally the prevention of abuse of the exceptions of Article XX.

The language of the chapeau makes clear therefore that each of the exceptions in the Article XX, paragraph (a)-(j) is a “limited and conditional” exception from the substantive obligations contained in the other GATT provisions.”

The Panel/AB’s considerations (4)

The 1st requirement:

“ Such measures are not applied in the manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail..”

The application of the U.S. measure

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The Panel/AB’s considerations (5)

• The U.S. measure is applied in the manner which would constitute a means of “unjustifiable” discrimination between the countries where the same conditions prevail.

- Unilateral nature of the decision-making respecting the grant, denial or withdrawal of certification.

- The failure of the U.S. to provide the serious, across-the-board negotiations.

Etc.

The Panel/AB’s considerations (6)

• The U.S. measure constitutes “arbitrary discrimination” between the countries where the same conditions prevail.

- Impose a single, rigid and unbending requirement

- Little or no flexibility in how officials make the determination for certification.

- No transparency, predictability in certification process.

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Findings

• The prohibition constitutes “arbitrary” and “unjustifiable” discrimination under Article XX chapeau.

• Therefore, the U.S. prohibition cannot be justified by Article XX and the violation of Article XI cannot be justified.

References

• www.worldtradelaw.net

• www.wto.org