Intro Wto Disput Settle

8/12/2019 Intro Wto Disput Settle

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Dispute Settlement in the WTO

a central element in providing securityand predictability to the multilateraltrading system

Article 3.2 DSU

Presented by: Peter Morrison

Trade in Services Division

WTO Secretariat


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Dispute Settlement in the WTO:

Overview

Overall aim:

to securecompliance with

the Agreements

Quasi-judicialNature

Secured access

Detailedprocedures

Automaticity in theproceedings

Deadlines

Possible appeal


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Scope

An integratedsystem:

Applies to all themultilateralagreements

A single set ofrules for alldisputes

Only a few specific

rules in someagreements


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Main players

Dispute Settlement Body (DSB)

Panel and Appellate Body Parties: WTO Members

WTO Secretariat


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Relationship of players

Panel

Appellate Body

Ministerial Conference

Dispute Settlement Body

(General Council)

Request for Panel

by WTO Member


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Main Procedures

Implementation

Appelate Body

Panel

Consultations60 days

9 months

90 days

15 months


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Consultations: the request

Indicates reasons for therequest: identification of

the measures

legal basis for complaint

Notified to DSB and

circulated to all Members


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Consultations: function

to accord sympathetic considerationto and accord adequate opportunityfor consultation

confidential, only between the

Members concerned


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Consultations: third parties

But, in some instances, other Memberscan request to be joined in theconsultations Article 4.11 DSU

substantial trade interest


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Consultations: if not successful

If consultations fail to resolve the matter

within 60 daysfrom receipt of request.. Or if no response or no entering into

consultations

. A request for establishment of a panelcan be made


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Dispute Settlement in the WTO:Establishment of panels

Request for establishment: must identify the specific measures at issue and

provide a brief summary of the legal basis of theproblem sufficient to present the problem clearly

Establishment at the latest at the second DSB meeting at which

the request is made; decided by negativeconsensus


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Dispute Settlement in the WTO:Terms of reference and composition of panels

Terms ofreference:

(Article 7 DSU)

Standard, or

Special terms ofreference

Panel Composition:(Article 8 DSU)

well-qualifiedgovernment and/ornon-governmentalindividuals

Secretariat proposals

indicative list ofpanelists

nomination by DG


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Dispute Settlement in the WTO:Panels: how they function

Functions of the Panel

a panel should make an objective assessment of thematter before it, including an objective assessment of the

facts of the case and the applicability of and conformitywith 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 existingprovisions of those agreements in accordance withcustomary rules of interpretation of public internationallaw Art. 3.2 DSU


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Panel Procedures: main steps

Oral hearings (usually 2), on basis of writtensubmissions

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: other sources of input

Third parties have make presentations

need substantial interest (Article 10DSU)

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 WTO:Panel Procedures: duration

As a general rule, 9 monthsfromestablishment of panel to consideration ofreport for adoption (if no appeal)

12 monthswhere report is appealed

(Article 20 DSU)


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Dispute Settlement in the WTO:Panel procedures:Adoption of Panel Reports

Adoption within60 days of

circulation, bynegativeconsensus.

Except ifappealed


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Dispute Settlement in the WTO:Appellate Review

Appeals limited toissues of law andlegal interpretationsdeveloped by the

panel

Appeal only open toparties to thedispute

Appellate Body 7 members

members to have

recognized authorityand expertise ininternational trade law

members unaffiliatedwith any government


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Dispute Settlement in the WTO:Appellate Review: report and adoption

Report of the Appellate Body:

may uphold, modify or reverse the

legal findings and conclusions of thepanel (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 WTO:Implementation

Member must bringthe measures intoconformity with itsWTO obligations

(Article 19 DSU)

Member must informDSB of its intentions infor implementation ofthe recommendations

(Article 1 DSU)

If there is a findingof violation:


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Dispute Settlement in the WTO:Implementation: reasonable period of time

Determination of reasonableperiod of time for implementation:

proposed by Member, and approved byDSB, 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 WTO:Implementation: surveillance

Surveillance by the DSB

Status reports on implementation

Temporarymeasures

If Member fails to bring measure intoconformity within reasonable period oftime, possibility

compensationor suspension of concessions(retaliation)


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Implementation

Compensation:(Article 22 DSU)

Voluntary

Negotiated

Compatible with WTO Agreements

If no compensation agreed within 20 days

after expiry of reasonable period oftime.


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ImplementationSuspension 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 orimpairment (Art. 22.4 DSU)

arbitration on level of suspension, or principles ofArt. 22.3 DSU


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Performance to Date

Requests for consultations: 315

Adopted reports: 82

Mutually agreed solutions: 45

Adopted compliance reports: 12

Authorization for suspension: 7(retaliation)

Intro Wto Disput Settle

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