Dispute settlement

The WTO dispute settlement system has become one of the most dynamic effective and successful international dispute settlement systems in the world over the past twenty years. This second edition of A Handbook on the WTO Dispute Settlement System has been compiled by the dispute settlement lawyers of the WTO Secretariat with a view to providing a practice-oriented account of the system. In addition to describing the existing rules and procedures this accessibly written handbook explains how those rules and procedures have been interpreted by dispute settlement panels and the Appellate Body and how they have evolved over time. The handbook provides practical information to help various audiences understand the day-to-day operation of the WTO dispute settlement system.

The WTO dispute settlement system plays a central role in clarifying and enforcing the legal obligations contained in the various WTO agreements. It is generally agreed among WTO Members that the WTO dispute settlement system has functioned reasonably well in its first ten years although the jurisprudence emanating from this system has not been without its critics from both the public and private sectors of a large cross-section of the WTO membership. The purpose of this chapter however is not to analyse or comment on the jurisprudence that the system has produced; such analysis and commentary must be left to the Members themselves and to legal scholars and commentators. Rather the purpose of this chapter is to provide a brief overview of the system and how it has operated in the first ten years of its existence (1995–2004) including the extent to which the system has been used by Members; the nature of the cases brought to the system; and Members’ compliance record with respect to adverse panel and Appellate Body reports.

This publication was prepared by Arti Gobind Daswani Roy Santana and János Volkai of the WTO Secretariat with the support of WTO Deputy Director-General Karl Brauner Valerie Hughes (former Director of the WTO’s Legal Affairs Division) Suja Rishikesh Mavroidis (Director of the WTO Market Access Division) and John Adank (Director of the Legal Affairs Division). Special acknowledgment is owed to WTO staff members Jesse Kreier and Olga Falgueras Alamo from the Rules Division for their contribution to the compilation of relevant documents.

This updated edition of WTO Dispute Settlement: One-Page Case Summaries has been prepared by the Legal Affairs Division of the WTO with assistance from the Rules Division and the Appellate Body Secretariat. This new edition covers all panel and Appellate Body reports adopted by the WTO Dispute Settlement Body as of 31 December 2018.

The advent of the WTO has triggered countless debates regarding sovereignty. The process of conforming domestic laws for the purpose of WTO accession and the obligation to comply with a dispute panel or Appellate Body decision have both fuelled fears that an international organization such as the WTO compromises Members’ domestic authority and international sovereignty. Amicus curiae participation in WTO disputes has been evolving against this context. Amicus curiae participation has been described by critics as inappropriately elevating the status of private actors – no matter how big or small – to that of a government. In contrast proponents of amicus curiae participation argue that transparency and participation will strengthen public support for the WTO and thus ultimately strengthen the institution.

The previous chapter explored what constitutes a valid basis for a complaint in the WTO dispute settlement system and explained the different types of complaints available under the covered agreements. The present chapter addresses the jurisdiction of WTO panels and the Appellate Body by exploring the question of the object of the complaint. To put it more simply: against what can the complaint be directed? For example in a violation complaint what types of action by a Member are covered by a commitment in a covered agreement? Can only acts of administrative authorities be challenged or also legislative acts? Can the complainant invoke the dispute settlement system only against legally binding acts of Members or also against non-binding acts taken by the Members’ authorities? Can the challenge only be directed against governmental conduct or also against behaviour of private individuals? Can it be directed only against positive action or also against omissions i.e. the failure to act?

Panels and the Appellate Body are not always involved in a WTO dispute. Various other ways to solve disputes are available under the DSU. The first priority of the WTO dispute settlement system is for parties to resolve their disputes in a cooperative manner.

A one-page case summary is devoted to each of the 316 GATT disputes identified by this publication.

The fifth edition of the WTO Appellate Body Repertory of Reports and Awards (the ‘Repertory’) serves first and foremost as a source of information for those interested in the field of international trade law and international dispute settlement. Initially developed as an internal research tool to assist the Appellate Body Secretariat in carrying out its duty to provide legal support to Appellate Body Members the Repertory has become a practical tool for officials from WTO Member States and in particular for Members (including developing-country Members) who may not have the resources to prepare a similar compendium in-house. The Repertory is also a useful publication for academics students private practitioners trade officials and other followers of international trade law and international dispute settlement.