Dispute settlement
The making of the ‘World Trade Court’: The origins and development of the Appellate Body of the World Trade Organization
The Appellate Body of the World Trade Organization (WTO) heard and decided its first appeals case in 1996. By 1 January 2005 the Appellate Body had heard and decided 64 appeals from WTO panel reports. The body of case law generated by the Appellate Body over the past nine years is both in quantitative and qualitative terms impressive. The Appellate Body’s case law is highly authoritative and has made a significant contribution to the development of international trade law. The decisions of the Appellate Body in for example US – Shrimp and EC – Asbestos have effectively put an end to complex and sensitive disputes between WTO Members. Both panels and parties in WTO disputes have shown and continue to show much deference to the case law of the Appellate Body. The Appellate Body is undisputedly the most important organ of WTO dispute settlement. The Appellate Body is all but in name the ‘World Trade Court’. The key question addressed in this article is: what explains the prominent status which the Appellate Body and its case law have achieved since 1996? Was the ‘success’ of the Appellate Body and its emergence as the World Trade Court ‘predetermined’ by its constituent instruments or is it primarily the result of other factors that have affected the Appellate Body and its case law in the past nine years?
WTO Bodies Involved in the Dispute Settlement Process
The operation of the WTO dispute settlement process involves the parties and third parties to a case the DSB panels the Appellate Body the WTO Secretariat arbitrators independent experts and several specialized institutions. This chapter gives an introduction to the WTO bodies involved in the dispute settlement system. The involvement of the parties and third parties the primary participants in a dispute settlement proceeding has already been outlined above. The precise tasks and roles of each of the actors involved in the dispute settlement process will become clear in the later chapter on the stages of the dispute settlement process.
Foreword
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 2016.
Introduction to the WTO Dispute Settlement System
The WTO Agreement is a treaty negotiated by dozens of countries over the seven-year span of the Uruguay Round of multilateral trade negotiations. It comprises agreements setting out a delicate and carefully achieved balance of rights and obligations for WTO members in respect of a vast array of measures affecting trade such as tariffs internal taxes subsidies sanitary and phytosanitary measures intellectual property rights and services to name but a few. Some of these agreements were negotiated and concluded in successive rounds throughout the lifespan of the General Agreement on Tariffs and Trade (GATT) the predecessor to the WTO. Others build on and further elaborate previously negotiated agreements. Except for the plurilateral agreements the WTO Agreement was adopted by the WTO members as a “single undertaking”. This means that in agreeing to be bound by the WTO Agreement WTO members must accept the entirety of the WTO Agreement and may not pick and choose among the constituent trade agreements. In so agreeing WTO members consider the balance of negotiated rights and obligations across the entirety of the WTO Agreement.
Avant-propos
Cette édition mise à jour de l’ouvrage intitulé « Le règlement des différends dans le cadre de l’OMC : une affaire une page » a été établie par la Division des affaires juridiques de l’OMC avec l’aide de la Division des règles et du secrétariat de l’Organe d’appel. Elle porte sur tous les rapports des groupes spéciaux et de l’Organe d’appel adoptés par l’Organe de règlement des différends de l’OMC au 31 décembre 2014.
The reasonable period of time for compliance with rulings and recommendations adopted by the WTO Dispute Settlement Body
The need for a reasonable period of time for the implementation of rulings and recommendations adopted by the Dispute Settlement Body (DSB) arises in two situations: first when the responding party in a dispute settlement proceeding has been found to have violated WTO rules or otherwise nullified or impaired benefits accruing to the complaining party; and second when the incriminated measure is still in existence at the time when the responding party that has ‘lost’ the case has to inform the DSB of its intentions in respect of implementation. For this purpose a DSB meeting has to be held within 30 days after the adoption of the panel report and if applicable the Appellate Body report.
The Process – Stages in a Typical WTO Dispute Settlement Case
This chapter explains all the various stages through which a dispute can pass in the WTO dispute settlement system. There are two main ways to settle a dispute once a complaint has been filed in the WTO: (i) the parties find a mutually agreed solution particularly during the phase of bilateral consultations; and (ii) through adjudication including the subsequent implementation of the panel and Appellate Body reports which are binding upon the parties once adopted by the DSB. There are three main stages to the WTO dispute settlement process: (i) consultations between the parties; (ii) adjudication by panels and if applicable by the Appellate Body; and (iii) the implementation of the ruling which includes the possibility of countermeasures in the event of failure by the losing party to implement the ruling.
The power of the WTO dispute settlement system
The dispute settlement system of the WTO is one of the most important elements of a rules-based multilateral trading system. By way of introduction to the very instructive chapters that follow I would like to make several observations about the nature of dispute settlement in a trading system based on national sovereignty followed by some comments on how the system is designed to ensure integrity and fairness in the WTO’s adjudicative process.