Arbitration as an alternative to litigation in the WTO: Observations in the light of the 2005 Banana Tariff Arbitrations

The 2005 Banana Tariff Arbitrations3 were arguably the most important arbitrations to have been conducted under the auspices of the World Trade Organization (WTO). These arbitrations examined issues of economic and political significance for the multiple complainants and third parties involved. They raised questions of substantive complexity entailing a workload comparable to litigation in WTO panel and Appellate Body proceedings. The Banana Tariff Arbitrations were however unique compared to previous cases litigated in the WTO. They were held outside the scope of normal WTO dispute settlement procedures set out in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and, as such, were the first sui generis arbitrations held under the auspices of the WTO. Furthermore, they involved procedures and time-frames that differed significantly from cases previously litigated in the WTO and were completed extremely expeditiously in comparison. Arguably, as an alternative to litigation in the WTO, the Banana Tariff Arbitrations were a resounding success.