1 Session 9 – Government-to-government dispute settlement procedures WTO Dispute Settlement Understanding Vesile Kulaçoglu, WTO Secretariat Dar es Salaam, January 2003

2 WTO Dispute Settlement Understanding WTO Dispute Settlement Understanding The Work of the Working Group on Transparency in Government Procurement The Work of the Working Group on Transparency in Government Procurement

Dispute Settlement in the WTO a central element in providing security and predictability to the multilateral trading system (DSU, Article 3:2)

4 DS: Purpose A system favouring mutually agreed solutions A system favouring mutually agreed solutions A rule-oriented system A rule-oriented system A system intended to secure withdrawal of inconsistent measures A system intended to secure withdrawal of inconsistent measures Multilateralism v. unilateralism Multilateralism v. unilateralism

5 Functions of the DS system (Art. 3.2 DSU): … to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law…

6 DS: Principles Exclusive application of WTO rules on dispute settlement to disputes related to the WTO Exclusive application of WTO rules on dispute settlement to disputes related to the WTO Uniform application to all WTO Agreements Uniform application to all WTO Agreements

7 Dispute settlement in the WTO: Overview A mechanism aimed at securing compliance with the Agreements A mechanism aimed at securing compliance with the Agreements detailed procedures automaticity in the proceedings deadlines implementation aimed at securing conformity of measures

8 Dispute settlement in the WTO Overview An integrated system : An integrated system : Applies to all the multilateral agreements a single set of rules for all disputes only a few specific rules in some agreements

9 Main stages of the dispute settlement process Consultation phase Consultation phase Panel and Appellate Body review Panel and Appellate Body review Adoption of report by the DSB Adoption of report by the DSB Implementation Implementation

10 Function of panels (Art. 11 DSU): …a panel should make an objective assessment of 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…

11 Task of panels review the facts and arguments submitted by the parties to a particular dispute review the facts and arguments submitted by the parties to a particular dispute Panel findings Panel findings Composition of panels Composition of panels

12 Panel Procedures: deadlines As a general rule, 6 months from composition/terms of reference to issuance of final report of the panel to the parties As a general rule, 6 months from composition/terms of reference to issuance of final report of the panel to the parties (Art DSU) As a general rule, 9 months from establishment of panel to consideration of report for adoption (if no appeal) 12 months where report is appealed (Art. 20 DSU)

13 Task of the Appellate Body review on appeal the issues of law addressed by panels review on appeal the issues of law addressed by panels The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel (Art DSU) Composition of the Appellate Body Composition of the Appellate Body

14 Appellate review Review limited to issues of law and legal interpretations developed by the panel (Art DSU) Review limited to issues of law and legal interpretations developed by the panel (Art DSU) Appeal only open to parties to the dispute Appeal only open to parties to the dispute Standing appellate Body 7 members persons of recognised authority and expertise in international trade law unaffiliated with any government

15 Report of the Appellate Body: The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel (Art DSU) The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel (Art DSU) Adoption of Appellate Body report: by reverse consensus within 30 days of circulation to Members Adoption of Appellate Body report: by reverse consensus within 30 days of circulation to Members

16 Implementation (I) Recommendations: Recommendations: If violation: recommendation that the Member bring the measures into conformity (Article 19 DSU) Within 30 days of adoption of report, Member concerned informs the DSB of its intentions in respect of implementation of the recommendations and rulings (Article 1 DSU)

17 Implementation (II) Determination of reasonable period of time for implementation: proposed by Member and approved by DSB, or proposed by Member and approved by DSB, or mutually agreed by the parties, 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) determined through arbitration: guideline for the arbitrator: 15 months from the date of adoption (Article 21.3 DSU)

18 Implementation (III) Surveillance by the DSB: Status reports on 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) If Member fails to bring measure into conformity within reasonable period of time, possibility of temporary measures: compensation or suspension of concessions (retaliation)

19 Implementation (IV) Compensation (Article 22 DSU): Voluntary Voluntary Negotiated Negotiated Compatible with WTO Agreements Compatible with WTO Agreements If no compensation agreed within 20 days after expiry of reasonable period of time…. If no compensation agreed within 20 days after expiry of reasonable period of time….

20 Implementation (V) Suspension of concessions : same sector/other sector/ other agreement level of suspension: equivalent to the level of nullification or impairment (Art DSU) level of suspension: equivalent to the level of nullification or impairment (Art DSU) authorization to suspend: within 30 days of expiry of reasonable period of time authorization to suspend: within 30 days of expiry of reasonable period of time arbitration on level of suspension or principles of Art DSU arbitration on level of suspension or principles of Art DSU