World Trade Organization. A Handbook on the WTO Dispute Settlement System

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1 World Trade Organization A Handbook on the WTO Dispute Settlement System AWTO Secretariat Publication The Secretariat has prepared this training guide to assist public understanding of the WTO dispute settlement system. It is not intended to provide a legal interpretation of the Dispute Settlement Understanding. Prepared for publication by the Legal Affairs Division and the Appellate Body

2 published by the press syndicate of the university of cambridge The Pitt Building, Trumpington Street, Cambridge, United Kingdom cambridge university press The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY , USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa C World Trade Organization 2004 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press and the WTO. First published 2004 Printed in the United Kingdom at the University Press, Cambridge Typefaces Times 10/12pt. System L A TEX2ε [tb] A catalogue record for this book is available from the British Library ISBN hardback ISBN paperback

3 CONTENTS Preface page vii Introduction to this handbook ix List of abbreviations x Table of cases cited in this publication xi Introduction to the WTO Dispute Settlement System 1 Importance of the WTO Dispute Settlement System 1 The Dispute Settlement Understanding 1 Functions, objectives and key features of the dispute settlement system 2 Participants in the dispute settlement system 9 Substantive scope of the dispute settlement system 10 Developing country Members and the dispute settlement system 11 Historic development of the WTO Dispute Settlement System 12 The system under GATT 1947 and its evolution over the years 12 Major changes in the Uruguay Round 15 WTO Bodies involved in the dispute settlement process 17 The Dispute Settlement Body (DSB) 17 The Director-General and the WTO Secretariat 20 Panels 21 Appellate Body 22 Arbitrators 24 Experts 25 Rules of Conduct 26 Legal basis for a dispute 28 Legal provisions in the multilateral trade agreements and the DSU 28 Types of complaints and required allegations in GATT Types of dispute in the other multilateral agreements on trade in goods 35 Types of dispute in the GATS 35 Types of dispute in the TRIPS Agreement 36 Disputes on Articles I to XVI of the WTO Agreement and the DSU 37 Possible object of a complaint jurisdiction of panels and the Appellate Body 38 Article 1.1 of the DSU 38 Action and inaction; binding and non-binding acts of Members 39 iii

4 Contents Only governmental measures of Members? 40 Measures taken by regional or local subdivisions of a Member 40 The possibility of challenging laws as such 41 The process stages in a typical WTO dispute settlement case 43 Consultations 43 Flow Chart of the Dispute Settlement Process 44 The panel stage 47 Adoption of panel reports 61 Appellate review 63 Adoption of the reports by the Dispute Settlement Body 74 Implementation by the losing Member 75 Non-implementation 80 Compensation 80 Countermeasures by the prevailing Member (suspension of obligations) 81 Surveillance until final implementation 86 Special procedures for non-violation and situation complaints 86 Legal effect of panel and Appellate Body reports and DSB recommendations and rulings 88 Legal effects within the context of a particular dispute 88 Legal status of adopted/unadopted reports in other disputes 90 Dispute settlement without recourse to panels and the Appellate Body 92 Mutually agreed solutions 92 Arbitration pursuant to Article 25 of the DSU 95 Participation in dispute settlement proceedings 97 Parties and third parties and principle of confidentiality 97 Legal representation 97 Amicus Curiae submissions 98 Legal issues arising in WTO dispute settlement proceedings 101 Standing 101 Claims versus arguments; autonomous reasoning of a panel 101 Necessity for the respondent to invoke exceptions 102 Judicial economy 102 Standard of review 103 Burden of proof 105 The panel s right to seek information 106 The nature of domestic legislation as an object of a dispute 106 Developing countries in WTO dispute settlement 109 Developing country Members in dispute settlement theory and practice 109 Special and differential treatment 111 iv

5 Contents Evaluation of the WTO dispute settlement system: results to date 116 Statistics: the first eight years of experience 116 Achievement of the objectives? 116 Strengths and weaknesses 117 Current negotiations 118 Further information 119 Glossary 119 Information and documents on the WTO Website 120 Reference books 120 Contacting the WTO 120 Annex: Legal Texts 122 Provisions on consultation and dispute settlement in GATT 1994, GATS and the TRIPS Agreement 122 Understanding on Rules and Procedures Governing the Settlement of Disputes 125 DSB Practices 152 Example of Panel Working Procedures 154 Working Procedures for Appellate Review 157 Communication from the Director-General on Article 5 of the DSU 179 Decision of Decision of Index 190 v

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7 PREFACE There have been over 300 disputes brought to the World Trade Organization (WTO) since its creation in January 1995 and these disputes cover a wide range of economic activities. The WTO dispute settlement system is the backbone of today s multilateral trading regime. It was created by Member governments during the Uruguay Round in the conviction that a stronger, more binding system to settle disputes would help to ensure that the WTO s carefully negotiated trading rules are respected and enforced. The system, sometimes referred to as the WTO s unique contribution to the stability of the global economy, is based on, but constitutes a major improvement over, the previous GATT dispute settlement system. As such, it has greatly enhanced the stability and predictability of the rules of international trade to the benefit of businesses, farmers, workers and consumers around the world. The primary purpose of this training guide is to explain the WTO dispute settlement system to an interested person with little or no knowledge of how this system functions. However, with its detailed content, it could also serve as a very useful handbook to experienced practitioners of WTO Law. It explains the historic evolution of the current system and explores the practices that have arisen in its operation since its entry into force on 1 January Special thanks should be addressed to those from the Legal Affairs Division, the Appellate Body Secretariat and the Information and Media Relations Division who have assisted in researching, drafting, editing, proof-reading and designing this publication. bruce wilson Director Legal Affairs Division World Trade Organization November 2003 vii

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9 INTRODUCTION TO THIS HANDBOOK The WTO dispute settlement system plays an important role in clarifying and enforcing the legal obligations contained in the WTO Agreement. It has gained a strong practical relevance as more than 300 disputes have been brought from 1 January 1995 through October While dispute settlement is certainly not the only activity taking place within the WTO, it has become an important part of the practical reality of the Organization. WTO dispute settlement has also become an important tool in the management by WTO Members of their international economic relations at large. The objective of this handbook is to give the general reader a good understanding of the practical operation of this system. Working through this guide, the reader will be introduced to all elements of the dispute settlement process, from the initiation of a case through to the implementation of the decision. The reader will find it useful to have the Legal Texts (i.e. a text of the WTO Agreement, especially Annex 2 containing the Dispute Settlement Understanding) at hand whenever working with the present material and to look up each of the cited provisions in order to understand the primary sources. The Legal Texts are available as a book or electronically on the WTO website at e/legal e/legal e.htm. However, for the convenience of the reader, the main provisions of the DSU and other WTO legal texts have been reproduced in this document, either in the body or in the Annexes. ix

10 ABBREVIATIONS DSB DSU GATS GATT SCM SPS TBT TRIPS WTO WTO Agreement Dispute Settlement Body Understanding on Rules and Procedures Governing the Settlement of Disputes (also referred to as the Dispute Settlement Understanding) General Agreement on Trade in Services General Agreement on Tariffs and Trade Subsidies and Countervailing Measures Sanitary and Phytosanitary Measures Technical Barriers to Trade Trade-Related Aspects of Intellectual Property Rights World Trade Organization Marrakesh Agreement Establishing the World Trade Organization x

11 TABLE OF CASES CITED IN THIS PUBLICATION Short Title Argentina Footwear (EC) Argentina Hides and Leather Argentina Hides and Leather Australia Ammonium Sulphate Australia Salmon Brazil Aircraft Canada Aircraft Canada Autos Canada Autos Full Case Title and Citation Appellate Body Report, Argentina Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 Panel Report, Argentina Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001 Award of the Arbitrator, Argentina Measures Affecting the Export of Bovine Hides and Import of Finished Leather Arbitration under Article 21.3(c) of the DSU, WT/DS155/10, 31 August 2001 Working Party Report, The Australian Subsidy on Ammonium Sulphate, adopted 3 April 1950, BISD II/188 Appellate Body Report, Australia Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6November 1998, DSR 1998:VIII, 3327 Appellate Body Report, Brazil Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 Appellate Body Report, Canada Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2995 Award of the Arbitrator, Canada Certain Measures Affecting the Automotive Industry Arbitration under Article 21.3(c) of the DSU, WT/DS139/12, WT/DS142/12, 4 October 2000, DSR 2000:X, 5079 xi

12 Table of cases cited in this publication Canada FIRA Canada Patent Term Canada Pharmaceutical Patents Panel Report, Canada Administration of the Foreign Investment Review Act, adopted 7 February 1984, BISD 30S/140 Award of the Arbitrator, Canada Term of Patent Protection Arbitration under Article 21.3(c) of the DSU, WT/DS170/10, 28 February 2001 Award of the Arbitrator, Canada Patent Protection of Pharmaceutical Products Arbitration under Article 21.3(c) of the DSU, WT/DS114/13, 18 August 2000 EC Asbestos Panel Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by the Appellate Body Report, WT/DS135/AB/R EC Asbestos Appellate Body Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001 EC Bananas III Appellate Body Report, European Communities Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591 EC Bananas III (Article 21.5 EC) EC Bananas III (Ecuador) (Article 22.6 EC) Panel Report, European Communities Regime for the Importation, Sale and Distribution of Bananas Recourse to Article 21.5 of the DSU by the European Communities, WT/DS27/RW/EEC and Corr.1, 12 April 1999, DSR 1999:II, 783 Decision by the Arbitrators, European Communities Regime for the Importation, Sale and Distribution of Bananas Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2243 EC Bed Linen Appellate Body Report, European Communities Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001 EC Butter Panel Report, European Communities Measures Affecting Butter Products, WT/DS72/R, 24 November 1999 xii

13 EC Computer Equipment EC Hormones Table of cases cited in this publication Appellate Body Report, European Communities Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135 EC Hormones Award of the Arbitrator, EC Measures Concerning Meat and Meat Products (Hormones) Arbitration under Article 21.3(c) of the DSU, WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 EC Sardines Appellate Body Report, European Communities Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002 EC Scallops (Canada) EC Scallops (Peru and Chile) EEC (Member States) Bananas I Panel Report, European Communities Trade Description of Scallops Request by Canada, WT/DS7/R, 5 August 1996, DSR 1996:I, 89 Panel Report, European Communities Trade Description of Scallops Requests by Peru and Chile, WT/DS12/R, WT/DS14/R, 5 August 1996, DSR 1996:I, 93 Panel Report, EEC Member States Import Regimes for Bananas,3June 1993, unadopted, DS32/R EEC Canned Fruit Panel Report, European Economic Community Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes, 20 February 1985, unadopted, L/5778 EEC Dessert Apples Panel Report, European Economic Community Restrictions on Imports of Dessert Apples Complaint by Chile, adopted 22 June 1989, BISD 36S/93 EEC Oilseeds I Panel Report, European Economic Community Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, adopted 25 January 1990, BISD 37S/86 EEC Oilseeds II Panel Report, European Economic Community Follow-Up on the Panel Report Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, 31 March 1992, BISD 39S/91 xiii

14 Table of cases cited in this publication Germany Sardines Germany Starch Duties Guatemala Cement I Italy Agricultural Machinery India Autos India Patents (US) India Quantitative Restrictions Indonesia Autos Japan Alcoholic Beverages II Japan Alcoholic Beverages II Working Party Report, Treatment by Germany of Imports of Sardines, adopted 31 October 1952, BISD 1S/53 Working Party Report, German Import Duties on Starch and Potato Flour, 16February 1955, unadopted, BISD 3S/77 Appellate Body Report, Guatemala Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767 Panel Report, Italian Discrimination Against Imported Agricultural Machinery, adopted 23 October 1958, BISD 7S/60 Appellate Body Report, India Measures Affecting the Automotive Sector, WT/DS146/AB/R, WT/DS175/AB/R, adopted 5 April 2002 Appellate Body Report, India Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9 Panel Report, India Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, as upheld by the Appellate Body Report, WT/DS90/AB/R, DSR 1999:V, 1799 Award of the Arbitrator, Indonesia Certain Measures Affecting the Automobile Industry Arbitration under Article 21.3(c) of the DSU, WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 December 1998, DSR 1998:IX, 4029 Panel Report, Japan Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1November 1996, as modified by the Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I, 125 Appellate Body Report, Japan Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 xiv

15 Table of cases cited in this publication Japan Alcoholic Beverages II Japan Film Japan Leather II (US) Japan Semi-Conductors Korea Alcoholic Beverages Korea Alcoholic Beverages Thailand H-Beams Uruguay Recourse to Article XXIII US 1916 Act US 1916 Act US Certain EC Products US Certain EC Products Award of the Arbitrator, Japan Taxes on Alcoholic Beverages Arbitration under Article 21.3(c) of the DSU, WT/DS8/15, WT/DS10/15, WT/DS11/13, 14 February 1997, DSR 1997:I, 3 Panel Report, Japan Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 Panel Report, Panel on Japanese Measures on Imports of Leather, adopted 15 May 1984, BISD 31S/94 Panel Report, Japan Trade in Semi-Conductors, adopted 4 May 1988, BISD 35S/116 Appellate Body Report, Korea Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 Award of the Arbitrator, Korea Taxes on Alcoholic Beverages Arbitration under Article 21.3(c) of the DSU, WT/DS75/16, WT/DS84/14, 4 June 1999, DSR 1999:II, 937 Appellate Body Report, Thailand Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001 Panel Report, Uruguayan Recourse to Article XXIII, adopted 16 November 1962, BISD 11S/95 Appellate Body Report, United States Anti-Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793 Award of the Arbitrator, United States Anti-Dumping Act of 1916 Arbitration under Article 21.3(c) of the DSU, WT/DS136/11, WT/DS162/14, 28 February 2001 Panel Report, United States Import Measures on Certain Products from the European Communities, WT/DS165/R and Add.1, adopted 10 January 2001, as modified by the Appellate Body Report, WT/DS165/AB/R Appellate Body Report, United States Import Measures on Certain Products from the European Communities, WT/DS165/AB/R, adopted 10 January 2001 xv

16 Table of cases cited in this publication US Cotton Yarn US Countervailing Measures on Certain EC Products US DRAMS (Article 21.5 Korea) US Gasoline US Hot-Rolled Steel US Lamb US Lead and Bismuth II US Line Pipe US Line Pipe US Offset Act (Byrd Amendment) Appellate Body Report, United States Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001 Appellate Body Report, United States Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003 Panel Report, United States Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea Recourse to Article 21.5 of the DSU by Korea, WT/DS99/RW, 7 November 2000 Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 Appellate Body Report, United States Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001 Appellate Body Report, United States Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001 Appellate Body Report, United States Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2601 Appellate Body Report, United States Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, adopted 8 March 2002 Award of the Arbitrator, United States Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea Arbitration under Article 21.3(c) of the DSU, WT/DS202/17, 26 July 2002 Appellate Body Report, United States Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003 xvi

17 Table of cases cited in this publication US Section 110(5) Copyright Act US Section 110(5) Copyright Act (Article 25.3) US Section 211 Appropriations Act US Section 301 Trade Act US Shrimp US Shrimp (Article 21.5 Malaysia) US Superfund US Wheat Gluten US Wool Shirts and Blouses Award of the Arbitrator, United States Section 110(5) of the US Copyright Act Arbitration under Article 21.3(c) of the DSU, WT/DS160/12, 15 January 2001 Award of the Arbitrators, United States Section 110(5) of the US Copyright Act Recourse to Arbitration under Article 25 of the DSU, WT/DS160/ARB25/1, 9 November 2001 Appellate Body Report, United States Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002 Panel Report, United States Sections of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 Appellate Body Report, United States Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755 Appellate Body Report, United States Import Prohibition of Certain Shrimp and Shrimp Products Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001 Panel Report, United States Taxes on Petroleum and Certain Imported Substances, adopted 17 June 1987, BISD 34S/136 Appellate Body Report, United States Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001 Appellate Body Report, United States Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997, DSR 1997:I, 323 xvii

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19 INTRODUCTION TO THE WTO DISPUTE SETTLEMENT SYSTEM IMPORTANCE OF THE WTO DISPUTE SETTLEMENT SYSTEM The best international agreement is not worth very much if its obligations cannot be enforced when one of the signatories fails to comply with such obligations. An effective mechanism to settle disputes thus increases the practical value of the commitments the signatories undertake in an international agreement. The fact that the Members of the WTO established the current dispute settlement system during the Uruguay Round of Multilateral Trade Negotiations underscores the high importance they attach to compliance by all Members with their obligations under the WTO Agreement. Settling disputes in a timely and structured manner is important. It helps to prevent the detrimental effects of unresolved international trade conflicts and to mitigate the imbalances between stronger and weaker players by having their disputes settled on the basis of rules rather than having power determine the outcome. Most people consider the WTO dispute settlement system to be one of the major results of the Uruguay Round. After the entry into force of the WTO Agreement in 1995, the dispute settlement system soon gained practical importance as Members frequently resorted to using this system. THE DISPUTE SETTLEMENT UNDERSTANDING The current dispute settlement system was created as part of the WTO Agreement during the Uruguay Round. It is embodied in the Understanding on Rules and Procedures Governing the Settlement of Disputes, commonly referred to as the Dispute Settlement Understanding and abbreviated DSU (referred to as such in this guide). The DSU, which constitutes Annex 2 of the WTO Agreement, sets out the procedures and rules that define today s dispute settlement system. It should however be noted that, to a large degree, the current dispute settlement system is the result of the evolution of rules, procedures and practices developed over almost half a century under the GATT Explanatory note: The annexes of the WTO Agreement contain all the specific multilateral agreements. In other words, the WTO Agreement incorporates all agreements that have been concluded in the Uruguay Round. References in this guide to the WTO Agreement in general, therefore, include the totality of 1

20 A Handbook on the WTO Dispute Settlement System these rules. However, the WTO Agreement itself, if taken in isolation from its annexes, is a short Agreement containing 16 Articles that set out the institutional framework of the WTO as an international organization. Specific references to the WTO Agreement (e.g. Article XVI of the WTO Agreement ) relate to these rules. FUNCTIONS, OBJECTIVES AND KEY FEATURES OF THE DISPUTE SETTLEMENT SYSTEM Providing security and predictability to the multilateral trading system A central objective of the WTO dispute settlement system is to provide security and predictability to the multilateral trading system (Article 3.2 of the DSU). Although international trade is understood in the WTO as the flow of goods and services between Members, such trade is typically not conducted by States, but rather by private economic operators. These market participants need stability and predictability in the governing laws, rules and regulations applying to their commercial activity, especially when they conduct trade on the basis of long-term transactions. In light of this, the DSU aims to provide a fast, efficient, dependable and rule-oriented system to resolve disputes about the application of the provisions of the WTO Agreement. By reinforcing the rule of law, the dispute settlement system makes the trading system more secure and predictable. Where non-compliance with the WTO Agreement has been alleged by a WTO Member, the dispute settlement system provides for a relatively rapid resolution of the matter through an independent ruling that must be implemented promptly, or the non-implementing Member will face possible trade sanctions. Preserving the rights and obligations of WTO Members Typically, a dispute arises when one WTO Member adopts a trade policy measure that one or more other Members consider to be inconsistent with the obligations set out in the WTO Agreement. In such a case, any Member that feels aggrieved is entitled to invoke the procedures and provisions of the dispute settlement system in order to challenge that measure. If the parties to the dispute do not manage to reach a mutually agreed solution, the complainant is guaranteed a rules-based procedure in which the merits of its claims will be examined by an independent body (panels and the Appellate Body). If the complainant prevails, the desired outcome is to secure the withdrawal of the measure found to be inconsistent with the WTO Agreement. Compensation and countermeasures (the suspension of obligations) are available only as secondary and temporary responses to a contravention of the WTO Agreement (Article 3.7 of the DSU). 2

21 Introduction to the WTO dispute settlement system Thus, the dispute settlement system provides a mechanism through which WTO Members can ensure that their rights under the WTO Agreement can be enforced. This system is equally important from the perspective of the respondent whose measure is under challenge, since it provides a forum for the respondent to defend itself if it disagrees with the claims raised by the complainant. In this way, the dispute settlement system serves to preserve the Members rights and obligations under the WTO Agreement (Article 3.2 of the DSU). The rulings of the bodies involved (the DSB, the Appellate Body, panels and arbitrations 1 ) are intended to reflect and correctly apply the rights and obligations as they are set out in the WTO Agreement. They must not change the WTO law that is applicable between the parties or, in the words of the DSU, add to or diminish the rights and obligations provided in the WTO agreements (Articles 3.2 and 19.2 of the DSU). Clarification of rights and obligations through interpretation The precise scope of the rights and obligations contained in the WTO Agreement is not always evident from a mere reading of the legal texts. Legal provisions are often drafted in general terms so as to be of general applicability and to cover a multitude of individual cases, not all of which can be specifically regulated. Whether the existence of a certain set of facts gives rise to a violation of a legal requirement contained in a particular provision is, therefore, a question that is not always easy to answer. In most cases, the answer can be found only after interpreting the legal terms contained in the provision at issue. In addition, legal provisions in international agreements often lack clarity because they are compromise formulations resulting from multilateral negotiations. The various participants in a negotiating process often reconcile their diverging positions by agreeing to a text that can be understood in more than one way so as to satisfy the demands of different domestic constituents. The negotiators may thus understand a particular provision in different and opposing ways. For those reasons, as in any legal setting, individual cases often require an interpretation of the pertinent provisions. One might think that such an interpretation cannot occur in WTO dispute settlement proceedings because Article IX:2 of the WTO Agreement provides that the Ministerial Conference and the General Council of the WTO have the exclusive authority to adopt interpretations of the WTO Agreement. However, the DSU expressly states that the dispute settlement system is intended to clarify the provisions of the WTO Agreement in accordance with customary rules of interpretation of public international law (Article 3.2 of the DSU). The DSU, therefore, recognizes the need to clarify WTO rules and mandates that this clarification take place pursuant to customary rules of interpretation. In 1 The composition and tasks of these bodies will be explained below in the sections on The Dispute Settlement Body (DSB) on page 17, Panels on page 21 and the Appellate Body on page 22. 3

22 A Handbook on the WTO Dispute Settlement System addition, Article 17.6 of the DSU implicitly recognizes that panels may develop legal interpretations. The exclusive authority of Article IX:2 of the WTO Agreement must therefore be understood as the possibility to adopt authoritative interpretations that are of general validity for all WTO Members unlike interpretations by panels and the Appellate Body, which are applicable only to the parties and to the subject matter of a specific dispute. Accordingly, the DSU mandate to clarify WTO rules is without prejudice to the rights of Members to seek authoritative interpretations under Article IX:2 of the WTO Agreement (Article 3.9 of the DSU). As regards the methods of interpretation, the DSU refers to the customary rules of interpretation of public international law (Article 3.2 of the DSU). While customary international law is normally unwritten, there is an international convention that has codified some of these customary rules of treaty interpretation. Notably, Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties embody many of the customary rules of interpretation of public international law. While the reference in Article 3.2 of the DSU does not refer directly to these Articles, the Appellate Body has ruled that they can serve as a point of reference for discerning the applicable customary rules. 2 The three Articles read as follows: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. 2 Appellate Body Report, US Gasoline, DSR 1996: I, 3 at 15; Appellate Body Report, Japan Alcoholic Beverages II, DSR 1996: I, 97 at

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