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DISPUTE SETTLEMENT MACHANISM OF WTO
DISPUTE SETTLEMENT MACHANISM OF WTO
SUBMITTED TO : MS. TITASHA BANERJEE
SUBMITTED BY: SHIKHA GUPTA
10LLB019
BY : SHIKHA GUPTA 10LLB00191
DISPUTE SETTLEMENT MACHANISM OF WTO
CONTENTS
TOPICS PAGE NUMBER
INTRODUCTON O3
PRINCIPLES: EQUITABLE, FAST, EFFECTIVE, MUTUALLY ACCEPTABLE
04
DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION
07
SUMMARY OF TIME PERIODS WITHIN THE DISPUTE SETTLEMENT MECHANISM
12
THE CASE HAS BEEN DECIDED: WHAT NEXT?
13
CONCLUSION14
BY : SHIKHA GUPTA 10LLB00192
DISPUTE SETTLEMENT MACHANISM OF WTO
INTRODUCTON
The dispute settlement procedure of the World Trade Organization (WTO) is
governed by the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU). With certain exceptions, the DSU is uniformly applicable to
differences that arise in the context of all WTO agreements. In some cases, the
“Special or Additional Rules and Procedures Contained in the Covered Agreements”
apply (article 1.2 and appendix 2 of the DSU).
WTO demands that all its Members respect the rules in the interests of a safer and
more reliable multilateral trade system. In this sense, WTO Members have agreed
that, when they judge that other Members have broken trade rules, they shall refer the
matter to the dispute settlement mechanism rather than adopting unilateral measures.
This involves complying with the agreed procedures and respecting the decisions
reached by the dispute settlement bodies set up for that purpose.
Forum / Jurisdiction
The WTO dispute settlement system has jurisdiction over any difference that may
arise between Member countries, above and beyond the provisions of any of the
“Covered Agreements” provided for in appendix 1 of the DSU. That is to say, a
dispute based on the violation of WTO rules can only be dealt with by the multilateral
forum, rather than by regional dispute settlement mechanisms.
Bodies
WTO bodies include the political institution known as the Dispute Settlement Body
(DSB) and
- Comprises a chairman (head of the permanent mission of one of the Member
countries appointed by consensus among the Members of WTO) and representatives
of all WTO Members (government representatives, usually diplomats who belong to
ministries of trade or foreign affairs). In their capacity as government officials, the
representatives receive instructions from their governments on the positions they must
adopt and the statements they must make within the DSB, hence the latter is
considered a political body.
BY : SHIKHA GUPTA 10LLB00193
DISPUTE SETTLEMENT MACHANISM OF WTO
- The DSB is responsible for the application of the DSU, in other words it oversees
the entire dispute settlement procedure. It has the authority to set up panels, adopt
panel and Appellate Body reports, monitor the application of recommendations and
authorize retaliatory measures when a Member fails to comply with rulings.
- The DSB usually meets once a month, and the Director-General may convene
extraordinary meetings at the request of Members. The staff of the WTO Secretariat
provide administrative support to the DSB.
- As a general rule, the DSB makes decisions by consensus. However, when the DSB
sets up panels, adopts reports or authorizes retaliation, the decision is automatically
considered to be adopted, unless there is a consensus to the contrary (a negative
consensus).
The full WTO dispute settlement process involves parties and third parties, the
Dispute Settlement Body, Panels, the Appellate Body, WTO Secretariat, arbitrators,
independent experts and various specialized agencies.
Principles: equitable, fast, effective, mutually acceptable
Disputes in the WTO are essentially about broken promises. WTO members have
BY : SHIKHA GUPTA 10LLB00194
DISPUTE SETTLEMENT MACHANISM OF WTO
agreed that if they believe fellow-members are violating trade rules, they will use the
multilateral system of settling disputes instead of taking action unilaterally. That
means abiding by the agreed procedures, and respecting judgments.
A dispute arises when one country adopts a trade policy measure or takes some action
that one or more fellow-WTO members considers to be breaking the WTO
agreements, or to be a failure to live up to obligations. A third group of countries can
declare that they have an interest in the case and enjoy some rights.1
A procedure for settling disputes existed under the old GATT, but it had no fixed
timetables, rulings were easier to block, and many cases dragged on for a long time
inconclusively. The Uruguay Round agreement introduced a more structured process
with more clearly defined stages in the procedure. It introduced greater discipline for
the length of time a case should take to be settled, with flexible deadlines set in
various stages of the procedure. The agreement emphasizes that prompt settlement is
essential if the WTO is to function effectively. It sets out in considerable detail the
procedures and the timetable to be followed in resolving disputes. If a case runs its
full course to a first ruling, it should not normally take more than about one year —
15 months if the case is appealed. The agreed time limits are flexible, and if the case
is considered urgent (e.g. if perishable goods are involved), it is accelerated as much
as possible.
The Uruguay Round agreement also made it impossible for the country losing a case
to block the adoption of the ruling. Under the previous GATT procedure, rulings
could only be adopted by consensus, meaning that a single objection could block the
ruling. Now, rulings are automatically adopted unless there is a consensus to reject a
ruling — any country wanting to block a ruling has to persuade all other WTO
members (including its adversary in the case) to share its view.
Although much of the procedure does resemble a court or tribunal, the preferred
solution is for the countries concerned to discuss their problems and settle the dispute
by themselves. The first stage is therefore consultations between the governments
concerned, and even when the case has progressed to other stages, consultation and
mediation are still always possible.
1 https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm
BY : SHIKHA GUPTA 10LLB00195
DISPUTE SETTLEMENT MACHANISM OF WTO
DISPUTE SETTLEMENT IN THE WORLD TRADE
ORGANIZATION
independent and quasi-judicial institutions that are the Panels, the Appellate Body and
Arbitrators:
BY : SHIKHA GUPTA 10LLB00196
DISPUTE SETTLEMENT MACHANISM OF WTO
I – Dispute Settlement Body (DSB) - article 2 of the DSU 2
II – Director-General and Secretariat of WTO
- The Director-General of WTO participates in the Dispute Settlement Body (DSB) in
the following ways: The Director-General may, acting in an ex officio capacity, offer
good offices, conciliation or mediation with the view to assisting Members to settle a
dispute (article 5.6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU)), especially in cases involving a less developed
country;
DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION
independent and quasi-judicial institutions that are the Panels, the Appellate Body and
Arbitrators:
I – Dispute Settlement Body (DSB) - article 2 of the DSU 3
II – Director-General and Secretariat of WTO
- The Director-General of WTO participates in the Dispute Settlement Body (DSB) in
the following ways: The Director-General may, acting in an ex officio capacity, offer
good offices, conciliation or mediation with the view to assisting Members to settle a
dispute (article 5.6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU)), especially in cases involving a less developed
country; if there is no agreement on the panelists, at the request of either party, the
Director-General, in consultation with the Chairman of the DSB and the Chairman of
the relevant Council or Committee, shall convene DSB meetings and determine the
2 This information comes from the official WTO website:
http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm#intro.
3 This information comes from the official WTO website:
http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm#intro.
BY : SHIKHA GUPTA 10LLB00197
DISPUTE SETTLEMENT MACHANISM OF WTO
composition of the panel (article 8.7);
The Director-General appoints an Arbitrator to determine a reasonable period of time
if the parties are unable to agree on a period of time or the appointment of an
Arbitrator (article 21.3 c);
The Director-General shall examine proposed retaliatory measures in cases of non-
implementation (article 22.6).
Within the Dispute Settlement Body (DSB), the Secretariat can act in the following
ways (article 27): Reports to the Director-General; provides assistance in respect of
dispute settlement to Members at their request; organizes special training courses and
provides additional legal advice and assistance to developing country Members;
provides assistance to parties in the formation of panels; and helps established panels
and provides administrative support to the DSB.
III - Panels - articles 6, 7 and 8 of the DSU
- Panels are quasi-judicial bodies responsible for settling differences between
Members in the first instance.
- They comprise three, and in exceptional cases five, experts specially selected for
each case (there is no permanent panel, but rather a different one is set up for each
case). WTO Members regularly put forward names to be included in the list kept by
the Secretariat. People appointed to a panel provide their services independently, in an
individual capacity, and not as a representative of any government or organization.
IV – Appellate Body - article 17 of the DSU
- Unlike the panels, the Appellate Body is a standing body made up of seven members
appointed by the DSB by consensus and for a period of four years, with a maximum
of two terms. The Appellate Body examines the legal aspects of panel reports (rather
than studying evidence or facts), and represents the second and final instance of the
legal process.
V - Arbitrators - article 25 of the DSU
BY : SHIKHA GUPTA 10LLB00198
DISPUTE SETTLEMENT MACHANISM OF WTO
- Arbitration is an alternative means of dispute settlement to panels and the Appellate
Body. Arbitrators can thus be called on to resolve certain issues at various stages of
the dispute settlement process (when there is no agreement on determining the
reasonable period of time or on the level of retaliation). Arbitral awards are not
subject to appeal and may be enforced by the DSB.
VI - Experts - article 13 and appendix 4 of the DSU
- Panels may seek the opinions of experts in dealing with technical or scientific issues,
such as when the case relates to the Agreement on the Application of Sanitary and
Phytosanitary Measures, Agreement on Technical Barriers to Trade, or the Agreement
on Subsidies and Countervailing Measures.
- Groups of experts act under the authority of the panel, and provide the latter with
their opinion. These groups carry out a purely consultative role. The final decision on
legal issues and fact-finding, based on expert opinion, remains with the panel.
The dispute settlement procedure in full
Pre-litigation stage
Consultations: A filing of a “Request for Consultations” is the official beginning of
the dispute within WTO and brings the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU) into play. Consultations provide parties
with the opportunity to debate the issue and find a satisfactory solution without
resorting to litigation. The party complained against must reply to the request within
10 days after the date of its receipt and shall enter into consultations in good faith
within a period of no more than 30 days after the date of receipt of the request. If the
Member does not comply with this time frame, then the Member that requested the
holding of consultations may proceed directly to the litigation stage and request the
establishment of a panel. If the consultations fail to settle a dispute within 60 days
after the date of receipt of the request for consultations, the complaining party may
request the establishment of a panel (article 4.7). However, governments are in
permanent contact, and agreement may be reached at any stage of the process (article
4). Along with good offices, conciliation and mediation, consultations are the main
non-judicial or diplomatic instrument in the WTO dispute settlement system.
BY : SHIKHA GUPTA 10LLB00199
DISPUTE SETTLEMENT MACHANISM OF WTO
Litigation stage
1st stage (panel): If the consultations fail to settle a dispute, the complaining party
may request establishment of a panel by the Dispute Settlement Body (DSB). The
panel must be established within 45 days of the request. Once established, the panel
must produce a report for the DSB within six to nine months. This report must include
an objective assessment of the facts of the case and an examination of the measures in
dispute, using the relevant provisions of the appropriate legal instruments.
2nd stage (optional recourse to the Appellate Body): The Appellate Body examines
the legal aspects of the challenge and may uphold, modify or reverse the legal
findings and conclusions of the panel (article 17.13).
According to the Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU), parties may adopt three positions in relation to reports:
Implementation: it is insisted that the party failing to fulfil its obligations comply
with the recommendations of the panel or Appellate Body. When it is impossible to
do so immediately, the DSB may establish a reasonable period of time for
implementation.
Payment of compensation: when the offending party exceeds the reasonable period
of time without implementing the recommendations or determinations, the
complainant may ask for compensation. The offending party may also offer
compensation.
Retaliatory measures: when the offending party fails to comply with
recommendations and refuses to offer compensation, the affected party may request
DSB authorization to introduce retaliatory measures against the offending country. In
principle, these measures must be applicable in the same sectors in which the panel
has established the existence of an offence. Only if this were considered impossible
would could the application of retaliatory measures in other sectors of the same
agreement be authorized.
BY : SHIKHA GUPTA 10LLB001910
DISPUTE SETTLEMENT MACHANISM OF WTO
In any event, the above-mentioned measures (compensation or retaliation) are
considered temporary measures, as the offending country is expected to fully adopt
the recommendations or determinations formulated by the panel or Appellate Body.
Summary of time periods within the dispute settlement mechanism
Time scale Actions
Consultations, mediation, etc.
BY : SHIKHA GUPTA 10LLB001911
DISPUTE SETTLEMENT MACHANISM OF WTO
60 days
45 days Establishment of panel and appointment of members
6 months Panel presents its final report to parties
3 weeks Panel presents its final report to WTO Members
60 days Dispute Settlement Body (DSB) adopts report (in the absence of an appeal)
total = 1 yearIf no appeal
60 to 90 days Appellate review report
30 days DSB adopts the Appellate review
total = 1 year and 3
If a party appeals
4
Specificities of the system
In terms of developing country Members of WTO, the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU) takes into account their
particular situation. Within the dispute settlement system, the special and
differentiated treatment they receive consists in additional or privileged procedures
such as longer time periods
4 Source: Understanding the WTO: settling disputes (http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm).
BY : SHIKHA GUPTA 10LLB001912
DISPUTE SETTLEMENT MACHANISM OF WTO
The case has been decided: what next?
Go directly to jail. Do not pass Go, do not collect … . Well, not exactly. But the
sentiments apply. If a country has done something wrong, it should swiftly correct its
fault. And if it continues to break an agreement, it should offer compensation or face a
suitable response that has some bite — although this is not actually a punishment: it’s
a “remedy”, the ultimate goal being for the country to comply with the ruling.
The priority is for the losing “defendant” to bring its policy into line with the ruling or
recommendations, and it is given time to do this. The dispute settlement agreement
stresses that “prompt compliance with recommendations or rulings of the DSB
BY : SHIKHA GUPTA 10LLB001913
DISPUTE SETTLEMENT MACHANISM OF WTO
[Dispute Settlement Body] is essential in order to ensure effective resolution of
disputes to the benefit of all Members”.
If the country that is the target of the complaint loses, it must follow the
recommendations of the panel report or the appeals report. It must state its intention to
do so at a Dispute Settlement Body meeting held within 30 days of the report’s
adoption. If complying with the recommendation immediately proves impractical, the
member will be given a “reasonable period of time” to do so. If it fails to act within
this period, it has to enter into negotiations with the complaining country (or
countries) in order to determine mutually-acceptable compensation — for instance,
tariff reductions in areas of particular interest to the complaining side.
If after 20 days, no satisfactory compensation is agreed, the complaining side may ask
the Dispute Settlement Body for permission to retaliate (to “suspend concessions or
other obligations”). This is intended to be temporary, to encourage the other country
to comply. It could for example take the form of blocking imports by raising import
duties on products from the other country above agreed limits to levels so high that
the imports are too expensive to sell — within certain limits. The Dispute Settlement
Body must authorize this within 30 days after the “reasonable period of time” expires
unless there is a consensus against the request.
In principle, the retaliation should be in the same sector as the dispute. If this is not
practical or if it would not be effective, it can be in a different sector of the same
agreement. In turn, if this is not effective or practicable and if the circumstances are
serious enough, the action can be taken under another agreement. The objective is to
minimize the chances of actions spilling over into unrelated sectors while at the same
time allowing the actions to be effective.
In any case, the Dispute Settlement Body monitors how adopted rulings are
implemented. Any outstanding case remains on its agenda until the issue is resolved.
BY : SHIKHA GUPTA 10LLB001914
DISPUTE SETTLEMENT MACHANISM OF WTO
BY : SHIKHA GUPTA 10LLB001915
DISPUTE SETTLEMENT MACHANISM OF WTO
CONCLUSION
The WTO DSU was negotiated as part of the Uruguay Round to create a new rules-
based procedure for dispute settlement. Its structure and scope addressed the principal
shortcomings of the GATT system as well as embodying the diverse objectives of
many Member states. In the years since its inception, the DSU has demonstrated a
sharper cutting edge in enforcing the international trade rules and greater
effectiveness in resolving trade disputes between WTO Members. As it currently
stands, the DSU therefore represents a significant improvement upon the previous
GATT dispute settlement systems.
The WTO DSU has, nevertheless, faced a number of criticisms, most of which
concern the pattern and structure of incentives for its use. Initial studies of the
performance of the new dispute settlement system suggest that it is subject to
institutional bias that favours leading trading nations over most developing countries.
The effectiveness of the DSU has been greatly enhanced by the negative consensus
rule but this also means however, that the WTO system can impose external policies
on Member countries without a democratic mandate. It is this lack of democratic
accountability on the part of the WTO that is, in
part, responsible for its current crisis of credibility. Some form of middle way is
needed to strike a better balance between the demands of national sovereignty and the
effective resolution of international trade disputes. The unchallenged dominance of
either is to the detriment of the other and will undermine the credibility of both the
WTO and the DSU.
BY : SHIKHA GUPTA 10LLB001916