KEY ISSUES IN WTO DISPUTE SETTLEMENT · Rufus Yerxa 2 The WTO dispute settlement and general international law 7 Georges Abi-Saab part ii TheWTODisputeSettlementSystem:ItsProcessesand

KEY ISSUES IN WTO DISPUTE

SETTLEMENT

The first ten years

This book examines aspects of the operation of the WTO dispute settle-ment system during the first ten years of the WTO. It covers a representativecross-section of the issues and situations WTO Members have dealt withunder the Dispute Settlement Understanding. The book is unique in thatit includes contributions from virtually the entire gamut of actors involvedin the day-to-day operation of the WTO dispute settlement system: Mem-ber government representatives, private lawyers who litigate on behalf ofMember governments in the system, Appellate Body members, AppellateBody Secretariat staff, and WTO Secretariat staff. It also includes contri-butions from several academics who closely follow and carefully scrutinizeall that goes on within the system. It therefore provides fascinating insightsinto how the system has operated in practice, and how the lessons of thefirst decade can be applied to make the system even more successful in theyears to come.

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KEY ISSUES IN WTO DISPUTE

SETTLEMENT

The first ten years

Edited by

RUFUS YERXA AND BRUCE WILSON






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CONTENTS

Notes on contributors page viiiPreface xviiTable of cases xixAbbreviations xxxvii

part i Introduction and General Considerations 1

1 The power of the WTO dispute settlementsystem 3Rufus Yerxa

2 The WTO dispute settlement and generalinternational law 7Georges Abi-Saab

part ii The WTO Dispute Settlement System: Its Processes andIts Institutions 13

3 The WTO dispute settlement system and its operation: a briefoverview of the first ten years 15Bruce Wilson

4 The role of the Dispute Settlement Body in the disputesettlement process 25Bozena Mueller-Holyst

5 Consultations and the panel process in the WTO disputesettlement system 29Gabrielle Marceau

6 Contingent trade remedies and WTO dispute settlement:some particularities 46Jesse Kreier

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vi contents

7 The making of the ‘World Trade Court’: the origins anddevelopment of the Appellate Body of the World TradeOrganization 63Peter Van den Bossche

8 Special challenges at the appellate stage: a case study 80Valerie Hughes

9 The reasonable period of time for compliance with the rulingsand recommendations adopted by the WTO DisputeSettlement Body 88Werner Zdouc

10 Implementation of panel and Appellate Body rulings:an overview 98Brendan McGivern

11 A brief introduction to countermeasures in the WTOdispute settlement system 110Yves Renouf

part iii The WTO Dispute Settlement System: Systemic andOther Issues 123

12 The role of lawyers in the WTO disputesettlement system 125Giorgio Sacerdoti

13 Jurisdiction in WTO dispute settlement 132Joel Trachtman

14 Due process in WTO disputes 144Andrew Mitchell

15 Standards of review in WTO panel proceedings 161Matthias Oesch

16 Administration of evidence in WTO dispute settlementproceedings 177Scott Andersen

17 Confidentiality issues under the DSU: fact-finding processversus confidentiality 190Olivier Prost






contents vii

18 Panels’ consultations with scientific experts 204Mireille Cossy

19 Amicus curiae participation in WTO dispute settlement:reflections on the past decade 221James Durling and David Hardin

20 Suspension of concessions and retaliation under theAgreement on Safeguards: the recentUS – Steel Safeguards case 232Raimund Raith

21 Compliance with WTO dispute settlement decisions: is therea crisis? 242John Magnus

22 DSU review: a view from the inside 251David Evans and Celso de Tarso Pereira

part iv Annexes 269Annexes I–VSelected statistics: the first ten years of the WTO 271






NOTES ON CONTRIBUTORS

Georges Michel Abi-Saab was appointed to the Appellate Body of theWorld Trade Organization in June 2000 and became Chairman of theAppellate Body in 2003. Born in Egypt on 9 June 1933, Georges MichelAbi-Saab is Honorary Professor of International Law at the GraduateInstitute of International Studies in Geneva (having taught there from1963 to 2000); Honorary Professor at Cairo University’s Faculty of Law;and a Member of the Institute of International Law. Professor Abi-Saab hasalso served as consultant to the Secretary-General of the United Nations.He represented Egypt in the Diplomatic Conference on the Reaffirmationand Development of International Humanitarian Law (1974 to 1977), andacted as advocate and Counsel for several governments in cases before theInternational Court of Justice (ICJ) as well as in international arbitrations.He has also served twice as judge ad hoc on the ICJ and as Judge on theAppeals Chamber of the International Criminal Tribunals for the FormerYugoslavia and for Rwanda. He is a Commissioner of the United NationsCompensation Commission and a Member of the Administrative Tribunalof the International Monetary Fund and of various international arbitraltribunals.

Scott Andersen is the Managing Partner of Sidley Austin Brown & Wood’sGeneva office. He focuses his practice on the use of WTO rules to resolveinternational trade disputes. Mr Andersen is also actively involved in thelitigation and enforcement of matters submitted to WTO dispute set-tlement panels. Mr Andersen was recently lead counsel in the landmarkUpland Cotton dispute challenging domestic and export agricultural sub-sidies causing serious prejudice. Between 1995 and 2000, Mr Andersen wasthe Legal Adviser to the US Mission to the WTO in Geneva, Switzerlandwhere he represented the United States in more than 30 disputes beforethe WTO – both panels and the Appellate Body. In addition he was theGeneva USTR negotiator for environment, investment, balance of pay-ments, fishing subsidies, and customs valuation issues between 1996 and

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notes on contributors ix

2000. Prior to his arrival in Geneva, Mr Andersen worked for five years atthe US International Trade Commission, focusing on anti-dumping andintellectual property issues as well as participating in NAFTA investmentnegotiations.

Mireille Cossy graduated in Law at the Universities of Lausanne andGeneva (Switzerland). In 1995, she joined the Trade and EnvironmentDivision of the World Trade Organization. Since 1999, she has been aCounsellor in the Trade in Services Division of the WTO, and currentlyfocuses on issues related to environmental, energy and health services. Shehas also acted as Secretary to four WTO dispute panels. Before joiningthe WTO, she worked for the Swiss Ministry of Economic Affairs and forthe International Committee of the Red Cross.

James Durling is a partner in Willkie Farr & Gallagher LLP’s WashingtonDC office, where he specializes in international trade law. His practicefocuses on trade remedy and WTO litigation, as well as trade policyadvisory work. He has worked extensively on WTO dispute settlementproceedings, with a particular focus on WTO challenges to trade rem-edy measures. Mr Durling advised the foreign parties in the panel andAppellate Body proceedings on US – Steel Safeguards. He has also writ-ten extensively on the subject of WTO dispute settlement proceedings andtrade remedies, including three books: Anatomy of a Trade Dispute (2000),Understanding the WTO Antidumping Agreement (2002), and BusinessGuide to Trade Remedies in the United States (2003). Mr Durling studiedhistory at Haverford College (BA 1980), economics at Princeton Univer-sity (MPA 1984), and law at New York University (JD 1984).

David Evans is a Senior Legal Adviser at the Ministry of Foreign Affairsand Trade in New Zealand. He was First Secretary in charge of WTOlegal matters at the New Zealand Permanent Mission to the WTO from2002–2005. He chaired the WTO Committee on Anti-Dumping Practicesin 2003–2004. He has worked actively on a number of disputes, includingCanada – Dairy, US – Steel Safeguards, and US – Lamb. He has an LLB(Hons) and Bachelor of Arts (Political Science) from Auckland University.

David Hardin is currently an associate attorney in Willkie Farr &Gallagher LLP’s Washington, DC office, where he specializes in inter-national trade law. His practice focuses on trade remedy cases beforethe WTO and various US trade agencies. Prior to joining Willkie Farr &Gallagher, Mr Hardin clerked at the US Department of Commerce and theUS International Trade Commission. Mr Hardin studied political science






x notes on contributors

at George Mason University (BA 1999) and law at the George WashingtonUniversity Law School (JD 2003).

Valerie Hughes has been Director of the Appellate Body Secretariat of theWorld Trade Organization since August 2001. Previously, she was witha private law firm in Ottawa, Canada. She also spent 19 years with theGovernment of Canada, during which she held various positions, includ-ing Director of the Trade Law Division of the Department of ForeignAffairs and Trade, Director of the General Legal Services Division of theDepartment of Finance, and Senior Counsel of the International LawSection of the Department of Justice. Ms Hughes is an expert in inter-national law and has litigated before various international courts andtribunals.

Jesse Kreier is Counsellor and Chief Legal Officer in the Rules Divisionof the World Trade Organization. Since joining the WTO Secretariat in1992, Mr Kreier has served as legal officer to numerous dispute settlementpanels, and currently supervises Division staff servicing dispute settle-ment panels arising under the WTO Rules agreements (Agreements onAnti-Dumping, Subsidies and Countervailing Measures, Safeguards, andTrade in Civil Aircraft). He has also staffed a number of negotiations,and is at present the Secretary of the Negotiating Group on Rules From1987 to 1992, Mr Kreier was in private legal practice in Washington, DC,where he specialized in international trade regulation. Mr Kreier holds aJD degree, magna cum laude, from Georgetown University Law Center,a Master of Science in Foreign Service from Georgetown University, anda Bachelor of Arts from Johns Hopkins University. He is admitted to theBar in California and the District of Columbia, USA.

John Magnus is President of TRADEWINS LLC, a trade law and policyconsulting firm in Washington DC. He has been an active practitionerfor 15 years, serving as external counsel to domestic and foreign firmsand industry coalitions. His client work covers a wide variety of inter-national issues, with an emphasis on WTO law and dispute settlement,trade remedy proceedings, market access initiatives involving goods andservices, subsidy disputes, pending trade negotiations, US trade legisla-tion and Congressional oversight activities, foreign governments’ traderegimes and industrial policy measures, customs/compliance issues, andthe application of national and international competition rules. He alsoadvises foreign governments on their trade regimes and implementationof WTO rules. Mr Magnus is a past Chair of the International Trade






notes on contributors xi

Law Committee of the American Bar Association, and presently serves asPolicy/Government Affairs Officer for the ABA Section of InternationalLaw. He was with the law firm Dewey Ballantine LLP from 1990–2004, asa Partner from 2000–2004, and since 2003 has been an Adjunct Professorof Law at the University of Baltimore School of Law teaching ‘Interna-tional Business Transactions’ and ‘International Trade Law and Policy’.Mr Magnus is a graduate of Stanford University (AB, International Rela-tions) and the University of Chicago Law School.

Gabrielle Marceau is a Canadian lawyer and, currently, Counsellor in theLegal Affairs Division of the World Trade Organization (WTO) in Genevawhere she has been working since 1994. From 1983 to 1988, Ms Marceauworked in Quebec, Canada in private practice, where she specialized inlitigation. She is a member of the Quebec Bar (1983), received her LL.M.from the London School of Economics (England) in 1990 and her Ph.D.from the University of London (England) in 1993. As well as working atthe WTO, she is also Professor of WTO law at the University of Genevaand the Graduate Institute of International Studies (HEI) also in Geneva.

Brendan McGivern is with White & Case International Trade (Geneva).He practices international trade law, particularly the law of the WorldTrade Organization (WTO). He advises companies, industry associationsand sovereign governments on the full range of WTO disciplines, includ-ing anti-dumping, subsidies and countervailing measures, safeguards,state-trading enterprises, services, and intellectual property. He representsWTO Member states in dispute settlement proceedings, and is currentlyinvolved in three active WTO disputes before panels and the AppellateBody. In 2003–2004, he served as a member of the WTO arbitration panelin the US – Anti-Dumping Act of 1916 case. Prior to joining White & Case,Mr McGivern was the senior legal adviser and the head of the DisputeSettlement section at the Canadian Mission to the WTO in Geneva. Heholds a B.A. and LL.B. from the University of British Columbia and anM.A. in International Affairs from Carleton University. He is a memberof the Bar of Ontario.

Andrew Mitchell is a Consultant to the International Monetary Fund(IMF) in Geneva, a Fellow of the Tim Fischer Centre for Global Trade& Finance at Bond University, and a Senior Fellow in the University ofMelbourne Law School. He is also a Doctoral Candidate in Law at theUniversity of Cambridge as a WM Tapp Scholar of Gonville & CaiusCollege and a Cambridge Commonwealth Trust Scholar. Andrew Mitchell






xii notes on contributors

graduated from the University of Melbourne with First Class Honoursin both his Bachelor of Laws and Bachelor of Commerce degrees. Hesubsequently obtained a Master of Laws from Harvard Law School andcompleted the requirements for a Graduate Diploma in International Lawfrom the University of Melbourne. Mr Mitchell was previously a Solicitorwith Allens Arthur Robinson in Australia, and worked briefly at Davis Polk& Wardwell in New York. He has also worked in the Trade Directorate ofthe OECD, the Intellectual Property Division of the WTO, and the LegalDepartment of the IMF. During 2003–2004, he was a Fellow at the Instituteof International Economic Law at Georgetown University. Mr Mitchell haspublished in numerous journals and books on areas including WTO law,international law, international humanitarian law and constitutional law.He teaches WTO law at the University of Melbourne and the Universityof Western Ontario.

Bozena Mueller-Holyst is a Counsellor in the Council and Trade Nego-tiations Committee Division of the WTO and has worked for the GATTand then the WTO, since 1993. She has been involved in the work ofthe Dispute Settlement Body since its inception. She graduated from theGraduate Institute of International Studies (HEI) in Geneva (Switzer-land) with a Master’s degree in International Economics, and also fromthe Academy of Economics in Krakow (Poland) with a Master’s degree inInternational Economic Relations and International Trade.

Matthias Oesch is Senior Research Fellow at the World Trade Institute(WTI) in Berne. Previously, he worked as Legal Counsel in the WTO Divi-sion of the Federal Department of Economics, Switzerland, having repre-sented Switzerland before the Appellate Body in the US – Steel Safeguardscase and in the DSU Review. He is a member of the Berne Bar (1999),received his LL.M. from the London School of Economics and PoliticalScience (2000) and his Ph.D. from the University of Berne (2003). He haswritten extensively on WTO and EU trade matters, including two books:Standards of Review in WTO Dispute Resolution (2003) and InternationalTrade Regulation: Law and Policy in the WTO, the European Union andSwitzerland (co-authored with Thomas Cottier, 2005).

Olivier Prost, member of the Paris Bar and associate member of theBrussels Bar, is a partner of the Brussels office of Gide Loyrette Nouel.He is leading the International Trade and Competition team, composedof Erwan Berthelot, Vassiliki Avgoustidi, Sven Ballschmiede, MaximeBaudouin and Guy Legras, the former Director-General of the European






notes on contributors xiii

Commission (DG Agriculture and DG Relex) acting as senior adviser ontrade and agriculture matters. He has been practising international tradeand EC law in Brussels since 1991 and has been directly involved in majorrecent WTO dispute settlements such as Bananas (1998), Absestos (1999)and Sugar (2003). He advised the Chinese government in its first WTOcase (US – Steel Safeguards, 2002). Recently the International Trade andCompetition team has been selected by the ACP banana supplying coun-tries for legal assistance in the WTO banana arbitration. Olivier Prost hasadvised both companies and governments before the EC authorities andforeign authorities in the areas of customs law, rules of origin, preferentialtrade agreements and instruments of commercial defence. He is particu-larly active in the field of anti-dumping, anti-subsidy and safeguard inves-tigations for both the industrial and agricultural sectors. He has also beeninvolved in cases dealing with the most recent aspects of WTO regulatorylaw, such as discriminatory, restrictive and anti-competitive practices, andfree movement of goods and services.

Raimund Raith is the Minister-Counsellor/Legal Adviser at the Perma-nent Delegation of the European Commission in Geneva. Previously LegalAdviser in the Legal Service of the European Commission, dealing withlegal aspects of the Community’s external relations. Formerly Head ofthe Intellectual Property and Investment Section, Directorate General forExternal Relations. He participated in the GATT Uruguay Round negoti-ations on Trade-Related Aspects of Intellectual Property Rights (TRIPS)and was representative of the Community and its Member States in theTRIPS Council of the WTO. Raimund Raith was a Community negotia-tor for the Agreement on Trade-Related Aspects of Investment Measures(TRIMs). Before joining the Commission staff, he was an assistant profes-sor in the law department of the European University Institute in Florence,Italy. He studied law and economics at the Universitaet Tubingen (1st StateExam and Ph.D.), Universite de Geneve and Law School of the Universityof Michigan (LL.M.). He has been a member of the New York Bar since1982 and is also a member of the American Bar Association. He servedon the faculty of the Salzburg Seminar (1995) and, since 2000, has been alecturer at the Universitat des Saarlandes.

Yves Renouf has been working in the WTO Secretariat since 1995 as legaladviser to panels and arbitrators. Previously, he was an associate in thelaw firm of Van Bale & Bellis and a member of the Legal Service of the ECCommission. In his current position, he has been involved in many of thearbitrations under Article 22.6 of the DSU and Article 4.10 of the SCM






xiv notes on contributors

Agreement, as well as in the only Article 25 DSU arbitration so far. Asearly as 1995, in an article in the Annuaire Francais de Droit International,Mr Renouf underlined the fundamental role that countermeasures wouldhave to play in a dispute settlement system where a panel report would beadopted automatically. Mr Renouf also teaches a course on WTO disputesettlement at the University of Rennes, France.

Giorgio Sacerdoti, born on 2 March 1943, has been Professor of Inter-national Law and European Law at Bocconi University, Milan, Italy, since1986. He was appointed Appellate Body Member in December 2001.Professor Sacerdoti has held various posts in the public sector includ-ing Vice-Chairman of the Organization for Economic Cooperation andDevelopment (OECD) Working Group on Bribery in International Busi-ness Transactions until 2001. He has acted as consultant to the Councilof Europe, UNCTAD and the World Bank in matters related to foreigninvestments, trade, bribery, development and good governance. In theprivate sector, he has often served as arbitrator in international commer-cial disputes and at the International Centre for Settlement of InvestmentDisputes. Professor Sacerdoti has published extensively on internationaltrade law, investments, international contracts and arbitration. After grad-uating from the University of Milan with a law degree summa cum laudein 1965, Professor Sacerdoti gained a Master in Comparative Law fromColumbia University Law School as a Fulbright Fellow in 1967. He wasadmitted to the Milan Bar in 1969 and to the Supreme Court of Italy in1979.

Celso de Tarso Pereira , currently Second Secretary at the BrazilianEmbassy in Ottawa, was in charge of dispute settlement at the BrazilianMission in Geneva between 2001–2005. He graduated in law in Brazil(UFPR – Curitiba) and gained his Master in International Law from Kiel,Germany. Professor de Tarso has previously worked in the Mercosul Divi-sion of Brazil’s Foreign Ministry, where he was also responsible for dis-pute settlement. He is Professor of International Law at the Universities ofCuritiba and Brasılia and Assistant Professor at the Diplomatic Academy‘Rio Branco’, in Brasılia.

Joel Trachtman is Professor of International Law at The Fletcher Schoolof Law and Diplomacy at Tufts University. From 1998 to 2001, he wasAcademic Dean of the Fletcher School, and during 2000 and 2001, heserved as Dean ad interim. In 2002, he was Manley O. Hudson Visit-ing Professor of Law and in 2004 he was Nomura Visiting Professor of






notes on contributors xv

International Financial Systems at Harvard Law School. He has consultedfor the United Nations, the OECD, APEC, the World Bank, the Organi-zation of American States, the US Agency for International Developmentand the International Law Institute. Professor Trachtman is a member ofthe Boards of the American Journal of International law, the EuropeanJournal of International Law, and the Journal of International EconomicLaw. He is a member of the bar of the State of New York. Prior to join-ing the faculty of The Fletcher School in 1989, he spent nine years inthe private practice of international commercial law in New York andHong Kong. His practice included a wide variety of international anddomestic financing, acquisition and commercial transactions. He gradu-ated in 1980 from Harvard Law School, where he served as editor-in-chiefof the Harvard International Law Journal. His undergraduate educationwas at the London School of Economics and Columbia College.

Peter Van den Bossche is Professor of International Economic Law, Headof the Department of International and European Law and AcademicDirector of the Law and Language Studies master programme at Maas-tricht University, the Netherlands. Peter Van den Bossche studied law atthe University of Antwerp (Lic. jur., 1982), the University of Michigan(LL.M., 1986) and the European University Institute, Florence (Dr. jur.,1990). From 1990 to 1992, he worked at the European Court of Justice,Luxembourg, as legal secretary to Advocate-General Walter van Gerven.From February 1997 to August 2001, Peter Van den Bossche was Coun-sellor to the Appellate Body of the World Trade Organization, Geneva.In 2001, he served as Acting Director of the Appellate Body Secretariat.Peter Van den Bossche is a member of the Editorial Board of the Journalof International Economic Law, a member of the international faculty ofthe World Trade Institute, Berne, and a visiting professor at the Universityof Amsterdam, the Universite Libre de Bruxelles and at the InternationalTrade Academy, Macau. He works as a consultant for the United Nationsand law firms specialized in international trade issues. In recent years,Peter Van den Bossche has published primarily on issues of internationaleconomic law and dispute settlement. He is the author of The Law AndPolicy of the World Trade Organization: Text, Cases and Materials,published by Cambridge University Press in 2005.

Bruce Wilson assumed the post of Director of the Legal Affairs Division ofthe World Trade Organization (WTO) Secretariat in Geneva, Switzerlandon 16 September 2002. In this post, he serves as the principal legal officerof the organization, a post in which he spends much of his time on WTO






xvi notes on contributors

dispute settlement matters. Prior to taking up this position, he held anumber of different trade policy positions in the US Government at theOffice of the United States Trade Representative and the Committee onWays and Means of the US House of Representatives. Upon retirementfrom the US Government in early 1998, he practiced international tradeand international public policy law for a major US law firm until joiningthe Secretariat. Mr Wilson holds a B.A. in history from Stanford University(1970), an M.A. in international relations (with a specialization in interna-tional economics) from Johns Hopkins School of Advanced InternationalStudies (1972), and an M.B.A. (with a specialization in finance) (1979)and a J.D.(1986) from George Washington University. He is a member ofthe bars of Virginia and the District of Columbia in the United States.

Rufus Yerxa has served as Deputy Director-General of the World TradeOrganization (WTO) since 2002, responsible for dispute settlement. MrYerxa has an extensive record as a trade diplomat and lawyer. He served asUS Ambassador to the GATT, the predecessor organization to the WTOand later as Deputy US Trade Representative in Washington – his gov-ernment’s senior sub-cabinet trade official. Prior to this he was with theUS House of Representatives, where he was Staff Director of the TradeSubcommittee. After leaving government service in 1995, he moved toBrussels as resident partner with a major US law firm. He subsequentlyserved as European General Counsel for a major pharmaceuticals andagro-food company.

Werner Zdouc obtained his Ph.D from the University of St. Gallen(Switzerland); his LL.M. from the University of Michigan (USA), LawSchool and his law degree from the University of Graz (Austria). Since2001, Werner Zdouc has been a Counsellor, in the Appellate BodySecretariat of the World Trade Organization. He joined the WTO in 1995as Legal Affairs Officer in the Legal Affairs Division and was also a lecturerfor postgraduate studies in international economic law at the Universi-ties of St. Gallen and Geneva. Mr Zdouc is currently lecturer and visitingprofessor for international trade law at Vienna Economic University andthe University of Zurich. In 1989 he served as development aid projectevaluator in South America and from 1987–1989 was Director of theAfro-Asian-Institute Graz (cultural centre for students from developingcountries). He has contributed to a number of publications on interna-tional economic law and EU trade law.






PREFACE

As the WTO enters its second decade, it is only fitting for the WTOcommunity at large to step back for a moment to reflect on how theorganization and the many agreements it administers have functionedover the first decade and to determine whether there are any particularlessons to be learned and applied in the future. This publication attemptsto assist in this regard with respect to the operation of the WTO disputesettlement system.

While the material contained in this volume is far from exhaustive, itdoes cover a representative cross-section of the various issues and situa-tions under the Dispute Settlement Understanding that WTO Membershave had to deal with during the first decade. Most importantly, the publi-cation is unique because it includes contributions from virtually the entiregamut of actors involved in the day-to-day operation of the WTO disputesettlement system – Member government representatives, private lawyerswho litigate on behalf of Member governments in the system, AppellateBody members, Appellate Body Secretariat staff, and WTO Secretariatstaff. It also includes contributions from several academic scholars whoclosely follow and carefully scrutinize all that goes on within the system.

This book contains 21 relatively short and straightforward chapters onvarious aspects of the dispute settlement system. Each chapter is basedlargely on the individual author’s own personal experience with, or studyof, the system. Consequently, the book should make for informative andeven fascinating reading for those who wish to gain further insights intohow the system has operated in practice since 1995.

As those who even casually follow WTO affairs are aware, the WTOdispute settlement system has been well utilized by the Members, andthus has been an exceedingly active venue for disputes since its inception.As a result, hardly a day goes by without one WTO dispute or anotherbeing the subject of news headlines in one or more of the territoriesof the WTO’s 148 Members. This is because what happens under theWTO dispute settlement system can and does have important trade and

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xviii preface

economic consequences. Thus, understanding why and how the systemoperates and how it has evolved is more than just an intellectual exercise,particularly for those entrusted with formulating and implementing anindividual Member’s trade policies and those whose economic interestsare directly affected.

Credit for this publication must go first and foremost to the contribut-ing authors. Not only did they all produce excellent chapters, they alsoagreed to subject those chapters to the review and the suggestions of thebook’s editors and their colleagues in the WTO Secretariat who workedon this project.

The first decade of operation of the WTO dispute settlement systemhas truly been a fascinating period in the history of inter-governmentaldispute resolution in the commercial arena. We are confident that thispublication will assist in enhancing our collective understanding of thesystem and of how the lessons of the first decade can be applied to makethe second decade even more successful with respect to the resolution ofWTO disputes.

Rufus Yerxa and Bruce WilsonWTO Secretariat

Geneva, SwitzerlandJune 2005






TABLE OF CASES

Short Title Full Case Title and Citation

Argentina – CeramicTiles

Panel Report, Argentina – DefinitiveAnti-Dumping Measures on Imports of CeramicFloor Tiles from Italy, WT/DS189/R, adopted5 November 2001, DSR 2001:XII, 6241

Argentina –Footwear (EC)

Appellate Body Report, Argentina – SafeguardMeasures on Imports of Footwear,WT/DS121/AB/R, adopted 12 January 2000,DSR 2000:I, 515

Argentina –Footwear (EC)

Panel Report, Argentina – Safeguard Measureson Imports of Footwear, WT/DS121/R,adopted 12 January 2000, as modified by theAppellate Body Report, WT/DS121/AB/R,DSR 2000:II, 575

Argentina – PoultryAnti-Dumping Duties

Panel Report, Argentina – DefinitiveAnti-Dumping Duties on Poultry from Brazil,WT/DS241/R, adopted 19 May 2003

Argentina – PreservedPeaches

Panel Report, Argentina – Definitive SafeguardMeasure on Imports of Preserved Peaches,WT/DS238/R, adopted 15 April 2003

Argentina – Textilesand Apparel

Appellate Body Report, Argentina – MeasuresAffecting Imports of Footwear, Textiles, Appareland Other Items, WT/DS56/AB/R and Corr.1,adopted 22 April 1998, DSR 1998:III, 1003

Australia – Salmon Appellate Body Report, Australia – MeasuresAffecting Importation of Salmon,WT/DS18/AB/R, adopted 6 November 1998,DSR 1998:VIII, 3327

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Australia – Salmon Panel Report, Australia – Measures AffectingImportation of Salmon, WT/DS18/R andCorr.1, adopted 6 November 1998, asmodified by the Appellate Body Report,WT/DS18/AB/R, DSR 1998:VIII, 3407

Australia – Salmon(Article 21.5 –Canada)

Panel Report, Australia – Measures AffectingImportation of Salmon – Recourse to Article21.5 of the DSU by Canada, WT/DS18/RW,adopted 20 March 2000, DSR 2000:IV, 2031

Brazil – Aircraft Appellate Body Report, Brazil – ExportFinancing Programme for Aircraft,WT/DS46/AB/R, adopted 20 August 1999,DSR 1999:III, 1161

Brazil – Aircraft Panel Report, Brazil – Export FinancingProgramme for Aircraft, WT/DS46/R, adopted20 August 1999, as modified by the AppellateBody Report, WT/DS46/AB/R,DSR 1999:III, 1221

Brazil – Aircraft(Article 22.6 – Brazil)

Decision by the Arbitrators, Brazil – ExportFinancing Programme for Aircraft – Recourse toArbitration by Brazil under Article 22.6 of theDSU and Article 4.11 of the SCM Agreement,WT/DS46/ARB, 28 August 2000,DSR 2002:I, 19

Brazil – DesiccatedCoconut

Appellate Body Report, Brazil – MeasuresAffecting Desiccated Coconut, WT/DS22/AB/R,adopted 20 March 1997, DSR 1997:I, 167

Canada – Aircraft Appellate Body Report, Canada – MeasuresAffecting the Export of Civilian Aircraft,WT/DS70/AB/R, adopted 20 August 1999,DSR 1999:III, 1377

Canada – Aircraft Panel Report, Canada – Measures Affecting theExport of Civilian Aircraft, WT/DS70/R,adopted 20 August 1999, as upheld by theAppellate Body Report, WT/DS70/AB/R,DSR 1999:IV, 1443

Canada – AircraftCredits andGuarantees

Panel Report, Canada – Export Credits andLoan Guarantees for Regional Aircraft,WT/DS222/R and Corr.1, adopted19 February 2002






table of cases xxi


Canada – AircraftCredits and Guarantees(Article 22.6 –Canada)

Decision by the Arbitrator, Canada – ExportCredits and Loan Guarantees for RegionalAircraft – Recourse to Arbitration by Canadaunder Article 22.6 of the DSU and Article 4.11of the SCM Agreement, WT/DS222/ARB,17 February 2003

Canada – Dairy Panel Report, Canada – Measures Affecting theImportation of Milk and the Exportation ofDairy Products, WT/DS103/R, WT/DS113/R,adopted 27 October 1999, as modified by theAppellate Body Report, WT/DS103/AB/R,WT/DS113/AB/R, DSR 1999:VI, 2097

Canada – Dairy(Article 21.5 – NewZealand and US)

Appellate Body Report, Canada – MeasuresAffecting the Importation of Milk and theExportation of Dairy Products – Recourse toArticle 21.5 of the DSU by New Zealand andthe United States, WT/DS103/AB/RW,WT/DS113/AB/RW, adopted 18 December2001, DSR 2001:XIII, 6829

Canada – Herring andSalmon

GATT Panel Report, Canada – MeasuresAffecting Exports of Unprocessed Herring andSalmon, adopted 22 March 1988, BISD 35S/98

Canada – WheatExports and GrainImports

Panel Report, Canada – Measures Relating toExports of Wheat and Treatment of ImportedGrain, WT/DS276/R, adopted 27 September2004, as upheld by the Appellate Body Report,WT/DS276/AB/R

Chile – Price BandSystem

Panel Report, Chile – Price Band System andSafeguard Measures Relating to CertainAgricultural Products, WT/DS207/R,3 May 2002 adopted 23 October 2002, asmodified by the Appellate Body Report,WT/DS207AB/R

EC – Approval andMarketing of BiotechProducts

European Communities – Measures Affectingthe Approval and Marketing of Biotech Products






xxii table of cases


EC – Asbestos Appellate Body Report, EuropeanCommunities – Measures Affecting Asbestosand Asbestos-Containing Products,WT/DS135/AB/R, adopted 5 April 2001,DSR 2001:VII, 3243

EC – Asbestos Panel Report, European Communities –Measures Affecting Asbestos andAsbestos-Containing Products, WT/DS135/Rand Add.1, adopted 5 April 2001, asmodified by the Appellate Body Report,WT/DS135/AB/R, DSR 2001:VIII, 3305

EC – Bananas III Appellate Body Report, EuropeanCommunities – Regime for the Importation,Sale and Distribution of Bananas,WT/DS27/AB/R, adopted25 September 1997, DSR 1997:II, 591

EC – Bananas III (US) Panel Report, European Communities –Regime for the Importation, Sale andDistribution of Bananas, Complaint by theUnited States, WT/DS27/R/USA, adopted25 September 1997, as modified by theAppellate Body Report, WT/DS27/AB/R,DSR 1997:II, 943

EC – Bananas III(Ecuador) (Article 22.6 –EC)

Decision by the Arbitrators, EuropeanCommunities – Regime for the Importation,Sale and Distribution of Bananas – Recourseto Arbitration by the European Communitiesunder Article 22.6 of the DSU,WT/DS27/ARB/ECU, 24 March 2000,DSR 2000:V, 2237

EC – Bananas III (US)(Article 22.6 – EC)

Decision by the Arbitrators, EuropeanCommunities – Regime for the Importation,Sale and Distribution of Bananas – Recourseto Arbitration by the European Communitiesunder Article 22.6 of the DSU,WT/DS27/ARB, 9 April 1999, DSR1999:II, 725






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EC – Bed Linen Appellate Body Report, EuropeanCommunities – Anti-Dumping Duties onImports of Cotton-Type Bed Linen from India,WT/DS141/AB/R, adopted 12 March 2001,DSR 2001:V, 2049

EC – Bed Linen Panel Report, European Communities –Anti-Dumping Duties on Imports ofCotton-Type Bed Linen from India,WT/DS141/R, adopted 12 March 2001, asmodified by the Appellate Body Report,WT/DS141/AB/R, DSR 2001:VI, 2077

EC – Bed Linen(Article 21.5 – India)

Appellate Body Report, EuropeanCommunities – Anti-Dumping Duties onImports of Cotton-Type Bed Linen from India –Recourse to Article 21.5 of the DSU by India,WT/DS141/AB/RW, adopted 24 April 2003

EC – Bed Linen(Article 21.5 – India)

Panel Report, European Communities –Anti-Dumping Duties on Imports ofCotton-Type Bed Linen from India – Recourseto Article 21.5 of the DSU by India,WT/DS141/RW, adopted 24 April 2003, asmodified by the Appellate Body Report,WT/DS141/AB/RW

EC – Export Subsidieson Sugar

Appellate Body Report, EuropeanCommunities – Export Subsidies on Sugar,WT/DS265/AB/R, WT/DS266/AB/R,WT/DS283/AB/R, adopted 19 May 2005

EC – Export Subsidieson Sugar (Australia)

Panel Report, European Communities – ExportSubsidies on Sugar, Complaint by Australia,WT/DS265/R, adopted 19 May 2005, asmodified by the Appellate Body Report,WT/DS265/AB/R, WT/DS266/AB/R,WT/DS283/AB/R

EC – Export Subsidieson Sugar (Brazil)

Panel Report, European Communities – ExportSubsidies on Sugar, Complaint by Brazil,WT/DS266/R, adopted 19 May 2005, asmodified by the Appellate Body Report,WT/DS265/AB/R, WT/DS266/AB/R,WT/DS283/AB/R






xxiv table of cases


EC – Export Subsidies onSugar (Thailand)

Panel Report, European Communities –Export Subsidies on Sugar, Complaint byThailand, WT/DS283/R, adopted 19 May2005, as modified by the Appellate BodyReport, WT/DS265/AB/R, WT/DS266/AB/R,WT/DS283/AB/R

EC – Hormones Appellate Body Report, EC MeasuresConcerning 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 MeasuresConcerning Meat and MeatProducts (Hormones) – Arbitration underArticle 21.3(c) of the DSU, WT/DS26/15,WT/DS48/13, 29 May 1998,DSR 1998:V, 1833

EC – Hormones(Canada) (Article 22.6 –EC)

Decision by the Arbitrators, EuropeanCommunities – Measures Concerning Meatand Meat Products (Hormones), OriginalComplaint by Canada – Recourse toArbitration by the European Communitiesunder Article 22.6 of the DSU,WT/DS48/ARB, 12 July 1999,DSR 1999:III, 1135

EC – Hormones (US)(Article 22.6 – EC)

Decision by the Arbitrators, EuropeanCommunities – Measures Concerning Meatand Meat Products (Hormones), OriginalComplaint by the United States – Recourse toArbitration by the European Communitiesunder Article 22.6 of the DSU,WT/DS26/ARB, 12 July 1999, DSR1999:III, 1105

EC – Poultry Appellate Body Report, EuropeanCommunities – Measures Affecting theImportation of Certain Poultry Products,WT/DS69/AB/R, adopted 23 July 1998,DSR 1998:V, 2031






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EC – Sardines Appellate Body Report, EuropeanCommunities – Trade Description of Sardines,WT/DS231/AB/R, adopted 23 October 2002

EC – Sardines Panel Report, European Communities – TradeDescription of Sardines, WT/DS231/R andCorr.1, adopted 23 October 2002, as modifiedby the Appellate Body Report,WT/DS231/AB/R

EC – Tube or PipeFittings

Appellate Body Report, EuropeanCommunities – Anti-Dumping Duties onMalleable Cast Iron Tube or Pipe Fittings fromBrazil, WT/DS219/AB/R, adopted 18 August2003

EC – Tube or PipeFittings

Panel Report, European Communities –Anti-Dumping Duties on Malleable Cast IronTube or Pipe Fittings from Brazil,WT/DS219/R, adopted 18 August 2003, asmodified by the Appellate Body Report,WT/DS219/AB/R

Egypt – Steel Rebar Panel Report, Egypt – DefinitiveAnti-Dumping Measures on Steel Rebar fromTurkey, WT/DS211/R, adopted1 October 2002

Guatemala – Cement I Appellate Body Report, Guatemala –Anti-Dumping Investigation RegardingPortland Cement from Mexico,WT/DS60/AB/R, adopted 25 November 1998,DSR 1998:IX, 3767

Guatemala – Cement I Panel Report, Guatemala – Anti-DumpingInvestigation Regarding Portland Cement fromMexico, WT/DS60/R, adopted25 November 1998, as modified by theAppellate Body Report, WT/DS60/AB/R,DSR 1998:IX, 3797

India – Patents (US) Appellate Body Report, India – PatentProtection for Pharmaceutical and AgriculturalChemical Products, WT/DS50/AB/R, adopted16 January 1998, DSR 1998:I, 9






xxvi table of cases


India – Patents (US) Panel Report, India – Patent Protection forPharmaceutical and Agricultural ChemicalProducts, Complaint by the United States,WT/DS50/R, adopted 16 January 1998, asmodified by the Appellate Body Report,WT/DS50/AB/R, DSR 1998:I, 41

India – QuantitativeRestrictions

Appellate Body Report, India – QuantitativeRestrictions on Imports of Agricultural, Textileand Industrial Products, WT/DS90/AB/R,adopted 22 September 1999,DSR 1999:IV, 1763

Indonesia – Autos Panel Report, Indonesia – Certain MeasuresAffecting the Automobile Industry,WT/DS54/R, WT/DS55/R, WT/DS59/R,WT/DS64/R and Corr.1, 2, 3, and 4, adopted23 July 1998, DSR 1998:VI, 2201

Japan – AgriculturalProducts II

Appellate Body Report, Japan – MeasuresAffecting Agricultural Products,WT/DS76/AB/R, adopted 19 March 1999,DSR 1999:I, 277

Japan – AgriculturalProducts II

Panel Report, Japan – Measures AffectingAgricultural Products, WT/DS76/R, adopted19 March 1999, as modified by the AppellateBody Report, WT/DS76/AB/R,DSR 1999:I, 315

Japan – AlcoholicBeverages II

Appellate Body Report, Japan – Taxes onAlcoholic Beverages, WT/DS8/AB/R,WT/DS10/AB/R, WT/DS11/AB/R, adopted1 November 1996, DSR 1996:I, 97

Japan – Apples Appellate Body Report, Japan – MeasuresAffecting the Importation of Apples,WT/DS245/AB/R, adopted 10 December 2003

Japan – Apples Panel Report, Japan – Measures Affecting theImportation of Apples, WT/DS245/R, adopted10 December 2003, as upheld by the AppellateBody Report, WT/DS245/AB/R

Japan – Film Panel Report, Japan – Measures AffectingConsumer Photographic Film and Paper,WT/DS44/R, adopted 22 April 1998,DSR 1998:IV, 1179






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Korea – AlcoholicBeverages

Panel Report, Korea – Taxes on AlcoholicBeverages, WT/DS75/R, WT/DS84/R, adopted17 February 1999, as modified by theAppellate Body Report, WT/DS75/AB/R,WT/DS84/AB/R, DSR 1999:I, 44

Korea – Certain Paper Korea – Anti-Dumping Duties on Imports ofCertain Paper from Korea

Korea – CommercialVessels

Panel Report, Korea – Measures AffectingTrade in Commercial Vessels, WT/DS273/R,adopted 11 April 2005

Korea – Dairy Appellate Body Report, Korea – DefinitiveSafeguard Measure on Imports of Certain DairyProducts, WT/DS98/AB/R, adopted12 January 2000, DSR 2000:I, 3

Korea – Dairy Panel Report, Korea – Definitive SafeguardMeasure on Imports of Certain Dairy Products,WT/DS98/R and Corr.1, adopted12 January 2000, as modified by the AppellateBody Report, WT/DS98/AB/R, DSR 2000:I, 49

Korea – Procurement Panel Report, Korea – Measures AffectingGovernment Procurement, WT/DS163/R,adopted 19 June 2000, DSR 2000:VIII, 3541

Mexico – Corn Syrup(Article 21.5 – US)

Appellate Body Report, Mexico –Anti-Dumping Investigation of High FructoseCorn Syrup (HFCS) from the United States –Recourse to Article 21.5 of the DSU by theUnited States, WT/DS132/AB/RW, adopted21 November 2001, DSR 2001:XIII, 6675

Mexico – Corn Syrup(Article 21.5 – US)

Panel Report, Mexico – Anti-DumpingInvestigation of High Fructose Corn Syrup(HFCS) from the United States – Recourse toArticle 21.5 of the DSU by the United States,WT/DS132/RW, adopted 21 November 2001,as upheld by the Appellate Body Report,WT/DS132/AB/RW, DSR 2001:XIII, 6717

New Zealand – FinnishTransformers

GATT Panel Report, New Zealand – Imports ofElectrical Transformers from Finland, adopted18 July 1985, BISD 32S/55






xxviii table of cases


Thailand – Cigarettes GATT Panel Report, Thailand – Restrictionson Importation of and Internal Taxes onCigarettes, adopted 7 November 1990,BISD 37S/200

Thailand – H-Beams Panel Report, Thailand – Anti-DumpingDuties on Angles, Shapes and Sections of Iron orNon-Alloy Steel and H-Beams from Poland,WT/DS122/R, adopted 5 April 2001, asmodified by the Appellate Body Report,WT/DS122/AB/R, DSR 2001:VII, 2741

US – 1916 Act Appellate Body Report, United States –Anti-Dumping Act of 1916, WT/DS136/AB/R,WT/DS162/AB/R, adopted26 September 2000, DSR 2000:X, 4793

US – 1916 Act (EC) Panel Report, United States – Anti-DumpingAct of 1916, Complaint by the EuropeanCommunities, WT/DS136/R and Corr.1,adopted 26 September 2000, as upheld by theAppellate Body Report, WT/DS136/AB/R,WT/DS162/AB/R, DSR 2000:X, 4593

US – 1916 Act (Japan) Panel Report, United States – Anti-DumpingAct of 1916, Complaint by Japan, WT/DS162/Rand Add.1, adopted 26 September 2000, asupheld by the Appellate Body Report,WT/DS136/AB/R, WT/DS162/AB/R,DSR 2000:X, 4831

US – 1916 Act (EC)(Article 22.6 – US)

Decision by the Arbitrators, United States –Anti-Dumping Act of 1916, Original Complaintby the European Communities – Recourse toArbitration by the United States under Article22.6 of the DSU, WT/DS136/ARB,24 February 2004

US –Corrosion-ResistantSteel Sunset Review

Appellate Body Report, United States – SunsetReview of Anti-Dumping Duties onCorrosion-Resistant Carbon Steel Flat Productsfrom Japan, WT/DS244/AB/R, adopted 9January 2004






table of cases xxix


US – Cotton Yarn Appellate Body Report, United States –Transitional Safeguard Measure on CombedCotton Yarn from Pakistan, WT/DS192/AB/R,adopted 5 November 2001, DSR 2001:XII,6027

US – CountervailingDuty Investigation onDRAMS

Panel Report, United States – CountervailingDuty Investigation on Dynamic Random AccessMemory Semiconductors (DRAMS) fromKorea, WT/DS296/R, 21 February 2005

US – CountervailingMeasures on CertainEC Products

Appellate Body Report, United States –Countervailing Measures Concerning CertainProducts from the European Communities,WT/DS212/AB/R, adopted 8 January 2003

US – CountervailingMeasures on CertainEC Products

Panel Report, United States – CountervailingMeasures Concerning Certain Products fromthe European Communities, WT/DS212/R,adopted 8 January 2003, as modified by theAppellate Body Report, WT/DS212/AB/R

US – DRAMS Panel Report, United States – Anti-DumpingDuty on Dynamic Random Access MemorySemiconductors (DRAMS) of One Megabit orAbove from Korea, WT/DS99/R, adopted19 March 1999, DSR 1999:II, 521

US – Export Restraints Panel Report, United States – MeasuresTreating Exports Restraints as Subsidies,WT/DS194/R and Corr.2, adopted23 August 2001, DSR 2001:XI, 5767

US – FSC Appellate Body Report, United States – TaxTreatment for ‘Foreign Sales Corporations’,WT/DS108/AB/R, adopted 20 March 2000,DSR 2000:III, 1619

US – FSC Panel Report, United States – Tax Treatmentfor ‘Foreign Sales Corporations’, WT/DS108/R,adopted 20 March 2000, as modified by theAppellate Body Report, WT/DS108/AB/R,DSR 2000:IV, 1675






xxx table of cases


US – FSC(Article 22.6 – US)

Decision by the Arbitrator, United States – TaxTreatment for ‘Foreign Sales Corporations’ –Recourse to Arbitration by the United Statesunder Article 22.6 of the DSU and Article 4.11of the SCM Agreement, WT/DS108/ARB,30 August 2002

US – Gambling Panel Report, United States – MeasuresAffecting the Cross-Border Supply of Gamblingand Betting Services, WT/DS285/R, adopted20 April 2005, as modified by the AppellateBody Report, WT/DS285/AB/R

US – Gasoline Appellate Body Report, United States –Standards for Reformulated and ConventionalGasoline, WT/DS2/AB/R, adopted20 May 1996, DSR 1996:I, 3

US – Gasoline Panel Report, United States – Standards forReformulated and Conventional Gasoline,WT/DS2/R, adopted 20 May 1996, asmodified by the Appellate Body Report,WT/DS2/AB/R, DSR 1996:I, 29

US – Hot-Rolled Steel Appellate Body Report, United States –Anti-Dumping Measures on Certain Hot-RolledSteel Products from Japan, WT/DS184/AB/R,adopted 23 August 2001, DSR 2001:X, 4697

US – Hot-Rolled Steel Panel Report, United States – Anti-DumpingMeasures on Certain Hot-Rolled Steel Productsfrom Japan, WT/DS184/R, adopted23 August 2001 as modified by the AppellateBody Report, WT/DS184/AB/R, DSR 2001:X,4769

US – Lamb Appellate Body Report, United States –Safeguard Measures on Imports of Fresh,Chilled or Frozen Lamb Meat from NewZealand and Australia, WT/DS177/AB/R,WT/DS178/AB/R, adopted 16 May 2001, DSR2001:IX, 4051






table of cases xxxi


US – Lamb Panel Report, United States – SafeguardMeasures on Imports of Fresh, Chilled or FrozenLamb Meat from New Zealand and Australia,WT/DS177/R, WT/DS178/R, adopted16 May 2001, as modified by the AppellateBody Report, WT/DS177/AB/R,WT/DS178/AB/R, DSR 2001:IX, 4107

US – Lead andBismuth II

Appellate Body Report, United States –Imposition of Countervailing Duties on CertainHot-Rolled Lead and Bismuth Carbon SteelProducts Originating in the United Kingdom,WT/DS138/AB/R, adopted 7 June 2000,DSR 2000:V, 2595

US – Lead andBismuth II

Panel Report, United States – Imposition ofCountervailing Duties on Certain Hot-RolledLead and Bismuth Carbon Steel ProductsOriginating in the United Kingdom,WT/DS138/R and Corr.2, adopted7 June 2000, as upheld by the Appellate BodyReport, WT/DS138/AB/R, DSR 2000:VI, 2623

US – Line Pipe Appellate Body Report, United States –Definitive Safeguard Measures on Imports ofCircular Welded Carbon Quality Line Pipefrom Korea, WT/DS202/AB/R, adopted8 March 2002

US – Line Pipe Panel Report, United States – DefinitiveSafeguard Measures on Imports of CircularWelded Carbon Quality Line Pipe from Korea,WT/DS202/R, adopted 8 March 2002, asmodified by the Appellate Body Report,WT/DS202/AB/R

US – Offset Act(Byrd Amendment )

Appellate Body Report, United States –Continued Dumping and Subsidy Offset Act of2000, WT/DS217/AB/R, WT/DS234/AB/R,adopted 27 January 2003






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