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DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION

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Copyright

CONTENTS

PREFACE

1: Overview

§ 1.01 The ITO, the GATT, and the WTO

[1] Bretton Woods and the Havana Charter

[2] The negotiation of GATT

[3] The Protocol of Provisional Application (PPA)

[4] GATT’s 47 “provisional” years

[5] GATT dispute settlement11

§ 1.02 The Uruguay Round

§ 1.03 The World Trade Organization

§ 1.04 The Dispute Settlement Body

§ 1.05 The Dispute Settlement Understanding

2: Jurisdiction

§ 2.01 Overview

§ 2.02 Terms of reference

[1] Rationale for terms of reference

[2] Parallelism between consultations and terms of reference

[3] Standard terms of reference

[4] Non ultra petita

[5] The obligation of panels to consider all issues referred to in the terms of reference

[6] Parallelism between the terms of reference and submissions to a panel

§ 2.03 Jurisdiction Ratione Materiae

[1] Covered agreements

[2] Conflicts among agreements

[3] Simultaneous application of different agreements

[4] Non-application between particular Members

[5] The DSU and the competence of other WTO bodies

[6] The “matter” before the Panel

[7] Measures changed during proceedings

[8] Change in legal justification for a measure

[9] Measures no longer in effect

[10] Review of measures taken to comply with rulings and recommendations of the DSB

§ 2.04 Jurisdiction Ratione Personae

[1] Non-Members

[2] Regional and local government measures

[3] Application of customary international law to WTO Members

§ 2.05 Standing (Locus Standi )

[1] Requirement of a legal interest

[2] Exhaustion of local remedies

[3] Participation by amicus curiae

§ 2.06 Review of jurisdictional claims

[1] Challenge to jurisdiction by parties

[2] Ex officio review of jurisdiction

[3] Res judicata

[4] Estoppel

§ 2.07 Arbitration

§ 2.08 Appellate jurisdiction

[1] General

[2] Questions of municipal law

3: Sources of Law

§ 3.01 Overview

§ 3.02 Covered agreements

§ 3.03 Reports of prior panels and the Appellate Body

[1] GATT practice

[2] Adopted GATT Reports in the WTO

[3] Unadopted GATT Reports in the WTO

[4] WTO Panel Reports

[5] Appellate Body Reports

§ 3.04 Custom

§ 3.05 Teachings of the most highly qualified publicists

§ 3.06 General principles of law

§ 3.07 Other international agreements

[1] Agreements referred to in the WTO Agreements

[2] Other multilateral agreements

[3] Agreements between the parties

[4] Agreements to which the WTO is a party

§ 3.08 Decisions of other international tribunals

§ 3.09 Interpretation of WTO law

[1] The Vienna Convention on the Law of Treaties

[2] Travaux préparatoires

[3] Use of dictionaries

[4] Lex specialis

[5] Principle of “contemporaneity”

[6] Principle of “effectiveness”

4: The Panel Process

§ 4.01 Overview

§ 4.02 Good offices, conciliation and mediation

§ 4.03 Consultations

[1] Purpose

[2] Form and content of the request

[3] Whether consultations occur

[4] Adequacy of consultations

[5] Confidentiality

[6] Time elements

[7] Third parties

§ 4.04 Request for the establishment of a panel and terms of reference

[1] General

[2] Time elements

[3] Form and content

[4] The specific measure at issue

[5] Amendment of measures after the panel request

[6] The “claim” or the legal basis of the complaint

[7] Products listed in the request

[8] Standard terms of reference

[9] Special terms of reference

[10] Reviews and arbitrations

§ 4.05 Establishment and composition of panels

[1] Establishment

[2] Composition

[3] Nominating panelists

§ 4.06 Function, authority and responsibility of panels

§ 4.07 Third parties,multiple complainants and counter-complaints

[1] Overview

[2] Third parties

[3] Third party rights in reviews and arbitrations

[4] Multiple complainants

[5] Counter-complaints

[6] Amicus curiae briefs

§ 4.08 Role of the Secretariat

§ 4.09 Evidence and information

[1] General

[2] Panel’s right to seek evidence and information

[3] Duty to provide evidence and information

[4] Adverse inferences

[5] Experts

[6] Admissions and statements

[7] Deadlines for submission of evidence

[8] Evidence not used in reaching national decisions

[9] Evidence of municipal law

[10] Sufficiency and forms of evidence

§ 4.10 Confidential information

[1] Overview

[2] Issues involving private counsel and advisors

[3] Special procedures to protect confidentiality

[4] Government information

§ 4.11 Burden of proof

[1] General

[2] Burden of proving a prima facie case

[3] Exceptions

[4] Burden of proof under specific agreements and GATT articles

[5] “General rule-exception” analysis

[6] Article 22.6 arbitrations

§ 4.12 Standard of review

§ 4.13 Written submissions to panels

[1] General

[2] First written submission

[3] Second written submission

[4] Executive summaries of submissions

§ 4.14 Meetings of panels with the parties

[1] General

[2] First meeting of the Panel with the parties

[3] Second meeting of the Panel with the parties

§ 4.15 Computation of time

§ 4.16 “Violation,” “non-violation” and “other situation” complaints

[1] General

[2] Violation complaints

[3] Non-violation complaints

[4] “Other situation” complaints

§ 4.17 Representation by private attorneys

§ 4.18 Panel reports

[1] General

[2] Descriptive portions of the report

[3] Interim reports

[4] Final reports

5: Special Rules and Procedures

§ 5.01 Overview

§ 5.02 GATT andWTO rules for developing countries

§ 5.03 The 1966 Understanding and developing countries

[1] Consultations

[2] Good offices, conciliation or mediation

[3] Establishment of panels

[4] Panel procedures

§ 5.04 Developing country-related provisions of the DSU

[1] Consultations

[2] Panel process

§ 5.05 Agreement on the Application of Sanitary and PhytosanitaryMeasures

§ 5.06 Agreement on Technical Barriers to Trade

[1] General

[2] Measures covered by the TBT Agreement

[3] Experts

§ 5.07 Agreement on Implementation of Article VI of GATT 1994 (Antidumping Agreement)

[1] General

[2] Establishment of a panel

[3] The “matter” before an antidumping panel

[4] Article 17.6 – standard of review

[5] Article 17.6(i) – review of factual determinations

[6] Article 17.6(ii) – review of legal determinations

[7] Confidential information

[8] Developing countries

[9] Overlap with countervailing duties

§ 5.08 Agreement on Implementation of Article VII of GATT 1994 (Customs Valuation Agreement)

§ 5.09 Agreement on Subsidies and CountervailingMeasures

[1] Prohibited subsidy procedures

[2] Requests for consultations – SCM Article 4.2

[3] Procedures before the Permanent Group of Experts

[4] Actionable subsidy procedures

[5] Annex V procedures for developing information concerning serious prejudice

[6] Multiple subsidy procedures

[7] Non-actionable subsidies

[8] Countervailing measures

[9] Developing countries

[10] Remedies

§ 5.10 Agreement on Textiles and Clothing (ATC)

[1] Overview

[2] ATC procedures

[3] Textiles Monitoring Body Working Procedures

[4] TMB jurisdiction and panel jurisdiction

§ 5.11 General Agreement on Trade in Services (GATS)

[1] General

[2] Double taxation treaties

[3] Non-violation nullification and impairment

[4] Modification of schedules

[5] Air transport services

[6] Panelists

§ 5.12 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

§ 5.13 Agreement on Government Procurement

[1] Background

[2] Proposals and DSU notification

[3] DSB authority

[4] Terms of reference

[5] Time limits

[6] No cross-retaliation

§ 5.14 Agreement on Trade in Civil Aircraft

§ 5.15 Arbitration

[1] Generally

[2] Non-actionable subsidies

[3] Services

6: The Appellate Process

§ 6.01 Overview

§ 6.02 The task of the Appellate Body

§ 6.03 Right of appeal

§ 6.04 Appellate Body Rules

[1] Overview

[2] Prohibited subsidy cases

[3] Divisions of the Appellate Body

[4] Decision making and collegiality

[5] Documents

[6] Notice of appeal

[7] Working schedule

[8] Appellant’s submission

[9] Appellee’s submission

[10] Multiple or “cross” appeals

[11] Third participants

[12] Record on appeal

[13] Oral hearing

[14] Written responses to questions

[15] Failure to appear and withdrawal of appeal

[16] Representation by private attorneys

[17] Amicus curiae briefs

§ 6.05 Time elements

[1] Limits imposed by the DSU

[2] Limits imposed by the Appellate Body

[3] Timing – tactical considerations

§ 6.06 Lack of remand authority

[1] The problem

[2] Legal issues undecided by a panel

[3] Factual issues undecided by a panel

7: Adoption and Implementation of Reports

§ 7.01 Overview

§ 7.02 Consideration and adoption of reports

§ 7.03 Notification of implementation intentions

§ 7.04 “Reasonable period of time”

[1] Legal framework

[2] The Arbitrator

[3] Jurisdiction of the Arbitrator

[4] Agreements establishing the reasonable period of time

[5] Time within which to request arbitration

[6] Time allowed for implementation

§ 7.05 Factors affecting time allowed for implementation

[1] Overview

[2] Complexity

[3] Need for legislative action

[4] Domestic opposition

[5] Economic harm

[6] Developing countries

§ 7.06 Surveillance by the DSB

§ 7.07 Disputes regarding implementation

[1] Overview

[2] Scope of Article 21.5 “compliance” review

[3] Standing of respondent to initiate Article 21.5 proceedings

[4] “Existence” of an implementing measure

[5] Requirement of consultations

[6] Burden of proof

[7] Third party rights

[8] Suggestions as to implementation

§ 7.08 Prohibited and actionable subsidies

§ 7.09 “Other situation” complaints

8: Remedies

§ 8.01 General

§ 8.02 GATT practice

§ 8.03 Overview of theWTO remedy regime

§ 8.04 Negotiation on compensation

§ 8.05 Suspension of concessions or other obligations

[1] Request for authorization to suspend concessions

[2] “Carousel” suspension

[3] Jurisdiction of the arbitrators

[4] Consequences of arbitration

[5] Time limits

[6] Burden of proof

[7] Information submitted by private parties

[8] Applicable principles

[9] Third party rights

§ 8.06 The “sequencing” problem

[1] Overview

[2] Bananas III

[3] Ad hoc solutions

[4] Proposals for change

[5] The safeguards “sequencing” problem

§ 8.07 Prohibited and actionable subsidies

[1] Overview

[2] “Appropriate countermeasures”

[3] Multiple complainants

§ 8.08 Panel and Appellate Body implementation suggestions

[1] Overview

[2] Antidumping and countervailing duty cases

[3] Other WTO cases

[4] Legal effect of implementation suggestions

§ 8.09 “Other situation” reports

§ 8.10 Purpose of suspension of concessions

9: Conclusion

APPENDIX

Working procedures for the panel

BIBLIOGRAPHY

Books

Monographs

Articles

INDEX