Lecture 2

Question 1

When did the Working Parties evolve into the current Panels?

Answer 1

1950s, typically comprising five individuals in their personal capacities and excluding representatives of the countries in dispute.

Question 2

How many complaints were filed with GATT between 1948 and 1989?

Answer 2

almost 300, despite the ad hoc basis for resolving complaints.

Question 3

What is Dispute Settlement Understanding (DSU)?

Answer 3

Came into force in 1995, with the creation of the WTO. Principal modification to the dispute system made by the DSU fall into three categories:

1. strict deadlines on various stages in the consultation/dispute settlement process
2. replacement of the positive consensus rule with a negative consensus rule
3. the creation of a standing Appellate Body of 7 members, which sits in panels of three and has jurisdiction to hear appeals on matters of law from ad hoc Panel decisions

Question 4

What is the complaints process outlined in Article XXIII?

Answer 4

Dispute resolution between states. The complaints process is:

1. Consultation
2. Establishing Panel
3. Panel Hearing
4. Finality
5. Non-compliance

Question 5

Explain consultation

Answer 5

the complaining party must engage with the party who’s measures are in dispute. If they fail to settle within 60 days of the request for consult, then the complaining memners can request the establishment of a panel

Question 6

Explain the process of establishing a panel

Answer 6

• must be established at meeting of the Dispute settlement body
• panel members are drawn from a roster maintained by the Dispute Settlement body. If parties cannot agree on panelists within 20 days of establishment of panel, the Director General of WTO appoints panelists who may not be citizens of countries that are part of the dispute.

Question 7

Explain Panel Hearings

Answer 7

1. Written submissions (complainant, respondent)
2. Oral meeting with the Panel
3. Written rebuttal submissions
4. Second Oral meeting, Panel presents summary of parties’ arguments and the factual description of the issue in contention
5. Interim report is presented for parties’ comments
6. Panel prepares final report.

Panels shouldn’t take more than 6mos

Question 8

Finality

Answer 8

panel reports are to be adopted by the Dispute Settlement body within 60 days of circulation of the report t members unless there is a negative consensus favouring rejection of the report, or the Panel’s decision is appealed to the Appellate body. Members have a reasonable period to comply with rulings, but this period normally does not exceed 15 months and is to be determined by arbitration failing agreement of the parties

Question 9

Non-compliance

Answer 9

• matters can be resubmitted to Panel (21.5)

- if issue persists, DSB may authorize retaliatory trade sanctions (22.4)

Question 10

How many complaints had been filed with the DSU as of January 1 2015?

Answer 10

488 WTO complaints.

Question 11

Which countries are the heaviest users of the WTO dispute settlement systems?

Answer 11

The US and European Union. 204 complaints have involved either the US or the European Union as the responding party (41.8% complaints). High-income countries are the primary users of the dispute settlement countries

Question 12

explain disputes under DSU Article 21.5

Answer 12

a special dispute settlement provision may be invoked. The article allows for a complaint under procedures that use a shortened time frame.

Question 13

Panelists

Answer 13

Citizens of members whose governments are parties to the dispute cannot serve on a panel concerned with that dispute, therefore US snf EU citizens play a relatively small role as panelists

Question 14

Where do Panelists generally come from?

Answer 14

countries that are active in WTO affairs but not the main users of the dispute settlement mechanism.

Question 15

Reform of Dispute settlement: two categories

Answer 15

1. those that seek to strengthen the existing dispute-settlement system
2. those that seek to retrench it relative to the political decision making organs of the WTO.

Question 16

Proposed reforms

Answer 16

1. Greater transparency making written submissions available to the public
2. Expanding the opportunities for participation by non-state interveners through the filing of amicus curiae briefs and participation in oral hearings before Panels/Appellate Body
3. Permitting private parties to initiate complaints under the WTO dispute settlement regime, which it must be emphasized has hitherto been exclusively the preserve of state-to-state complaints.
4. where private parties can assert those rules in domestic legal proceedings, so that GATT/WTO becomes a kind of global constitution
5. monetary compensation for past losses as an alternative to retaliation, which may be of limited efficacy for small countries that prevail in disputes against much larger countries
6. punitive damages/disproportionate retaliation as opposed to equivalent retaliation
7. trade-able retaliation rights that small countries trade to larger countries
8. collective retaliation rights where all member countries are obliged to adopt retaliatory sanctions.