Q. 8 Dispute settlement WTo Flashcards
Q.8 WTO’s Dispute Settlement System -
A part of results of the Uruguay Round ,the DS introduced a significantly strengthened dispute settlement system.
- It provides more details procedures for the various stage of the dispute;
- it contains many deadlines;
- it’s an integrated framework that applies to all covered agreements with only minor variations;
- the elimination of the right of the individual parties to block the establishment of panels or the adoption of the report (REVERSE CONSENSUS)
The dispute settlement agreement is the ANNEX 2 of the WTO and it is described horizontally as it is applicable to all the treaties and their provisions forming the WTO.
A DISPUTE is initiated by making an allegation that some provision has been violated and
any member can initiate a dispute settlement arguing on the base of this violation.
Q.8 WTO’S DSS - the dispute and the subjects of dispute
All the provisions of WTO have to be interpreted simultaneously meaning that there has to be harmonization.
Nevertheless, as the different agreement were not created at the same time, sometimes there arise conflicts between their provisions.
The WTO’s dispute settlement system has two rules of conflict :
1. conflict between the WTO’s institutional agreement and any agreement of the annexes ( the first prevail )
2. conflict between a GATT’s provision and the provisions on specifics treaties ( the more specific provision prevails.)
However there can be other conflicts in the WTO and there are no specific rules .
Once the conflict is noted , there are two main subjects:
1. the WTO members themselves as parties and
2. the third parties.
Private individuals or companies do not have direct access to the DSS
the same applies to non governmental organizations NGO .
SO any member of WTO can initiate a dispute arguing that any provision of WTO has been violated.
Q.8 WTO’s DSS Features
- DSS is a system of public international law.
Only the WTO Member governments can bring disputes,( government v. government scheme ).
That’s why it is difficult for an NGO to play a role in the DSS.
However, the panel and appellate body accept amicus curiae from NGO-s
In terms of processes, all parties are Equal - The interest of initiating a dispute is PRESUMED (banana case)
- you don’t have to prove the trade impact ;
- you just need to prove that the law in question is against the agreement.
Q.8 NGO-s could present its views in the DSS?
Under the ART XIII of the Understanding rules and Procedures Governing the Settlement of Disputes , we find the right of the panel to seek information and technical advice from any individual or body which seems appropriate.
It is under this article that the Appellate body decided that the panel can also receive AMICUS CURIAE that it didn’t solicit, such as the case of NGO-s
So the NGO-s have no legal right to participate in WTO-s DS Proceeding before a panel ,
Q8 .What’ about the third parties in DSS?
During the proceedings , there is also room for third parties.
Third parties includes the countries having some interests in the proceeding, maybe because they have the similar laws, but don’t want to be considered complainants for political reasons.
Third parties will receive the first submission and attend the first meeting only, but will be able to issue their point of view.
Q.9 SUBSISIES, ART 1 SCM
WTO’s law doesn’t prohibit subsidies .
A subsidy has to contain four cumulative elements:
1. financial contribution, art 1.1 SCM
2.subsidies has to be given by a government or public body art 1.1 SCM
3.subsidies confer a benefit ,
4.subsisies has to be specific art 2 SCM
If subsidies doesn’t comply with all these four terms, nothing is going to be able to be done .
SPECIFIC SUBSIDIES ART 2 SCM
A subsidy such as defined in art 1 SCM shall be subject to the provisions of Part II or
shall be the subject of provisions of Part III or Part V only if such a subsidy is specific in accordance with the provisions of Article 2 SCM.
In order to determine whether a subsidy is specific to:
- an enterprise or industry or
- an group of enterprises or un group of industries .
In our case subsidy can be characterized as a financial contribution by a government or any public body (ART I SCM ) within the territory of the member i.e. country B involves a direct transfer of founds to “WRITO” which is a specific enterprise .
What type of subsidy for the case law in question ?
SCM agreement distinguish between prohibited subsidies and non actionable subsidies
