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Chapter Four Dispute Settlement System (1) ---Methods and Institutions

Chapter Four Dispute Settlement System (1) ---Methods and Institutions. By Li Xuefeng. Translation. MFN National treatment TPRB Custom formalities Transparency Quantity restriction. coverage. innovations. principles. Agreements & Exceptions. Three significant innovations.

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Chapter Four Dispute Settlement System (1) ---Methods and Institutions

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  1. Chapter FourDispute Settlement System (1)---Methods and Institutions By Li Xuefeng

  2. Translation • MFN • National treatment • TPRB • Custom formalities • Transparency • Quantity restriction

  3. coverage innovations principles Agreements & Exceptions Three significant innovations Four principles I. Introduction

  4. Over 300 disputes since the creation of the WTO dispute settlement in January 1995

  5. Individuals, companies, international organizations or non-governmental organizations, have no access to the WTO dispute settlement system. However, under Appellate Body case law, panels and the Appellate Body have the right to accept and consider written briefs submitted by individuals, companies or organizations. The DSU • Understanding on Rules and Procedures Governing the Settlement of Dispute (DSU) • 《关于争端解决规则与程序的谅解》 • The DSU is attached to Annex 2 of the WTO agreement. • The WTO dispute settlement system is a government-to-government dispute settlement system for disputes concerning rights and obligations of WTO Members.

  6. 1. Coverage • Be applicable to all WTO agreements, that is, Multilateral Agreements on Trade in Goods, GATS, TRIPS, DSU, TPRM and Plurilateral Trade Agreements.

  7. An exception: • Where there is a difference between the rules and procedures of DSU and the special or additional rules and procedures set forth in the agreements above, the special or additional rules and procedures shall prevail. • 如果DSU规则和程序与有关协定所包括的争端解决的特别或附加规则和程序之间有矛盾，有关协定的特别或附加规则与程序将优先适用。 SPS agreement, Customs Valuation, GATS, GATS Annex on Financial Services and on Air Transparent Services, and so on.

  8. 半自动化： by reverse consensus 2. The significant innovations • --- (1) the quasi-automatic adoption of requests for the establishment of a panel, of dispute settlement reports and of requests for the authorization to suspend concessions; • --- (2) the strict timeframes for various stages of the dispute settlement process; and • ---(3) the possibility of appellate review of panel reports. See P31 上诉机构审议 听不懂哦！看23页PPT！！

  9. 3. Principles (P30) • Equitable---all WTO Members • Fast---clearly defined stages within the strict timeframe • Effective---prompt settlement with negative consensus • Mutually acceptable---consultations and mediation

  10. II. Dispute Settlement Methods

  11. Dispute resolution methods compared

  12. ---- through consultations (Article 4 of the DSU); • ----through good offices, conciliation and mediation (Article 5 of the DSU); • ----throughadjudication by ad hoc panels and the Appellate Body (Articles 6 to 20 of the DSU) • ---- through arbitration (Article 25 of the DSU).

  13. 1. Consultation • ---A clear preference for solutions mutually acceptable to the parties to the dispute • ---- Adjudication by a panel must be preceded by consultations between the complaining and responding parties to the dispute with a view to reaching a mutually agreed solution. 起诉方 应诉方

  14. 2. Good offices, conciliation and mediation • ---斡旋，调解或者调停 • --- Article 5 of the DSU • ----- Good offices, conciliation or mediation may be requested by any party at any time. Also, they may begin and be terminated at any time. • ---- To date, no use has been made

  15. Success of consultations: totals1995–2003

  16. 3. Adjudication 裁决 • If consultations fail to resolve the dispute, the complaining party may resort to adjudication by a panel and, if either party to the dispute appeals the findings of the panel, the Appellate Body.

  17. 4. Arbitration 仲裁 • --- An alternative means • --- Clearly define the issues referred to arbitration and agree on the particular procedure to be followed. • --- Abide by the arbitration award (判决) which must be consistent with the covered agreements. • ---In 2001 the first time used.

  18. III. Institutions of the Dispute Settlement

  19. The Dispute Settlement Body • The adjudicating entities: panels and the Appellate Body 裁决机构 • The interested parties: the WTO Members利益各方 • Administrative and legal support: the WTO Secretariat 行政管理和法律支持机构

  20. 1. The Dispute Settlement Body one regular meeting per month • 1. The administrator of the Dispute Settlement Mechanism, a political body. • The General Council discharges its responsibilities under the DSU through the DSB which is composed of representatives of all WTO Members. diplomatic delegates in Geneva, either the trade or the foreign affairs ministry

  21. 2. Decision-making process in the DSB: quasi-automaticity (半自动化) • -----by consensus • -----Special procedures in decision-making at three key stages (establishment, adoption and retaliation) : the rule of negative (reverse) consensus, which applies only in the dispute settlement system.

  22. The reverse consensus反向协商一致 • Since there will usually be at least one Member with a strong interest in that the DSB takes the decision to establish a panel, to adopt the panel and/or Appellate Body reports or to authorize the suspension of concessions, it is very unlikely that there will be a consensus not to adopt these decisions. • The DSB is deemed to take a decision unless there is a consensus among WTO Members not to take the decision. • Decision-making by the DSB on these matters is, for all practical purposes, automatic.

  23. 2. Panels • 1). Establishment of panels • 2). Composition of panels • 3). Function of panels

  24. 1). Establishment of panels • A panel will be established at the DSB meeting following that at whichthe request first appears as an item on the DSB’s agenda, unless at that meeting the DSB decides by consensus not to establish a panel. • 申诉方提出的成立专家组的要求一旦列入DSB日程，那么在列入之后的DSB会议上即成立专家组，除非在此次会议上DSB一致同意不成立该专家组。

  25. 2). Composition of panels serve in their individual capacities • 1) Who can be called to serve on a panel? • Three or five governmental and/or non-governmental individuals with well-qualified experience or expertise the Secretariat select on an ad hoc basis

  26. 3). Function of panels • To assist the DSB in discharging its responsibilities under this understanding and the covered agreements, that is, make an objective assessment of the matter before it and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreement.

  27. 3. Appellate Body • 1). Duties • ----to review the legal aspects of the reports issued by panels with a function of correcting possible legal errors committed by panels and touphold, modify or reverse the legal findings and conclusions of the panel that were appealed. • The AB is the second and final stage in the adjudicatory part of the DS system.

  28. a permanent, standing international tribunal. • 2). Composition of the AB • The AB must be composed of seven persons appointed by DSB for a term of 4 years, once renewable. • Only the complaining or responding party can initiate appellate review proceedings.

  29. Rate of appeal: total1995–2003

  30. Results of appellate review: total 1995–2003

  31. 4. The Interested Parties: the WTO Members • Who can participate? • ---Only WTO Members • ---The complaining party, the responding party, and • ---third parties who have substantial interest in the matter

  32. Other institutions or persons • -- arbitrators under Articles 21.3, 22.6 or 25 of the DSU • --- the Textile Monitoring Body under the ATC, • --- the Permanent Group of Experts under the SCM Agreement, Experts • --- Expert Review Groups under Article 13 of the DSU and Article 11.2 of the SPS Agreement, • --- the Chairman of the DSB and the Director-General of the WTO. • --- the WTO Secretariat and the Secretariat of the Appellate Body

  33. Key words • Pursue: to carry on; continue. 执行；继续 • e.g. • A majority of disputes so far in the WTO have not proceeded beyond consultations, because the complainant decided for other reasons not to pursue the matter further. • 追究这件事

  34. Pursuant • Pursuant to sth. • According to or following sth. especially a rule or law • formal or law依照，根据，按照

  35. DSU WTO Panels; The interested parties Good offices, conciliation or mediation The complaining party Negative consensus Positive consensus WTO Panelist The AB Key terms

  36. Assignments • 1) What are the most significant changes made to the GATT dispute settlement system by the DSU? • 2) Apart from consultations and adjudication, which other methods of dispute settlement does the WTO dispute settlement system provide for?

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