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Enforcing the Agreements: D ISPUTE S ETTLEMENT IN THE WTO

Enforcing the Agreements: D ISPUTE S ETTLEMENT IN THE WTO. UWI Study Tour 7 May 2008 Presented by: Jan Yves Remy Appellate Body Secretariat. Structure of the WTO Agreement. WTO Agreement. GATT GATS TRIPS. Dispute Settlement. Trade Policy Review. A. A. A. A. A. A. A. A.

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Enforcing the Agreements: D ISPUTE S ETTLEMENT IN THE WTO

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  1. Enforcing the Agreements:DISPUTE SETTLEMENT IN THE WTO UWI Study Tour 7 May 2008 Presented by: Jan Yves Remy Appellate Body Secretariat

  2. Structure of the WTO Agreement WTO Agreement GATT GATS TRIPS Dispute Settlement Trade Policy Review A A A A A A A A

  3. WTO GATT GATS TRIPS DSU TPRM • Agriculture • Sanitary and Phytosanitary Measures • Technical Barriers to Trade • Trade-related Investment Measures • Anti-Dumping • Rules of Origin • Valuation • Import Licensing • Subsidies and Countervailing Measures • Safeguards

  4. Dispute Settlement under the GATT 1947 • Articles XXII and XXIII of GATT 1947 • Very limited rules • Central concept was “nullification and impairment” of benefits flowing from the agreement • Diplomatic character of dispute settlement: No judicial arm, rather all matters were within powers of GATT Contracting Parties • “Evolved” practice under GATT 1947

  5. Dispute Settlement in the WTO:Aim • Dispute Settlement Understanding: • Mechanism aimed at securing compliance with the Covered Agreements (CA) • Preserves the rights and obligations of Members under the CA (Art 3.2 DSU)

  6. New innovations of the DSU • More detailed procedures for the various stages of dispute • Appellate review of panel reports and surveillance of implementation by the DSB

  7. Dispute Settlement in the WTO:Objectives To secure a “positive solution” to the dispute. (Art. 3.7 DSU) • Preferred outcome: • To reach a mutually agreed solution • If not, • Panel Proceeding …. • [….and AB review.] • And then, • Implementation, or …. • Retaliatory trade sanctions may be imposed

  8. An integrated system: Applies to all the WTO multilateral agreements (Appendix 1) A single set of rules for all disputes (Art 23) Only a few special or additional rules in some CA (Appendix 2) Dispute Settlement in the WTO:Scope

  9. Dispute Settlement in the WTO:Main Features • compulsory jurisdiction • detailed procedures and deadlines • “complainant-driven” • “quasi-judicial” • “automaticity”

  10. Dispute Settlement in the WTO:Main characters • Parties to the dispute: WTO Members only • Dispute Settlement Body (all the Members) • Panel ( 3 or 5 panelists) • Appellate Body (7 persons) • WTO & AB Secretariats

  11. Consultations Good Offices, Conciliation, Mediation, Arbitration Panel Appeal Adoption Implementation

  12. Dispute Settlement in the WTO:Consultations • Who? • One or more Members (complainants) against another Member (respondent) • Possibility for third party Members to join • Confidential process • Minimum time limits for complainant

  13. Establishment of a panel: Automatic Composition “well-qualified government and/or non-governmental individuals” 6 months or 9 months to issuance of final report Process confidential, report public Dispute Settlement in the WTO:Panels

  14. Dispute Settlement in the WTO:The “matter” in dispute • The specific measures at issue • The legal basis (claims)

  15. Dispute Settlement in the WTO:The Mandate Panel Request Measures Claims Matter Mandate Inform the parties for their defence Jurisdiction

  16. Composition of a panel Establishment of a panel Final Report circulated max. 6 months max. 9 months Dispute Settlement in the WTO:Panel Procedures: deadlines

  17. Panel reports not considered for adoption until 20 days after circulation Adoption within 60 days of circulation, unless negative consensus…. … Except if appealed Dispute Settlement in the WTO:Adoption of Panel ReportsArt. 16 DSU

  18. Dispute Settlement in the WTO:Appellate Review • WTO dispute settlement system innovation • Rules applicable to Appellate Review • Dispute Settlement Understanding(Article 17; Article 16.4; Articles 1, 3, 18 and 19) • Working Procedures for Appellate Review • Rules of Conduct

  19. Dispute Settlement in the WTO:Appellate BodyMembers • A standing body of 7 Members • Appointment by DSB • 4-year term, renewable once • Requirements • authority and expertise in international trade law • “unaffiliated with any government”

  20. Dispute Settlement in the WTO:Appellate Body Members “broadly representative of membership” – Art. 17.3 DSU

  21. Dispute Settlement in the WTO:Appellate Body

  22. WHAT?appeals limited to “issues of law and legal interpretations” developed by the panel, including “cross-appeals” WHO?appeal only open to parties to the dispute WHEN?Appeal must be commenced no later than 60 days after the Panel Report is circulated to Members; takes 60-90 days Dispute Settlement in the WTO:Article 17 DSU

  23. Dispute Settlement in the WTO:Appellate Procedure • Notice of Appeal • Written Submissions • Oral Hearing • Exchange of Views • Circulation of the Report 60/90 days

  24. Outcome of Appeals Number of appeals to date < 78 Frequency of Appeals: 66 % Outcome of Appeals:

  25. Caribbean participation in appeals

  26. Dispute Settlement in the WTO:Adoption by the DSB • Adoption by the DSB of the Panel Report, as upheld, modified or reversed, by the Appellate Body Report • Within 30 days circulation (60 days if no appeal) • Negative consensus

  27. Dispute Settlement in the WTO:Implementation • What if it cannot be implemented immediately? Determination of “reasonable period of time” for implementation (Guideline: 15 months) • Is it properly implemented? If there is disagreement, refer to compliance panel (original panel preferred) under Article 21.5

  28. Dispute Settlement in the WTO:Surveillance and Implementation • Surveillance by the DSB: Status reports on implementation • If Member fails to bring measure into conformity within reasonable period of time, possibility of temporary measures : compensation or “suspension of concessions” (retaliation)

  29. Dispute Settlement in the WTO:Facts and Figures • Requests for consultations: 363 • Mutually agreed solutions: 83 • Panels established: 148 • Panels composed: 129 • Panel reports: 110 • Appellate Body reports: 68 • Compliance panels: 23 • Appeals from compliance panels: 14 • Arbitrations on "retaliation" : 16 • Authorizations to "retaliate" : 7

  30. Dispute Settlement in the WTOSelected Disputes in Progress • Continued EC Hormones Dispute • New Bananas dispute • Zeroing disputes • EC/US cases on aircraft subsidies

  31. Case review United States – Measures affecting the cross-border supply of gambling and betting services

  32. Major Issues • The US measures affecting the cross-border supply of gambling and betting services • 3 federal laws: Wire Act, Travel Act, Illegal Gambling Business Act • 54 State laws, government practice • Whether “total prohibition” on the supply of Internet gambling and betting services constitutes a numerical quota for purposes of GATS MA commitments • Interpretation of “public morals” defence in GATT Article XX

  33. The Parties • The complainant: Antigua and Barbuda • The respondent: United States • Third Parties (Panel and Appellate Body): EC, Japan, Mexico, Chinese Taipei, Canada • Appellant/appellee: both Antigua and Barbuda and the United States

  34. Findings of the Panel and AB • Panel + AB: The United States’ Schedule (sub-sector 10.D) includes specific commitments on “gambling and betting services” • AB confirms, but for different reasons • The US laws prohibiting cross-border supply constitute a numerical limitation in the form of a “zero quota ”; consequently, the laws are inconsistent with the United States’ specific commitments under Article XVI:2; • The AB confirms the Panel’s findings with respect to the federal laws, but reverses the findings concerning the State laws because Antigua failed to provide a prima facie demonstration of inconsistency.

  35. The measures inconsistent with Article XVI are designed to protect public morals and maintain public order (Article XIV(a)) against money laundering, fraud, pathological gambling and underage gambling (AB confirms). • On the other hand, the Panel finds that the measures were not necessary for that purpose in that the United States did not explore and exhaust the reasonably available WTO-consistent alternatives because it did not hold consultations with Antigua before imposing the prohibition

  36. The AB rejects the Panel’s interpretation of “necessity” and finds that it was not indispensable for the United States to hold prior consultations with Antigua before taking measures to protect the public order; • The AB upholds the final conclusion that the United States did not demonstrate that the prohibition (for example the Interstate Horse Racing Act) is applied both to foreign suppliers and domestic suppliers in a manner consistent with the requirements of a chapeau of Article XIV (prohibition of arbitrary or unjustifiable discrimination and disguised restriction).

  37. Current state of Gambling case? • In June 2007, Antigua requests authorization from the DSB, to suspend concessions and related obligations of Antigua and Barbuda under the GATS and the TRIPS Agreement. • Arbitrator determined that the annual level of nullification or impairments is US$21 million and that Antigua may request authorization from the DSB to suspend obligations under the TRIPS Agreement at a level not exceeding US$21 million annually.

  38. Dispute Settlement in the WTOTrends? • Increasing composition of panels by DG • Increasing number of compliance cases • Decreasing rate of appeal • Increasing use of dispute settlement system by developing countries • Private lawyers / pro bono / ACWL

  39. Dispute Settlement in the WTO:The Doha Mandate • Doha Declaration, paragraph 30: • “improvements and clarifications” • Original May 2003 deadline, extended to May 2004, then July 2004 Package. Negotiations suspended second half 2006, then resumed. • Continued negotiations outside the single undertaking, but on what basis and what timeframe?

  40. Dispute Settlement in the WTO:Selected Issues in the Negotiations • Streamlining procedures at consultation and panel stages • “Transparency” • Remand • Enhance Special & Differential treatment • Implementation • Sequencing • Remedies (compensation, retaliation)

  41. Dispute Settlement in the WTOFinal Thoughts • What changes needed and how extensive? • Relationship dispute settlement/decision-making? • Relationship dispute settlement/rule-making (negotiations)? • Bottom line: system is being used and is working -- security and predictability

  42. Information and Resources • Legal Texts (agreements etc.):http://www.wto.org/english/docs_e/legal_e/legal_e.htm • Panel and Appellate Body Reports:http://www.wto.org/english/tratop_e/dispu_e/distabase_e.htmhttp://www.wto.org/english/tratop_e/dispu_e/gt47ds_e.htm • Official WTO Documents:http://docsonline.wto.org/gen_home.asp • Advisory Centre on WTO Law:http://www.acwl.ch • Register for news and informationhttp://www.wto.org (at very top of the page, click “register”)

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