Dispute settlement
A Handbook on the WTO Dispute Settlement System
The WTO dispute settlement system has become one of the most dynamic effective and successful international dispute settlement systems in the world over the past twenty years. This second edition of A Handbook on the WTO Dispute Settlement System has been compiled by the dispute settlement lawyers of the WTO Secretariat with a view to providing a practice-oriented account of the system. In addition to describing the existing rules and procedures this accessibly written handbook explains how those rules and procedures have been interpreted by dispute settlement panels and the Appellate Body and how they have evolved over time. The handbook provides practical information to help various audiences understand the day-to-day operation of the WTO dispute settlement system.
The Scope of WTO Disputes
The WTO dispute settlement system serves to preserve the rights and obligations of members under the WTO Agreement. Accordingly it is open only to WTO members and only for the settlement of disputes concerning their rights and obligations resulting from the WTO Agreement. This chapter examines in more detail when a dispute can be initiated what the object of such dispute can be and which allegations can be made.
Alternatives to Adjudication by Panels and the Appellate Body
Panels and the Appellate Body are not always involved in a WTO dispute. Various other ways to solve disputes are available under the DSU. The first priority of the WTO dispute settlement system is for parties to resolve their disputes in a cooperative manner.
Foreword
This Handbook explains the rules and procedures of the WTO dispute settlement system explores the practices that have arisen in its operation since its entry into force on 1 January 1995 and provides a comprehensive account of the existing jurisprudence concerning dispute settlement procedures. It also includes useful information on the operation of the WTO dispute settlement system to date including tips about notification procedures templates of working procedures and timetables timelines of actual disputes statistical data etc. The primary purpose of this Handbook is to explain the WTO dispute settlement system to an interested person who may not necessarily have a legal background. With its detailed content and practice-oriented focus it may also serve as a useful reference tool to experienced practitioners of WTO law including not only prospective panelists and private counsel but also government officials from WTO members.
A Handbook on the WTO Dispute Settlement System, 2nd Edition
The WTO dispute settlement system has become one of the most dynamic effective and successful international dispute settlement systems in the world over the past twenty years. This second edition of A Handbook on the WTO Dispute Settlement System has been compiled by the dispute settlement lawyers of the WTO Secretariat with a view to providing a practice-oriented account of the system. In addition to describing the existing rules and procedures this accessibly written handbook explains how those rules and procedures have been interpreted by dispute settlement panels and the Appellate Body and how they have evolved over time. The handbook provides practical information to help various audiences understand the day-to-day operation of the WTO dispute settlement system.
Introduction to the WTO Dispute Settlement System
The WTO Agreement is a treaty negotiated by dozens of countries over the seven-year span of the Uruguay Round of multilateral trade negotiations. It comprises agreements setting out a delicate and carefully achieved balance of rights and obligations for WTO members in respect of a vast array of measures affecting trade such as tariffs internal taxes subsidies sanitary and phytosanitary measures intellectual property rights and services to name but a few. Some of these agreements were negotiated and concluded in successive rounds throughout the lifespan of the General Agreement on Tariffs and Trade (GATT) the predecessor to the WTO. Others build on and further elaborate previously negotiated agreements. Except for the plurilateral agreements the WTO Agreement was adopted by the WTO members as a “single undertaking”. This means that in agreeing to be bound by the WTO Agreement WTO members must accept the entirety of the WTO Agreement and may not pick and choose among the constituent trade agreements. In so agreeing WTO members consider the balance of negotiated rights and obligations across the entirety of the WTO Agreement.
Indonesia - Importation of Horticultural Products, Animals and Animal Products
On 8 May 2014 New Zealand requested consultations with Indonesia concerning certain measures it imposes on the importation of horticultural products animals and animal products. New Zealand claims that the measures are inconsistent with: - Articles III:4 X:1 and XI:1 of the GATT 1994; - Article 4.2 of the Agreement on Agriculture; - Articles 1.2 1.5 1.6 2.2 3.2 3.3 5.1 and 5.2 of the Import Licensing Agreement; and - Articles 2.1 and 2.15 of the Agreement on Preshipment Inspection.
Canada - Anti-Dumping Measures on Imports of Certain Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
On 25 June 2014 Chinese Taipei requested consultations with Canada with respect to the provisional and definitive anti-dumping measures imposed by Canada on imports of certain carbon steel welded pipe (CSWP) originating in among others Chinese Taipei. Chinese Taipei claims that the measures are inconsistent with: - Articles 1 3.1 3.2 3.4 3.5 3.7 5.8 6.8 6.10 18 and Annex II of the Anti-Dumping Agreement; - Article VI of the GATT 1994. On 7 November 2014 Chinese Taipei requested further consultations. In addition to the measures listed in the original request for consultations Chinese Taipei claimed that the measures were also inconsistent with Articles 2.2 7.1(ii) 7.5 9.2 and 9.3 of the Anti-Dumping Agreement.
European Union - Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia
On 27 July 2012 Indonesia requested consultations with the European Union with respect to the imposition of definitive and provisional anti-dumping measures by the European Union on the importation of fatty alcohols and with respect to certain aspects of the investigation underlying these measures.
United States - Conditional Tax Incentives for Large Civil Aircraft
On 19 December 2014 the European Union requested consultations with the United States with respect to conditional tax incentives established by the State of Washington in relation to the development manufacture and sale of large civil aircraft. The European Union alleges that the measures constitute specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement. The European Union also considers that the measures are prohibited subsidies that are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement
United States - Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China
On 3 December 2013 China requested consultations with the United States regarding the use of certain methodologies in anti-dumping investigations involving Chinese products. China claims that the measures mentioned in the request for consultations are inconsistent with: - Articles 2.4.2 6.1 6.8 6.10 9.2 9.3 9.4 and Annex II of the Anti-Dumping Agreement; and - Article VI:2 of the GATT 1994.
European Union - Anti-Dumping Measures on Biodiesel from Argentina
The European Union and Argentina each appeals certain issues of law and legal interpretations developed in the Panel Report European Union – Anti-Dumping Measures on Biodiesel from Argentina (Panel Report). The Panel was established on 25 April 2014 to consider a complaint by Argentina with respect to two measures of the European Union: (i) the anti-dumping measure imposed by the European Union on imports of biodiesel originating in Argentina; and (ii) the second subparagraph of Article 2(5) of Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (Basic Regulation).
European Communities and Certain Member States - Measures Affecting Trade in Large Civil Aircraft (Boeing - Airbus) - Recourse 1
On 6 October 2004 the United States requested consultations with the Governments of Germany France the United Kingdom and Spain (the “member States”) and with the European Communities (“EC”) concerning measures affecting trade in large civil aircraft.
India - Certain Measures Relating to Solar Cells and Solar Modules
On 6 February 2013 the United States requested consultations with India concerning certain measures of India relating to domestic content requirements under the Jawaharlal Nehru National Solar Mission (“NSM”) for solar cells and solar modules.
United States - Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea
On 29 August 2013 Korea requested consultations with the United States concerning anti–dumping and countervailing measures relating to large residential washers from Korea. Korea claims that the measures identified in its request for consultations are inconsistent with: - Articles 1 2.1 2.4 2.4.2 5.8 9.3 9.4 9.5 11 and 18.4 of the Anti-Dumping Agreement; - Articles 1.1 1.2 2.1 2.2 10 14 and 19.4 of the SCM Agreement; - Articles VI VI:1 VI:2 and VI:3 of the GATT 1994; - Article XVI:4 of the WTO Agreement.
Russian Federation - Measures on the Importation of Live Pigs, Pork and other Pig Products from the European Union
On 8 April 2014 the European Union requested consultations with the Russian Federation concerning certain measures adopted by the Russian Federation affecting the importation of live pigs and their genetic material pork pork products and certain other commodities from the European Union purportedly because of concerns related to cases of African swine fever. The European Union claims that the measures at issue are inconsistent with: - Articles 2.2 2.3 3.1 3.2 3.3 5.1 5.2 5.3 5.4 5.5 5.6 5.7 6.1 6.2 6.3 7 8 Annex B and Annex C of the SPS Agreement; and - Articles I:1 III:4 and XI:1 of the GATT 1994.
Russia - Tariff Treatment of Certain Agricultural and Manufacturing Products
On 18 August 1997 the EC requested consultations with the US in respect of a ban on imports of poultry and poultry products from the EC by the US Department of Agriculture’s Food Safety Inspection Service and any related measures. The EC contended that although the ban is allegedly on grounds of product safety the ban does not indicate the grounds upon which EC poultry products have suddenly become ineligible for entry into the US market. The EC considered that the ban is inconsistent with Articles I III X and XI of GATT 1994 Articles 2 3 4 5 8 and Annex C of the SPS Agreement or Article 2 and 5 of the TBT Agreement.
Colombia - Measures Relating to the Importation of Textiles, Apparel and Footwear
On 18 June 2013 Panama requested consultations with Colombia with respect to the imposition by Colombia of a compound tariff affecting the importation of textiles apparel and footwear from Panama. The measure at issue is a compound tariff that Colombia has allegedly imposed by Presidential Decree No. 074 of 23 January 2013 (Decree 074/2013). Panama claims that this measure at issue is contained in: - Decree 074/2013; - Decree 1497/2011 as regards the definition of the products covered by the nomenclature of Chapters 61 62 63 and 64 of the Tariff Schedule; and - Memorandum No. 000165 of 30 April 2013 from the Customs Management Department of the Directorate of National Taxes and Customs on “measures to control compliance with Decree 074 of 2013”.
Argentina - Measures Relating to Trade in Goods and Services
On 12 December 2012 Panama requested consultations with Argentina with respect to certain measures imposed by Argentina that affect trade in goods and services. Panama alleges that various Argentine measures are applied exclusively in respect of certain countries listed in the Regulations to the Income/Profit Tax Law Decree 1344/98 as amended by Decree 1037/00. Panama claims that the measures are inconsistent with: - Articles II:1 XI XVI and footnote 8 and XVII of the GATS; and - Articles I:1 III:2 III:4 and XI:1 of the GATT 1994. On 21 December 2012 the European Union requested to join the consultations. On 28 December 2012 the United States requested to join the consultations.
European Union - Anti-Dumping Measures on Biodiesel from Argentina
On 19 December 2013 Argentina requested consultations with the European Union regarding (a) provisional and definitive anti-dumping measures imposed on biodiesel originating in inter alia Argentina as well as the investigation underlying the measures; and (b) a provision in Council Regulation (EC) 1225/2009 of November 2009 which refers to the adjustment or establishment of costs associated with the production and sale of products under investigation in the determination of dumping margins. Argentina claimed that the measures were inconsistent with: - Articles 1 2.1 2.2 2.2.1.1 2.2.2 2.4 3.1 3.2 3.4 3.5 6.2 6.4 6.5 6.5.1 9.3 18 and 18.4 of the Anti–Dumping Agreement; - Article VI of the GATT 1994; and - Article XVI:4 of the WTO Agreement. On 9 January 2014 the Russian Federation requested to join the consultations. On 15 January 2014 Indonesia requested to join the consultations. Subsequently the European Union informed the DSB that it had accepted the request of Indonesia to join the consultations.
United States - Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea
On 29 August 2013 Korea requested consultations with the United States concerning anti–dumping and countervailing measures relating to large residential washers from Korea. Korea claims that the measures identified in its request for consultations are inconsistent with: - Articles 1 2.1 2.4 2.4.2 5.8 9.3 9.4 9.5 11 and 18.4 of the Anti-Dumping Agreement; - Articles 1.1 1.2 2.1 2.2 10 14 and 19.4 of the SCM Agreement; - Articles VI VI:1 VI:2 and VI:3 of the GATT 1994; - Article XVI:4 of the WTO Agreement.
India - Certain Measures Relating to Solar Cells and Solar Modules
On 6 February 2013 the United States requested consultations with India concerning certain measures of India relating to domestic content requirements under the Jawaharlal Nehru National Solar Mission (“NSM”) for solar cells and solar modules.
European Communities - Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China - Recourse 1
On 31 July 2009 China requested consultations with the European Communities concerning Article 9(5) of Council Regulation (EC) No. 384/96 (the EC's Basic Anti‑Dumping Regulation) which provides that in case of imports from non-market economy countries the duty shall be specified for the supplying country concerned and not for each supplier and that an individual duty will only be specified for exporters that demonstrate that they fulfil the criteria listed in that provision.
United States - Certain Country of Origin Labelling (Cool) Requirements
On 07 December 2015 the WTO issued the dispute panel reports in the case "United States - Certain country of origin labelling (cool) requirements".
Colombia - Measures Relating to the Importation of Textiles, Apparel and Footwear
On 18 June 2013 Panama requested consultations with Colombia with respect to the imposition by Colombia of a compound tariff affecting the importation of textiles apparel and footwear from Panama. The measure at issue is a compound tariff that Colombia has allegedly imposed by Presidential Decree No. 074 of 23 January 2013 (Decree 074/2013). Panama claims that this measure at issue is contained in: - Decree 074/2013; - Decree 1497/2011 as regards the definition of the products covered by the nomenclature of Chapters 61 62 63 and 64 of the Tariff Schedule; and - Memorandum No. 000165 of 30 April 2013 from the Customs Management Department of the Directorate of National Taxes and Customs on “measures to control compliance with Decree 074 of 2013”.
United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Recourse 1
On 24 October 2008 Mexico requested consultations with the United States with respect to the following measures: (i) the United States Code Title 16 Section 1385 (“Dolphin Protection Consumer Information Act”) (ii) the Code of Federal Regulations Title 50 Section 216.91 (“Dolphin‑safe labeling standards”) and Section 216.92 (“Dolphin‑safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels”) and (iii) the ruling in Earth Island Institute v. Hogarth 494 F.3d 757 (9th Cir. 2007).
China - Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan. Measures imposing anti-dumping duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union
On 20 December 2012 Japan requested consultations with China pursuant to Articles 1 and 4 of the DSU Article XXII:1 of the GATT 1994 and Articles 17.2 and 17.3 of the Anti-Dumping Agreement with respect to the measures and claims set out below. On 13 June 2013 the European Union requested consultations with China pursuant to the same above-mentioned provisions and with respect to the measures and claims set out below. In both complaints the consultations concerned China's measures imposing anti-dumping duties on certain HP-SSST from Japan and the European Union respectively as set forth in MOFCOM's Preliminary Determination notice and MOFCOM's Final Determination notice including any and all annexes and any amendments thereof.
Argentina - Measures Relating to Trade in Goods and Services
On 12 December 2012 Panama requested consultations with Argentina with respect to certain measures imposed by Argentina that affect trade in goods and services. Panama alleges that various Argentine measures are applied exclusively in respect of certain countries listed in the Regulations to the Income/Profit Tax Law Decree 1344/98 as amended by Decree 1037/00. Panama claims that the measures are inconsistent with: - Articles II:1 XI XVI and footnote 8 and XVII of the GATS; and - Articles I:1 III:2 III:4 and XI:1 of the GATT 1994. On 21 December 2012 the European Union requested to join the consultations. On 28 December 2012 the United States requested to join the consultations.
European Communities - Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners From China - Recourse 1
On 31 July 2009 China requested consultations with the European Communities concerning Article 9(5) of Council Regulation (EC) No. 384/96 (the EC's Basic Anti‑Dumping Regulation) which provides that in case of imports from non-market economy countries the duty shall be specified for the supplying country concerned and not for each supplier and that an individual duty will only be specified for exporters that demonstrate that they fulfil the criteria listed in that provision.
China - Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States - Recourse 1
On 15 September 2010 the United States requested consultations with China with respect to measures imposing countervailing duties and anti-dumping duties on grain oriented flat-rolled electrical steel (“GOES”) from the United States as set forth in Ministry of Commerce of the People's Republic of China (“MOFCOM”) Notice No. 21 [2010] including its annexes. The subsidy that China determined to confer a benefit are the “Buy America” provisions of the American Recovery and Reinvestment Act of 2009 and also State government procurement laws. The United States alleged that China appears to be acting inconsistently with its obligations under: - Articles 10 11.2 11.3 12.3 12.4.1 12.7 12.8 15.1 15.2 15.5 19 22.2(iii) 22.3 and 22.5 of the SCM Agreement - Articles 1 3.1 3.2 3.5 6.9 and 12.2 of the Anti-Dumping Agreement; and - Article VI of the GATT 1994.
Peru - Additional Duty on Imports of Certain Agricultural Products
On 12 April 2013 Guatemala requested consultations with Peru with respect to the imposition by Peru of an “additional duty” on imports of certain agricultural products such as rice sugar maize milk and certain dairy products. Guatemala claims that the measure at issue is inconsistent with: - Article 4.2 and footnote 1 of the Agreement on Agriculture; - Articles II:1(a) II:1(b) X:1 X:3(a) XI and XI:1 of the GATT 1994; and - Articles 1 2 3 5 6 and 7 of the Customs Valuation Agreement.
Ukraine - Definitive Safeguard Measures on Certain Passenger Cars
On 30 October 2013 Japan requested consultations with Ukraine regarding the definitive safeguard measures imposed by Ukraine on imports of certain passenger cars and the investigation that led to the imposition of those measures. Japan claims that the measures are inconsistent with: - Articles 2.1 3.1 4.1(a) 4.1(b) 4.2(a) 4.2(b) 4.2(c) 5.1 7.1 7.4 8.1 11.1(a) 12.1 12.2 and 12.3 of the Agreement on Safeguards; and - Articles II:1(b) and XIX:1(a) of the GATT 1994.
India - Measures Concerning the Importation of Certain Agricultural Products
On 6 March 2012 the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of various agricultural products from the United States purportedly because of concerns related to Avian Influenza. The measures at issue are: the Indian Livestock Importation Act 1898 (9 of 1898) ("Livestock Act"); a number of orders issued by India's Department of Animal Husbandry Dairying and Fisheries pursuant to the Livestock Act most recently S.O. 1663(E); as well as any amendments related measures or implementing measures.
United States - Certain Country of Origin Labelling (Cool) Requirements - Recourse 1
On 1 December 2008 Canada requested consultations with the United States concerning certain mandatory country of origin labelling (COOL) provisions in the Agricultural Marketing Act of 1946 as amended by the 2008 Farm Bill and as implemented through an Interim Final Rule of 28 July 2008. These include the obligation to inform consumers at the retail level of the country of origin in respect of covered commodities including beef and pork. The eligibility for a designation of a covered commodity as exclusively having a US origin can only be derived from an animal that was exclusively born raised and slaughtered in the United States. This would exclude such a designation in respect of beef or pork derived from livestock that is exported to the United States for feed or immediate slaughter.
WTO Dispute Settlement
Over the past 20 years nearly 500 disputes have been brought to the WTO. About half of these were resolved during bilateral discussions while the other half proceeded to a panel process which in recent years generally takes about 14 months. Appeals are considered by the WTO’s Appellate Body and – excluding exceptionally busy periods – are completed within three months. This makes the WTO’s dispute system one of the fastest in the world. This brochure produced to mark the WTO’s 20th anniversary looks into how the dispute settlement system operates.