WTO DSU and the Role of the Government Officials presented for Royal University of Economic and Law

8/14/2019 WTO DSU and the Role of the Government Officials presented for Royal University of Economic and Law

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DISPUTE SETTLEMENTDISPUTE SETTLEMENT

ININ

WTOWTO

PREPARED BYPREPARED BY

CHAN BONNIVOITCHAN BONNIVOIT

WTO OFFICEWTO OFFICENOTIFICATION AND LEGAL COMPLIANCE DEPARTMENTNOTIFICATION AND LEGAL COMPLIANCE DEPARTMENT

MINISTRY OF COMMERCEMINISTRY OF COMMERCE


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Table of ContentsTable of ContentsI.I. General AspectsGeneral Aspectsa)a) OverviewOverview

b)b) ScopeScope

c)c) Aims and Main CharactersAims and Main CharactersII.II. Procedural StagesProcedural Stages

a)a) ConsultationsConsultations

b)b) Panel Review ProcessPanel Review Processi.i. Request for EstablishmentRequest for Establishment

ii.ii. CompositionComposition

iii.iii. ProceedingsProceedings

c)c) Appellate ReviewAppellate Review

d)d) ImplementationImplementation

i.i. Reasonable Period of TimeReasonable Period of Timeii.ii. Implementation Review ProcessImplementation Review Process

e)e) NonNon--ImplementationImplementationi.i. CompensationCompensation

ii.ii. Suspension of ConcessionsSuspension of Concessions

III.III. A Government LawyerA Government Lawyers Perspectivess Perspectives


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General AspectsGeneral Aspects

Part IPart I


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:

Dispute Settlement under GATT 1947Dispute Settlement under GATT 1947

Articles XXII and XXIII of GATT:Articles XXII and XXIII of GATT: nullification and impairmentnullification and impairment

"nullification and impairment" of the benefits that should flow"nullification and impairment" of the benefits that should flowfrom the agreement.from the agreement.

Violation (and nonViolation (and non--violation)violation) Breach of the rules contained in the GATT by one party.Breach of the rules contained in the GATT by one party.

Have an adverse impact on another GATT party or parties.Have an adverse impact on another GATT party or parties.

Practice under GATT 1947Practice under GATT 1947 multilateral resolution of disputes.multilateral resolution of disputes.

dispute settlement was viewed as much more a matter ofdispute settlement was viewed as much more a matter of

diplomacy, rather than a matter of law alone.diplomacy, rather than a matter of law alone. consensus (political consensus).consensus (political consensus).


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WTO

Structure


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Dispute Settlement in theDispute Settlement in the

WTO:WTO:OverviewOverview

QuasiQuasi--judicial Naturejudicial Nature Compulsory jurisdictionCompulsory jurisdiction

Secured accessSecured access

Detailed procedures andDetailed procedures anddeadlinesdeadlines

Automaticity in theAutomaticity in the

proceedingsproceedings Possible appealPossible appeal

PanelPanel

Appellate Body (AB)Appellate Body (AB)

Who can haveWho can haverecourse to it?recourse to it?

(Members)(Members)

When? (MemberWhen? (Member

considers benefitsconsiders benefits

resulting fromresulting fromagreements areagreements are

being impaired)being impaired)

Which agreements?Which agreements?


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Dispute Settlement in WTO:Dispute Settlement in WTO:

OverviewOverview

WTO Dispute Settlement Body

PanelReport

Adoption

PANEL

establishes

CONSULTATION


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Dispute Settlement in WTO:Dispute Settlement in WTO:

OverviewOverview

Political Level (Control)

Judicial Level


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Structure of the WTO AgreementStructure of the WTO Agreement

WTO Agreement

GATT

GATS

TRIPS

TPRMDSU

Plurilateral Agreements:

Trade in Civil Air CraftGovernment Procurement

A A

A A

A A

A A


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WTO

GATT

GATS

TRIPS

TPRMDSU

Agriculture

Sanitary andPhytosanitary Measures

Technical Barriers toTrade

Trade-related InvestmentMeasures

Anti-Dumping

Rules of Origin

Valuation

Import Licensing

Subsidies and

Countervailing

Measures

Safeguards


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ScopeScope

An integratedAn integratedsystemsystem::

Applies to all the WTOApplies to all the WTOmultilateral agreementsmultilateral agreements(Appendix 1)(Appendix 1)

A single set of rules for allA single set of rules for alldisputesdisputes (Art 23)(Art 23)

Only a few special orOnly a few special or

additional rules in someadditional rules in someCovered Agreement (CA)Covered Agreement (CA) WTO Multilateral andWTO Multilateral and

PlurilateralPlurilateral Agreements areAgreements are

listed as covered agreementslisted as covered agreements


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:AimsAims

DSU:DSU:

Securing compliance with CASecuring compliance with CA Providing security and predictability to the multilateralProviding security and predictability to the multilateral

trading systemtrading system

The market participants (private economic operators) needThe market participants (private economic operators) needstability and predictability in the government laws, rules andstability and predictability in the government laws, rules andregulations applying to their commercial activity, especiallyregulations applying to their commercial activity, especiallywhen they conduct trade on the basis of longwhen they conduct trade on the basis of long--termtermtransactions.transactions.

In light of this, the DSU aims to provide a fast, efficient,In light of this, the DSU aims to provide a fast, efficient,dependable and ruledependable and rule--oriented system to resolve disputesoriented system to resolve disputesabout the application of the provisions of the WTOabout the application of the provisions of the WTOAgreements.Agreements.

Preserving the rights and obligations of MembersPreserving the rights and obligations of Membersunder the CAunder the CA


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Main CharactersMain Characters

The Parties: WTO Members onlyThe Parties: WTO Members only

The DSB (all the Member States)The DSB (all the Member States)

The Panel ( 3 or 5 panelists)The Panel ( 3 or 5 panelists)

AB (7 members)AB (7 members)

WTO SecretariatWTO Secretariat


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ProceduralProcedural

StagesStages

Part IIPart II


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Main StagesMain Stages

Good offices,conciliation andmediation

Report issued to the parties

beforecirculated to the Members

Translation in official languages

DSB adopts Panel / Appellate Report(s)

Appellate Review andReport Issued(60-90 days)

Panel review and Report Issued(6-9 months)

Composition of the panel

Panel establishedby DSB

Consultations(60 days)


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Main StagesMain Stages Good offices normally consist primarily of providing

logistical support to help the parties negotiate in aproductive atmosphere. Conciliation additionally involves the direct

participation of an outside person in the discussions andnegotiations between the parties. In a mediation process, the mediator does not only

participate in and contribute to the discussions andnegotiations, but may also propose a solution to theparties.The parties would not be obliged to accept this

proposal.


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II.aII.a

ConsultationsConsultations

Di S l i h


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Dispute Settlement in theDispute Settlement in the

WTO:WTO: ConsultationsConsultations

Who?Who? One or more Members (complainants) againstOne or more Members (complainants) against

another Member (defendant)another Member (defendant)

Confidential process (Art. 4.6)Confidential process (Art. 4.6) No intervention by the SecretariatNo intervention by the Secretariat


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Request for ConsultationsRequest for Consultations The request forThe request for

consultationsconsultations::(Art. 4 DSU)(Art. 4 DSU)

Indicates the reasons forIndicates the reasons for

the request:the request: identification of theidentification of the

measuresmeasures

legal basis for complaintlegal basis for complaint Addressed to DefendantAddressed to Defendant

with copy to DSB andwith copy to DSB and

relevant Councils andrelevant Councils andCommitteesCommittees

Circulated to Members asCirculated to Members asdocumentdocument WT/DSxxx/1WT/DSxxx/1


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Third PartiesThird Parties --Joining ConsultationJoining Consultation

Any Member canAny Member can

request to be joinedrequest to be joined

in the consultationsin the consultations

Art. 4.11 DSUArt. 4.11 DSU

ConsultationsConsultations

requested underrequested under ArticleArticleXXIIXXII of GATT only (orof GATT only (or

correspondingcorresponding

provision)provision)

SubstantialSubstantialtradetrade

interestinterest Notified to parties andNotified to parties and

DSBDSB

Deadline: within 10

days of initial request

for consultations


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Third PartiesThird Parties --Joining ConsultationJoining Consultation

If the respondent disagrees, there is noalternative through which the interested Member

can impose its presence at the consultations, no

matter how legitimate the invoked substantial tradeinterest may be.

However, the interested Member can alwaysrequest consultations directly with the respondent(Article 4.11 of the DSU), which would open a new,

separate dispute settlement proceeding

Dispute settlement in the WTO:Dispute settlement in the WTO:


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Dispute settlement in the WTO:Dispute settlement in the WTO:

Time frameTime frame

MUTUALLY AGREEDSOLUTION

REQUEST FOR THE ESTABLISHMENTOF A PANEL

Failure to settle the dispute( 60 days from receivedrequest for consultations)

Entry into consultations within 30 days They do not enter into consultations within 30 days

Requested Member replies within 10 days Requested Member does not reply

Request for Consultations

Exception!: Urgency procedure under Art. 4.8 DSU


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II.bII.b

PanelPanelReviewReview

ProcessProcess

Disp te Settlement in the WTODispute Settlement in the WTO:


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Establishment of panelsEstablishment of panelsArticle 6 DSUArticle 6 DSU

Request for establishment of aRequest for establishment of apanel:panel:

indicate whether consultations heldindicate whether consultations held

identify the specific measures at issueidentify the specific measures at issue

brief summary of the legal basis of thebrief summary of the legal basis of the

problem sufficient to present the problemproblem sufficient to present the problemclearlyclearly

EstablishmentEstablishment of a panelof a panel

S ODi S l i h WTO
http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/http://submissions%20to%20the%20panel%20for%20respondent-simulation%20in%20singapore%20seminare%204-8-jun-07.pdf/


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Terms of reference andTerms of reference andcomposition of panelscomposition of panels

Terms of reference:Terms of reference:(Article 7 DSU)(Article 7 DSU) Standard terms ofStandard terms of

referencereference

Special terms ofSpecial terms ofreferencereference

Panel Composition:Panel Composition:(Article 8 DSU)(Article 8 DSU)

wellwell--qualified governmentqualified governmentand/or nonand/or non--governmentalgovernmental

individualsindividuals secretariat proposalssecretariat proposals

members shall not oppose,members shall not oppose,except for convincing reasonsexcept for convincing reasons

indicative list of panelistsindicative list of panelists

nomination by DGnomination by DG No agreement on the panellistsNo agreement on the panellists

within 20 days after the date ofwithin 20 days after the date of

the establishment of a panelthe establishment of a panel

Di t S ttl t i th WTODispute Settlement in the WTO


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Panel Procedures (I)Panel Procedures (I)

Working Procedures (Appendix 3 DSU)Working Procedures (Appendix 3 DSU)

Submissions and meetingsSubmissions and meetings

Issuance of descriptive part to partiesIssuance of descriptive part to parties

Interim reviewInterim review

Final report issued to partiesFinal report issued to parties

Final report circulated to all MembersFinal report circulated to all Members Procedure for suspension of workProcedure for suspension of work



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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Panel Proceedings: Appendix 3 DSUPanel Proceedings: Appendix 3 DSU

Final report circulated to all Members

Final report issued to parties

Interim review

Receipt of comments by the parties

on the descriptive part of the report

Issuance of descriptive partof the report to the parties

Second substantive meeting with the parties

Receipt of written rebuttalsof the parties

First substantive meeting with the parties and third parties

Third party session

Receipt of first written submissions of the parties

(written negation)

Di t S ttl t i th WTODi t S ttl t i th WTO


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Panel Procedures (II)Panel Procedures (II)Function of panels:Function of panels:

Standard of review: (Art. 11 DSU)Standard of review: (Art. 11 DSU) facts of the casefacts of the case

the applicability of CAthe applicability of CA

conformity with the relevant CAconformity with the relevant CA

Report of the Panel shall set out: (Art12.7 DSU)Report of the Panel shall set out: (Art12.7 DSU)

the findings of factthe findings of fact the applicability of the relevant provisionsthe applicability of the relevant provisions

the basic rationale behind any findings andthe basic rationale behind any findings and

recommendations that it makesrecommendations that it makes


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Panel Procedures (III)Panel Procedures (III)

Third parties:Third parties: substantial interestsubstantial interest(Article 10 DSU)(Article 10 DSU)

Difference with consultation phaseDifference with consultation phase

Limited rightsLimited rights

to receive the first written submissionsto receive the first written submissions to make written submissions to the Panelto make written submissions to the Panel

to be heard by the Panelto be heard by the Panel

Right to seek informationRight to seek information (Article 13 DSU)(Article 13 DSU) Issue:Issue: Amicus CuriaeAmicus Curiae

Expert review groupsExpert review groups (Appendix 4 DSU)(Appendix 4 DSU)

ConfidentialityConfidentiality (Article 14 DSU)(Article 14 DSU)


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Panel Procedures (IV): DeadlinesPanel Procedures (IV): Deadlines

As a general rule,As a general rule, 66monthsmonths fromfrom

compositioncomposition/terms/terms

of reference toof reference toissuance of finalissuance of final

report of the panel toreport of the panel to

the partiesthe parties

(Article 12.8 DSU)(Article 12.8 DSU)

As a general rule,As a general rule, 99monthsmonths fromfrom

establishmentestablishment ofof

panel to considerationpanel to considerationof report for adoptionof report for adoption

(if no appeal)(if no appeal)

12 months12 months wherewhere

report is appealedreport is appealed

(Article 20 DSU)(Article 20 DSU)

S ODi S l i h WTO


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Panel Procedures: deadlinesPanel Procedures: deadlines

Establishment

of a panel

Composition ofa panel

Final Report

circulatedmax. 6 months

max. 9 months



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Adoption of Panel ReportsAdoption of Panel ReportsArt. 16 DSUArt. 16 DSU

Panel reports are notPanel reports are not

considered by DSBconsidered by DSBfor adoption until 20for adoption until 20days after circulationdays after circulation

Adopted at a DSBAdopted at a DSBmeetingmeeting within 60within 60

days of circulationdays of circulation,,unless negativeunless negativeconsensusconsensus..

ExceptExcept ififappealedappealed


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II.cII.c

Appellate ReviewAppellate Review


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Appellate Review (I)Appellate Review (I)Article 17 DSUArticle 17 DSU

Appeals limited toAppeals limited to

issues of lawissues of law andand

legal interpretationslegal interpretationsdeveloped by thedeveloped by the

panelpanel

Appeal only open toAppeal only open to

partiesparties to the disputeto the dispute

Standing AppellateStanding AppellateBodyBody

7 members7 members

persons of recognizedpersons of recognizedauthority and expertise inauthority and expertise in

international trade lawinternational trade law

unaffiliated with anyunaffiliated with anygovernmentgovernment

Di t S ttl t i th WTODi t S ttl t i th WTO


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Appellate Review (II)Appellate Review (II)

Report of the Appellate BodyReport of the Appellate Body::

The Appellate BodyThe Appellate Body may encourage,may encourage,

modify or reverse the legal findings andmodify or reverse the legal findings and

conclusions of the panelconclusions of the panel (Art. 17.12 DSU)(Art. 17.12 DSU)

Adoption of Appellate Body reportAdoption of Appellate Body report::within 30 days of circulation to Memberswithin 30 days of circulation to Members


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II.dII.d

ImplementationImplementation

Dispute Settlement in the WTODispute Settlement in the WTO::


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Dispute Settlement in the WTODispute Settlement in the WTO::

ImplementationImplementation

DSB authorisation for suspension of concessions

Arbitration on level and procedure

Request for DSB authorisation for suspension of concessionsif compensation not agreed

Negotiations to agree mutually satisfactorycompensation if no compliance

Request for review of compliance

(referred to original panel)

Arbitration to determine 'reasonable period of time' if no agreement

Implementation within reasonable period of time

DSB adopts report


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Implementation (I)Implementation (I)

RecommendationsRecommendations::

If violation:If violation:

recommendation thatrecommendation that

the Memberthe Member bringbringthe measures intothe measures into

conformityconformity


Within 30 days ofWithin 30 days of

adoption of report,adoption of report,

Member concernedMember concerned

informs the DSB of itsinforms the DSB of itsintentions in respect ofintentions in respect of

implementationimplementation of theof the

recommendations andrecommendations andrulingsrulings



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Implementation (II)Implementation (II)

Determination ofDetermination of reasonable period ofreasonable period of

timetime for implementation:for implementation:

proposed by Member and approved by DSB, orproposed by Member and approved by DSB, or

mutually agreed by the parties, ormutually agreed by the parties, or

determined throughdetermined through arbitrationarbitration:: guideline forguideline forthe arbitratorthe arbitrator: 15 months from the date of: 15 months from the date of

adoption (Article 21.3 DSU)adoption (Article 21.3 DSU)



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Implementation (III)Implementation (III)

Surveillance by the DSBSurveillance by the DSB: Status reports on: Status reports on

implementationimplementation

If Member fails to bring measure intoIf Member fails to bring measure into

conformity within reasonable period of time,conformity within reasonable period of time,

possibility ofpossibility of temporarytemporary measures:measures:compensationcompensation oror suspension ofsuspension of

concessionsconcessions (retaliation)(retaliation)


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Dispute Settlement in the WTO:Dispute Settlement in the WTO:Implementation (IV)Implementation (IV)

Compensation:Compensation:(Article 22 DSU)(Article 22 DSU)

VoluntaryVoluntary

NegotiatedNegotiated

Compatible with WTO AgreementsCompatible with WTO Agreements

If no compensation agreed within 20 days afterIf no compensation agreed within 20 days afterexpiry of reasonable period of timeexpiry of reasonable period of time..



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Implementation (V)Implementation (V)

Suspension of concessionsSuspension of concessions::

same sector/other sector/ other agreementsame sector/other sector/ other agreement

level of suspension:level of suspension: equivalent to the level ofequivalent to the level of

nullification or impairmentnullification or impairment (Art. 22.4 DSU)(Art. 22.4 DSU) authorization to suspend: within 30 days ofauthorization to suspend: within 30 days of

expiry of reasonable period of timeexpiry of reasonable period of time

arbitration on level of suspension or principlesarbitration on level of suspension or principles

of Art. 22.3 DSUof Art. 22.3 DSU


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II.eII.e

NonNon--ImplementationImplementation



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Dispute Settlement in the WTO:p

Surveillance of ImplementationSurveillance of Implementation

Surveillance by the DSBSurveillance by the DSB: Status reports: Status reports

on implementation (21.6 DSU)on implementation (21.6 DSU)

If Member fails to bring measure into conformityIf Member fails to bring measure into conformitywithin reasonable period of time, possibility ofwithin reasonable period of time, possibility of

temporary measurestemporary measures : compensation or: compensation or

suspension of concessionssuspension of concessions (retaliation)(retaliation)



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pp

CompensationCompensationCompensation:Compensation: (Art. 22 DSU)(Art. 22 DSU)

voluntaryvoluntary

negotiatednegotiated

compatible with WTO Agreementscompatible with WTO Agreements

If no compensation agreed within 20 days after expiry ofIf no compensation agreed within 20 days after expiry of

reasonable period of timereasonable period of time.. Suspension of concessionsSuspension of concessions

Suspension of concessionsSuspension of concessions


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Specificity requirementsSpecificity requirements

ItIt must specifymust specifythe Agreementthe Agreement

and sector (s)and sector (s)

under which itunder which itwill be applied.will be applied.

Art. 22.3Art. 22.3

What should the request contain?

2 minimum specificity requirements

ItIt must set out amust set out aspecific levelspecific level

of suspensionof suspension

Equivalent to theEquivalent to the

nullification andnullification and

impairmentimpairment



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RequirementRequirement 1:1: selectionselection ofof thethe sectorsector

GoodsGoods:: allall one sectorone sector

ServicesServices:: eacheach oneone ofof thethe 1111 sectorssectors identifiedidentified inin

servicesservices sectoralsectoral ClassificationClassification listlist ((MTN.GNSMTN.GNS/W/120/W/120))

IntellectualIntellectual PropertyProperty:: eacheach oneone ofof thethe 77 SectionsSections

andand PartsParts II, IIIII, III andand IV del TRIPSIV del TRIPS

General Principle

in the same sector/s in which the inconsistentmeasure was found. (Art. 22.3 a)

http://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.dochttp://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.dochttp://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.dochttp://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.dochttp://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.dochttp://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.doc


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InIn additionaddition::

SuspensionSuspension ofof concessionsconcessions maymay notnot havehavepunitivepunitive naturenature

ECEC--Bananas III (US) (Art. 22.6)Bananas III (US) (Art. 22.6) --para. 6.3para. 6.3WT/DS27/ARBWT/DS27/ARBUSUSCotton Yarn, para. 120Cotton Yarn, para. 120WT/DS192/AB/RWT/DS192/AB/R

Level of

concesions to

be suspended

Level of

nullification or

impairment

Equivalence

(correspondence, identity or

balance)

(Art. 22.4 del ESD)

EC - Bananas III (EEUU) (Art. 22.6) - para. 4.1 WT/DS27/ARB


RequirementRequirement 2:2: EquivalenceEquivalence
http://docsonline.wto.org/DDFDocuments/t/WT/DS/27ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/27ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/192ABR.dochttp://docsonline.wto.org/DDFDocuments/t/WT/DS/192ABR.dochttp://docsonline.wto.org/DDFDocuments/t/WT/DS/27ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/27ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/192ABR.dochttp://docsonline.wto.org/DDFDocuments/t/WT/DS/27ARB.DOC


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MandateMandate ofof thethe arbitratorarbitratorArt. 22.7 DSUArt. 22.7 DSU

The arbitrator may not review theThe arbitrator may not review thenature of the proposed measurenature of the proposed measure

ECECHormones (Art.Hormones (Art. 22.622.6CE), para. 18CE), para. 18WT/DS26/ARBWT/DS26/ARB

Arbitral award: within 60 of the expiry of the

reasonable period of time

http://docsonline.wto.org/DDFDocuments/t/WT/DS/26ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/26ARB.DOChttp://docsonline.wto.org/DDFDocuments/t/WT/DS/26ARB.DOC


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Developing CountriesDeveloping Countries

Reference to 1966 decisionReference to 1966 decision

Specific provisions: e.g.Specific provisions: e.g. composition of panels (Art. 8.10 DSU),composition of panels (Art. 8.10 DSU),

consultations (Art. 4. 10 DSU),consultations (Art. 4. 10 DSU),

panels procedures (Art. 12. 10 and 12.11 DSU)panels procedures (Art. 12. 10 and 12.11 DSU)

LeastLeast --developed countries (Art. 24 DSU):developed countries (Art. 24 DSU): particular consideration to special situation,particular consideration to special situation,

moderation in asking for compensation and seeking tomoderation in asking for compensation and seeking to

suspend concessionssuspend concessions

Legal assistance (Art. 27.2 DSU)Legal assistance (Art. 27.2 DSU)


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III.III.A GovernmentA Government

LawyerLawyers Perspectivess Perspectives

How is a government lawyerHow is a government lawyerss


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g yg y

perspective different?perspective different?

Responsibilities are broader.Responsibilities are broader.

Multiple stakeholders in a dispute.Multiple stakeholders in a dispute.

Context of the dispute is different to privateContext of the dispute is different to private

lawsuitlawsuit



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g yg y

perspective different?perspective different? Responsibilities are broaderResponsibilities are broader

Government lawyers are responsible for moreGovernment lawyers are responsible for morethan the legal outcome of the casethan the legal outcome of the casethey arethey are

also responsible for the policy and politicalalso responsible for the policy and political

outcomes of the caseoutcomes of the case

Outcomes include legal, policy and politicalOutcomes include legal, policy and political

outcomesoutcomes Key difference to private lawyer whereKey difference to private lawyer where

responsibility is limited to legal adviceresponsibility is limited to legal advice



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g y

perspective different?perspective different? Multiple stakeholders in the disputeMultiple stakeholders in the dispute

Governments of the partiesGovernments of the partiesPrivate industry and businessPrivate industry and business

MinistersMinisters

Third partiesThird parties

NonNon--government organisationsgovernment organisations



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Dispute settlement contextDispute settlement context

WTO disputes take place against theWTO disputes take place against the

background of mutual WTO membership and abackground of mutual WTO membership and a

continuing trading relationshipcontinuing trading relationshipContrast to private litigation which does not takeContrast to private litigation which does not take

place within the context of such relationshipsplace within the context of such relationships



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Taken together, these factors enlarge theTaken together, these factors enlarge the

concept of aconcept of adisputedisputefor a governmentfor a governmentlawyer and add complexity to thelawyer and add complexity to the

management of the dispute process.management of the dispute process.


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THANKS YOUTHANKS YOU