Transcript Principles of the DSU: - University of Cagliari

Features of the DSU
• A single and coherent system of rules and
procedures for dispute settlement;
existence of special rules in some
Multilateral Agreements.
• Compulsory jurisdiction for complaining
Member and for respondent Member;
• Exclusive jurisdiction;
• Contentious jurisdiction.
Access to the dispute settlement
system
Only Members may accede to the WTO
dispute settlement system.
Government-to-government dispute
settlement system.
Private companies often lobby their
governments in order to induce them to
start proceedings under DSU.
Amicus curiae
Faculty to submit written briefs to panels and
Appellate Body.
Who can submit?
1) Individuals;
2) Private companies;
3) Governmental and non-governmental
organisations;
4) Members.
Amicus curiae (II)
• Appellate Body ruled that panels are
entitled to accept and consider amicus
curiae briefs (US-Shrimp, EC-Sardines).
• It adopted an Additional Procedure in
order to deal with amicus curiae briefs and
set forth requirements for such briefs.
• Panels are not obliged to consider amicus
curiae briefs and private parties have no
legal right to be heard.
Amicus curiae (III)
•
Member States strongly dissent from the view
of the Appellate Body about amicus curiae
briefs, because:
1) Amicus curiae briefs can contribute to the
length of proceedings;
2) Developing-country Members feel that amicus
curiae briefs are often opposed to their
interests.
• General Council have been unable to adopt
clear rules about amicus curiae briefs thus far.
Complaints under the DSU
Reference to article XXIII of the GATT 1994
Types of complaints:
1) Violation complaints;
2) Non-violation complaints;
3) Situation complaints.
Nullification or impairment of benefits for the
complainant Member.
Interest in the dispute.
Alternative dispute resolution
• Consultations before the establishment of
a panel
• During all stages: good offices, conciliation
and mediation
Consultations
Preference for amicable resolution of disputes.
The request for consultation must indicate the
measure at issue and the legal basis for the
complaint. It is notified to the DSB.
Confidentiality of the consultations.
Duration 60 days.
The agreed solution must be notified to the DSB
and must be in conformity with the WTO law.
Disputes settlement procedure
When a dispute arises between Member States,
they can request the DSB to establish a panel.
The request must contain:
1) an indication whether consultations were held;
2) the identification of the specific measures at
issue;
3) a brief summary of the legal basis of the
complaint.
Protection of respondent’s rights.
Disputes settlement procedure (II)
Panels:
- are ad hoc bodies, established for each different
dispute;
- are composed by well-qualified members, with a
view to ensuring their independence, a different
background and wide experience;
- do not include nationals of Member States
parties to the dispute;
- are established by the DSB (reverse
consensus).
Disputes settlement procedure (III)
After the establishment of the panel the parties
will try to reach an agreement on the
composition as proposed by the Secretariat.
If they are unable to reach an agreement, the
designation is made by the Director-General.
Multiple complainants: single panel or same
composition.
Disputes settlement procedure (IV)
Duties of the Panels:
- make an objective assessment of the
facts;
- examine the claims proposed by the
parties;
- make an objective assessment of the
applicability of and conformity with the
relevant agreement.
Disputes settlement procedure (V)
Panel proceedings (wide discretionary
authority):
1) Written submissions;
2) Substantive panel meetings.
Duty of the parties to respond promptly and
full to requests for information.
Submission of evidence; use of experts.
Third parties’ rights.
Disputes settlement procedure (V)
Panel report is submitted to the parties for
an interim review stage.
It must indicate the basic rationale for its
findings.
Where the Panel finds that a violation took
place, the report will contain
recommendation to bring the measure in
conformity with WTO Agreements (binding
after approval by the DSB).