INTERNATIONAL TRADE LAW DISPUTE SETTLEMENT

Questions Addressed How does the WTO settle disputes? Challenges of WTO DS System Australia and WTO DS

Appellate review proceedings; and Implementation and enforcement WTO Dispute Settlement Process Consultation Panel proceedings Appellate review proceedings; and Implementation and enforcement (multilateral consultations are open to other Members with ‘substantial trade interest’)

WTO Dispute Settlement Consultation No forms Can be multilateral or bilateral Failed to reply within 10 days or failed to start to have consultation within 30 days Consultation failed within 60 days Article 12.10, developing country member is at issue, timeline can be extended. (multilateral consultations are open to other Members with ‘substantial trade interest’)

WTO dispute Settlement - Consultation Source: www.wto.org

WTO Dispute Settlement - Panel Establishment of Panel: 3-5 people, ad hoc followed suggestions by Secretariat Within 20 days, each party can request Director-General to determine its composition. Panel established (Based on Objective Assessment), give opinion based on consensus or majority vote. Issue Interim Report (parties can comment on it) Issue final Report. (6 months, and 9 months maximum) Circulate Report. (20 days and adoption of panel report 60 days) 6

WTO Dispute Settlement – Appellate Body - Establishment: Standing, 7 members, rotating basis, 4 years term; 3 serves as a Division - Decision-making: collegiality (to discuss with other members of AB); decision made within 60 days, and 90 days maximum 7

WTO Dispute Settlement- Implementation Article 21.3 outlines three ways of determining a reasonable period time: Member concerned proposes a period and DSB approves (by consensus) Complaining party and implementing Member agree on an implementation period within 45 days following of adoption Period set by binding arbitration (to be completed within 90 days) 8

WTO Dispute Settlement - Compliance Review If a complainant deems that a Member failed to implement the DSB’s recommendations and rulings within reasonable period of time, … request authorisation from the DSB… It is decided by recourse to the dispute settlement procedures, ‘including wherever possible resort to the original panel.’ (Art 21.5) 9

WTO Dispute Settlement – Compensation and Suspension Article 22 Compensation through consultation and mutual agreement; can be monetary or other trade benefits Suspension of Concession failed to reach agreement within 20 days, DSB grant authorisation to suspend concession or other obligation within 30days if suspension refers to arbitration, the original panel should determine the adequacy of the amount within 60 days. retaliation: can be cross-sector retaliation in the same agreement; or can suspend concession or other obligations in other agreement Dispute Settlement   Consultation     Failed to reply within 10 days or to failed to start to have consultation within 30 days Consultation failed within 60 days Good Offices, Conciliation and Mediation  Establishment of Panel 20 days Issuance of Report by Panel Within 6 months 9 months maximum Circulation of Panel Report (20 days) Adoption of Panel Report (60 days) Appellate Body 60 days 90 days maximum 10

Results of WTO Dispute Settlement Amicable resolution of disputes Mutually agreed solutions: 18.1% Otherwise settled or inactive: 8.5% Reports (1995-2015): 67% appeal rate Panel: 214 Appellate Body: 144 Success rates (1995-2015) Findings of WTO inconsistency Compliance with rulings and recommendations https://www.wto.org/english/tratop_e/dispu_e/stats_e.htm (Appellate Body Annual Report 2015); OVERVIEW OF THE STATE OF PLAY OF WTO DISPUTES ANNUAL REPORT (2014) Source: www.wto.org

Findings of WTO Inconsistency

Compliance with Recommendations and Rulings

Features of Dispute Settlement System “Mutually Agreed Solutions” as “Preferred Solution” Prompt settlement of disputes Prohibition against unilateral determinations Exclusive jurisdiction Compulsory nature

Nature of Disputes Disputes on technical trade issues of ‘little interest’ to the general public EC – Computer Equipment EC – Bed Linen and US – Stainless Steel Disputes on politically sensitive issues generating much public attention US – Shrimp EC – Hormones; EC – Asbestos US – Gambling DISPUTE SETTLEMENT: DISPUTE DS316 European Communities — Measures Affecting Trade in Large Civil Aircraft DISPUTE SETTLEMENT: DISPUTE DS62 European Communities — Customs Classification of Certain Computer Equipment DISPUTE SETTLEMENT: DISPUTE DS141 European Communities — Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India DISPUTE SETTLEMENT: DISPUTE DS179 United States — Anti-Dumping measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea

Challenges for the Future Need for reform? Success to date Shortcomings Prime challenge: institutional imbalance - although WTO DS system has performed very well so far, the task may become steadily more difficult as the WTO is drawn more deeply into politically controversial issues.

Australia and WTO Dispute Settlement Australia as a defending party (respondent) (15 cases) - Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging - Australia - Measures Affecting the Importation of Apples from New Zealand (DS367) … - Australia — Measures Affecting Importation of Salmon (DS18) Australia as a complaining party (complainant) (7 cases) European Communities — Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs Australia as a Third Party - 97 cases

Australian Apple Case (Leaves of an apple tree affected by fire blight) (Apple affected by fire blight)

Australian Tobacco Plain Packaging Case The Act regulates packaging of tobacco products by prescribing the colour, style, text and finish of the packaging in great detail. Figure 1 – Left, Winfield Blue packaging before the introduction of plain packaging, and right, after