1. INTERNATIONAL TRADE LAW DISPUTE SETTLEMENT

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

3. 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’)

4. 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’)

5. WTO dispute Settlement - Consultation
Source:

6. 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

7. 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

8. 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

9. 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

10. 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

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

12. Findings of WTO Inconsistency

13. Compliance with Recommendations and Rulings

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

15. 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

16. 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.

17. 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

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

19. 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