IBM Law: Session 13 : Trade in the WTO Dispute Settlement

The Basic Law of WTO Trade Dispute

Regulated: Understanding on Rules and Procedures Governing the Settlement Dispute (known as he Dispute Settlement Dispute) which is part of annex 2 WTO Agreement.
Article XXII of GATT requires the disputing parties can resolve their disputes through bilateral consultations and multilateral consultations can be requested by either party if the dispute could not be settled through bilateral consultations.

Article XXII contains two separate verses:

Verse 1: confirms the existence of two offenses described in three circumstances, namely:

Non-performance of obligations of the parties under the GATT agreement.
The implementation or execution of an action by a party, whether or not the offense is against the GATT agreement.
Any other circumstances or situations.

Verse 2: contains two key provisions, namely:

First, it requires the parties to submit their disputes to the supreme body of the GATT, the contracting party, if the parties fail to resolve a bilateral basis in accordance with paragraph [1].
Secondly, this verse shows three verdict forms that can be issued by the contracting party:

Contracting party shall make appropriate recommendations to the contracting parties (reommended)

Or give a ruling on the matter [putusan].

Authorize a contracting party or parties to suspend the application to any other contracting party or parties of such concessions or other obligations under this agreement

WTO dispute settlement phases:

.       Consultation

· Consultation is the first step recommended DSU and may also engage third parties to provide consideration.

·   Consultation must be made within 30 days of the petition request for consultations.

2.       Conciliation and Mediation.

· Procedures approved by the disputing parties and prohibited harming the disputing parties.

3.       panel formation

· In the formation of the Panel, through its chairman DSB Entitled to further discuss the terms of reference by the parties to the dispute. The terms of reference = rule of law is used.

·   The terms of reference should be Circulated to all members and if approved different to a standard frame of reference, then each member state may question the things associated with it to the DSB.

4.       Arbitration

·   Dispute arbitration can be done by making the submission to arbitration or compromise a dispute birth through the creation of an arbitration clause in a contract dispute before birth (clausul compromise).

5.       Dispute Settlement Body

·    Mediation Carried out by a body known as the "Dispute Settlement Body" [DSB].

·   DSB set up or develop rules, procedures, consultation and dispute settlement provisions.

· In the DSB decision should be made by consensus and not by voting. In GATT practice, consensus means none of attendees formally refused.

Dispute Settlement in the WTO : Main Procedures

Consultations = 60 days
Panel = 9 months
Appleate Body = 90 days
Implementation = 15 months

Stages of Case Management at DSB

Phase I: Consultation Article XXII

Party problematic consultation [Article XII of GATT]. The goal is to reach a settlement in amikal [profitable]. Performed bilateral process between the litigants.
This process contains a blend of technical and juridical should be done properly, accurately and in accordance with the formal and diplomatic process that requires flexibility.
The defendants must give an answer within 10 days of the request for consultations.
For transparency, the request must be submitted in writing to the DSB mencamtumkan reason for the request and specifies the type of action that has been taken parties sued and legal basis of the complaint.

Phase II: Dispute Resolution XXIII

If the consultations under Article XXII "does not work" then the party who filed the complaint could use a more formal Article XIII.
Thus, the process of switching to Phase II and at this stage of the process to follow procedures more stringent.
Formal provisions of Article XIII of GATT states that with the improvement of the system requires that the results of Uruguay Round has absolutely formation Panel. Panel formation process can be seen further in Phase II [b].

Phase II [a]: Resolution Through Arbitration

Before the automatic mechanism of the formation of the panel is done, there are steps that can be taken before outside panel mechanism.
Disputing parties who have failed in consultation still have the option not to submit his case to the DSB that the Panel through.
Another pathway that can be selected is approved lines "good officers" that of conciliation, mediation and arbitration. Abitrasi process is a judicial process that uses tribunal mechanism agreed by the parties to the dispute. DSU allow this option. However, this mechanism is formally outside mechanism managed by the DSB.

Phase II [b]: Through Settlement Panel

If the arbitration path not taken, then the Panel may be formed. Thus, the process is included in the Phase II [b]. In the event that the dispute can not be resolved through consultations, the DSU requires the Panel no later than the DSB session held after the proposed dispute resolution request, the DSB kecualai if consensus was not established panel, including formulating the terms of reference and composition of the Panel.
If both parties accept the DSB adopted the Panel decision, then, if the decision also determine whether there is a violation, the next process is the notification about the planned implementation of the decision of the defeated party. Thus, the dispute resolution process directly into Phase IV. But if there are those who are not satisfied, then enter the next process stage III vs stage.

Phase III: Through Appeal Appellate Body

If, after the Panel expressed its view, no party to the dispute can not accept the decision, then the party who is not satisfied can apply for an appeal to the Appellate Body or the Board of Appeals. Thus, the process in Phase III.
Appeal proceedings should not exceed 60 days from the date of formal notification by submitting the appeal. Appellate Body handles appeals by assessing the problem in terms of legal, to decide According to the law focuses on legal aspects of the panel report.
After the Appellate Body decided his views DSB automatically authenticates, unless there is consensus to not accept it. After disputing parties seeked the appeal, the Appellate Body decision is final and binding on the parties involved in the dispute. Appellate Body report must be received by the disputing parties unconditionally within 30 days after the decision is left to the Appellate Body endorsed by the DSB and DSB, unless the DSB decides by consensus not to mengadopasi the report.
The completion of the Appellate Body Appeal through the process of notification of the decision to the parties in an apparent violation of the implementation of the DSB decisions passed a later stage. In our simulations, the dispute process enters Phase IV.

Phase IV: Implementation and Notification of Implementation

After the panel lines beyond dispute, and the decision that any party violating the rules Gatt and adverse parties filed a complaint, the Panel typically proposes repeal the adverse action. If it is a decision based on the findings of the Panel DSB, the implementation stage is the stage of implementation of the notification, which is Stage IV.
Soon after the report of the Panel or Appellate Body report adopted by the relevant parties to the dispute must perform notification of intent and recananya mengenia implementation of the recommendations that have been recommended, the party concerned shall be considered a reasonable time.
Determination of the time "reasonable" can be reached by consent between the parties to the dispute goals and sanctioned by the DSB, within 45 days after the DSB adopted or determined through arbitration, within 90 days after adoption by the DSB. In implementation, the DSB must always supervise until the problem is solved.

Phase IV: Implementation and Notification of Implementation

If the action violates repeal was not done within the time frame specified in the Understanding and has been officially decided by the ruling or recommendation, disputing parties can negotiate compensation that can be awarded. The compensation must be agreed upon to be consistent with the relevant agreement overeed.
Regarding the remedy in the form of "retaliation" [a term used in the GATT / WTO is the suspension of obligation], if the action violates repeal was not done, Understanding says that within the allotted time, the disputing parties can reach an agreement to handle it.
Reprisals were made through "repeal concessions" on the sector in which the violation occurred. If this is not effective then the retaliation imposed on sectors that are still included in the agreement which oversees shade areas in dispute. If it still can not be done, and if the problem is serious enough, it may be subject to retaliation against a field residing in other agreements.