{"id":750,"date":"2023-03-20T21:05:17","date_gmt":"2023-03-21T04:05:17","guid":{"rendered":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/?p=750"},"modified":"2023-03-20T21:06:50","modified_gmt":"2023-03-21T04:06:50","slug":"bypassing-the-wto-dispute-settlement-impasse","status":"publish","type":"post","link":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/bypassing-the-wto-dispute-settlement-impasse\/","title":{"rendered":"Bypassing the WTO Dispute Settlement Impasse"},"content":{"rendered":"\t\t
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By Yuki Taylor<\/em><\/strong>
Law Student Editor<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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The World Trade Organization (WTO) Dispute Settlement Understanding (DSU) provides for binding dispute settlement of certain claims of violation of the WTO agreements, or nullification and impairment of obligations under those agreements, by contracting parties.\u00a0 Pursuant to the DSU, contracting parties unable to settle their differences may invoke binding dispute settlement before the Dispute Settlement Body (DSB), which will appoint a panel of three independent trade experts.<\/p>

A party dissatisfied with the panel\u2019s decision is entitled to refer the panel\u2019s decision to the Appellate Body (AB), consisting of seven trade experts, which will hear the appeal.\u00a0 The AB is the final stage in the adjudicatory part of the WTO\u2019s dispute settlement system.\u00a0 Members of the AB are appointed by the DSB to serve four years with a two-term limit.\u00a0 If a party found by the AB to have acted inconsistently with the WTO Agreements has not taken any action to comply with the decision within a reasonable period of time, the DSB will authorize retaliatory measures by the injured party, most commonly a withdrawal of equivalent trade concessions.<\/p>

The U.S. Trade Representative (USTR) has been critical<\/a> of the WTO\u2019s dispute settlement procedure, in particular the AB, alleging that it chronically violates the DSU on the bases that: (1) disregarding the deadline for issuing a decision; (2) allowing former members to decide cases; (3) reviewing panel findings of fact rather than limiting itself to considerations of law; (4) issuing advisory opinions; (5) treating prior decisions as binding precedent; (6) declining to make recommendations about the WTO-compatibility of measures that expire after a panel\u2019s establishment; and (7) encroaching on the domain of other WTO bodies.\u00a0 The USTR has further accused the AB of erroneously interpreting the GATT on numerous occasions.<\/p>

The United States initially sought to address its perceived problems through negotiations.\u00a0 Since 2000, the United States has expressed concerns with the AB\u2019s failure to follow WTO rules and its allegedly erroneous interpretations of the WTO Agreements in over 56 cases<\/a>.\u00a0 Notable issues that USTR most criticized included: (1) the AB\u2019s interpretation of nondiscrimination, in which it concluded that country-of-origin labeling for certain agricultural products was de facto<\/em> discrimination<\/a>, even if it was not de jure <\/em>discrimination; and (2) interpretations of what constitutes a \u201cpublic body\u201d with regard to subsidies by the Chinese government favorable to Chinese state-owned enterprises<\/a>.<\/p>

The negotiations having failed to create a consensus around the U.S. point of view, USTR changed its tactics starting in 2011 to oppose certain new nominations to the AB.\u00a0 The U.S.\u2019s obstruction was continued during the Trump Administration, which opposed all member reappointments or nominations in hopes of shutting down the AB altogether.\u00a0 As the result, on December 11, 2019, the Appellate Body lost its necessary quorum of three and has been unable to hear appeals.\u00a0 The Biden Administration has so far continued the predecessor\u2019s approach of blocking AB membership appointments.\u00a0 Although some countries share the U.S. concerns, they nevertheless object to the USTR\u2019s unilateral obstructionist tactics<\/a>.\u00a0<\/p>

To restore the DSB to functionality, in March 2020<\/a>, sixteen WTO members (the EU, Australia, Brazil, Canada, China, Chile, Colombia, Costa Rica, Guatemala, Hong Kong China, Mexico, New Zealand, Norway, Singapore, Switzerland, and Uruguay) concluded the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) as a plurilateral treaty.\u00a0 The MPIA effectively mirrors the usual WTO appellate rules.\u00a0 On April 30, 2022, 20 WTO members formally notified the WTO of the MPIA<\/a>, which operates for dispute arbitration pursuant to Article 25 of the DSU among them.\u00a0 On March 10, 2023, Japan became the latest and the 26th WTO member<\/a> to join the MPIA.\u00a0 As a result, most world trade dispute resolution has been re-enabled, and the effects of U.S. tactics have been accordingly limited.<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

By Yuki TaylorLaw Student Editor The World Trade Organization (WTO) Dispute Settlement Understanding (DSU) provides for binding dispute settlement of certain claims of violation of the WTO agreements, or nullification and impairment of obligations under those agreements, by contracting parties.\u00a0 Pursuant to the DSU, contracting parties unable to settle their differences may invoke binding dispute […]<\/p>\n","protected":false},"author":106,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[164,167,163,168,165,166,134,50],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/posts\/750"}],"collection":[{"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/users\/106"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/comments?post=750"}],"version-history":[{"count":4,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/posts\/750\/revisions"}],"predecessor-version":[{"id":754,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/posts\/750\/revisions\/754"}],"wp:attachment":[{"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/media?parent=750"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/categories?post=750"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.asucollegeoflaw.com\/ibt\/wp-json\/wp\/v2\/tags?post=750"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}