Academic journal article Law and Policy in International Business

A Problem of Process in WTO Jurisprudence: Identifying Disputed Issues in Panels and Consultations

Academic journal article Law and Policy in International Business

A Problem of Process in WTO Jurisprudence: Identifying Disputed Issues in Panels and Consultations

Article excerpt

I. INTRODUCTION

One stumbling block in the WTO Dispute Settlement Understanding(1) has been the question of exactly when, how, and with what effect disputed issues are to be identified. Must a party make its claims explicit in its request for a panel or in its written submissions to a panel? Must it make them in its request for consultations or in the consultations themselves? How do such statements shape the terms of reference for a panel? Can a party refine and revise its claims as the proceedings evolve? At first blush, one might reasonably conclude that the DSU answers such questions unambiguously in its provisions on Consultations (Article 4),(2) the Establishment of Panels (Article 6),(3) and the Terms of Reference of Panels (Article 7).(4) However, an examination of those provisions in light of some Appellate Body decisions suggests that the jurisprudence of these and related questions is so far unsettled. In particular, is a party bound by the claims it has made in its request for consultations, or the consultations themselves, in the same way that it is bound by its panel request.(5)

II. WHAT THE DSU PROVISIONS PROVIDE

A. Consultations: Requests and Replies

The WTO dispute settlement process, as spelled out in the DSU, begins when one Member makes a written request of another to enter consultations. According to DSU Article 4.4, that request "shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint."(6)

Any member receiving a request "undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the [requesting party]."(7)

Under ordinary circumstances, a Member receiving such a request must reply "within 10 days" and enter into consultations within "no more than 30 days" after receiving the request.(8) These time periods are shortened in urgent cases (for example, where perishable goods are involved),(9) in which case Members must enter into consultations no more than ten days after the request is received, and a panel may be requested when the consultations fail to settle the dispute within twenty days.(10)

Members are obliged to enter into consultations "in good faith"(11) and "attempt to obtain satisfactory adjustment of the matter."(12) Furthermore, the consultations "shall be confidential, and without prejudice to the rights of any Member in any further proceedings."(13)

B. Panels: Requests and Terms of Reference

Once the request for consultations has been made, parties may reach the panel process in three ways. First, if a Member simply does not respond within ten days of receiving the request, or does not enter into consultations within thirty days, then the Member requesting consultations "may proceed directly to request the establishment of a panel."(14) Second, if the consultations "fail to settle a dispute within 60 days" after the original request for consultations is received, "the complaining party may request the establishment of a panel." (15) Third, if the parties jointly conclude that the consultations have failed to settle the dispute, the complaining party may request establishment of a panel even within the sixty-day period.(16)

Like the request for consultations,(17) the request for a panel must also be in writing.(18) It must indicate "whether consultations were held," identify "the specific measures at issue," and provide a "brief summary of the legal basis of the complaint" that is "sufficient to present the problem clearly."(19) If the Member requesting a panel wishes, a panel will be established after a successful request at the meeting of the Dispute Settlement Board (DSB), immediately following the meeting at which the request initially appears as an agenda item. …

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