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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING

Understanding on Rules and Procedures Governing the Settlement of Disputes

 

The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

> Article 1
> Article 2
> Article 3
> Article 4
> Article 5
> Article 6
> Article 7
> Article 8
> Article 9
> Article 10
> Article 11
> Article 12
> Article 13
> Article 14
> Article 15
> Article 16
> Article 17
> Article 18
> Article 19
> Article 20
> Article 21
> Article 22
> Article 23
> Article 24
> Article 25
> Article 26
> Article 27
> Appendix 1
> Appendix 2
> Appendix 3
> Appendix 4
> Working Procedures for Appellate Review
> Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes
> Principles and Concepts of General International Law Related to Dispute Settlement
> Articles of Covered Agreements Invoked In Panel and Appellate Body Proceedings

  

> Analytical Index main page


Table of contents    back to top

I. Article 1    back to top

A. Text of Article 1
B. Interpretation and Application of Article 1

1. Article 1.1: “covered agreements”

(a) General

(b) The DSU

(c) Bilateral agreements

2. Article 1.2: “special or additional rules and procedures”

(a) General

(i) Requirement to identify genuine “conflict” between DSU and special or additional rules and procedures

(ii) Agreements/provisions not included in Appendix 2 of the DSU

(b) Anti-Dumping Agreement

(i) General

(ii) Standard of review

(iii) Implementation

(c) SCM Agreement

(i) General

(ii) Consultations

(iii) Implementation

(iv) Countermeasures

(d) TBT Agreement

 
II. Article 2    back to top

A. Text of Article 2
B. Interpretation and Application of Article 2

1. General

(a) Legal effect of statements made by Members at DSB meetings

(b) Legal effect of DSB “taking note” of statements made at DSB meetings

2. Article 2.1

(a) Relationship between first and second sentence of Article 2.1

3. Article 2.4

(a) Types of “decisions” covered by and subject to the consensus requirement

4. Rules of Procedure for Meetings of the Dispute Settlement Body

(a) General

(b) Procedure for communications to the DSB Chairman

5. DSB decisions on computation of time-periods under the DSU

(a) DSB decision concerning “date of circulation” in the DSU and its additional and special rules

(b) DSB decision concerning time-periods expiring on a weekend or holiday

(c) Computation of time-periods in appellate proceedings

 
III. Article 3    back to top

A. Text of Article 3
B. Interpretation and Application of Article 3

1. Article 3.1

2. Article 3.2

(a) “security and predictability”

(i) General

(ii) Relationship to Article 12.7

(b) “clarify the existing provisions”

(c) “customary rules of interpretation of public international law”

(i) Meaning of “customary rules of interpretation of public international law”

(ii) Extent to which recourse may be had to principles and concepts of general international law other than “customary rules of interpretation”

(d) “add to or diminish the rights and obligations”

(e) Relationship with other Agreements

(i) Article 17.6(ii) of the Anti-Dumping Agreement

2. Article 3.3

(a) “prompt settlement of situations”

(b) “in which a Member considers”

(c) “measures taken by another Member”

3. Article 3.4

4. Article 3.6

(a) Notification of mutually agreed solutions

5. Article 3.7

(a) “a Member shall exercise its judgement as to whether action under these procedures would be fruitful”

(b) “aim of the dispute settlement mechanism is to secure a positive solution to a dispute”

(c) Legal effect of mutually agreed solutions

(d) Interpretation of mutually agreed solutions

(e) Standing to bring dispute / legal interest

(i) General

(ii) Difference with Article 3.8 (nullification or impairment) standard

(iii) Standing under Article 17.4 of the Anti-Dumping Agreement.

(f) “suspending the application of concessions or other obligations”

6. Article 3.8

(a) Presumption of “nullification or impairment”

(i) General

(b) Relationship with other WTO Agreements

(i) Article XXIII: 1 of the GATS

(ii) Article 5(b) of the SCM Agreement

7. Article 3.10

(a) Non-contentious dispute settlement

(b) Good faith engagement in dispute settlement procedures

(i) Presumption of good faith engagement in dispute settlement procedures

(ii) Good faith is a limit on use of WTO dispute settlement

(iii) Estoppel and good faith

(iv) Resolution of trade disputes excludes tactics and manoeuvres

(v) Questions from Panel should be fully answered

(vi) Arguments to be developed at earliest possible stage and in clearest possible fashion

(vii) Correction of factual errors and procedural deficiencies

(viii) Breach of Confidentiality

(ix) Temporal scope

(x) Good faith in the performance of treaty obligations and in treaty interpretation

(c) Complaints and counter-complaints should not be linked

 
IV. Article 4    back to top

A. Text of Article 4
B. Interpretation and Application of Article 4

1. General

(a) Purpose of consultations

(b) Members’ duty to consult absolute and not susceptible to imposition of any terms or conditions

(c) Members’ duty to disclose information

(d) Consultations as pre-requisite for panel proceeding”

(i) General

(ii) No requirement of “precise and exact identity” between consultations request and panel request

(iii) Scope of consultations to be determined on basis of written request for consultations

(e) Inclusion of a “conditional request” in the request for consultations

(f) Effect of the extension of the duration of identified measures after consultations

(g) Addendum to request for consultations

2. Article 4.1

3. Article 4.2

(a) “measures affecting the operation of any covered agreement”

4. Article 4.3

(a) General

(b) Duty to enter into consultations in “good faith”

5. Article 4.4

(a) Notification of requests for consultations

(b) “identification of the measures and an identification of the legal basis of the complaint”

(i) “identification of the measures”

(ii) “legal basis of the complaint”

6. Article 4.5

(a) Adequacy of consultations

7. Article 4.6

(a) “consultations shall be confidential”

(i) General

(ii) Information acquired during consultations

(iii) Relevance of third party participation to confidentiality of information in consultations

8. Article 4.7

9. Article 4.9

10. Article 4.11

(a) “Wherever a Member…considers that it has a substantial trade interest”

 
V. Article 5    back to top

A. Text of Article 5
B. Interpretation and Application of Article 5

1. Article 5.1: the voluntary/consensual nature of Article 5 procedures

2. Article 5.6: assistance by the Director-General

(a) Procedures for mediation under Article 5

(b) Mediation outside of Article 5

 
VI. Article 6    back to top

A. Text of Article 6
B. Interpretation and Application of Article 6

1. Article 6.1

(a) Multiple panels

(i) Two panels established, same parties and same claims

(ii) Same panel members, different parties and a measure in common

2. Article 6.2

(a) Task of panels to examine requests for establishment

(b) Request must be sufficiently precise

(c) Title of the case

3. Basic requirements under Article 6.2

(a) General

(i) The distinct elements of Article 6.2

(ii) The distinction between jurisdictional issues and issues to be resolved on the merits

(b) First requirement: The request must be in writing

(i) Relevance of the text of the panel request

(c) Second requirement: The request must indicate whether consultations were held

(d) Third requirement: The request must identify the specific measures at issue

(i) General

(ii) “identify”

(iii) “specific”

(iv) “measures at issue”

(v) Effect of “as such” and “as applied” claims on the identification of measures at issues

(e) Fourth requirement: The request must provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

(i) General

(ii) Concept of “claim”

(iii) Identification of the claims

(iv) “present the problem clearly”

(f) Preliminary rulings under article 6.2

(i) Regulation of a request for a preliminary ruling in standard working procedures

(ii) Absence of a requirement to rule on a preliminary basis

(iii) Issuance and circulation of preliminary rulings under Article 6.2

C. Relationship with other Articles

1. Article 7.1

2. Article 19.1

3. Article 21.5

D. Relationship with other WTO Agreements

1. Anti-Dumping Agreement

(a) Article 17

(i) The term “matter” under paragraphs 4 and 5 of Article 17

(ii) Anti-dumping measures

(iii) Legal basis for claims under Article 17

(b) Article 18.4

 
VII. Article 7    back to top

A. Text of Article 7
B. Interpretation and Application of Article 7

1. General

(a) Importance of the terms of reference

(b) A panel’s jurisdiction

(i) Duty to address jurisdictional issues

(ii) Objections to the panel’s jurisdiction

2. Article 7.1

(a) “the matter referred to the DSB”

(i) Concept of the “matter”

(ii) Measures not sufficiently identified in the panel request

(iii) Claims not included in the panel request

3. Article 7.2

(a) “covered agreement or agreements”

(b) “The panel shall address …”

(c) “the relevant provisions”

4. Article 7.3

(a) Special terms of reference

C. Relationship with other Articles

1. Article 3.3

2. Article 4

3. Article 6.2

D. Relationship with other WTO Agreements

1. Anti-Dumping Agreement

(a) Article 17.4

 
VIII. Article 8    back to top

A. Text of Article 8
B. Interpretation and Application of Article 8

1. Article 8.1: individuals eligible to serve as panellists

2. Article 8.2: sufficiently diverse background

3. Article 8.3: citizens of Members who are parties or third parties

(a) General

(b) Whether original agreement under Article 8.3 can be revoked

4. Article 8.4: indicative list of panelists

5. Article 8.4: a panel composed of five panelists

6. Article 8.7: panel composition by the Director-General

(a) Challenges to the Director-General’s composition

(b) Deputy Director-General acting in place of the Director-General

(c) Appointment of replacement panellist in the course of a panel proceeding

(d) Table showing length of time taken in WTO proceedings to date

 
IX. Article 9    back to top

A. Text of Article 9
B. Interpretation and Application of Article 9

1. Article 9.1: “a single panel should be established … whenever feasible”

(a) General

(b) Table of disputes in which a single panel was established pursuant to Article 9.1 of the DSU

2. Article 9.2: separate reports

(a) General

(b) Timing of the request for separate reports

(c) Structure of separate reports

(d) Separate Appellate Body reports

3. Article 9.3: multiple panels established to examine complaints relating to the same matter

(a) “to the greatest extent possible the same persons shall serve as panelists on each of the separate panels”

(b) “to the greatest extent possible … the timetable for the panel process in such disputes shall be harmonized”

 
X. Article 10    back to top

A. Text of Article 10
B. Interpretation and Application of Article 10

1. Article 10.1

2. Article 10.2

(a) “Substantial interest”

(b) “having notified its interest to the DSB”: timing of request to participate as a third party

(c) Whether a Member that has not notified its interest pursuant to Article 10.2 may submit a brief

3. Article 10.4

4. Enhanced third-party rights

(a) General

(b) For Members that are not complainants in parallel panel proceedings

(c) For complainants in parallel panel proceedings

(d) Table showing decisions on enhanced third party rights requests and factors considered

5. Extent to which panels may draw upon third party submissions

6. Third parties rights in different stages of WTO dispute settlement proceedings

(a) Third-party rights in preliminary ruling proceedings

(b) Third-party rights in Article 21.5 proceedings

(c) Third-party rights in Article 22.6 arbitrations

(d) Appellate proceedings

7. Other issues

(a) Absence of authority for panel to direct a Member to be a third party

(b) The concept of “essential parties”

(c) Third party rights for co-complainants where a single panel is established pursuant to Article 9.1 of the DSU

(d) Distinction between third parties and amicus curiae

(e) Confidentiality obligations

 
XI. Article 11    back to top

A. Text of Article 11
B. Interpretation and Application of Article 11

1. Panel “should” make an objective assessment

2. “objective assessment of the matter before it”

(a) Duty to make independent assessment

(i) General

(ii) Independent assessment of the meaning of domestic law

(iii) Independent assessment of the meaning of other international conventions and treaties

(b) Other issues

(i) Panel’s duty to deal with matter before it

(ii) Finding on a claim not made by the complainant

(iii) Consultation with experts

3. “objective assessment of the facts of the case”

(a) Burden of proof

(i) General principles

(ii) Application of the burden of proof in particular contexts

(b) Standard of review

(i) Standard of review applied by panels when reviewing factual findings of national authorities under particular agreements

(ii) Standard of review applied by the Appellate Body when reviewing a WTO panel’s factual findings

(c) Selected issues relating to evidence

(i) Timing of submission of evidence

(ii) Temporal scope of the review

(iii) Factual findings made in previous disputes

(iv) Admissibility of evidence versus weight accorded to evidence

(v) Circumstantial versus direct evidence

(vi) Public statements by company executives and government officials

4. “make such other findings as will assist the DSB in making the recommendations or in giving the rulings”

(a) Judicial economy

(i) Legal basis for the exercise of judicial economy

(ii) Meaning of “judicial economy”

(iii) No obligation to exercise judicial economy

(iv) Relevance of order of analysis to judicial economy

(v) Requirement for a panel to state it is exercising judicial economy

(vi) “False” judicial economy

(vii) Considerations not relevant to judicial economy

(b) Use of arguendo assumptions

 
XII. Article 12    back to top

A. Text of Article 12
B. Interpretation and Application of Article 12

1. General: panels’ margin of discretion and due process

(a) The panel’s margin of discretion with respect procedural issues

(b) Due process

(i) General

(ii) Standard panel working procedures as a tool to ensure due process

(iii) Due process demands when identifying the measures and claims at issue

(iv) Right of response

2. Article 12.1: special and additional procedures in panel proceedings

(a) The panel’s discretion under Article 12.1

(b) Special and additional procedures to protect business confidential information (BCI)

(c) Special and additional procedures for open panel hearings

(i) General

(d) Special and additional procedures for third parties

(e) Special and additional procedure for separate briefing and argumentation on threshold issue

3. Article 12.2: flexibility and undue delay

4. Article 12.3: Panel’s timetable

5. Article 12.6

(a) Legal right to have a submission considered by the panel

(b) Meaning of the term “second written submission”

(c) “Any subsequent written submissions shall be submitted simultaneously”

6. Article 12.7

(a) “basic rationale behind any findings and recommendations”

(b) Issuance of a brief report where a mutually agreed solution is reached

(c) Business confidential information

7. Articles 12.8 and 12.9: deadlines for Panel review

(a) General

(b) Table showing the length of time taken in panel proceedings to date

8. Article 12.10

(a) “the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation”

9. Article 12.11

(a) Explicit indication in the panel’s report of how special and differential provisions were taken into account

10. Other issues

(a) Requests for preliminary rulings

(b) Timing for the filing of submissions with the WTO Dispute Settlement Registrar

(c) Private counsel and composition of delegations

(d) Admissibility of new evidence

(e) Admissibility of new arguments

(f) Admissibility of new defences

(g) Executive summaries


XIII. Article 13    back to top

A. Text of Article 13
B. Interpretation and Application of Article 13

1. Article 13.1

(a) “right to seek information and technical advice from any individual or body”

(i) General

(ii) Amicus curiae briefs

(iii) Discretion to seek information from the parties

(iv) Discretion to seek information from non-parties

(v) Other international intergovernmental organizations

(vi) Discretion not to seek information

(b) “A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate”

(c) “Confidential information which is provided shall not be revealed without formal authorization”

2. Article 13.2: consultation with scientific experts

(a) Discretion to consult with individual experts rather than expert review group pursuant to Appendix 4

(b) Panel may not use authority to consult with experts to make a case for a party

(c) Panel may not delegate legal characterization to experts

(d) Table of proceedings in which panels consulted with scientific experts


XIV. Article 14    back to top

A. Text of Article 14
B. Interpretation and Application of Article 14

1. Article 14.1: confidentiality of deliberations

2. Article 14.3: individual opinions

(a) Table of individual opinions in panel reports

 
XV. Article 15    back to top

A. Text of Article 15
B. Interpretation and Application of Article 15

1. Article 15.1: issuance and review of the descriptive (factual and arguments) part of the report

(a) Timing of comments on the descriptive section

(b) The “normal practice” of third parties reviewing the summary of their arguments

(c) Contested factual issues

2. Article 15.2: requests for the panel to review precise aspects of the interim report

(a) Requirement to identify “precise aspects” of the interim report

(b) Using interim review to re-argue a case

(c) Failure to inform the panel of factual errors and omissions

(d) Submitting new evidence during interim review stage

(e) Request to reconsider evidence, arguments and findings

(f) New arguments, including new jurisdictional arguments

(g) Changes to the interim report in the absence of a request from a party

(h) Additional interim review meeting

3. Article 15.3: findings of the final panel report to include a discussion of interim review arguments

4. Other issues

(a) Interim reports in cases involving multiple complainants / reports

(b) Request for separate interim report on particular issue

(c) Confidentiality of the interim report

(d) Additional set of comments in the light of a new Appellate Body Report

(e) Translation issues


XVI. Article 16    back to top

A. Text of Article 16
B. Interpretation and Application of Article 16

1. Legal effect of adopted panel reports

(a) In general

(b) Panel findings not appealed

(c) Panel reports regarding the same subject-matter in parallel dispute by other complainant(s)

(d) Substantive findings in panel reports reversed on procedural/jurisdictional grounds

(e) Failure to distinguish findings in prior panel reports

(f) As between the parties: final resolution of the dispute

2. Article 16.4: 60-day deadline for adopting / appealing panel report

(a) General

(b) Circumvention of 60-day deadline

(c) Table showing length of time taken in WTO proceedings to date

XVII. Article 17    back to top

A. Text of Article 17
B. Interpretation and Application of Article 17

1. General

(a) Role of the Appellate Body

2. Article 17.1

(a) Establishment of the Appellate Body

3. Article 17.2

(a) Appointment of Members of the Appellate Body

(b) Table showing individuals appointed to serve as Appellate Body Members to date

4. Article 17.4

(a) Table showing percentage of panel reports appealed to date

5. Article 17.5

(a) Table showing the length of time taken in Appellate Body proceedings to date

6. Article 17.6: scope of Appellate review

(a) “issues of law … and legal interpretations”

(i) Factual findings versus legal findings

(ii) Relevance of the characterization of a finding by the panel

(iii) Review of new issues

(iv) Review of new evidence

(v) Review of new arguments

(b) “Completing the analysis”

7. Article 17.9: Working procedures of the Appellate Body

8. Article 17.10: Confidentiality requirements on the Appellate Body proceedings

9. Article 17.11: concurring and separate opinions

(a) Table of individual opinions in Appellate Body reports to date

10. Article 17.12: “shall address each of the issues raised”

11. Article 17.13: “may uphold, modify or reverse the legal findings and conclusions of the panel”

(a) Panel finding not appealed not implicitly upheld

(b) Appellate Body may declare a Panel findings “moot” and of “no legal effect”

(c) “legal findings and conclusions”

12. Article 17.14

(a) Legal effect of adopted Appellate Body reports

(i) General

(b) Table showing the length of time taken from the date of the circulation of the Appellate Body report to the date of its adoption


XVIII. Article 18    back to top

A. Text of Article 18
B. Interpretation and Application of Article 18

1. Article 18.1

2. Article 18.2

(a) Disclosure of “written submissions”

(i) Difference between “submissions” and “statements”

(ii) Timing of the disclosure

(b) Non-confidential versions of written submissions

(c) Alleged breaches of confidentiality

(d) Additional procedures to protect Business Confidential Information (BCI)

(i) General

(ii) Table of proceedings in which additional procedures to protect business confidential information (BCI) were requested

(iii) Public version of the panel Report in case of BCI

(e) Public panel hearings

(i) General

(ii) Table of panel hearings opened to public observation

(iii) Appellate Body hearings opened to public observation

(f) Article 22.6 proceedings

(g) Private lawyers involved in WTO dispute settlement proceedings

 
XIX. Article 19    back to top

A. Text of Article 19
B. Interpretation and Application of Article 19

1. Article 19.1

(a) “bring the measure into conformity with that agreement”

(i) Variations of the measures at issue over time

(ii) Recommendations by the Panel or Appellate Body that remain operative

(b) “the panel… may suggest ways in which the Member concerned could implement the recommendation”

(i) Panel’s discretion to suggest ways to implement

(ii) Choice of means of implementation

(iii) Surveillance of implementation

(iv) Legal effect of suggestions

2. Article 19.2

3. Relationship with other Articles

(a) Articles 16, 21 and 22

(b) Article 6.2 of the DSU

4. Relationship with other WTO Agreements

(a) Article 4.7 of the SCM Agreement

 
XX. Article 20    back to top

A. Text of Article 20
B. Interpretation and Application of Article 20

1. General

2. Nature of DSU maximum time-limits

3. Table showing the total length of time taken in panel/Appellate Body proceedings to date

 
XXI. Article 21    back to top

A. Text of Article 21
B. Interpretation and Application of Article 21

1. Article 21.1

(a) “prompt compliance”

(i) Concept of compliance: withdrawal or modification

(ii) Promptness of compliance

(b) “recommendations or rulings”

2. Article 21.2

(a) “interests of developing country Members”

3. Article 21.3: period of time for compliance

(a) General

(b) Article 21.3(b)

(i) Precedential value of Article 21.3 (b) agreements

(ii) Table showing agreements pursuant to Article 21.3(b)

(iii) Parties’ agreement after appointment of Arbitrator

(c) Article 21.3(c)

(i) Table showing the reasonable period of time awarded in Article 21.3(c) arbitrations to date

(ii) Limited mandate of the arbitrator under Article 21.3(c)

(iii) Prompt compliance: the shortest period possible

(iv) Concept of “reasonableness”

(v) The 15-month guideline

(vi) “particular circumstances”

(vii) Burden of proof

(viii) Other issues

(d) Table showing the length of time taken in Article 21.3(c) proceedings to date

4. Article 21.4

(a) Table showing the length of time to date from panel establishment through to the determination of the reasonable period of time

5. Article 21.5

(a) Function and scope of Article 21.5 proceedings: Panel’s mandate

(b) The “matter” in Article 21.5 proceedings

(i) General

(ii) Measures concerned by Article 21.5 panel proceedings: measures taken to comply

(iii) Claims in Article 21.5 proceedings

(c) “recommendations and rulings”

(i) General

(ii) Concept of recommendations and rulings

(iii) A “new” recommendation

(d) “through recourse to these dispute settlement procedures”

(i) General

(ii) Application of Article 6.2 to Article 21.5 proceedings

(iii) Timing of the establishment of Article 21.5 panels

(e) Waiving the right to Article 21.5 proceedings

(f) Table showing the length of Article 21.5 proceedings to date

6. Ad hoc agreements on procedures under Articles 21 and 22 concluded by parties

(a) Table of ad hoc agreements on sequencing procedures under Article 21.5 and Article 22

(b) The sequencing issue

(c) Sequencing solutions in ad hoc procedural agreements

(i) Recourse to Article 21.5 before initiating Article 22 proceedings

(ii) Simultaneous Articles 21.5 and 22 proceedings

(iii) Agreement not to appeal the compliance report

(iv) Withdrawal of Article 22 arbitration request

(v) Direct recourse to Article 22

(vi) Agreement not to object to arbitration under Article 22.6

(vii) Non-application of the 30-day deadline in first sentence in Article 22.6

(d) Consultations

(e) Establishment of the panel

(f) Appointment of panelists

(g) Participation of experts

(h) Cooperation to ensure time-limits for the work of the compliance panel and Appellate Body are respected

(i) Non-prejudice of the parties other rights

(j) Panel’s scope of review of procedural agreements

 
XXII. Article 22    back to top

A. Text of Article 22
B. Interpretation and Application of Article 22

1. General

(a) Nature and purpose of countermeasures

2. Article 22.2

(a) Specificity in the request for suspension of concessions or other obligations

(i) Application of Article 6.2 specificity requirement

(ii) Minimum specificity requirements

(b) “concessions or other obligations under the covered agreements”

(i) Tariff “concessions”

(ii) “Obligations”

3. Article 22.3

(a) Scope of review by arbitrators under Article 22.3

(b) “the complaining party shall apply the following principles and procedures”

4. Article 22.3(a)

(a) “general principle … complaining party should first seek to suspend concessions or other obligations with respect to the same sector(s)”

(i) General

(ii) Parallelism between violations and requests for suspension of concessions

5. Article 22.3(b) and (c)

(a) “if that party considers that it is not practical or effective”

(b) Relationship between Article 22.3(a) and 22.3(c)

6. Article 22.4

(a) “The level of the suspension of concessions or other obligations … shall be equivalent to the level of the nullification or impairment”

7. Article 22.6

(a) Specificity in the request for a referral to arbitration under Article 22.6

(b) “by the original panel, if members are available, or by an arbitrator appointed by the Director-General”

(c) Working procedures for article 22.6 arbitrations

(d) Table of arbitration decisions and level of suspension authorized

(e) Table showing the length of time in Article 22.6 proceedings to date

(f) Table showing separate opinions in Article 22.6 decisions to date

8. Article 22.7

(a) The mandate of the Arbitrators

(b) “The arbitrator … shall determine whether the level of such suspension is equivalent to the level of nullification or impairment.”

(i) Assessment of the level of nullification or impairment

(ii) Assessment of the level of suspension of concessions

(iii) Standard of equivalence

(c) Exception: standard of appropriateness in subsidy arbitrations

(d) Suspension of concessions awarded under arbitration

9. Article 22.8

(a) “until such time as the measure found to be inconsistent with a covered agreement has been removed”

(i) Allocation of burden of proof in a post-suspension situation

10. Relationship with other WTO Agreements

(a) Arbitrations pursuant to Article 4.10 and 4.11 of the SCM Agreement

(i) Special or additional rules

(ii) Exception to the requirement of equivalence to the level of nullification or impairment

(iii) Concept of “appropriate countermeasures”

(iv) Arbitrators’ mandate pursuant to Article 4.11


XXIII. Article 23    back to top

A. Text of Article 23
B. Interpretation and Application of Article 23

1. General

(a) The goal of Article 23

(b) Relationship between Article 23.1 and 23.2

(c) Article 23 as a right in addition to an obligation

2. Article 23.1

(a) “seek[ing] the redress of a WTO violation”

(b) “recourse to, and abide by”

3. Article 23.2

(a) Article 23.2(a)

(b) Article 23.2(b)

(c) Article 23.2(c)

4. Relationship with other provisions of theDSU

(a) Article 3.7

(b) Article 22.8

(c) Relationship to general international law


XXIV. Article 24    back to top

A. Text of Article 24
B. Interpretation and Application of Article 24

1. Article 24.1

(a) Scope of Panel’s duty to give consideration to the special situation of LDC Members

(b) Members’ duty to exercise due restraint

 
XXV. Article 25    back to top

A. Text of Article 25
B. Interpretation and Application of Article 25

1. General

(a) Scope of the Arbitrators’ mandate under Article 25

(b) Jurisdiction of the Arbitrators under Article 25

(c) Burden of proof in Article 25 arbitrations

(d) Matters dealt under Article 25 arbitrations

(i) Nullification or impairment of benefits

(e) Right to seek and disregard information

(f) Treatment of confidential information

2. Article 25.1

(a) “expeditious arbitration … as an alternative means of dispute settlement”

(b) Differences compared with panel proceedings

3. Article 25.2

(a) Arbitration under Article 25 should only be excluded when expressly provided

4. Article 25.4

(a) General

(b) “Articles 21 and 22 …. shall apply mutatis mutandi”

5. Relationship with other Articles

(a) Article 3.3

(b) Article 21

(c) Article 22.2

(d) Article 22.6

 
XXVI. Article 26    back to top

A. Text of Article 26
B. Interpretation and Application of Article 26

1. Article 26.1: non-violation complaints of the type described in Article XXIII: 1(b) of the GATT 1994

(a) General

(b) Table of non-violation nullification and impairment disputes under the WTO dispute settlement system

(c) Article 26.1(a): “detailed justification in support of any complaint”

(d) Article 26.1(b): remedies in the context of non-violation nullification or impairment

2. Article 26.2: situation complaints of the type described in Article XXIII: 1(c) of the GATT 1994


XXVII. Article 27    back to top

A. Text of Article 27
B. Interpretation and Application of Article 27

1. Article 27.1

2. Article 27.2

3. Article 27.3

 
XXVIII. Appendix 1    back to top

A. Text of Appendix 1
B. Interpretation and Application of Appendix 1

 
XXIX. Appendix 2    back to top

A. Text of Appendix 2
B. Interpretation and Application of Appendix 2

 
XXX. Appendix 3    back to top

A. Text of Appendix 3
B. Interpretation and Application of Appendix 3

 
XXXI. Appendix 4    back to top

A. Text of Appendix 4
B. Interpretation and Application of Appendix 4

 
XXXII. Working Procedures for Appellate Review    back to top

A. Text of the Working Procedures for Appellate Review
B. Interpretation and Application of the Appellate Body Working Procedures

1. General

(a) Compliance with the Working Procedures

(b) Interpretation of the Working Procedures

2. Rule 3: decision-making

3. Rule 4: collegiality

(a) Background

4. Rule 5: Chairman

(a) The 2002 amendment of Rule 5(2)

5. Rule 6: divisions

(a) Background

6. Rule 8: rules of conduct

7. Rule 13: replacement of Appellate Body member in a given appeal

8. Rule 15: transition

9. Rule 16: general provisions

(a) Rule 16(1): adoption of special or additional procedure for purposes of a particular appeal

(i) Special procedure to protect business confidential information

(ii) Special procedure for dealing with possible amicus curiae submissions

(iii) Special procedure to consolidate multiple appeals with substantial overlap in content

(iv) Special procedure for public observation of the oral hearing

(v) Special procedure arising from replacement of Member on the Division

(b) Rule 16(2): request to modify a time-period set out in the Working Procedures for the filing of documents or the date set out in the working schedule for the oral hearing

(i) Request to modify time-period for filing of documents

(ii) Request to modify date of oral hearing

10. Rule 18: documents

(a) Rule 18(1): failure to file document by the specified deadline

(b) Rule 18(5): correction of clerical errors in submissions

(i) The 2005 amendment of Rule 18(5)

(ii) Subsequent application of Rule 18(5)

11. Rule 20(2)(d): Notice of Appeal — “statement of the nature of appeal”

(a) The purpose of Rule 20(2) (d)

(b) The distinction between claims and arguments

(c) The consequence of failing to meet requirements of Rule 20(2) (d)

(i) General rule: claim of error excluded from scope of appeal

(ii) Some exceptions

(d) Potential deficiencies in a Notice of Appeal

(i) Referring to paragraph numbers only in conclusion section of the panel report

(ii) Use of “for example”

(iii) Failure to clearly allege procedural errors by a panel

(iv) Failure to clearly allege a violation of Article 11 of the DSU by a panel

12. Rule 21: appellant’s submission

(a) Materials attached to an appellant’s submission

(b) Rule 21(2): requirements of an appellant’s submission

13. Rule 23: multiple appeals (Notice of Other Appeal)

(a) General

(b) The 2005 amendment of the Working Procedures to create the “Notice of Other Appeal” requirement

(c) Rule 23(2)(c)(ii): Notice of Other Appeal — “statement of the nature of the other appeal”

14. Rule 23bis: amending a Notice of Appeal / Notice of Other Appeal

(a) The 2005 amendment to the Working Procedures creating Rule 23bis

(b) Interpretation and application of Rule 23bis

15. Rule 24: third participants

(a) Role of third participants in appellate proceedings

(b) The 2003 amendment of Rule 24 and Rule 27(3) to allow for “passive participation”

16. Rule 25: transmittal of the record

(a) Request to delay the transmittal to the Appellate Body of certain information

(b) Correspondence not contained in the record of the panel proceedings

17. Rule 26: working schedule

(a) Extension of deadline for participants’ or third participants’ submissions

(b) Extension of deadline for circulation of Appellate Body Report

18. Rule 27: oral hearing

(a) Authority to organize and conduct oral hearings

(b) Public observation of oral hearings

(c) The 2003 amendment of Rule 27(3) to allow for “passive participation” by third participants at oral hearings

(d) Consultation with the disputing parties regarding the date of the oral hearing

(e) Multiple sessions / hearings

19. Rule 28: written responses

(a) Post-hearing memoranda and responses to questions

(b) Appellate Body requests for additional memoranda / submissions on particular issues

20. Rule 29: failure to appear

21. Rule 30: withdrawal of appeal

(a) Simple withdrawal of entire appeal

(b) Withdrawal of “conditional” appeal

(c) Withdrawal and re-filing of appeal

(i) For scheduling reasons

(ii) As a means of amending a Notice of Appeal

22. Rule 31: accelerated procedures in prohibited subsidies cases

 
XXXIII. Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes    back to top

A. Text of the Rules of Conduct
B. Interpretation and Application of the Rules of Conduct

1. Section I: establishment of the Rules of Conduct

2. Section II: governing principle

(a) “shall be independent and impartial”

(i) Scientific experts

(ii) Panellists

(b) “shall in no way modify the rights and obligations of Members under the DSU”

3. Section IV: persons covered by the Rules of Conduct

(a) Applicability of the Rules of Conduct to the Appellate Body, panels, Secretariat staff, and experts

(b) Non-applicability of the Rules of Conduct to legal counsel representing Members

4. Section VI: self-disclosure requirements

5. Section VII: confidentiality

6. Section VIII: procedures concerning possible material violations

7. Section IX: Review of the Rules of Conduct


XXXIV. Principles and Concepts of General International Law Related to Dispute Settlement    back to top

A. General
B. Vienna Convention on the Law of Treaties

1. Article 25: provisional application of treaties

2. Article 26: pacta sunt servanda (good faith performance of treaty obligations)

3. Article 27: internal law and observance of treaties

4. Article 28: non-retroactivity of treaties

5. Article 29: territorial scope of treaties

6. Article 30: application of successive treaties relating to the same subject-matter

7. Article 31: general rule of interpretation

(a) General

(b) Article 31(1)

(i) A “treaty” shall be interpreted

(ii) “in good faith”

(iii) “in accordance with the ordinary meaning to be given to the terms”

(iv) “in their context”

(v) “in the light of its object and purpose”

(c) Article 31(3)

(i) “there shall be taken into account”

(ii) Article 31(3)(a): “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”

(iii) Article 31(3)(b): “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”

(iv) Article 31.3(c): “any relevant rules of international law applicable in the relations between the parties”

(d) Article 31(4): “special meaning”

(e) Corollaries of the general rule of interpretation

(i) Principle of effectiveness

(ii) Meaning/application of certain terms may evolve over time

(iii) Domestic law concepts and classifications cannot govern the interpretation and application of the WTO Agreements

8. Article 32: supplementary means of interpretation

(a) General

(b) “Recourse may be had”

(c) “including”

(d) “the preparatory work of the treaty”

(e) “the circumstances of its conclusion”

(f) “confirm” versus “determine”

9. Article 33: plurilingual treaties

10. Article 41: agreements to modify multilateral treaties between certain of the parties only

11. Article 44: separability of treaty provisions

12. Article 48: error

13. Article 59: termination or suspension of the operation of a treaty implied by conclusion of later treaty

14. Article 60: termination or suspension of the operation of a treaty as a consequence of its breach

15. Article 65: procedure for invoking invalidity of a treaty

C. Other Principles and Concepts of General International Law

1. Attribution of acts or omissions to a Member

2. Attributing international legal significance to unilateral statements made by a State General

3. Burden of proof

4. Countermeasures

(a) General

(b) Proportionality of countermeasures

5. Obligations erga omnnes

6. Consistency in jurisprudence

7. Competence to determine jurisdiction

8. Estoppel, acquiescence, waiver

9. Ex aqueo et bono

10. Harmless error

11. Jurit novit curia

12. Lex specialis and the presumption against conflict

(a) General

(b) General Interpretative Note to Annex 1A

(i) Text of the General Interpretative Note to Annex 1A

(ii) Interpretation and application of the General Interpretative Note to Annex 1A

13. Precautionary principle

14. Right to determine composition of delegation

15. Sovereignty

16. Standing to bring a dispute / legal interest


XXXV. Articles of Covered Agreements Invoked In Panel and Appellate Body Proceedings    back to top

A. Scope
B. Sources
C. Covered Agreements and Abbreviations

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