Features of the DSU

• A single and coherent system of rules and procedures for dispute settlement; existence of special rules in some Multilateral Agreements.

• Compulsory jurisdiction for complaining Member and for respondent Member;

• Exclusive jurisdiction;

• Contentious jurisdiction.

Access to the dispute settlement system

Only Members may accede to the WTO dispute settlement system.

Government-to-government dispute settlement system.

Private companies often lobby their governments in order to induce them to start proceedings under DSU.

Amicus curiae

Faculty to submit written briefs to panels and Appellate Body.

Who can submit?

1) Individuals;

2) Private companies;

3) Governmental and non-governmental organisations;

4) Members.

Amicus curiae (II)

• Appellate Body ruled that panels are entitled to accept and consider amicus curiae briefs (US-Shrimp, EC-Sardines).

• It adopted an Additional Procedure in order to deal with amicus curiae briefs and set forth requirements for such briefs.

• Panels are not obliged to consider amicus curiae briefs and private parties have no legal right to be heard.

Amicus curiae (III)

• Member States strongly dissent from the view of the Appellate Body about amicus curiae briefs, because:

1) Amicus curiae briefs can contribute to the length of proceedings;

2) Developing-country Members feel that amicus curiae briefs are often opposed to their interests.

• General Council have been unable to adopt clear rules about amicus curiae briefs thus far.

Complaints under the DSU

Reference to article XXIII of the GATT 1994Types of complaints:1) Violation complaints;2) Non-violation complaints;3) Situation complaints.Nullification or impairment of benefits for the

complainant Member.Interest in the dispute.

Alternative dispute resolution

• Consultations before the establishment of a panel

• During all stages: good offices, conciliation and mediation

Consultations

Preference for amicable resolution of disputes.

The request for consultation must indicate the measure at issue and the legal basis for the complaint. It is notified to the DSB.

Confidentiality of the consultations.

Duration 60 days.

The agreed solution must be notified to the DSB and must be in conformity with the WTO law.

Disputes settlement procedure

When a dispute arises between Member States, they can request the DSB to establish a panel.

The request must contain:

1) an indication whether consultations were held;

2) the identification of the specific measures at issue;

3) a brief summary of the legal basis of the complaint.

Protection of respondent’s rights.

Disputes settlement procedure (II)

Panels:- are ad hoc bodies, established for each different

dispute;- are composed by well-qualified members, with a

view to ensuring their independence, a different background and wide experience;

- do not include nationals of Member States parties to the dispute;

- are established by the DSB (reverse consensus).

Disputes settlement procedure (III)

After the establishment of the panel the parties will try to reach an agreement on the composition as proposed by the Secretariat.

If they are unable to reach an agreement, the designation is made by the Director-General.

Multiple complainants: single panel or same composition.

Disputes settlement procedure (IV)

Duties of the Panels:

- make an objective assessment of the facts;

- examine the claims proposed by the parties;

- make an objective assessment of the applicability of and conformity with the relevant agreement.

Disputes settlement procedure (V)

Panel proceedings (wide discretionary authority):

1) Written submissions;

2) Substantive panel meetings.

Duty of the parties to respond promptly and full to requests for information.

Submission of evidence; use of experts.

Third parties’ rights.

Disputes settlement procedure (V)

Panel report is submitted to the parties for an interim review stage.

It must indicate the basic rationale for its findings.

Where the Panel finds that a violation took place, the report will contain recommendation to bring the measure in conformity with WTO Agreements (binding after approval by the DSB).