Unit 16 Unit 16 Settlement of International Settlement of International

DisputesDisputes

Text IText I Alternative Dispute Resolution SystemsAlternative Dispute Resolution Systems-To understand international principles of opti-To understand international principles of options of international dispute resolutionons of international dispute resolution

Text IIText II WTO’s Procedure of Settling Disputes WTO’s Procedure of Settling Disputes -To study the principles and procedures of WTO -To study the principles and procedures of WTO dispute settlement and learn about the structudispute settlement and learn about the structure of the DSB.re of the DSB.

Typical Sentence Patterns: Jury InstructionsTypical Sentence Patterns: Jury Instructions

Text IText IAlternative Dispute Resolution SystemsAlternative Dispute Resolution Systems

Useful expressions: party to litigation, court costs, Useful expressions: party to litigation, court costs, productive and ongoing relationship, refer…toproductive and ongoing relationship, refer…to…, limited review, advance agreement, at issue, …, limited review, advance agreement, at issue, in the presence of sb., interested party, dress rein the presence of sb., interested party, dress rehearsal, (jury) return a verdict, litigation costs, uhearsal, (jury) return a verdict, litigation costs, unbiased and disinterested third party, disputing nbiased and disinterested third party, disputing partyparty

Terms: ADR, arbitration (awardTerms: ADR, arbitration (award ，， submission), msubmission), mock trial, mini-trial, mediation (mediator), negoock trial, mini-trial, mediation (mediator), negotiated settlement, prehearing conferences, disctiated settlement, prehearing conferences, discoveryovery

Major question in TextMajor question in Text II

Compare different features of the wCompare different features of the ways in ADR and conclude the advantages ays in ADR and conclude the advantages and disadvantages of each way.and disadvantages of each way.

Terms Terms

alternative dispute resolution alternative dispute resolution 任择解决争端方法 任择解决争端方法 arbitration arbitration 仲裁仲裁mock trial mock trial 模拟审判模拟审判mini-trial mini-trial 小型审判小型审判mediation mediation 调解调解negotiated settlement negotiated settlement 协商解决协商解决prehearing conferences prehearing conferences 审前会议审前会议discovery discovery 要求告知（指法院可以通知一方当事人，要求告知（指法院可以通知一方当事人，

使他了解他方当事人或证人所知道的事实，以便准使他了解他方当事人或证人所知道的事实，以便准备受审的一种程序 ）备受审的一种程序 ）

Major standards of evidenceMajor standards of evidence

In a civil case, the plaintiff has the burden of provinIn a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the resg the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondpondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a paent will have the burden of proving that claim. When a party has the burden of proof, the party must present, throurty has the burden of proof, the party must present, through testimony and exhibits, enough evidence to support thgh testimony and exhibits, enough evidence to support the claim. e claim.

The amount of evidence required varies from claim The amount of evidence required varies from claim to claim. For most civil claims, there are two different evito claim. For most civil claims, there are two different evidentiary standards: dentiary standards: preponderance of the evidencepreponderance of the evidence, and , and clear and convincing evidenceclear and convincing evidence. A third standard, . A third standard, proof beproof beyond a reasonable doubtyond a reasonable doubt, is used in criminal cases and ve, is used in criminal cases and very few civil cases.ry few civil cases.

Preponderance of evidencePreponderance of evidence 优势证据优势证据

The quantum of evidence that constitutThe quantum of evidence that constitutes a preponderance cannot be reduced to a ses a preponderance cannot be reduced to a simple formula. A preponderance of evidence imple formula. A preponderance of evidence (generally thought to be greater than 50%, al(generally thought to be greater than 50%, although numeric approximations are controvthough numeric approximations are controversial) has been described as just enough eviersial) has been described as just enough evidence to make it more likely than not that thdence to make it more likely than not that the fact the claimant seeks to prove is true.e fact the claimant seeks to prove is true.

Clear and convincing evidenceClear and convincing evidence 令人信服之证据令人信服之证据

It is the intermediate level of burden of persuaIt is the intermediate level of burden of persuasion sometimes employed in the U.S. civil procedursion sometimes employed in the U.S. civil procedure. In order to prove something by “clear and convie. In order to prove something by “clear and convincing evidence”, the party with the burden of prooncing evidence”, the party with the burden of proof must convince the trier of fact that it is substantiallf must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. Ty more likely than not that the thing is in fact true. This is a lesser requirement than “proof beyond a rehis is a lesser requirement than “proof beyond a reasonable doubt” which requires that the trier of faasonable doubt” which requires that the trier of fact be close to certain of the truth of the matter asserct be close to certain of the truth of the matter asserted, but a stricter requirement than proof by “prepted, but a stricter requirement than proof by “preponderance of the evidence”, which merely requires onderance of the evidence”, which merely requires that the matter asserted seem more likely true than that the matter asserted seem more likely true than not.not.

Beyond a Reasonable DoubtBeyond a Reasonable Doubt 排除合理怀疑的证据排除合理怀疑的证据

It is the highest standard of proof that must be It is the highest standard of proof that must be met in any trial.met in any trial.

The standard that must be met by the prosecuThe standard that must be met by the prosecution's evidence in a criminal prosecution: that no ottion's evidence in a criminal prosecution: that no other logical explanation can be derived from the facther logical explanation can be derived from the facts except that the defendant committed the crime, ths except that the defendant committed the crime, thereby overcoming the presumption that a person is ereby overcoming the presumption that a person is innocent until proven guilty.innocent until proven guilty.

It does not mean that no doubt exists as to the It does not mean that no doubt exists as to the accused’s guilt, only that no reasonable doubt is paccused’s guilt, only that no reasonable doubt is possible from the evidence presented. This standard iossible from the evidence presented. This standard is distinguishable from the standard of proof applied s distinguishable from the standard of proof applied in civil lawsuits: a preponderance of the evidence, win civil lawsuits: a preponderance of the evidence, which means that the evidence more likely than not ehich means that the evidence more likely than not establishes a particular point.stablishes a particular point.

Probable causeProbable cause 合理案由合理案由

It is a relatively low standard of proof, wIt is a relatively low standard of proof, which is used in the United States to determine hich is used in the United States to determine whether a search, or an arrest, is warranted. Iwhether a search, or an arrest, is warranted. It is also used by grand juries to determine wht is also used by grand juries to determine whether to issue an indictment. In the civil contether to issue an indictment. In the civil context, this standard is often used where plaintifext, this standard is often used where plaintiffs are seeking a prejudgment remedy.fs are seeking a prejudgment remedy.

Text IIText IIWTO’s Procedure of Settling DisputesWTO’s Procedure of Settling Disputes

Useful expressions: fellow WTO members, Useful expressions: fellow WTO members, live up to (prep.), target figure, panelist, live up to (prep.), target figure, panelist, in another guise, in dispute, complaining in another guise, in dispute, complaining country, in the dock, perishable goods, country, in the dock, perishable goods, responding country, interim report, be responding country, interim report, be circulated to, points of law, with circulated to, points of law, with recognized standing, recognized standing, be affiliated with / to, be affiliated with / to, bring…in line with, outstanding case, on bring…in line with, outstanding case, on agendaagenda

Terms: rule of law, rebuttalTerms: rule of law, rebuttalProper names: WTO General Council, Proper names: WTO General Council,

director-general, WTO Appellate Body, director-general, WTO Appellate Body, DSBDSB

Major points of Text IIMajor points of Text II

1.1. WTO organization chartWTO organization chart

2.2. DSB: General Council in another guiseDSB: General Council in another guise

3.3. DSU: DSU: Understanding on Rules and Procedures Understanding on Rules and Procedures Governing the Settlement of DisputesGoverning the Settlement of Disputes (Annex 2 to (Annex 2 to the the Agreement Establishing the World Trade Agreement Establishing the World Trade OrganizationOrganization ): 27 articles and 4 appendices ): 27 articles and 4 appendices

Full text: Full text: http://www.wto.org/english/docs_e/legal_e/28-dsu_e.htmhttp://www.wto.org/english/docs_e/legal_e/28-dsu_e.htm

4.4. Key articles in the DSUKey articles in the DSU

-C-Covered agreementovered agreement -E-Establishment of DSBstablishment of DSB -Consultations-Consultations-Good Offices, Conciliation and Mediation-Good Offices, Conciliation and Mediation -Establishment of Panels-Establishment of Panels-Terms of Reference-Terms of Reference-Composition of Panels-Composition of Panels-Third Parties-Third Parties -Appellate Body-Appellate Body-Arbitration-Arbitration

5. Reverse consensus5. Reverse consensus

6. Prohibition of unauthorized unilateral retalia6. Prohibition of unauthorized unilateral retaliationtion

7. Permitting cross-sector or cross-agreement r7. Permitting cross-sector or cross-agreement retaliationetaliation

8. Strict timetable8. Strict timetable

Ministerial ConferencesMinisterial Conferences 部长级会议部长级会议

The topmost decision-making body of thThe topmost decision-making body of the WTO is the Ministerial Conference, which hae WTO is the Ministerial Conference, which has to meet at least every two years. It brings tos to meet at least every two years. It brings together all members of the WTO, all of which agether all members of the WTO, all of which are countries or customs unions. The Ministerire countries or customs unions. The Ministerial Conference can take decisions on all matteal Conference can take decisions on all matters under any of the multilateral trade agreemrs under any of the multilateral trade agreements.ents.

General CouncilGeneral Council 总理事会总理事会

The General Council is the WTO’s highest-levThe General Council is the WTO’s highest-level decision-making body in Geneva, meeting regularel decision-making body in Geneva, meeting regularly to carry out the functions of the WTO. It has reprely to carry out the functions of the WTO. It has representatives (usually ambassadors or equivalent) frosentatives (usually ambassadors or equivalent) from all member governments and has the authority to m all member governments and has the authority to act on behalf of the ministerial conference which onact on behalf of the ministerial conference which only meets about every two years. The current chairmly meets about every two years. The current chairman is H.E. Mr. Muhamad NOOR (Malaysia). an is H.E. Mr. Muhamad NOOR (Malaysia).

The General Council also meets, under differeThe General Council also meets, under different rules, as the Dispute Settlement Body and as the nt rules, as the Dispute Settlement Body and as the Trade Policy Review Body.Trade Policy Review Body.

Covered agreementsCovered agreements 适用协定适用协定

Article 1: Coverage and Application Article 1: Coverage and Application 1. The rules and procedures of this Unders1. The rules and procedures of this Understanding shall apply to disputes brought pursutanding shall apply to disputes brought pursuant to the consultation and dispute settlement ant to the consultation and dispute settlement provisions of the agreements listed in Appendiprovisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Ux 1 to this Understanding (referred to in this Understanding as the “covered agreements”). nderstanding as the “covered agreements”). ……

Establishment of DSBEstablishment of DSB Article 2: AdministrationArticle 2: Administration

1. The Dispute Settlement Body is hereby est1. The Dispute Settlement Body is hereby established to administer these rules and procedureablished to administer these rules and procedures and, except as otherwise provided in a covered s and, except as otherwise provided in a covered agreement, the consultation and dispute settlemagreement, the consultation and dispute settlement provisions of the covered agreements. Accorent provisions of the covered agreements. Accordingly, the DSB shall have the authority to establidingly, the DSB shall have the authority to establish panels, adopt panel and Appellate Body reporsh panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of ruts, maintain surveillance of implementation of rulings and recommendations, and authorize susplings and recommendations, and authorize suspension of concessions and other obligations undension of concessions and other obligations under the covered agreements. …er the covered agreements. …

Consultations Consultations 磋商磋商

Article 4: ConsultationsArticle 4: Consultations1. Members affirm their resolve to s1. Members affirm their resolve to strengthen and improve the effectiveness trengthen and improve the effectiveness of the consultation procedures employeof the consultation procedures employed by Members….d by Members….

Good Offices, Conciliation and MediationGood Offices, Conciliation and Mediation 斡旋、调解、调停斡旋、调解、调停

Article 5: Good Offices, Conciliation and MediationArticle 5: Good Offices, Conciliation and Mediation1. Good offices, conciliation and mediation are proced1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the disures that are undertaken voluntarily if the parties to the dispute so agree.pute so agree.……3. Good offices, conciliation or mediation may be requ3. Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begiested at any time by any party to a dispute. They may begin at any time and be terminated at any time. Once procedn at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are terminaures for good offices, conciliation or mediation are terminated, a complaining party may then proceed with a request ted, a complaining party may then proceed with a request for the establishment of a panel.for the establishment of a panel.……5. If the parties to a dispute agree, procedures for good 5. If the parties to a dispute agree, procedures for good offices, conciliation or mediation may continue while the poffices, conciliation or mediation may continue while the panel process proceeds.anel process proceeds.6. The Director-General may, acting in an ex officio cap6. The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the acity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute. view to assisting Members to settle a dispute.

Establishment of PanelsEstablishment of Panels

Article 6: Establishment of PanelsArticle 6: Establishment of Panels

• 1. If the complaining party so reques1. If the complaining party so requests, a panel shall be established at the latts, a panel shall be established at the latest at the DSB meeting following that at est at the DSB meeting following that at which the request first appears as an itewhich the request first appears as an item on the DSB's agenda, unless at that mm on the DSB's agenda, unless at that meeting the DSB eeting the DSB decides by consensus not decides by consensus not toto establish a panel.(5) establish a panel.(5)

• 2…2…

Terms of ReferenceTerms of Reference 职权范围职权范围

Article 7: Terms of Reference of PanelsArticle 7: Terms of Reference of Panels1. Panels shall have the following terms of refere1. Panels shall have the following terms of reference nce unless the parties to the dispute agree otherwisunless the parties to the dispute agree otherwisee within 20 days from the establishment of the pane within 20 days from the establishment of the panel:l:

““To examine, in the light of the relevant proviTo examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by sions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to ththe parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the re such findings as will assist the DSB in making the recommendations or in giving the rulings provided fecommendations or in giving the rulings provided for in that/those agreement(s).”…or in that/those agreement(s).”…

Composition of PanelsComposition of PanelsArticle 8: Composition of PanelsArticle 8: Composition of Panels• 1. Panels shall be composed of well-qualified 1. Panels shall be composed of well-qualified

governmental and/or non-governmental individuals, governmental and/or non-governmental individuals, including persons who have served on or presented a including persons who have served on or presented a case to a panel, served as a representative of a Member case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any representative to the Council or Committee of any covered agreement or its predecessor agreement, or in covered agreement or its predecessor agreement, or in the Secretariat, taught or published on international the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy trade law or policy, or served as a senior trade policy official of a Member….official of a Member….

• 4. To assist in the selection of panelists, the 4. To assist in the selection of panelists, the Secretariat shall maintain Secretariat shall maintain an indicative listan indicative list of of governmental and non-governmental individuals governmental and non-governmental individuals possessing the qualifications outlined in paragraph 1, possessing the qualifications outlined in paragraph 1, from which panelists may be drawn as appropriate. from which panelists may be drawn as appropriate.

• 5. Panels shall be composed of 5. Panels shall be composed of threethree panelists panelists unless the parties to the dispute agree, within 10 days unless the parties to the dispute agree, within 10 days from the establishment of the panel, to a panel from the establishment of the panel, to a panel composed of composed of fivefive panelists. Members shall be informed panelists. Members shall be informed promptly of the composition of the panel…. promptly of the composition of the panel….

Third PartiesThird Parties 第三方第三方Article 10: Third Parties Article 10: Third Parties • 1…1…• 2. Any Member having a substantial interest in a matter b2. Any Member having a substantial interest in a matter b

efore a panel and having notified its interest to the DSB (refeefore a panel and having notified its interest to the DSB (referred to in this Understanding as a “rred to in this Understanding as a “third partythird party”) shall have ”) shall have an opportunity to be heard by the panel and to make written an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be gisubmissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the ven to the parties to the dispute and shall be reflected in the panel report.panel report.

• 3. Third parties shall receive the submissions of the parti3. Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.es to the dispute to the first meeting of the panel.

• 4. If a third party considers that a measure already the su4. If a third party considers that a measure already the subject of a panel proceeding nullifies or impairs benefits accrbject of a panel proceeding nullifies or impairs benefits accruing to it under any covered agreement, that Member may huing to it under any covered agreement, that Member may have recourse to normal dispute settlement procedures undeave recourse to normal dispute settlement procedures under this Understanding. Such a dispute shall be referred to the r this Understanding. Such a dispute shall be referred to the original panel wherever possible.original panel wherever possible.

Appellate BodyAppellate Body （常设）上诉机构（常设）上诉机构

Article 17: Appellate ReviewArticle 17: Appellate ReviewStanding Appellate BodyStanding Appellate Body

• 1. A 1. A standingstanding Appellate Body shall be estab Appellate Body shall be established by the DSB. The Appellate Body shall helished by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be compoar appeals from panel cases. It shall be composed of seven persons, three of whom shall servsed of seven persons, three of whom shall serve on any one case. Persons serving on the Appe on any one case. Persons serving on the Appellate Body shall serve in rotation. Such rotatiellate Body shall serve in rotation. Such rotation shall be determined in the working proceduon shall be determined in the working procedures of the Appellate Body….res of the Appellate Body….

ArbitrationArbitration

Article 25: ArbitrationArticle 25: Arbitration• 1. Expeditious arbitration 1. Expeditious arbitration

within the WTO as an alternative within the WTO as an alternative means of dispute settlement can means of dispute settlement can facilitate the solution of certain facilitate the solution of certain disputes that concern issues that are disputes that concern issues that are clearly defined by both parties.clearly defined by both parties.

……

Reverse consensusReverse consensus 反向协商一致反向协商一致 Eg.Eg.

Art. 6 (1) If the complaining party so requests, Art. 6 (1) If the complaining party so requests, a panel shall be established at the latest at the DSB a panel shall be established at the latest at the DSB meeting following that at which the request first apmeeting following that at which the request first appears as an item on the DSB's agenda, unless at that pears as an item on the DSB's agenda, unless at that meeting the DSB meeting the DSB decides by consensus not todecides by consensus not to establ establish a panel. ish a panel.

Art. 16 (4) Within 60 days after the date of circuArt. 16 (4) Within 60 days after the date of circulation of a panel report to the Members, the report slation of a panel report to the Members, the report shall be adopted at a DSB meeting (7) unless a party thall be adopted at a DSB meeting (7) unless a party to the dispute formally notifies the DSB of its decisioo the dispute formally notifies the DSB of its decision to appeal or the DSB n to appeal or the DSB decides by consensus not todecides by consensus not to adopt the report. adopt the report.