DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 3
WTO Bodies involved in the dispute settlement process
Panels are the quasi-judicial bodies, in a way tribunals, in charge of adjudicating disputes between Members in the first instance. They are normally composed of three, and exceptionally five, experts selected on an ad hoc basis.1 This means that there is no permanent panel at the (WTO); rather, a different panel is composed for each dispute. Anyone who is well-qualified and independent (Articles 8.1 and 8.2 of the DSU) can serve as panelist. Article 8.1 of the DSU mentions as examples persons who have served on or presented a case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or who have worked in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a Member. The WTO Secretariat maintains an indicative list of names of governmental and non-governmental persons, from which panelists may be drawn (Article 8.4 of the DSU). WTO Members regularly propose names for inclusion in that list, and, in practice, the DSB always approves their inclusion without debate. It is not necessary to be on the list in order to be proposed as a potential panel member in a specific dispute. Although some individuals have served on more than one panel, most serve only on one panel. There is thus no institutional continuity of personnel between the different ad hoc panels. Whoever is appointed as a panelist serves independently and in an individual capacity, and not as a government representative or as a representative of any organization (Article 8.9 of the DSU).
The panel composed for a specific dispute must review the factual and legal aspects of the case and submit a report to the DSB in which it expresses its conclusions as to whether the claims of the complainant are well founded and the measures or actions being challenged are WTO-inconsistent. If the panel finds that the claims are indeed well founded and that there have been breaches by a Member of WTO obligations, it makes a recommendation for implementation by the respondent (Articles 11 and 19 of the DSU).
Administrative and legal support to panels back to top
The WTO Secretariat is responsible for the administrative aspects of the dispute settlement procedures, as well as for assisting panels on the legal and procedural aspects of the dispute at issue (Article 27.1 of the DSU). This means, on the one hand, dealing with the panel’s logistical arrangements, i.e. organizing the panelists’ travel to Geneva where panel meetings take place, preparing the letters inviting the parties to the meetings with the panels, receiving the submissions and forwarding them to the panelists etc. On the other hand, assisting panels also means providing them with legal support by advising on the legal issues arising in a dispute, including the jurisprudence of past panels and the Appellate Body. Because panels are not permanent bodies, the Secretariat serves as the institutional memory to provide some continuity and consistency between panels, which is necessary to achieve the DSU’s objective of providing security and predictability to the multilateral trading system (Article 3.2 of the DSU). The Secretariat staff assisting a panel usually consists of at least one secretary and one legal officer. Often, one of the two belongs to the division of the Secretariat responsible for the covered agreement invoked2, and the other to the Legal Affairs Division. The staff of the Rules Division assists panels dealing with disputes on trade remedies (anti-dumping and subsidies).
1. According to the procedure explained in the section on the Composition of the panel back to text
2. For example, the Services Division for GATS disputes, the Intellectual Property Division for TRIPS disputes, the Agriculture and Commodities Division for disputes on the Agreement on Agriculture and the SPS Agreement. back to text