DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6
The process — Stages in a typical WTO dispute settlement case
Although the procedures explained in this chapter, including on implementation, also apply to non-violation complaints, there are several differences. Some relate to those provisions that contain an explicit reference to a measure found inconsistent with the covered agreements, without simultaneously referring to nullification or impairment of benefits caused by (WTO)-consistent measures. These provisions are not applicable to non-violation complaints. In addition, Article 26.1 of the DSU contains several special provisions applying only to non-violation complaints departing from the normal procedures. These special features have already been referred to in the relevant context, so it is sufficient to briefly summarize the most important procedural aspects:
- there is no obligation to withdraw a WTO-consistent measure found to nullify or impair benefits or to impede the attainment of an objective;
- the panel (and the Appellate Body) accordingly recommends that that the Members concerned find a mutually satisfactory adjustment;
- the arbitration under Article 21.3(c) of the DSU on the reasonable period of time may, upon request by either party, include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment;
- compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute. (Under the general rules, compensation is only temporary pending final implementation. However, in non-violation cases, the obligation of implementation is not that of withdrawing the measure, but to make an adjustment, and this adjustment can notably take the form of compensation).
Situation complaints back to top
Situation complaints are quite different in that the general procedures of the DSU apply only up to the point of the circulation of the panel report (Article 26.2 of the DSU). This panel report must in any event be a separate panel report on the situation complaint, even if it is coupled with a simultaneous violation or non-violation complaint (Article 26.2(b) of the DSU).
As regards adoption and surveillance and implementation of recommendations and rulings in situation complaints, the GATT dispute settlement rules and procedures contained in the Decision of 12 April 19891 continue to apply. This means that the reverse consensus rule does not apply to the adoption of the panel report and to the authorization of the suspension of obligations in the event of a failure to implement. In other words, any Member, including the “losing” party, can block these decisions in the DSB by opposing a positive consensus. Article 26.2 of the DSU also implicitly excludes the possibility of an appeal against a panel report based on a situation complaint. Similarly, the DSU procedures on the compliance review in Article 21.5 of the DSU, the reasonable period of time to comply with the recommendations and rulings (and accordingly the arbitration on the reasonable period of time) and on the arbitration on the level of suspension of concessions do not automatically apply.