DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6
The process — Stages in a typical WTO dispute settlement case
In accordance with the panel’s calendar, the substantive panel process may start with an exchange of submissions between the parties on any preliminary issue raised by the respondent. For example, a respondent may challenge the sufficiency or clarity of the request for the establishment of the panel. In such cases, the panel may issue a preliminary ruling, but it can also reserve its ruling for the final panel report.1
When there are no such preliminary issues, the parties start by exchanging a first set of written submissions. The complainant normally is the first to file its submission, to which the respondent replies in its first submission (Article 12.6 of the DSU). The third parties usually file their submissions after the parties have filed theirs. The third parties, who are entitled to receive the parties’ first written submissions (Article 10.3 of the DSU), often side with the positions taken by one of the parties.
The DSU envisages that the Secretariat is to receive these submissions and transmit them to the other party or parties to the dispute (Article 12.6 of the DSU). In practice, however, these submissions are filed with the Secretariat DS Registry2 only in the number requested for the panel, whereas the parties and third parties serve copies directly on the other parties and third parties, often through the letter boxes of their Geneva delegations in the (WTO) building.
The parties’ written submissions are quite extensive documents sometimes of considerable length and often with elaborate annexes. They clarify the facts of the case and contain legal arguments, which often rely substantially on prior jurisprudence of panels and the Appellate Body. The complainant’s submission usually attempts to establish that the claim of a violation or of non-violation nullification or impairment is substantiated. The respondent typically tries to refute the factual and legal allegations and arguments put forward by the complainant. In contrast to the parties’ submissions, third party submissions are usually a lot shorter, often only a few pages long, and comment on the parties’ factual and legal arguments.
All these submissions are kept confidential (Article 18.2 of the DSU and paragraph 3 of the Working Procedures in Appendix 3 to the DSU), but the panel report, which is ultimately circulated to all Members and made public, reflects and summarizes the factual and legal allegations and arguments of the parties before the panel (in the so-called descriptive part of the panel report). In addition, the parties are free to disclose their own submissions to the public (Article 18.2 of the DSU and paragraph 3 of the Working Procedures in Appendix 3 to the DSU). Several Members publish their submissions on their own websites, as soon as they are filed, after an oral hearing, or once the procedure is concluded.3
In drawing up their working procedures for a specific dispute, panels sometimes request the parties and third parties to submit executive summaries of their submissions. To some extent, these summaries are used in drafting the descriptive part of the panel report.
After the exchange of the first written submissions, the panel convenes a first oral hearing, called the first substantive (as opposed to “organizational”) meeting. Like all meetings, this meeting takes place at the WTO headquarters in Geneva, and is similar to an oral hearing before a court, but the setting is more informal. Contrary to practice in many domestic judiciaries, this oral hearing is not public. Only the parties and third parties to the dispute, the panelists, the Secretariat staff supporting the panel, and the interpreters are entitled to attend this meeting.
At this meeting, which is recorded on tape, the parties present their views orally, mostly on the basis of a prepared statement also distributed in writing to the panel and the other parties (paragraph 9 of the Working Procedures in Appendix 3). After hearing the complainant(s) and the respondent, the panel accords the third parties an opportunity to present their views orally during a special session dedicated to the third parties’ presentations (Article 10.2 of the DSU, paragraph 6 of the Working Procedures in Appendix 3). This means that, under the normal procedures, third parties are not present prior to this special third party session, when the parties present their views orally, but only while all the third parties present their case. Accordingly, they all leave the room after all third parties have spoken (unless the panel adopts a different procedure).
After the oral statements, the parties (and third parties) are invited to respond to questions from the panel and from the other parties in order to clarify all the legal and factual issues (paragraph 8 of the Working Procedures in Appendix 3). These questions are usually distributed in written form, but discussed in the oral hearing to the extent that parties (and third parties) are ready to respond to them orally. After the conclusion of the first substantive meeting, the parties are usually requested, within a deadline of several days, to submit written answers to the panel’s and the other parties’ questions, irrespective of whether they have already been discussed orally.
Approximately four weeks after the first panel meeting, the parties simultaneously exchange written rebuttals, also called the second written submissions. In these submissions, which are not provided to the third parties, the parties respond to each other’s first written submissions and oral statements made at the first substantive meeting. Thereafter, the panel holds a second substantive meeting with the parties (panels have the power to schedule a third (or more) meetings in a dispute). The parties once again orally present factual and legal arguments at this second oral hearing and respond to further questions from the panel and the other party, first orally, then in writing. Sometimes a Panel holds a third meeting, in particular when an expert hearing takes place.
In cases of multiple complaints on the same matter where a single panel is established, the written submissions of each of the complainants must be made available to the other complainants, and each complainant has the right to be present when any one of the other complainants presents its views to the panel (Article 9.2 of the DSU).
Deliberation of the panel and preparation of the panel report back to top
After the oral hearings are concluded, the panel goes into internal deliberations to review the matter and to reach conclusions as to the outcome of the dispute and the reasoning in support of such outcome. The panel is mandated to make an objective assessment of the relevant factual questions and legal issues in order to assess the conformity of the challenged measure with the covered agreement(s) invoked by the complainant (Article 11 of the DSU). Simply put, the panel examines the correctness of the complainant’s claim that the respondent has acted inconsistently with its WTO obligations.4 Thus, the panel’s mandate is to apply existing WTO law, not to make law. Article 19.2 of the DSU emphasizes that panels and the Appellate Body must not add to or diminish the rights and obligations set forth in the covered agreements.
The panel’s deliberations are confidential and its report is drafted in the absence of the parties (Article 14.1 and 14.2 of the DSU and paragraph 3 of the Working Procedures in Appendix 3 to the DSU). Article 18.1 of the DSU also prohibits any ex parte communications with the panel on the matter under consideration, which means that the panel is not entitled to communicate with individual parties except in the presence of the other party or parties.
The panel report is divided into two main parts: the so-called “descriptive part” and the “findings”. The descriptive part is usually the longer part, and is typically composed of an introduction, the factual aspects, the claims of the parties (also sometimes called “Findings Requested”), and, most importantly, a summary of the factual and legal arguments of the parties and third parties.
The panel first issues a draft descriptive part to the parties for written comments (Article 15.1 of the DSU). In accordance with the proposed timetable in Appendix 3 to the DSU, parties are invited to make comments on the draft descriptive part within two weeks. This gives the parties an opportunity to ensure that all their key arguments are reflected in the descriptive part and to rectify errors and perceived imprecisions.
1. In the latter case, the parties might have to present some of their arguments in the alternative, if they do not know whether a certain claim forms part of the panel’s terms of reference. back to text
2. In 2002, the Secretariat established a dispute settlement registry which receives and files the submissions and maintains the official record for every dispute at the panel stage. back to text
3. These websites can be useful resources for an example of how these submissions are structured and written and of specific legal statements in various areas of WTO law. Examples of these websites of active players in the dispute settlement system are: http://www.acwl.ch for the (developing country) parties represented by the Advisory Centre on WTO Law; http://www.dfat.gov.au/trade/negotiations/wto_disputes.html for Australia; http://www.dfait-maeci.gc.ca/tna-nac/dispute-e.asp for Canada; http://mkaccdb.eu.int/miti/dsu for the European Communities; http://www.dft.govt.nz/support/legal/default.html for New Zealand; http://ustr.gov/enforcement/briefs.shtml for the United States. back to text
4. Or — in the rare case of a non-violation complaint — whether the challenged WTO-consistent measure nullifies or impairs benefits accruing to the complainant under the covered agreement invoked. back to text