DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6
The process — Stages in a typical WTO dispute settlement case
In addition to the specific deadlines of the individual procedural steps, the DSU provides for the period from the establishment of a panel until the date of determination of the reasonable period of time, not to exceed 15 months unless the parties to the dispute agree otherwise. Where either the panel or the Appellate Body has extended their deadlines, the additional time is to be added to the 15 months, but not to exceed 18 months, unless the parties agree that there are exceptional circumstances (Article 21.4 of the DSU).
Surveillance by the DSB back to top
The DSB keeps implementation by a Member of its recommendations or rulings (in other words the implementation of adopted panel (and Appellate Body) reports) under surveillance. Any Member can raise the issue of implementation at any time in the DSB. Unless the DSB decides otherwise, the issue of implementation is placed on the agenda of the DSB six months following the date of establishment of the reasonable period of time.1 The item remains on the DSB’s agenda until the issue is resolved.2 At least ten days before each such DSB meeting, the Member concerned is required to provide the DSB with a written status report of its progress in the implementation (Article 21.6 of the DSU). These status reports ensure transparency, and they may also give an incentive to advance implementation. When the implementing Member delivers these status reports in the DSB, it is common for other Members, particularly the complainant(s), to take the opportunity to demand full and expeditious implementation and to declare that they are following the matter with close attention.
The DSB must continue to keep under surveillance the implementation of the recommendations or rulings it has adopted. This includes cases where compensation has been provided or concessions or other obligations have been suspended but the recommendations to bring a measure into conformity with (WTO) law have not been implemented (Article 22.8 of the DSU).
Compliance review under Article 21.5 of the DSU back to top
When the parties disagree on whether the losing Member has implemented the recommendations and rulings, either of them can request a panel under Article 21.5 of the DSU. Unless the Member required to bring itself into conformity has done nothing at all, such disagreements can easily arise if, for instance, a new regulation or law has been passed and the original respondent believes that this achieves full compliance, but the complainant(s) disagree(s). This procedure is sometimes referred to as the “compliance” panel procedure.
Wherever possible, the DSB will refer the matter to the individuals serving on the original panel, which is supposed to decide in an expedited fashion, normally within 90 days (Article 21.5 of the DSU). It is not yet settled whether consultations are required before this compliance panel procedure. Although not specifically mentioned in Article 21.5 of the DSU, the practice has shown that appeals against compliance panel reports are possible and even quite frequent.
As for the mandate of the Article 21.5 panel, the Appellate Body has clarified that the panel’s task is not limited to examining whether the implementing measure fully complies with the recommendations and rulings adopted by the DSB. In other words, the task is not only that of scrutinizing whether the implementing measure remedies the violation or other nullification or impairment as found by the original panel. Rather, compliance panels must consider the new measure in its totality, including its consistency with a covered agreement.3 This can include, if the complainant raises such claims, any question of WTO consistency of the new measure. Such claims may be new and different from those raised in respect of the original measure in the original panel (and Appellate Body) proceeding.
1. “Establishment” means the day on which the duration of the reasonable period of time is determined, not the day on which that period expires. back to text
3. Appellate Body Report, Canada — Aircraft (Article 21.5 — Brazil), paras. 40-41; Appellate Body Report, US — Shrimp (Article 21.5 — Malaysia), paras. 85-87. back to text