DISPUTE SETTLEMENT: THE DISPUTES

Dispute settlement activity — some figures

Since 1995, WTO members have referred more than 570 disputes to the Dispute Settlement Body. Not all of these disputes have required formal rulings to resolve them. A mutually agreed solution is always the preferred outcome, and consultations among disputing members within the framework of WTO dispute settlement can often be sufficient to resolve the matter in dispute.

If members are unable to reach a mutually agreed solution they can submit their disagreement to further procedures to obtain rulings on the consistency of the challenged measures with WTO agreements and resolve their dispute.

 

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Requests for consultations

Disputes are initiated through a formal request for consultations, whereby the complaining Member invites the Member whose measures are being challenged to discuss the disputed matter, with a view to resolving it without recourse to further litigation. These requests are circulated to all WTO Members.

Between the entry into force of the WTO on 1 January 1995 and 31 December 2018, a total of 573 requests for consultations were circulated to the WTO membership.

51 WTO Members have initiated at least one dispute, and 60 Members have been a respondent in at least one dispute. In addition, a total of 88 Members have participated as third party in proceedings between two or more other WTO Members.  Overall, a total of 109 Members have been active in dispute settlement, as a party or a third party.

Chart 1: Participation of Members in Dispute Settlement (1995 – 2018)

Chart 2: Requests for consultations (1995 – 2018)

Technical note to Chart 2

Disputes to date have concerned claims under a broad range of WTO Agreements, as illustrated in Chart 3 below.

Chart 3: Agreements raised in WTO disputes (1995-2018)

The WTO dispute settlement system is “integrated”, such that several agreements can be at issue in the same dispute. The total numbers in the chart above therefore exceed the total number of distinct disputes initiated. In cases involving trade in goods, the GATT 1994 is frequently invoked alongside more specific agreements, which explains why it appears in 464 of the 573 disputes initiated between 1995 and 2018.

 

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Original panel and Appellate Body proceedings

Where the parties are unable to reach a mutually agreed solution through consultations, the complaining member can request the establishment of a panel to examine the matter, and either party can later appeal the rulings of the panel.

As of 31 December 2018, a panel had been established in respect of 336 disputes (that is, in almost 60% of all disputes initiated). This led to panel reports in 249 of these disputes (not all cases in which a panel is established result in a panel report, as the parties might settle their dispute even after a panel has been established). This was followed by an appeal in 166 disputes (that is, an appeal was notified in 67 per cent of all cases in which a panel report was circulated in the original proceedings).

Chart 4 shows the number of disputes brought to the WTO and recourse to a panel and the Appellate Body, on a yearly basis, from 1995 to 2018:

Chart 4: Number of disputes initiated, original panels established and notifications of appeal in original proceedings
1 January 1995 – 31 December 2018

Technical note to Chart 4

 

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Implementation period

Where procedures lead to a determination that the challenged measures are not in conformity with the WTO agreements, the Dispute Settlement Body (DSB) recommends that the member concerned brings the measures into conformity with its obligations. At that stage, the member concernedmay ask for a reasonable period of time to implement the recommendations. Parties may agree on how much time the member should be given to remove the inconsistency, or, if the parties don’t reach an agreement, arbitration can take place to determine what would be a reasonable period for implementation.

As of 31 December 2018, an arbitration to determine the period for implementation had taken place in 49 disputes.

Chart 5 shows the number of disputes in which arbitration took place to determine the period for implementation (under Article 21.3(c) of the Dispute Settlement Understanding), on a yearly basis, from 1995 to 2018:

Chart 5: Number of arbitrations on the period for implementation (Article 21.3(c) of the DSU)
1 January 1995 – 31 December 2018

Technical note to Chart 5

 

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Compliance proceedings

Where the initial proceedings lead to a recommendation for the member concerned to bring its measure(s) into conformity with the WTO agreements, it is sometimes necessary to resort to further proceedings (so-called “compliance proceedings”) if the parties do not agree on whether compliance has been achieved by the end of the period for implementation. This involves further panel proceedings (conducted by the original panel) and either party can appeal the findings of the panel.

As of 31 December 2018, a compliance panel had been established in 49 disputes (that is, in 20 per cent of the disputes that led to the circulation of a panel report). In 29 of these disputes (that is, in almost 60 per cent of cases in which a compliance panel has been established), the compliance panel's report was appealed.

Chart 6 shows the number of disputes in which recourse to compliance proceedings was initiated (under Article 21.5 of the DSU), on a yearly basis, from 1995 to 2018:

Chart 6: Number of compliance proceedings (panel and Appellate Body proceedings) (Article 21.5 of the DSU)
1 January 1995 — 31 December 2018

Technical note to Chart 6

 

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Suspension of obligations

If compliance has not been achieved by the end of the reasonable period for implementation, and if the parties do not agree on compensation, the complaining party can be authorized to suspend temporarily some of its obligations under the agreements towards the member concerned (retaliation). If the parties disagree on the level of retaliation that can be authorized, arbitration can take place to determine the permissible level of suspension of obligations.

In most cases, compliance is achieved without a need to reach this stage of the proceedings. As of 31 December 2018, an arbitration to determine a permissible level of retaliation had been initiated in only 15 disputes. So far, whenever a member has sought an authorization to retaliate, the permissible level of suspension of obligations has been determined through arbitration.

Charts 7 and 8 show the number of disputes in which an arbitration on the level of retaliation (under Article 22.6 of the DSU) took place, from 1995 to 2018:

Chart 7: Number of requests for arbitration to determine the level of suspension of obligations (Article 22.6 of the DSU)
1 January 1995 — 31 December 2018

Chart 8: Number of arbitral decisions on the level of suspension of obligations (Article 22.6 of the DSU)
1 January 1995 — 31 December 2018

Technical note to Charts 7 and 8

 

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Why these numbers do not tell the whole story

In the above charts, a dispute counts as “one” instance regardless of its complexity or of how many members are involved. The “DS” number assigned to each dispute acts as an “identity card” for that dispute, and follows it throughout its existence. For this reason, it is a simple and reliable basis on which to track the evolution of disputes. However, the reality is more complex.

  • It is possible for various members to bring a dispute together, under a single request for consultations. For example, the “EC — Bananas” dispute, which involved five members as complainants, counts only as one in the charts above because it was initiated by all five complainants together through a single request (all under the number “DS27”). In such a case, counting the dispute as “one” based on its “DS number” does not reveal the fact that five members, and not just one, have brought a complaint on the same matter.
  • When a dispute reaches the stage of being considered by a panel or the Appellate Body, the proceedings may be conducted jointly for several disputes that were initiated separately if more than one member has initiated its own dispute with respect to the same matter. For example, three members (Australia, Brazil and Thailand) each initiated a dispute in relation to “EC — Export Subsidies on Sugar” (DS265, DS266 and DS283 respectively) and the three disputes were considered jointly both at the panel stage and before the Appellate Body.
  • By contrast, if the dispute reaches the stage of requesting retaliation, separate arbitrations may be necessary for different complainants within the same dispute if they each seek an authorization to retaliate (for example, in the “EC — Bananas” dispute, two of the five “joint” complainants requested an authorization to suspend obligations, which led to two separate arbitral proceedings, both still under the “DS27” dispute. A somewhat more complex situation arose in respect of “US — Offset Act (Byrd Amendment)”, where six complainants initiated a dispute together (DS217) and two others also jointly initiated a separate request for consultations (DS234): both disputes were considered together at the panel and appellate stage, and each of the eight complainants requested an authorization to suspend obligations, leading, at that stage of the proceedings, to eight different arbitral decisions in respect of the same matter, under two distinct DS numbers.
  • The level of complexity and intensity of proceedings also varies significantly from case to case.  For example, in the dispute “Canada — Patent Term”(DS170), the panel and Appellate Body reports are each around 30 pages in length, and no further proceedings were required, other than a determination of the period of time for the respondent to comply with the DSB recommendations. By contrast, in the dispute “EC and Certain Member States — Large Civil Aircraft”(DS316), both original and compliance proceedings have taken place, and the original panel and Appellate Body reports were respectively over 1,000 and 600 pages.      

More technical detail on the subtleties of counting disputes is provided below.

 

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More numbers (and why dispute settlement figures can be complex to establish)

Establishing consistent counting in relation to WTO dispute settlement activity can be complicated.  This is because the manner in which disputes are counted depends on how they are treated as separate or related at various stages of the process. 

Disputes are initiated by a request for consultations addressed to the member (or members) whose measures are being challenged. Every request for consultations is circulated with a “DS” number, which serves to identify the dispute throughout its successive stages. This number is attributed on a chronological basis upon receipt of the request for consultations.  For the purposes of the descriptions and charts above, and without prejudice to any legal implications that may be attached to the use of certain terminology, the term “dispute” is used to refer to a matter identified by a distinct “DS” number. Usually, this involves one member, bringing a complaint against one other member in relation to a specific matter.

Things get a little more complicated if several members have made a joint request for consultations in a single document. For the purposes of the figures above, this is counted as one “dispute” (because the joint request generates a single process under a single “DS” number). Conversely, claims initiated by various members in distinct documents circulated under distinct “DS” numbers are counted in the charts above as distinct disputes even if they relate to the same matter. The number of panels established and appeals in the above charts also relates to the number of distinct disputes (each identified by a distinct “DS” number) in respect to which a panel has been established or an appeal has taken place.

In later stages of the process, disputes that were initiated separately (i.e. under distinct “DS” numbers) can be joined if they in fact relate to the same matter. A single panel can be established to examine separate requests by various members relating to the same matter (under Article 9.1 of the DSU) or the same panelists can be appointed to hear initially distinct disputes on the same matter (under Article 9.3 of the DSU). A similar joining of the proceedings can take place at the appellate stage, sometimes even where the cases were not fully joined at the panel stage. As a result, the number of panels established can be less than the total number of disputes (“DS” numbers) covered by these panel proceedings (i.e. a single panel might be established to hear, for example, three initially distinct disputes). The number of separate reports circulated as a result of these joined proceedings can also vary, as each complainant is entitled to request a separate panel report to be prepared even when a single panel hears separate disputes together. All this makes the process more efficient (but the statistical work a little more complicated!).

If the dispute reaches the stage of suspension of obligations, the proceedings can be further disaggregated because each complainant seeking to be authorized to retaliate will make its own request, and a separate arbitration may be required for different complainants even if they initiated the dispute jointly under a single request for consultations.

To allow a more refined reflection of some of these nuances, a more comprehensive set of numbers is available below.

Note also that various reports also provide regular information on the levels of dispute settlement activity, based on the number of distinct panel, Appellate Body or arbitration proceedings that are underway. This may lead to somewhat different counts than a calculation based only on the “DS” number of the disputes, where two or more disputes on the same matter are considered together by panels or the Appellate Body, as described above. See below the section on “Ongoing dispute settlement activity”.

 

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Levels of dispute settlement activity

Total number of reports circulated

Between 1995 and the end of 2018, more than 400 panel reports, Appellate Body reports and arbitral awards or decisions were circulated to advance the settlement of the 573 disputes referred to the DSB by WTO members.

Over the same period, the Dispute Settlement Body, which oversees the WTO's dispute settlement activity, met more than 400 times.

Table 1: Total number of dispute settlement reports
1 January 1995 — 31 December 2018

Type of report Number of reports
(by distinct matter)
Number of disputes covered
(by “DS” number)
Original panel reports adopted 184 230
Original Appellate Body reports adopted 115 156
Compliance panel reports adopted 33 35
Compliance Appellate Body reports adopted 23 25
Reasonable period of time (RPT) arbitral awards (Article 21.3(c) DSU) 37 52
Arbitral decisions on retaliation level (Article 22.6 DSU) 21 15
Total 413  
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Evolution of the level of activity

In practice, each dispute progresses at a different pace, so that disputes will be at different stages of the settlement process at any given time. The overall level of dispute settlement activity therefore varies depending on how many disputes are in an “active” phase in a given period.

Chart 9 shows how many panel, appellate and arbitral proceedings were ongoing each month, on average, every year from 1995 to 2018. For the purposes of this chart, proceedings are counted as a single instance where they relate to the same matter, regardless of the number of complainants involved or the level of complexity of the proceedings. This provides a quantitative indication of the number of distinct issues that are subject to “active” dispute settlement proceedings (understood here as ongoing panel, arbitral or appellate proceedings), but does not seek to reflect the relative complexity of different proceedings.

Chart 9: Average annual number of active proceedings per month
1995-2018

Technical note to Chart 9

Where distinct complaints have been initiated by various members (under distinct “DS” numbers) on the same matter, these are counted as a single “active proceeding” for the purposes of this chart. This is intended to allow an identification of the number of distinct issues that are under consideration, in a given month. For example, for the year 2017, the panel proceedings underway in respect of “Australia — Tobacco Plain Packaging” (DS441, DS467, DS434 and DS458) are counted as a single “active proceeding”, notwithstanding the fact that each of these complainants initiated a dispute through a distinct request for consultations (each covered by a distinct DS number).

For more information on levels of dispute settlement activity, see also:

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