DISPUTE SETTLEMENT: ANALYSIS BY ELIN ØSTEBØ JOHANSEN
WTO Dispute Settlement Body developments in 2011
In a speech delivered on 13 March 2012, H.E. Elin Ψstebψ Johansen looked back at developments in the WTO’s dispute settlement system in 2011 during her chairmanship of the Dispute Settlement Body.
Good evening and thank you very much for the kind invitation to speak here today.
As you know, my tenure as the Chairperson of the DSB is drawing to an end. I am grateful therefore for this opportunity to look back on developments in dispute settlement during 2011, and to make some general observations about the WTO dispute settlement system.
Let me say at the outset that I very much appreciate the support I have received while serving as DSB Chair and that I have been impressed by the excellent spirit of co-operation and collaboration of DSB members. I have also been very impressed by the WTO dispute settlement system itself and by those who work hard to ensure it operates well. Many have remarked on the high-quality results and the remarkable efficiency of the system. That it operates effectively and efficiently is vital in today’s international economic environment. As was reported recently, [c]ountries will continue to use [the WTO dispute settlement system] due to its efficiency in resolving most disputes within agreed norms. Furthermore, its existence is key to preventing escalation of protectionism in difficult economic times.”1 Tribute was also paid to the DS system at the conclusion of the 8th Ministerial Conference last December, when Ministers recognised “the important asset that the WTO Dispute Settlement system represents.”
2011 — A Productive Year
Let me turn to the developments of dispute settlement in 2011. In a word, 2011 was productive. Ten panel reports were circulated, as were five Appellate Body Reports; this level of activity has not been seen since 2005. To compare, in 2009, three panel reports and two Appellate Body Reports were circulated.
Interestingly, however, the number of requests for consultations — eight — was the lowest annual number in the history of the WTO. It was less than half the number of requests filed in 2010.2
This does not mean that dispute settlement work is going to slow down very soon, however. Nine new panels were established in 2011, which is more than the six established in 2010.3 But it is still below the average number of panels established each year, which is just under 12.4
Four panels were composed in 2011, three of them by the Director-General. Thus, 2011 was typical in that the majority of panels were composed by the Director‑General. This has been the case every year since 2001.
The real story of productivity in 2011, though, is in the number of on‑going disputes: it was 26.5 This represented a relatively high level of activity. Indeed, 2011 might well be remembered especially for the numerous requests made to the DSB for decision to delay the adoption or appeal of panel reports.6 This attests to the high volume of panel reports issued last year, as well as to the stress on the system imposed by some unusually large disputes at the appellate phase.
In addition to the reports themselves, one preliminary ruling — in the on‑going dispute China — Electronic Payment Services — was circulated to members. This is only the fourth time in WTO dispute settlement history that a panel's preliminary ruling has been circulated publicly, before the circulation of the panel report.7 As you know, preliminary ruling requests occur when a party to a dispute requests a panel or the Appellate Body to make a determination on an issue that is primarily procedural, or that relates to the jurisdiction of the panel or Appellate Body. Often, the party making the request asks that the panel or Appellate Body rule on such request before addressing the substantive issues in the dispute. Panels and the Appellate Body have often deferred ruling on a preliminary request and included the ruling only in their final report; this occurs if they determine that deferment would not infringe on the due process rights of the parties.
The overall statistics on preliminary rulings are interesting. Since 1995, panels and the Appellate Body have considered preliminary ruling requests in 67 disputes. Fifty-nine of these were panel disputes, while eight relate to the appellate review stage.8 Recently, we have seen an increase in requests for preliminary rulings. In 2011, seven panels received such requests, and the Appellate Body dealt with two. This is the highest number of such requests since 1995, accounting for approximately 15% of all disputes where such requests have been made. The provision most discussed in preliminary ruling requests is Article 6.2 of the DSU (dealing with the contents of a request for establishment of a panel), followed by Article 10 of the DSU (dealing with third-party rights).
Also worthy of note for 2011 is that for the first time in the history of GATT/WTO disputes, a panel, Dominican Republic Safeguard Measures9, conducted its entire proceedings in Spanish and the original language of the panel's final report was also Spanish. This is only the second dispute whose entire panel proceedings were conducted in a language other than English, EC Asbestos being the other one (in French) between Canada and the EC. Of course, there have been instances where cases have been partially conducted in a language other than English (for example, the panel proceedings in Mexico Olive Oil and Colombia Ports of Entry were partially conducted in Spanish, but the original language of the reports was English).
And what of civil society and the DS system in 2011? As you are no doubt aware, only WTO members have the right to participate as parties or third parties in WTO disputes. However, the issues raised in WTO disputes often generate considerable public interest, particularly when they concern issues of public health and safety, the environment, and the protection of animals. This has occasionally resulted in panels and the Appellate Body receiving amicus curiae briefs. Panel reports in US Tuna II (Mexico) and US Country of Origin Labelling (or COOL), both of which were circulated in 2011, reveal that those panels received amicus curiae briefs during the proceedings. Since 1995, a total of 35 panel and Appellate Body reports indicate that amicus curiae briefs had been received. This seems a relatively small number, given that 161 panels have been composed since 1995.
Transparency is a theme often discussed in the context of the WTO dispute settlement system. Traditionally, WTO dispute settlement proceedings have been confidential until the panel or Appellate Body report is circulated. Most disputes continue to be conducted on a confidential basis, although a few members regularly make their submissions public. Despite this confidentiality tradition, however, on 20 occasions during the last six years, panels, the Appellate Body, and Arbitrators have opened their meetings with parties to the public. The panels in US Continued Suspension and Canada Continued Suspension held the first joint open hearing in 2005, and members of the public were permitted to view the panel meeting via closed circuit television. By December 2011, a total of ten panels had permitted open hearings at the request of the parties to the dispute. Although no open hearings occurred before panels in 2011, the Appellate Body held a public hearing for US Large Civil Aircraft (2nd Complaint). The Appellate Body has opened its hearings to the public on eight occasions. In addition, two Arbitrators have held open hearings.10
What issues are being litigated?
It is interesting to consider what issues are being litigated. Similar to 2010, the majority of the requests for consultation, panels established and reports circulated in 2011 relate to trade remedies11 that is, anti‑dumping, countervailing duties, and safeguards.
2011 also saw the return of claims under Agreements that have not recently been the subject of disputes:
- China Electronic Payment Services is addressing US claims against China under the GATS;
- In Canada Renewable Energy and Canada Feed-in Tariff Programs, the EU and Japan have raised claims under the TRIMS.
Three reports addressing claims under the Technical Barriers to Trade Agreement were circulated to members in 2011, more than five years after the last TBT dispute, which was EC Approval and Marketing of Biotech Products. This year's reports were US Tuna II (brought by Mexico against the US); US COOL (brought by Canada and Mexico against the US); and US Clove Cigarettes (brought by Indonesia against the US).
Eight of the nine panels established in 2011 involved goods, confirming the historical trend of disputes on goods being the most common type brought before the WTO.
Which members were active in DS in 2011?
Turning to consider which members were active in DS in 2011, of the eight new requests for consultations, the European Union launched three of the requests, with China, Korea, Moldova, Ukraine, and the United States launching one each. The United States was on the receiving end of three requests, with China being the respondent in two. Canada, Moldova and Ukraine round off the list of respondents.
With respect to the nine panels established in 2011, China and the European Union are respondent in two disputes each, with Canada, Dominican Republic, Moldova, Ukraine and the United States being respondent in one dispute each.
Complainants included Canada, China, Costa Rica, El Salvador, Guatemala, Honduras, Japan, Moldova, Norway, Ukraine, and the United States.
Thus like 2010, 2011 also witnessed strong participation of developing countries, where they featured as complainant and respondent.
Next, I would like to say a few words about those who have served as panelists during the 16 years of WTO dispute settlement history. The statistics may surprise you. So far, individuals from 52 different countries have served as panelists.12 Of these countries, 24 are developed, while 28 are developing. New Zealand and Canada lead the developed countries list, with 20 and 19 nationals, respectively, having served as panelist, some more than once. Chile and South Africa lead the developing countries list, with 12 and 10 nationals respectively, again, some more than once.All told, 244 different people have served as panelist. Just under one half of them have come from developing countries.13 Only one panelist has come from a least-developed country (Bangladesh).14 At the end of 2011, 22 of the 39 panelists serving on active panels were from developing countries. You may recall that, in 2011, we commemorated the 100th anniversary of International Women's Day.15 As Director-General Lamy mentioned on the occasion of this 100th anniversary16, “[i]n a little more than a century 40 women have won the Nobel Prize, nearly 30 women occupy national offices of Heads of State or government in fields like science, diplomacy, culture, sport.”
So how have women fared in contributing to the GATT/WTO dispute settlement system?
Under the GATT 1947, 132 reports were issued and 101 were adopted. Some of the reports were the result of deliberations of a Working Party, while others were the result of deliberations by the Contracting Parties. However, about 100 of the reports involved ad hoc panelists. Seven women served as ad hoc panelists in 11 of such disputes. These women were nationals of Chile, Hong Kong China, New Zealand, Singapore, Sri Lanka and Switzerland.
Of the 161 WTO panels composed17 since 1995, 65 have included women panelists, or about 40% of the total. However, of the 244 individuals selected to serve as panelists since 1995, only 35 are women, which is less than 15% of the total. Canada leads with five women having served as panelists, followed by Chile and Switzerland, each with three. Ten panels have been chaired by women.18
Interestingly, women from developing countries make up the bulk of the overall number of women panelists. Twenty of the women panelists are from developing countries, while 15 come from developed countries.Since the work of the Appellate Body began in 1995, there have been 23 Appellate Body members, four of whom are women;19 that is about 17% of the total. Between 2008 and 2011, three women were serving at the same time, such that during this period, almost half of the Appellate Body members were women. Appellate Body Chairperson Mme Zhang is currently the only woman serving on the Appellate Body.
I cannot help but mention that of the 17 Chairpersons of the DSB, two are women!20
It would seem that women have not been very present in the quasi-judicial roles of WTO dispute settlement. However, when compared with other international dispute settlement bodies, the WTO record looks pretty good!The 1995 Beijing Declaration and Platform of Action called on governments and international institutions to “aim for gender balance when nominating or promoting candidates for judicial and other positions in all relevant bodies, such as the […] International Court of Justice”.21 In the more than 65 years of operation, almost all judges of the International Court of Justice have been male. In 1995, Dame Rosalyn Higgins of the UK was the first woman appointed to the ICJ. In 2010, two more women were appointed, Xue Hanqin from China and Joan Donoghue from the United States. On 12 March 2012, Ms Julie Sebutinde of Uganda became the first African woman to sit on the ICJ. Christine van den Wyngaert of Belgium and Suzanne Bastid of France have served temporarily as ad hoc judges for specific cases before the ICJ.
With respect to Investor-State international arbitration, a recently published study found that the 249 known investment treaty disputes lodged by May 2010 resulted in 241 individuals being appointed as adjudicators across all disputes. Of these individuals, only ten are women, or approximately 4% of the total.22
A relatively new court,23 the International Criminal Court, has the highest ratio of women participation as judges. As of December 2011, 12 of the 19 judges are women, just above 63%. Of the ten former judges, three are women.
To conclude my remarks about WTO panelists, I would like to pay them all a special tribute, women and men, for the tremendous service they provide to the dispute settlement system. It goes without saying that without them, the system could not function. But without their dedication and hard work, it could not function as well as it does. Chapeau to all 244 of them
Appellate Body selection process
Before concluding my remarks this evening, permit me one more look back at 2011. I would not want to close without mentioning last year’s selection process of two new Appellate Body members. I was honoured to have the opportunity to oversee this process and I congratulate Messrs Ujal Singh Bhatia of India and Thomas R. Graham of the United States on their appointments.
Looking forward to 2012
Finally, we now look forward to 2012, which promises to be a busy year for dispute settlement. Several panels and the Appellate Body are working on matters that started last year. So far in 2012, four panels have been established and eight are in composition. In addition, two requests for consultations have been received. And if we follow the news reports, it seems that many more are soon to come! Fortunately, I will leave the DSB in the very capable hands of Ambassador Bashir of Pakistan.
In closing, I would like to reiterate my appreciation for the support I received from members during my chairmanship of the DSB. It was an interesting and rewarding year.
Thank you as well to the organisers of this session for inviting me to share with you some thoughts on WTO dispute settlement.
1. Oxford Analytica, 18 February 2012. back to text
2. Seventeen consultations were requested in 2010. The annual average of the past five years is 14.2 requests. back to text
3. The nine panels in 2011 represent 13 disputes: two were brought by Canada and Norway against the European Union on the same matter (EC Seal Products I) and a single panel was established by the DSB; four disputes were brought by Costa Rica, El Salvador, Guatemala and Honduras (Dominican Republic Safeguard Measures) and a single panel was established by the DSB.back to text
4. For the period 1995 through 2010, the annual average is 11.8. back to text
5. This includes panel and the Appellate Body activity. back to text
6. This was the case for seven panel reports, which covered eight disputes: US Tuna II (Mexico); US Orange Juice; US COOL (Canada); US COOL (Mexico); EC Fasteners (China); US Tyres (China); EU Footwear (China) and US Cloves Cigarettes (Indonesia). Two of these reports were not appealed (EC Fasteners (China) and US Orange Juice). back to text
7. The other three cases were Canada Wheat Exports and Grain Imports (in 2003), Australia Apples (in 2008) and China Raw Materials (in 2010). back to text
8. This information is drawn from the number of panel or Appellate Body Reports circulated to members. I recognise that on several occasions, a single panel was established to deal with multiple complaints. I also recognise that in some disputes, there were multiple preliminary ruling requests. However, the number 67 represents the overall number of panel or Appellate Body reports circulated to members that have addressed preliminary ruling requests or preliminary objections.back to text
9. The interim and final reports were issued to the parties in 2011; the final report in the three official languages was circulated to all members in January 2012. back to text
10. In US Zeroing (Japan) and US Zeroing (EU).back to text
11. Six of the eight consultations requests submitted in 2011 relate to "trade remedies"; four of the nine panels that were established were "trade remedy" panels; and six of the 13 panel/Appellate Body reports circulated dealt with trade remedies. back to text
12. In this figure, the panelists from Hong Kong, China are counted as Chinese nationals. back to text
13. As of 13 March 2012. This includes panelists of original panels, Article 21.5 compliance panels and Article 22.6 arbitration proceedings. Of the total number of panelists, 126 are from developed countries and 118 are from developing countries. back to text
14. Mr Toufiq Ali from Bangladesh served as the Chair of the compliance panel on US Softwood Lumber (Article 21.5 US). back to text
15. It was originally called International Working Women’s Day and is marked on 8 March every year. back to text
16. Available at http://www.youtube.com/watch?v=ROVDKaL0QUw
See also http://www.wto.org/english/forums_e/women_day_e/women_day_e.htm. back to text
17. To date, 190 panels have been established, but only 161 have been composed thus far. back to text
18. Mrs Carmen Luz Guarda of Chile was the Chair of the Panels in Australia Automotive Leather and US Section 110(5) Copyright Act. Mrs Claudia Orozco Jaramillo of Colombia was the Chair of the Panels in US Section 129(c)(1) URAA and Canada Wheat Exports and Grain Imports. Ms Margaret Liang of Singapore was the Chair of the Panels in EC Sardines and Korea Bovine Meat. Ms Elaine Feldman of Canada was the Chair of the Panel in Argentina Preserved Peaches. Ms Luz Elena Reyes de la Torres of Mexico was the Chair of the Panel in EC Countervailing Measures on DRAM Chips. Ms Marta Lucia Ramirez de Rincon of Colombia was the Chair of the Panel in US Large Civil Aircraft (1st Complaint). Ms Debra Steger of Canada was the Chair of the Panel in Mexico Olive Oil. back to text
19. Merit E. Janow, Lilia Bautista, Jennifer Hillman, and Yuejiao Zhang. back to text
20. The Chair of DSB in 2004 was Ms Amina Chawahir Mohamed (Kenya). back to text
21. Report of the fourth World Conference on Women, Beijing 4‑15 September 1995, UN. Doc. A/CONF.177/20, 17 October 1995, para. 142(b). back to text
22. Cf. "The (lack of) women arbitrators in investment treaty arbitration" by Gus Van Harten, published at Columbia FDI Perspectives (No. 59 February 6, 2012) available at http://www.vcc.columbia.edu/files/vale/print/No_59_-_Van_Harten_-_FINAL_0.pdf.back to text
23. The first 18 judges were appointed in 2003. back to text