The routine dispute adjudication procedure in the WTO is a two-phase process: disputing parties will resort to bilateral consultations, and if they prove unsuccessful, complainants can submit to a panel, and if need be, to the Appellate Body. Davey discusses all this in detail. With the Appellate Body now in abeyance, as a result of the Trump Administration’s frontal assault against it, and the risk of appealing into the void, it is probably a good time to rethink the potential value of alternative proceedings, which anyway have been included in the Dispute Settlement Understanding (DSU), the agreement regulating adjudication at the WTO, but have been under-utilized.
The DSU provides for two distinct alternative proceedings: in Article5, the Director-General (DG) takes center-stage and acts as mediator, whereas disputing parties can enter into an agreement for expedited arbitration under Article 25. In this paper, we focus on the latter.
In Section II, we discuss practice in the realm of alternative proceedings so far, and in Section III, we suggest ways to improve the current regime. Section IV recaps the main conclusions.
II. ARBITRATION UNDER ARTICLE 25 OF THE DSU
The arbitration process is embedded in Article 25 of the DSU, and was thought as an expedited process.