WTO Dispute Settlement Understanding (1994) (WTO DSU) - World Arbitration Reporter (WAR) - 2nd Edition
Joanna Gomula is a Fellow at the Lauterpacht Centre for International Law and a Visiting Reader at the Centre for Commercial Law Studies, Queen Mary College, University of London, where she lectures WTO law in the international trade and investment dispute settlement course. She has published in the area of international economic law and public international law. Ms. Gomula has lectured on WTO law at Queen Mary College, the Diplomatic Academy of Vienna, the University of Nanterre in Paris, the University of Hong Kong and the University of Cardinal Stefan Wyszynski in Warsaw. She is an Editorial Board member of the Global Community Yearbook of International Law and Jurisprudence. Ms. Gomula practised for several years in a large international law firm. She holds law degrees from the University of Warsaw and University of Michigan, and a Ph.D. from the Polish Academy of Sciences.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
The Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding, “DSU”) sets forth the rules and procedures for reviewing disputes between Members of the Word Trade Organization (“WTO”). It is found in Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”), which was signed on 15 April 1994 and entered into force on 1 January 1995. Article II: 2 of the WTO Agreement provides that its Annexes 1, 2 and 3 (see Section I(c) below) are integral parts of the WTO Agreement and are binding on all Members. Therefore, all Members are subject to the disciplines of the DSU.
The WTO organ charged with administering the rules and procedures of the DSU is the Dispute Settlement Body (“DSB”). This organ has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize, in case of non-implementation, the suspension of concessions and other obligations under the WTO agreements.
A. Historical Background
The WTO is a continuation of the system developed under the General Agreement on Tariffs and Trade, dated 30 October 1947 (“GATT 1947”). The GATT 1947 did not contain any procedural rules governing the settlement of disputes between its contracting parties. It did not even use the term “dispute” in its text, referring instead to “any matter affecting the operation of the Agreement.” The two provisions in GATT 1947 that formed a basis for the future development of dispute settlement of matters covered by the Agreement were Articles XXII and XXIII. Although GATT 1947 has expired, these provisions are still binding in their original wording. This is because the new General Agreement on Tariffs and Trade 1994 (“GATT 1994”) has incorporated the provisions of GATT 1947. Moreover, as provided by Article 3.1 of the DSU, Members of the WTO “affirm their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and procedures as further elaborated and modified herein.”
Article XXII provides that Members shall “accord sympathetic consideration” to any matter affecting the operation of the Agreement and shall “afford adequate opportunity for consultation” regarding such matters. Article XXIII provides that a Member may take action in three types of circumstances, if it considers that any benefit accruing to it, directly or indirectly under the GATT, is being nullified or impaired or that the attainment of any objective of the GATT is being impeded. “Nullification or impairment of benefits” is a concept specific to GATT/WTO dispute settlement. It reflects the primary goal of the system to maintain the balance of concessions and benefits negotiated by the Members and does not incorporate the traditional notion of compensation for damages in case of a breach of an agreement.
Article XXIII envisages three types of circumstances justifying Members’ complaints: the failure of a party to carry out its obligations (these are known as violation complaints), the application by a party of any measure, regardless of whether or not it conflicts with the GATT (non-violation complaints), and the existence of any other situation (situation complaints). The general rules of the DSU apply to violation complaints. Special provisions regulating non-violation and situation complaints are found in Article 26 of the DSU.
WTO DISPUTE SETTLEMENT UNDERSTANDING (1994) (WTO DSU) - TABLE OF CONTENTS from World Arbitration Reporter (WAR) - 2nd Edition
WTO DISPUTE SETTLEMENT UNDERSTANDING (1994) (WTO DSU)
A. Historical Background
C. Scope of Application
II. CONTRACTING STATES
A. Entry into Force
B. Implementing Legislation
1. Composition of panels
2. Appellate Body members
2. Panel proceedings
3. Proceedings before the Appellate Body
4. Implementation proceedings
D. Alternative Procedures
E. Other Procedures
IV. JUDICIAL/ARBITRAL DECISIONS
A. Text of the DSU