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Published online by Cambridge University Press: 26 September 2024
The Appellate Body (AB) of the World Trade Organization (WTO) has not heard an appeal since 2019. This article explores how adjudicators and member states have navigated WTO dispute settlement in this post-AB world. It begins by providing an overview of dispute settlement practice from 2020 to 2022, including by cataloguing appeals into the void, appeals to arbitration, and appeals forewent. It explains the incentives created by the lack of a functioning appeals mechanism and provides background on the alternative appeals procedure agreed to among a subset of WTO members: the Multi-Party Interim Arbitration Arrangement (MPIA). Moreover, it closely examines five WTO disputes: Colombia–Frozen Fries, Turkey–Pharmaceutical Products, EU–Steel Safeguards, Thailand–Cigarettes, and Costa Rica–Avocados. Through these five disputes, the article examines the circumstances in which members have agreed to binding appeals arbitration even absent formally committing to the MPIA, the circumstances in which members have appealed to arbitration or foregone such appeals, and whether facilitated negotiations present a workable alternative to an effective appeals mechanism. Finally, this article closely analyzes the reasoning of two appeals arbitration awards issued to date – Colombia–Frozen Fries and Turkey–Pharmaceutical Products – with a special focus on how those awards depart from AB precedent and what those departures can tell us about the current crisis.
Assistant Professor of Law, Co-Director of the Dennis J. Block Center for the Study of International Business Law, Brooklyn Law School. I am grateful to Anu Bradford, Bill Davey, Niall Meagher, Mark Moulen, and Petros Mavroidis for their thoughtful comments on an earlier draft of this article.
1 The original members of the MPIA include: Australia; Brazil; Canada; China; Chile; Colombia; Costa Rica; the European Union (counting the EU and its twenty-seven members as one); Guatemala; Hong Kong, China; Iceland; Mexico; New Zealand; Norway; Pakistan; Singapore; Switzerland; Ukraine and Uruguay. Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, Addendum, Multi-party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU, WTO Doc. JOB/DSB/1/Add.12, 30 April 2020 [hereinafter MPIA].
2 MPIA, preamble.
3 MPIA, para. 1. The MPIA further commits ‘the participating Members [to] not pursue appeals' to the Appellate Body until it is reconstituted. Ibid., para. 2. Resort to arbitration is allowed under Article 25 of the Dispute Settlement Understanding (DSU), which provides for arbitration ‘as an alternative means of dispute settlement’, ‘subject to mutual agreement of the parties’. Dispute Settlement Understanding, Arts. 25(1), 25(2). DSU Article 25 defines little about the arbitral process, leaving the definition of that process, including the appointment of arbitrators, up to the parties' agreement.
4 An additional seven WTO members would later join the Arrangement, including Benin; Ecuador; Japan; Macao, China; Montenegro; Nicaragua; and Peru.
5 Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands (Colombia–Frozen Fries), WT/DS591.
6 Turkey – Certain Measures Concerning the Production, Importation and Marketing of Pharmaceutical Products (Turkey–Pharmaceutical Products), WT/DS583.
7 European Union – Safeguard Measures on Certain Steel Products (EU–Steel Safeguards), WT/DS595.
8 Costa Rica – Measures Concerning the Importation of Fresh Avocados from Mexico (Costa Rica–Avocados), WT/DS524.
9 Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines (Thailand–Cigarettes), WT/DS371.
10 See Appendix A for a list of disputes referenced and discussed in this Section.
11 Of the last 105 panel reports, approximately 90% have been appealed. See P. Mavroidis (2022) The WTO Dispute Settlement System: How, Why and Where? Edward Elgar, 216.
12 United States – Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products (US–Photovoltaic Safeguard), WT/DS562. Another report, European Union – Cost Adjustment Methodologies and Certain Anti-Dumping Measures on Imports from Russia – (Second Complaint)(EU–Cost Adjustment Methodologies II), WT/DS494, was cross-appealed by the complainant after the respondent had filed their appeal into the void.
13 See Appendix B.
14 R. Howse (2023) ‘Unappealable but not Unappealing: WTO Dispute Settlement without the Appellate Body’, International Institute for Sustainable Development, 17 July 2023, www.iisd.org/articles/policy-analysis/wto-dispute-settlement-without-appellate-body.
15 Mavroidis, supra note 11, at 466.
16 See Appendix A.
17 MPIA, Annex 1, para. 9.
18 Ibid., Annex 1, para. 10.
19 Ibid., Annex 1, para. 12.
20 United States Trade Representative (2022), ‘Report on the Appellate Body of the World Trade Organization’, 26–32.
21 Ibid., at 47–54.
22 Ibid., at 37–46.
23 The final award in Colombia–Frozen Fries was 39 pages (76 including annexes) and was issued to the parties on 19 December 2022 and notified to the Dispute Settlement Body (DSB) on 21 December 2022, less than 90 days after Colombia filed its appeal on 6 October 2022. Colombia – Frozen Fries, Award of the Arbitrators, WT/DS591/ARB25, 21 December 2022, para. 1.7. The final award in Turkey–Pharmaceutical Products was 50 pages (excluding annexes) and was circulated on 25 July 2022, which was 90 days after Turkey filed its appeal on 25 April 2022. Turkey – Pharmaceutical Products, Award of the Arbitrators, WT/DS583/ARB25, 25 July 2022, para. 1.9.
24 MPIA, para. 7 (‘The participating Members envisage that appeal arbitrators will be provided with appropriate administrative and legal support, which will offer the necessary guarantees of quality and independence, given the nature of the responsibilities involved. The participating Members envisage that the support structure will be entirely separate from the WTO Secretariat staff and its divisions supporting the panels and be answerable, regarding the substance of their work, only to appeal arbitrators. The participating Members request the WTO Director General to ensure the availability of a support structure meeting these criteria.’).
25 This information was provided by an official within the WTO Secretariat, who wished to remain anonymous.
26 The arbitrators selected for this dispute were: José Alfredo Graça Lima, Alejandro Jara, and Joost Pauwelyn. They elected José Alfredo Graça Lima as the Chairperson.
27 MPIA, para. 4; MPIA, Annex 1, para. 7.
28 MPIA, Annex 2, paras. 1, 4.
29 MPIA, Annex 1, para. 7.
30 The arbitration agreement connected the selection of arbitrators in Turkey–Pharmaceutical Products to the selection of arbitrators in EU–Steel Safeguards, which was also between the EU and Turkey. It was designed to ‘ensure that one randomly selected appeal is heard by two former Appellate Body Members and one MPIA appeal arbitrator whilst the appeal in the other dispute is heard by one former Appellate Body Member and two MPIA appeal arbitrators. If there is only one appeal it will be heard by one former Appellate Body Member, one MPIA appeal arbitrator, and the third person shall be drawn at random from the remaining persons on the combined list. The random selection shall be made immediately after the filing of any notice of appeal and the arbitrators informed immediately.’ Turkey – Pharmaceutical Products, Agreed Procedures for Arbitration under Article 25 of the DSU, WT/DS583/10, 22 March 2022, para. 7.
31 Colombia–Frozen Fries, Award of the Arbitrators, paras. 4.3–4.7.
32 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.5.
33 Ibid., at para. 4.7. Article 5 of the ADA provides as follows:
5.2 An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link between the dumped imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. The application shall contain such information as is reasonably available to the applicant on the following:
…
(iii) information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product) and information on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyer in the territory of the importing Member;
…
5.3 The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation.
34 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.7. According to the panel, in assessing the application under Article 5.3 of the Anti-Dumping Agreement, the Colombian national authority ‘simply recited the reasons provided by [the industry applicant] for choosing third-country sales prices to the United Kingdom’. For the Panel, the record thus indicated ‘a complete absence of any explanation by [the applicant] or examination thereof by [the national authority] as to why domestic sales prices were not contained in the application and could not be used for purposes of initiation in the specific situation at hand’. Ibid., para. 4.6.
35 The arbitrators defined the issue as follows: ‘Whether it is permissible to interpret the phrase “where appropriate” in Article 5.2(iii) of the Anti-Dumping Agreement as granting “free choice” in the use of third-country sales prices as a basis for normal value; and whether the Panel erred under Articles 5.2(iii) and 5.3 of the Anti-Dumping Agreement by requiring an explanation as to why domestic sales prices were not used.’ Ibid., para. 4.1(a).
36 See Ibid., at para. 4.11.
37 European Communities – Antidumping Duties on Imports of Cotton-type Bed Linen from India (EC–Bed Linens), Report of the Appellate Body, WT/DS141/AB/R, 1 March 2001, paras. 63–65.
38 United States – Continued Existence and Application of Zeroing Methodology (US–Continued Zeroing), Report of the Appellate Body, WT/DS350/AB/R, 4 February 2009, para. 271. See also Russia – Anti-dumping duties on Light Commercial Vehicles from Germany and Italy, Report of the Appellate Body, WT/DS479/AB/R, 22 March 2018, paras. 5.38–5.39 (‘The second sentence of Article 17.6(ii) of the Anti-Dumping Agreement provides that, where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the investigating authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. Read together with the first sentence of Article 17.6(ii), the second sentence allows for the possibility that the application of the rules of the Vienna Convention on the Law of Treaties (Vienna Convention) may give rise to an interpretative range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the challenged measure to be in conformity with the Anti-Dumping Agreement … In this case, the Panel did not find that the interpretation of Article 4.1 of the Anti-Dumping Agreement, according to the customary rules of interpretation codified in the Vienna Convention, resulted in at least two permissible interpretations.’); United States – Anti-dumping Measures on Certain Hot-Rolled Steel Products from Japan, Report of the Appellate Body, WT/DS184/AB/R, 24 July 2001, para. 60 (‘under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti- Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention. In other words, a permissible interpretation is one which is found to be appropriate after application of the pertinent rules of the Vienna Convention.’); Ibid., at para. 62 (‘Nothing in Article 17.6(ii) of the Anti-Dumping Agreement suggests that panels examining claims under that Agreement should not conduct an “objective assessment” of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Article 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.’).
39 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.13.
40 Ibid. (emphasis added).
41 Cf. Ibid., para. 4.11.
42 Ibid., para. 4.12.
43 Ibid. Article 17.6(i) reads as follows:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned.
44 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.14.
45 Ibid.
46 Ibid. That justification is consistent with arguments made by the United States. See, e.g., United States – Final Anti-dumping Measures on Stainless Steel from Mexico, Report of the Appellate Body, WT/DS344/AB/R, 30 April 2008, para. 53 (‘Article 17.6(ii) was added to the Anti-Dumping Agreement in the closing days of the Uruguay Round negotiations. This, in the United States' view, reflects the negotiators’ recognition that they had left certain issues unresolved in the Anti-Dumping Agreement and that customary rules of interpretation of public international law would not always yield only one permissible reading of a given provision. For the United States, the absence of a similar provision in other WTO agreements demonstrates that WTO Members were aware that the anti-dumping text “would pose particular challenges and in many instances would permit more than one legitimate interpretation”.’ (citing United States' Other Appellant's Submission, para. 137)). See also United States – Continued Zeroing, Report of the Appellate Body, para. 265 (‘The United States adds that Article 17.6(ii) was negotiated “as a recognition that some provisions of the [Anti-Dumping Agreement] would be susceptible to multiple permissible interpretations”.’ (quoting United States' Other Appellant's submission, para. 53)).
47 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.18.
48 Ibid., paras. 4.18–4.21.
49 Ibid., paras. 4.20–4.24.
50 Howse, supra note 14. See also D. McRae (2011) ‘Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the Anti-Dumping Agreement’, in The Law of Treaties Beyond the Vienna Convention. Oxford University Press, 179 (‘the Vienna Convention rules are not primary rules of obligation; they are secondary rules telling states and adjudicators how to go about the process of interpretation. They do contain obligations within them, for example, not to resort to preparatory work unless the result is ambiguous or manifestly absurd. They do not, however, dictate any particular result. They are facilitative not disciplinary and do not “instruct the treaty interpreter to find a single meaning of the treaty” as a former Appellate Body member has written … . Under this view, an interpretation is authoritative not because of the application of the Vienna Convention, but rather because of the authority of the tribunal that made the choice amongst the various possible interpretations. In this light, the existence of one or more permissible interpretations in any interpretative exercise is the norm rather than the exception. It is based on the view that the core of interpretation is choice.’). (fns omitted) (cited in Arbitration Award, at note 43)).
51 See DSU, Art. 11 (‘a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements … ’.).
52 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.14.
53 Cf. P. Mavroidis, (2022) The Sources of WTO Law and their Interpretation: Is the New OK, OK?. Edward Elgar, 107(‘The working hypothesis in Article 17. 6 (ii) is that recourse to the VCLT does not necessarily lead to one interpretation.’).
54 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.13 (emphasis added).
55 Ibid., para. 4.20.
56 Ibid., paras. 4.20, 4.21.
57 MPIA, Annex 1, para. 10.
58 Colombia–Frozen Fries, Award of the Arbitrators, para. 4.8 (‘The parties agree that our assessment of whether the Panel's specific findings under Articles 5.2(iii) and 5.3 constitute a legal error must be guided by Article 17.6. This is the case even though Colombia did not file a separate claim on appeal under Article 17.6. Article 17.6 is relevant and applies to any interpretation of the Anti-Dumping Agreement, including ours under Articles 5.2(iii) and 5.3.’).
59 Mavroidis, supra note 11, at 503.
60 See United States–Measures Relating to Zeroing and Sunset Reviews, Report of the Appellate Body, WT/DS322/AB/R, 9 January 2007, para. 189 (‘[there] is no room for recourse to the second sentence of Article 17.6(ii) in this appeal. That is because, in our view, [the ADA and the GATT], when interpreted in accordance with customary rules of interpretation of public international law, as required by the first sentence of Article 17.6(ii), do not admit of another interpretation of these provisions as far as the issue of zeroing before us is concerned’.); United States–Final Dumping Determination on Softwood Lumber from Canada–Recourse to Article 21.5 of the DSU by Canada, Report of the Appellate Body, WT/DS264/AB/RW, 15 August 2006, para. 123, note 207, (‘The Appellate Body has explained that “a permissible interpretation is one which is found to be appropriate after application” of the customary rules of interpretation reflected in Articles 31 and 32 of the Vienna Convention’ (quoting Appellate Body Report, US – Hot-Rolled Steel, para. 60 (emphasis in original)); United States – Final Dumping Determination on Softwood Lumber from Canada, Report of the Appellate Body, WT/DS264/AB/R, 11 August 2004, para. 116 (‘In our view, the Anti-Dumping Agreement, when interpreted in accordance with customary rules of interpretation of public international law, as required by Article 17.6(ii), does not permit establishing margins of dumping for product types when the product as a whole is under investigation. The United States' interpretation of Article 2.4.2 is, therefore, not a “permissible interpretation” of that provision within the meaning of Article 17.6(ii). Hence, we see no error on the part of the Panel with respect to the Panel's obligations under Article 17.6(ii) of the Anti-Dumping Agreement.’ (emphasis in original)); United States – Laws, Regulations and Methodology for Calculating Dumping Margins (‘Zeroing’), Report of the Appellate Body, WT/DS294/AB/R, 18 April 2006, para. 134 (‘In our analysis of whether the zeroing methodology, as applied by United States in the administrative reviews at issue, is inconsistent with Article 9.3 of the Anti-Dumping Agreement and ArticleVI:2 of the GATT 1994, we have been mindful of the standard of review set out in Article 17.6(ii) of the Anti-Dumping Agreement. Article 9.3 of the Anti-Dumping Agreement, and Article VI:2 of the GATT 1994, when interpreted in accordance with customary rules of interpretation of public international law, as required by Article 17.6(ii), do not, in our view, allow the use of the methodology applied by the United States in the administrative reviews at issue. This is so because, as explained above, the methodology applied by the USDOC in the administrative reviews at issue results in amounts of assessed anti-dumping duties that exceed the foreign producers’ or exporters' margins of dumping.’ (emphasis in original)); United States – Continued Existence and Application of Zeroing Methodology, Report of the Appellate Body, WT/DS350/AB/R, 4 February 2009, paras. 271–287; United States – Final Anti-dumping measures on Stainless Steel from Mexico, Report of the Appellate Body, WT/DS344/AB/R, 30 April 2008, para. 136 (‘In our analysis, we have been mindful of the standard of review provided in Article 17.6(ii) of the Anti-Dumping Agreement. However, we consider that Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement, when interpreted in accordance with the customary rules of interpretation of public international law as required by the first sentence of Article 17.6(ii) of the Anti-Dumping Agreement, do not admit of another interpretation as far as the issue of zeroing raised in this appeal is concerned.’).
61 Mavroidis, supra note 11, at 43.
62 United States Trade Representative (2022) ‘Report on the Appellate Body of the World Trade Organization’, 102.
63 Ibid.
64 Informal Process on Matters Related to the Functioning of the Appellate Body – Report by the Facilitator, H.E. Dr. David Walker (New Zealand), JOB/GC/22, 15 October 2019, Annex, Draft General Council Decision on Functioning of the Appellate Body, at p. 6.
65 The parties informed the DSB of their intent to arbitrate on 22 March 2022. See Turkey–Pharmaceutical Products, Agreed Procedure for Arbitration under Article 25 of the DSU, WT/DS583/10, 25 March 2022. A confidential final panel report had been circulated to the parties on 11 November 2021. See Summary of the Dispute to Date, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds583_e.htm.
66 See EU–Steel Safeguards, Agreed Procedure for Arbitration under Article 25 of the DSU, WT/DS595/10, 25 March 2022. A confidential final panel report had been circulated to the parties in this dispute on 10 December 2021. See Summary of the Dispute to Date, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds595_e.htm
67 Turkey–Pharmaceutical Products, Award of the Arbitrators, para. 6.7.
68 Ibid., para. 6.8.
69 Ibid., paras. 6.9, 6.80.
70 Ibid., para. 6.26.
71 Ibid., para. 3.4.
72 Ibid., para. 6.14.
73 Ibid., para. 6.24.
74 Ibid., para. 6.26.
75 India – Certain Measures Relating to Solar Cells and Solar Modules, Report of the Appellate Body, WT/DS456/AB/R, 16 September 2016, para. 5.18 (quoting Canada – Certain Measures Affecting the Renewable Energy Generation Sector, WT/DS412/AB/R, Canada – Measures Relating to the Feed-in-Tariff Program, WT/DS426/AB/R, Report of the Appellate Body, 6 May 2013, para. 5.74). The arbitrators in Turkey–Pharmaceutical Products dismissed this as a ‘statement [that] was not the result of an interpretation of Article III:8(a) by the Appellate Body’, as it was made in the context of a dispute where ‘whether a non-governmental entity could be the purchasing entity for the purposes “of Article III:8(a) was not at issue”’. Turkey – Pharmaceutical Products, Award of the Arbitrators, para. 6.48.
76 Canada – Certain Measures Affecting the Renewable Energy Generation Sector (Canada–Renewable Energy Generation Sector), WT/DS412/AB/R, Canada – Measures Relating to the Feed-in-Tariff Program (Canada–Feed-in-Tariff Program), Report of the Appellate Body, WT/DS426/AB/R, 6 May 2013, para. 5.59; (‘[T]he concepts of “procurement” and “purchase” are not to be equated. As we see it, “procurement” is the operative word in Article III:8(a) describing the process and conduct of the governmental agency. The word “purchased” is used to describe the type of transaction used to put into effect that procurement. … We therefore understand the word “procurement” to refer to the process pursuant to which a government acquires products. The precise range of contractual arrangements that are encompassed by the concept of “purchase” is not a matter we need to decide in this case.’).
77 Ibid., para. 5.74 (emphasis added). The arbitrators here argued this statement provided ‘limited assistance’ in their interpretation of Article III:8 because ‘whether a non-governmental entity could be the purchasing entity for the purposes of Article III:8(a) was not at issue in either of these two disputes’. Turkey – Pharmaceutical Products, Award of the Arbitrators, para. 6.48.
78 Turkey – Pharmaceutical Products, Award of the Arbitrators, para. 6.48.
79 Ibid., para. 6.42.
80 Ibid., para. 6.58 (‘Depending on the particular circumstances of each case, the following elements could be relevant to whether there is procurement by a governmental agency: ownership of the products by the governmental agency or other property rights or title over the products; the governmental agency holding or exercising other legal or contractual rights associated with the products; price setting and payment by the governmental agency; use of the products by the governmental agency; physical possession of the products by the governmental agency; control by the governmental agency over the products; ultimate benefit of the products by the governmental agency; and the governmental agency bearing risks, such as commercial risks, associated with the products. We consider this list to be non-exhaustive and relevant elements should be taken into account in a holistic manner.’).
81 Ibid., para. 6.46.
82 Ibid., paras. 6.58, 6.61, 6.65, 6.66.
83 Ibid., para. 6.68.
84 Ibid., para. 6.61.
85 Ibid., para. 6.67, 6.68.
86 Vienna Convention on the Law of Treaties, art. 32(b).
87 Cf. Zhou, W., ‘Turkey – Certain Measures Concerning the Production, Importation and Marketing of Pharmaceutical Products, WT/DS583/ARB25’, American Journal of International Law 117, no. 2 (2023): 322CrossRefGoogle Scholar, 326 (‘the arbitrators' view that “purchases” can be undertaken by a non-governmental agency is plausible based on a strict textual interpretation of Article III:8(a). However, from a commercial perspective, where an entity purchases goods for governmental purposes, it is likely that the entity is already formally engaged by the government which creates a contractual principal-agency relationship in that transaction. This commercial reality may diminish the practical significance of the arbitrators' interpretation because the entity would be a governmental agency in most circumstances. Nevertheless, these interpretative clarifications are well within the bounds of the dispute and have advanced the jurisprudence under Article III:8(a).’).
88 MPIA, Annex 1, para. 10.
89 Moreover, Turkey had not raised the argument that Article III:8 did not require a ‘purchase’ by a governmental agency at the panel stage. Turkey–Pharmaceutical Products, Award of the Arbitrators, para. 6.36. The arbitrators noted this but concluded that they were not precluded from considering new arguments as to the interpretation of the GATT, particularly given that such consideration did not require the solicitation or consideration of new facts. Ibid.
90 Agreement on Government Procurement, art. 2.2.
91 Cf. Zhou, supra note 87, at 326 (opining that the arbitrators' interpretation was ‘well within the bounds of the dispute and [has] advanced the jurisprudence under Article III:8(a)’.).
92 See Appendix A.
93 See Appendix A.
94 EU – Steel Safeguards, Report of the Panel, WT/DS595/R, 29 April 2022, para. 7.51.
95 Ibid., para. 7.92.
96 The panel rejected some of Turkey's main claims but accepted others. The panel rejected Turkey's arguments that the EU's measures were inconsistent with Articles 4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards, because they applied 26 distinct safeguards to 26 different product categories of steel, without concluding separate investigations into each of the categories. EU–Steel Safeguards, Report of the Panel, para. 7.48. Instead, it accepted the EU's argument that it had applied a single safeguard to the 26 product categories taken together and had appropriately conducted an invagination into the circumstances and conditions of the product categories taken together. Ibid., paras. 7.66, 7.67. The panel also rejected Turkey's arguments that the three allegedly unforeseen developments the EU predicated its safeguard measures on were not in fact unforeseen. Ibid., para. 7.32. More specifically, the panel found that the existence of overcapacity during the Uruguay Round did not make the ‘continued’ and ‘unprecedented’ increase in overcapacity foreseeable at the time. Ibid., para. 7.101. The panel also found that neither the WTO Agreements' allowance for trade defensive measures, nor the existing legislation of a Member (here US Section 232) allowing for trade defensive measures, make the particular use or application of such measures with respect to steel foreseeable. Ibid., paras. 7.112, 7.116. The panel also rejected Turkey's arguments that the increase in imports were not sufficiently ‘sudden, significant, sharp or recent enough to threaten to cause serious injury’. Ibid., para. 7.188.
97 EU – Steel Safeguard, Report of the Panel, para. 7.127.
98 Ibid., para. 7.131.
99 Ibid., para. 7.129.
100 Ibid., para. 7.131.
101 Ibid., paras. 7.85, 7.143. The panel came to similar conclusions with respect to the connection between increased trade defense measures and the US Section 232 tariffs. Ibid., paras. 7.136–7.138, 7.143–7.148.
102 Ibid., para. 7.209.
103 Ibid., para. 7.206. The panel found that ‘Agreement on Safeguards does not establish a categorical rule that precludes authorities from finding a threat of serious injury whenever the data show positive trends in the domestic industry's performance at a given point of the POI. Rather, Article 4.1(b) provides that “threat of serious injury” shall be understood to mean serious injury that is clearly imminent’, which requires a fact-specific determination to be made on a case-by-case basis. Ibid., para. 7.206.
104 Ibid., para. 7.222. The panel also found that the EU violated Article XIX:1(a) by failing to ‘identif[y] in its published reports the [WTO] obligations whose effect resulted in the increase in imports’. The EU acknowledged that it had not identified its obligation to grant Turkish imports duty free access in its published determinations, but argued that its 0% tariff binding obligations under the GATT were self-evident. Ibid., para. 7.165–7.166.
105 See supra notes 61–62.
106 See EU–Steel Safeguards, Current Status, www.wto.org/english/tratop_e/dispu_e/cases_e/ds595_e.htm. (last visited 31 August 2023).
107 The EU and Turkey agreed to arbitrate an appeal in this dispute by 22 March 2022. EU – Steel Safeguards, Agreed Procedure for Arbitration Under Article 25 of the DSU, WT/DS595/10, 25 March 2022. A confidential final panel report had been circulated to the parties months before on 10 December 2021. See Summary of the Dispute to Date, www.wto.org/english/tratop_e/dispu_e/cases_e/ds595_e.htm.
108 Costa Rica – Measures Concerning the Importation of Fresh Avocados from Mexico (Costa Rica–Avocados), Report of the Panel, WT/DS524/R, 13 April 2022, para. 6.1
109 Ibid., para. 2.1.
110 Ibid., paras. 2.1.3 and 2.1.4, 2.1.5.
111 Ibid., para. 7.857.
112 Ibid., para. 7.861.
113 Ibid., para. 7.1723.
114 Ibid., para. 7.1736. The panel also found that Costa Rica acted inconsistently with Article 5.6 of the SPS Agreement by unjustifiably discriminating between Costa Rican and Mexico avocados in which ASBVd is likely to be present. Ibid., 7.2178.
115 Mavroidis, supra note 11, at 216.
116 Thailand–Cigarettes, Report of the Panel, 15 November 2010.
117 Thailand–Cigarettes, Report of the Appellate Body, 17 July 2011.
118 Thailand–Cigarettes, Recourse to Article 21.5 of the DSU by the Philippines, Report of the Panel, 12 November 2018.
119 Thailand–Cigarettes, Second Recourse to Article 21.5 of the DSU by the Philippines, Report of the Panel, 12 July 2019.
120 Thailand – Cigarettes, Communication from the Chairperson of the DSB Concerning the Understanding between the Philippines and Thailand to Pursue Facilitator-Assisted Discussions Aimed at Progressing and Resolving Outstanding Issues in Regard to DS371, WT/DS371/44, 21 December 2020, at 2.
121 Ibid.
122 Ibid.
123 Ibid.
124 Thailand – Cigarettes, Report of the Facilitator Pursuant to Paragraph 5 of the ‘Understanding between the Philippines and Thailand to Pursue Facilitator-Assisted Discussions Aimed at Progressing and Resolving Outstanding Issues in Regard to DS371’, WT/DS371/45, 6 April 2021 (‘I wish to report that I have met together with the DS371 parties on six separate occasions since being appointed as Facilitator in December 2020. It is not my intention to report on the detail of the consultations, which remain confidential. I am, however, pleased to report that I consider that the consultations have been valuable in providing the parties with an opportunity to present their respective views on ways and means of resolving outstanding issues, including on “both procedural, and/or substantive approaches, including a potential comprehensive settlement” as envisaged in paragraph 2 of the 18 December 2020 Understanding.’).
125 Thailand – Cigarettes, Report of the Facilitator Pursuant to Paragraph 5 of the ‘Understanding Between the Philippines and Thailand to Pursue Facilitator-Assisted Discussions Aimed at Progressing and Resolving Outstanding Issues in Regard to DS371’, WT/DS371/46, 5 July 2022.
126 In a joint communication from the parties attached to the second report of the facilitator, both the Philippines and Thailand noted their view that the Understanding represented a ‘successful outcome of the facilitator-assisted process’. The parties noted the Understanding ‘underlines the commitment of Thailand and the Philippines to continue their close cooperation, particularly through the frank and open dialogue process that will be facilitated under the BCM, consistent with the strong spirit of ASEAN solidarity and friendship which unites them and their commitment to the WTO's rules-based dispute settlement system’. Ibid., at 3.
127 Ibid., at 1.
128 Ibid., at 3.
129 Sequencing agreements are not uncommon given that Articles 21 and 22 of the DSU fail to establish a clear sequence for compliance panel reports, appeals of those reports, arbitrations as to the appropriate level of compensation, and the suspension of concessions. See M. Matsushita, T. Schoenbaum, P. Mavroidis, and M. Hahn (2015), The World Trade Organization: Law, Practice and Policy, Oxford University Press, 95–96.
130 It is also worth noting that even the facilitator, Ambassador George Mina, expressed his view that the process was second best to a functioning AB. He closed his second report noting: ‘Facilitation … require[s] a substantial investment of energy, of political commitment, and of time. Such processes require an engineering of process that in most cases will be unnecessary if we are able to return to a fully and well-functioning dispute settlement system in line with the commitment Ministers have recently made at MC12.’ Thailand –Cigarettes, Report of the Facilitator Pursuant to Paragraph 5 of the ‘Understanding Between the Philippines and Thailand to Pursue Facilitator-Assisted Discussions Aimed at Progressing and Resolving Outstanding Issues in Regard to DS371’, WT/DS371/46, 5 July 2022.
131 Source: World Trade Organization, Dispute Settlement: The Disputes, https://www.wto.org/english/tratop_e/dispu_e/dispu_current_status_e.htm (last visited August 31, 2023).
132 Source: World Trade Organization, Dispute Settlement: The Disputes, Chronological List of Disputes, https://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm (last visited August 31, 2023).