DSU Sample Clauses

DSU. “During consultations Members should give special attention to the particular problems and interests of developing country Members.” It has been observed that there is no possibility of assessing Members’ compliance with this rule, because it does not specify what exactly is meant by “special attention”.176 This provision is thus of declaratory nature and of very limited practical use.177

DSU. “In the context of consultations involving a measure taken by a developing coun- try Member, the parties may agree to extend the periods established in para- graphs 7 and 8 of Article 4. If, after the relevant period has elapsed, the con- sulting parties cannot agree that the consultations have concluded, the Chairman of the DSB shall decide, after consultation with the parties, whether to extend the relevant period and, if so, for how long. In addition, in examining a com- plaint against a developing country Member, the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation. [... ]” So far, the DSB chairman has never taken a formal decision concerning the ex- tension of consultation periods.181

DSU. The nomination of the panelists is up to the parties, who in more than 50% of the cases cannot find three persons who are acceptable to both of them. In that case, it is the WTO Director-General who appoints the panelists, in consultation with the chairman of the DSB and the chairman of the relevant Council or Committee, as stipulated in Article 8:7 DSU.

DSU. “While the Secretariat assists Members in respect of dispute settlement at their request, there may also be a need to provide additional legal advice and assistance in respect of dispute settlement to developing country Members. To this end, the Secretariat shall make available a qualified legal expert from the WTO techni- cal cooperation services to any developing country Member which so requests. This expert shall assist the developing country Member in a manner ensuring the continued impartiality of the Secretariat.” It has been observed that despite this important support, developing countries are nevertheless inclined to ask for costly legal advice from abroad. WTO legal experts are obliged to keep their impartiality with respect to all the parties to the dispute. It cannot be their objective to argue a case in favour of one of the parties.185 7.5 General implications of the rules-based system of the DSU (a) DSU makes it clear that Members are not allowed to determine unilaterally whether another Member has violated WTO rules. The only way to arrive at this conclusion is through recourse to the DSU procedures (see Article 23:1 of the DSU). For developing countries, this aspect should not be underestimated. Consider- ing the very different levels of domestic IPR systems, there will certainly be a lot of disagreement between industrialized and developing country Members as to the TRIPS legality of certain domestic legislation. In that case, however, developing countries are no longer confronted with a unilateral assessment of their legis- lation by their developed country counterparts. WTO panels and the Appellate Body are construed as impartial adjudicative bodies (see Article 8:2 of the DSU for the panels; Article 17:3 for the AB). Their obligation to base their findings only on questions of law (as opposed to political considerations) contributes to the predictability and transparency of the dispute settlement system. There are a number of examples in the GATT/WTO dispute settlement history of developing countries successfully defending their WTO-compatible interests against powerful global players. In the Tuna-Dolphin I dispute,186 Mexico suc- cessfully challenged U.S. legislation banning the imports of tuna caught with cer- tain fishing techniques. The panel held that unilateral action with extraterritorial 185 Ibid., p. 23. 186 BISD 39S/155–205.

DSU. 1. At all stages of the determination of the causes of a dispute and of dispute settlement procedures involving a least-developed country Member, particular consideration shall be given to the special situation of least-developed country Members. In this regard, Members shall exercise due restraint in raising matters under these procedures involving a least-developed country Member. If nullifica- tion or impairment is found to result from a measure taken by a least-developed country Member, complaining parties shall exercise due restraint in asking for compensation or seeking authorization to suspend the application of concessions or other obligations pursuant to these procedures. 2. In dispute settlement cases involving a least-developed country Member, where a satisfactory solution has not been found in the course of consultations the Director-General or the Chairman of the DSB shall, upon request by a least- developed country Member offer their good offices, conciliation and mediation with a view to assisting the parties to settle the dispute, before a request for a panel is made. The Director-General or the Chairman of the DSB, in providing the above assistance, may consult any source which either deems appropriate.” Since no LDC has ever been involved in a WTO dispute, an assessment of this provision is not possible for the time being. 183 Ibid., p. 21. 184 Ibid., proposing a careful analysis of the reasons for the “apathy” on the part of developing countries to have recourse to the differential treatment provisions.

DSU. This procedure was employed, for instance, against the EC’s implementing measures in the EC – bananas case (concerning the WTO-irregularity of the EC’s import regime for bananas).

DSU. 75 To be determined upon proposal of the Member concerned, through mutual agreement between the parties or through binding arbitration. See Article 21:3 DSU, in particular lit. (c). 76 Article 22:2 DSU. 77 Article 22:6 DSU (first sentence). 78 Article 22:6 DSU (third sentence). disciplines, but they do not contain their own dispute settlement mechanism. In- stead, reference is made to the settlement of disputes before the International Court of Justice (ICJ).79 The dispute settlement system under the GATT 1947 was considerably different from that of the WTO. The detailed DSU did not exist, but parties relied on the rather general provisions of Article XXIII GATT.80 This Article contained both pro- visions on consultations (in paragraph 1) and dispute settlement (in paragraph 2). The major difference consists of the shift of the dispute settlement system from a diplomatic forum to a rules-based, court-like procedure.81 This “legalization” of the dispute settlement system is best illustrated by the fact that under the GATT 1947, panel reports could only be adopted if all Contracting Parties, including the losing one, agreed to do so. This was in fact the exact op- posite of the quasi-automatic adoption of reports under the DSU of the WTO. In other words, under the old GATT, it used to be considerably easier for the party found in violation of a GATT obligation to block the adoption of the report. It suf- ficed simply to vote against its adoption in the GATT Council, whereas nowadays a Member would have to convince every other Member, including the complainant, to vote against the adoption of the report.82 The second major element of the “legalization” of the dispute settlement system referred to above is the creation of the Appellate Body. Under the GATT 1947, by contrast, there was no means of reviewing the legal aspects of panel recommen- dations. Due to the quasi-automatic adoption of panel reports under the DSU, the possibility of review is more important than under the GATT 1947. As far as the GATT 1947 case law is concerned, one of the most famous dis- putes was indeed one involving intellectual property rights, albeit indirectly. This was the panel report on United States: Section 337 of the Tariff Act of 1930.83 This dispute brought by the EC against the USA concerned the claim by the EC that for the purpose of enforcing intellectual property rights in the USA, the imported

DSU. “If the case is one brought by a developing country Member, in considering what appropriate action might be taken, the DSB shall take into account not only the trade coverage of measures complained of, but also their impact on the economy of developing country Members concerned.” So far, the DSB has never made use of this provision.184

DSU. This might be the result of successful diplomatic consultations between the parties (see above), which may be continued while the panel process proceeds, Article 5:5 DSU. If the panel’s work has been suspended for more than 12 months, the authority for establishment of the panel shall lapse, Article 12:12 DSU.

DSU. 58 The Member concerned is granted a “reasonable period of time” to implement the rulings of the DSB. This period can be determined through binding arbitration, Article 21:3 c) DSU.