DSU. “Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful.”). 651 652 Dispute settlement benefits through trade liberalization,39 it is the principal objective of WTO dispute settlement to reinstall, as quickly as possible, a situation in which every Member can fully enjoy the benefits it is entitled to under the various agreements.40 For the realization of this objective, the DSU provides a very detailed and rules-based procedure, which consists of several different phases, each of which is subject to mandatory time frames. In the following, this procedure will briefly be described. The methods of interpretation under the DSU are discussed in Annex 1 at the end of this chapter.
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. 47 See Appellate Body Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, para. 92: “[ ] A panel may consider only those claims that it has the authority to consider under its terms of reference. A panel cannot assume jurisdiction that it does not have. In this case, Article 63 was not within the Panel’s jurisdiction, as defined by its terms of reference. Therefore, the Panel had no authority to consider the alternative claim by the United States under Article 63.” 48 See Appellate Body Report on Brazil – Measures Affecting Desiccated Coconut, (fn. 9), p. 22. See also the Appellate Body Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, paras. 88, 89 (partly quoting the EC – bananas decision): “[ ] Article 6.2 of the DSU requires that the claims, but not the arguments, must all be specified sufficiently in the request for the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of the complaint. If a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently “cured” by a complaining party’s argumentation in its first written submission to the panel or in any other submission or statement made later in the panel proceeding. Thus, a claim must be included in the request for the establishment of a panel in order to come within a panel’s terms of reference in a given case [. ]” 49 According to the Appellate Body in the EC – bananas case, the complaining party, in order to meet the requirements in Article 6:2 DSU, has to “list the provisions of the Agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue related to which specific provisions of those agreements. In our view, there is a significant difference between the claims identified in the request for establishment of a panel, which establish the panel’s terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties.” (para. 141 of the report; emphasis in the original). Consequently, panels may not, in their examination, go beyond the legal claims expressly advanced by the complainant. However, they are by no means bound by the l...
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. 654 Dispute settlement
DSU. For the panel work’s timetable, see para. 12 of the Working Procedures (Appendix 3 to the DSU) and the graphical overview in Box 1 at the end of this section, below.
DSU. This also requires the consent of the winning party not to adopt the report. 53 See Article 17, in particular paras. 1 and 6. 54 Article 17:3 DSU. 55 See Article 19:1 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.
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. Note that the full implementation of the DSB rulings is the preferred option; see Article 22:1 DSU.
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). 658 Dispute settlement 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
