DSU

Question 1

What are the three types of complaints?

Answer 1

1. Violation complaints - presumption of nullification or impairment (DSU Art 3.8)
2. Non-violation complaints (need to show nullification/impairment of benefit - Panel, EC-Asbestos - must upset competitive relationship)
3. Situation complaints

Question 2

How is mandatory/discretionary legislation dealt with?

Answer 2

Mandatory legislation can be challenged as such.

Discretionary legislation only challenged upon its application (Panel, US-Tobacco), unless shown to be inconsistent as such (Panel, US-Section 301)

Question 3

What are the dispute resolution mechanisms available to members?

Answer 3

Consultations/negotiations (art 4)

Good offices, conciliation, mediation (art 5)
Adjudication by Panel/AB (Arts 6 to 20)
Arbitration (Art 25, 21.3(c) and 22.6 - concerning specific issues)

Question 4

What must parties do before going to Panel?

Answer 4

Enter consultations (Art 3.7)

Question 5

What is relevance of international law to work of panel

Answer 5

Art 3.2 - Panel clarifies existing WTO provisions in accordance with customary rules of interpretation of PIL (ABR, US-Gasoline - art 31(1) of VCLT; ABR, Japan-Alcoholic Beverages - art 32).

Question 6

Who bears the burden of proof?

Answer 6

Party asserting claim bears burden of proof (US-Wool Shirts and Blouses).

Complaining party must also say what clauses mean defence not available but does not need to satisfy each requirement until heard from respondent (ABR, EC-Tariff Preferences)

Question 7

What is role of panel request?

Answer 7

Panel request establishes terms of Panel’s jurisdiction and is unable to be cured (ABR, Brazil-Dessicated Coconut)

Question 8

What must be in Panel Report?

Answer 8

Art 12.7 -

• Finding of fact
• Applicability of relevant provisions
• Basic rationale behind findings

Question 9

What is standard of review?

Answer 9

Art 11 - objective assessment of the matter.

Question 10

Is the WTO Panel/AB bound by precedent?

Answer 10

No - DSB cannot add to or diminish rights and obligations of members (Art 3.2 and 19.2).

They only clarify the law (art 3.2).

WTO Agreement, Art IX:2 - only Ministerial Conference and General Council can adopt authoritative interpretations.

Question 11

Characteristics of DSB Jurisdiction?

Answer 11

1. Integrated - covers all agreements (Art 1.1)
2. Compulsory (Art 23.1)
3. Exclusive (Art 23.1, Panel, US-Section 301)
4. Contentious (ABR, US-Wool Shirts and Blouses)

Question 12

What is the status of amicus curiae briefs?

Answer 12

ABR, US-Shrimp, AB/Panel has authority to accept and consider amicus curiae briefs (Arts 11-13).

Question 13

What remedies are available? 3

Answer 13

1. Withdrawal/amendment of measure; (Art 3.7 - first preference; Art 19.1)
2. Compensation (temporary)
3. Suspension of concessions (temporary)

Question 14

How long does member have to comply with Panel ruling? Who determines period?

Answer 14

Art 21.3 - ‘reasonable period’

Determined by:

1. DSB;
2. Agreed by parties; or
3. Through arbitration (Art 21.3(a), (b) and (c))

Usually between 6 to 15 months.

Question 15

What is compensation?

Answer 15

Art 22 - voluntary and forward looking. Both parties agree and compensation only concerns future damages to be suffered.

Very rare (Japan-Alcoholic Beverages II).

Question 16

What is suspension of concessions?

Answer 16

Also called retaliation.

Art 22.3 - first target same sector.

Level - Art 22.4 - equivalent to level of nullification or impairment. (disputes over this sent to arbitration)

Retaliation can either be increased tariffs/duties or suspension of obligations (e.g. allowing EC to implement similar anti-dumping laws as US’ inconsistent law in 1916 Act)