WTO Dispute Settlement

Dispute Settlement (from lecture)
1. consultation between disputing parties
2. 3rd party adjudication (3-member panel, issues a ruling)
3. (potentially) Appeal Process (goes to Appellate Body, who can reverse decision)
4. if case wins, and report says a state did violate WTO rules, then we get to submit our right for dispute resolution against that country
- monitored by dispute settlement body (DSB)

WTO Dispute Settlement System and Developing Countries
- there are some examples in which developing country members successfully challenged trade measures of a developed country using WTO dispute settlement mechanism

Good things done by the Appellate Body!
- like products and directly competitive products
- also important procedural issues like..
- burden of proof
- anti-dumping---zeroing

PROCEDURAL PRINCIPLES
- burden of proof: is a rule of procedure to decide who is responsible for providing what in the litigation process
- often has a decisive effect in the outcome of litigation

CRITICISMS OF THE APPELLATE BODY
LITERAL INTERPRETATION:
- some argue that the Appellate Body has interpreted provisions of WTO agreements too literally and this literal interpretation has deprived the AB of necessary flexibility and adaptability to interpret and apply provisions of agreements in such a way that current and newly rising issues are properly addressed
- it is true that the Appellate Body has taken a literal or textual approach in interpreting provisions of agreements
- in the Japan-Alcohol case,the AB analyses the grammatical structure of the relevant agreement, and arrived at the conclusion that there should be a distinction between like products and directly competitive products

it has been 15 years since the WTO was established and the reputation of the Appellate Body is now more firmly established than it was in 1995.
it is probably time for the Appellate Body to be free from this preoccupation and fear and engage in flexible interpretation
basically it was so literal to keep members happy, couldn't overstep the mark and had to be loyal to the word of the members which is the agreements, but now we all trust the AB and it is time for it to be more flexible in its interpretation <3

in defence...
- it should be noted that the Appellate Body is cautious about not making law, especially when the issue is under negotiation
- in a dispute between the USA and EU, which involved interpretation of the “sequence issue”, the AB, after noting that there had been a proposal to the General Council to amend both articles, clearly stated that only WTO members have the authority to amend the DSU or to adopt such interpretations
- “determining what the rules and procedures of the DSU out to be is not our responsibility”