Arbitration in the WTO Dispute Settlement System

 

 

 

*Ph.D. Student in Private Comparative Law at the Jean Monnet Department of Political Sciences of The Luigi Vanvitelli University of Campania

 

 

The dispute settlement system of the World Trade Organization (WTO) is generally considered one of the pillars of the multilateral trade order. Indeed, it ensures the effectiveness and the respect of the legal rules of the multilateral trading system (MTS) of the WTO, as it is a binding system of dispute settlement. A regulatory system is only operational if there is a way to resolve conflicts. A dispute settlement mechanism is therefore an essential element for ensuring the security and predictability of the multilateral trading system. The GATT[1] 1947 provided for such a mechanism in Articles XXII and XXIII. But over time, the flaws of this system became obvious and we had to improve its efficiency. This led to the drafting of the Understanding on Rules and Procedures Governing the Settlement of Disputes, which introduced several new rules and procedures[2].

The WTO's dispute settlment system is governed by the rules of the Dispute Settlment Understanding (DSU) adopted at the end of the Uruguay Round and forming an integral part of the WTO Agreement. In fact, it is one of the most important advances in the WTO system. In fact, the DSU contains a variety of novelties that have strengthened the dispute settlement mechanism of the WTO. One is the dispute settlement calendar, which has several deadlines that a dispute settlement procedure can not go beyond, and then it is an integrated[3] framework that applies to all disputes relating to agreements administered by the WTO, as well as the automaticity of the establishment of panels and the adoption of their reports by reverse consensus[4], thus leaving the parties to the dispute free to block the adoption of decisions. Similarly, the possibility of appeal to the Appellate Body against panel rulings, further enhancing the credibility of the dispute settlment system. Finally, formal oversight of the implementation of panels (Special Groups) or Appellate Body rulings, thereby making the multilateral trading system more efficient and predictable[5].

The WTO Dispute Settlement System aims to preserve the rights and obligations of Members under the covered agreements in the shortest time. Therefore, members affirm their adherence to the principles of dispute settlement ; and have an obligation, if there is a dispute, to submit it to the dispute settlement system. However, the parties to a dispute may agree and find a mutually satisfactory solution.

Accordingly, where there is a breach of obligations under a covered agreement, the measure at issue is presumed to be inconsistent, and then it will be for the complaining Member to prove otherwise[6].

The purpose of the dispute settlement mechanism is to find a positive solution to the dispute that is the withdrawal of the irregularity, the 7th paragraph of the article 3 (DSU) provides : «  Before filing an appeal, a Member will decide whether an action under these procedures would be useful. The purpose of the dispute settlement mechanism is to achieve a positive resolution of disputes...Compensation should only be resorted to if the immediate withdrawal of the measure in question is impractical, and only temporarily pending withdrawal of the measure inconsistent with a covered agreement. The last resort available to a Member relying on dispute settlement proceedings under this Understanding is the possibility of suspending the application of concessions or the performance of other obligations under the covered agreements on a discriminatory basis, with respect to the other Member, subject to the authorization of the DSB », which is often a measure inconsistent with a covered agreement. However, in the event that such withdrawal is impracticable, the Dispute Settlment Body (DSB) may allow the grant of compensation on a temporary basis pending withdrawal, or allow a temporary alternative[7] to compliance, which is a countermeasure that is the suspension of the application of concessions or the performance of other obligations under the covered agreements, on a discriminatory basis, against the Member who's wrong.

Thus, when a dispute arises, aggrieved members will resort to the WTO's Dispute Settlement System and will not seek unilateral[8] redress.

The Dispute Settlement System is also intended to protect the interests of the least-developed members by providing in the DSU, that in the settlement of a dispute of which one of the parties is a least-developed country member[9], particular attention will be given to the special situation of that country.

Regarding the functioning of the WTO Dispute Settlment System, first of all, it should be noted that the dispute settlement procedure is confidential insofar as the information provided by the parties is not communicated to the public, unless the concerned party decides to make this information open to the public, as well as the deliberations of the panels and the Appellate Body are confidential[10], and the opinions expressed in the Panel Report by the individuals in this Panel are anonymous[11]. As there can be no ex parte (in the absence of a party) communication with the panel or the Appellate Body with respect to the issues that one or the other party examines. Accordingly, the article 18 (1) of the DSU provides that : « There will be no ex parte communication with the panel or the Appellate Body with respect to issues that either considers », a permanent Appeal Body of seven[12] persons, is established to hear appeals of points of law[13] concerning disputes resolved by panels designated by the Dispute Settlement Body to hear disputes submitted to them.

Then, in cases where a panel or the Appellate Body concludes that a measure is inconsistent[14] with a covered agreement, it will recommend that the Member concerned[15] bring it into conformity with that agreement and may suggest to the Member concerned several ways to implement these recommendations[16].

However, the effectiveness of the Dispute Settlement Mechanism also depends on the length of its proceedings. Indeed, that procedure is time-bound and in general does not exceed nine months before the panel and 12 months[17] in the case of appeal proceedings.

As well as ensuring that disputes are resolved effectively in the interests of all Members, it is essential to promptly respond to the recommendations or rulings of the Dispute Settlment Body and monitor their implementation. Even so, if it is impracticable for a Member to comply immediately[18] with the recommendations and decisions, it will have a reasonable time to do so. Such reasonable period of time shall normally be fixed, unless the parties otherwise agree, 15 months after the date of establishment of the panel, or 18 months, in case the panel or Appellate Body extended the deadline for the submission of its report in accordance with the provisions relating to the said extension[19]. Accordingly, the Dispute Settlement Body will monitor the implementation of its adopted recommendations or rulings, and the Member concerned will submit to the DSB a written status report indicating the status of implementation[20]. In the event that the appeal concerns a developing country member, the DSB will take into account not only the trade covered by the measures at issue but also their impact on the country's economy.

Although, in the event that the recommendations and rulings of the DSB are not implemented within a reasonable period of time, compensation and the suspension of concessions or other obligations which are temporary measures and which must be equivalent[21] to the level of nullification or impairment caused by the measure found to be inconsistent with a covered agreement. The compensation is voluntary[22] and, if granted, will be consistent with the covered agreements and mutually negotiated and acceptable to the parties. Failing an agreement, the party concerned may request the DSB authorization to suspend, in respect of the member at fault, the application of concessions or other obligations under the covered agreements, and the same sector in which the violation, or in the absence of effectiveness of the measure, is found in another sector of the same covered agreement in which the violation is found, or in the absence of effectiveness, in another covered agreement[23].

Nevertheless, the dispute settlement system of the WTO is not limited to offering members only panel and Appellate Body proceedings. Indeed, recourse is also made to arbitration procedures, sometimes to strengthen the panel procedures, in which case they are arbitration procedures incidental to these procedures. Sometimes to settle a dispute in place of such procedures, in this case, it is a recourse to arbitration as a full-fledged dispute settlement mechanism alongside the WTO dispute settlement mechanism.

Actually, the WTO's Dispute Settelment Understanding contains provisions relating to arbitration, and provides for the use of the latter in a mandatory manner, under certain conditions, in Articles 21 and 22, and this, at the level of the implementation of the recommendations and rulings of the DSB, as well as where compensation or suspension of concessions is as well as recourse to arbitration under the provisions of Article 25, but this time, not necessarily, as an alternative method of dispute settlement through panel and Appellate Body machinery.

I.                   Arbitration in Articles 21 and 22 of the DSU

One of the peculiarities of the WTO Dispute Settlement System is that it does not just make decisions or recommendations to resolve disputes, even though these disputes are interstate, but it goes beyond to monitor the implementation of those decisions.

After the adoption of the panel or Appellate Body reports by the Dispute Settlement Body, the DSB must monitor the proper application of its rulings. However, it is possible that the resolution of the dispute does not end automatically with the adoption of the DSB's rulings, as problems may arise even in the implementation phase, especially in determining the reasonable time period for it. Hence, the importance of the arbitration procedure provided for in Article 21 of the Dispute Settlment Understanding.

Thus, after the expiry of the reasonable period without the implementation of the Dispute Settlement Body rulings, the complaining member may request compensation or suspension of the concessions to the defending member. Therefore, if there is disagreement as to the level of suspension of concessions or other obligations, the matter must be referred to arbitration under the provisions of Article 22 of the Dispute Settlment Understanding.

1.      Arbitration in Article 21 of the Dispute Settlment Understanding

Article 21 of the Dispute Settlment Understanding concerns the monitoring of the implementation of the recommendations and rulings of the Dispute Settlment Body. Thus, where a Member declares that such implementation is not practicable immediately after the adoption of the Dispute Settlment Body's decision, it is necessary to agree on a reasonable period of time for that Member to be able to comply with that decision.

The third paragraph of the same article provides the modalities for determining the reasonable period. First, the member in question proposes a period of time that will be reasonable, provided that the DSB approves it. In the absence of such approval, the parties to the dispute shall endeavor to agree on a reasonable period within 45 days of the adoption of the DSB's decisions. Again, in the absence of such agreement between the parties, the reasonable period will be fixed by arbitration within 90 days of the adoption of the DSB's rulings.

Therefore, it is necessary to consider first the criteria of the choice of the arbitrator, as well as his mission, as well as the time limits in the procedure of the arbitration.

As with any arbitration, the choice of the arbitrator is, also in the WTO, one of the key points that can determine the effectiveness of the arbitral proceedings. Moreover, the parties to the dispute do not always agree on the choice of the arbitrator, hence the interest of the provisions which provide that in the event that the parties to the dispute do not agree on the choice of arbitrator, within 10 days[24] of the request for arbitration, the choice shall be made by the General Director of the WTO, after consultation with the parties to the dispute.

However, the importance of the choice of arbitrator may be more palpable in the quality of arbitral decisions given the diversity of disputes submitted to the Dispute Settlement Body. While all disputes are covered by the agreements administered by the WTO, they cover almost all international trade activities from intellectual property to public procurement. Therefore, it seems more appropriate to choose the arbitrator whose jurisdiction and specialty is closest to the field of dispute. Indeed, all Article 21 arbitrations, have been conducted by a member of the Appellate Body acting in a personal capacity, which can confirm that the competence of the closest arbitrators of the WTO dispute settlement system remains preferable.

By the way of illustration, the US - COMPENSATORY MEASURES ON SOME PRODUCTS FROM CHINA, connecting China the plaintiff and the United States of America as defendant. In this case, China challenges US countervailing duties on some products from China. Thus, in submitting the dispute to the DSB, the panel and the Appellate Body found that the measures at issue were inconsistent with several provisions of  The Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), for this reason the United States is under an obligation to amend those measures and implement the findings of the DSB.

Therefore, for the implementation of the recommendations of the DSB, the United States and China should agree on a reasonable period of time, in the absence of such agreement the parties have opted for arbitration under Article 21 of the Dispute Settlement Understanding.

During the arbitration proceedings, the United States argued that the reasonable period of for implementation is 19 months. And this, taking into account the procedural difficulties of United States law, as well as the complexity of the measures in question, which require a lot of work by the United States Department of Commerce which can only be completed by aforementioned period. In response, China asserted that the United States should obtain a reasonable ten-month period for such implementation, based on the fact that the United States has failed to meet its to demonstrate that the deadline they proposed was the "shortest possible delay" for the implementation of the DSB's recommendations and rulings. Therefore, the arbitrator[25] had to ensure the relevance of the statements of the parties to the dispute and especially to check the constraints of the United States that can be administrative, procedural, as well as those in relation to the commitments in the WTO in order to determine the shortest reasonable period for the implementation of the DSB's rulings (this time limit was set in 14 months and 16 days[26]). Hence, the interest of entrusting such arbitration to an arbitrator who is quite knowledgeable and meticulous about the practices of the multilateral trading system of the WTO.

Among the principles of arbitration, the mandate of the arbitrator must be clear and precisely set in order to begin the arbitration proceedings. The same principle also governs arbitration under Article 21 of the Dispute Settlement Understanding, except that it is not the parties to the dispute that determine the terms of reference, it is fixed by the same article 21.

As a matter of fact, Article 21 of the DSU makes it clear in paragraph 3 that the reasonable period of time for the implementation of the recommendations and rulings of the DSB, in the absence of agreement between the parties, will be the period determined by a binding arbitration. As a result, it is clear that the mandate of the arbitrator is limited exclusively to the determination of the period after which the implementation will have to take place, without being interested in the manner in which the implementation will have to take place. As the Arbitrator recalled in US - COMPENSATION FOR DUMPING AND SUPPORT COMPENSATION ACT, 2000, "I recall that my mandate under Article 21.3 (c) is limited to the determination of the reasonable period of time for the implementation of the recommendations and rulings of the DSB. I am particularly aware that it is outside of my mandate to determine or even to suggest how the United States should implement the recommendations and rulings of the DSB[27]. "

For that reason, the arbitrator must, within the scope of his mandate, determine a reasonable period for implementation that is the shortest possible period, while considering the merits of the arguments put forward by the parties to the dispute and concluding with the processes that can lead to implementation within the shortest possible time, in order to prove the actual basis of the delay. The arbitrator may sometimes have to examine the legislative system or the administrative procedures of a country - member party to a dispute in order to arrive at determining the shortest time possible.

As an illustration in CHINA - COUNTERVAILING RIGHTS AND ANTI-DUMPING DUTIES ON ROLLED GRAIN-DIRECTED MAGNETIC ROLLED STEELS FROM THE UNITED STATES, the Arbitrator had to examine, in order to determine the timeframe for implementation, the aspects and the deadlines of administrative procedure put forward by China to support the deadline it has proposed. In that case, the timeframes for the administrative aspects to be considered by the Arbitrator were essentially the adoption of rules for making changes to trade remedies in order to implement the recommendations and rulings of the DSB, as well as a new administrative determination of the anti-dumping and countervailing duties in question in the same dispute[28].

Similarly, among the main features of arbitration in general, one finds first of all the speed of its procedure or, in general, its control of time. Arbitration proceedings under Article 21 of the Dispute Settlement Understanding are not the exception.

Indeed, the same article 21 sets several deadlines. First, a time limit for the duration of the arbitration procedure, including the time allowed for the choice of the arbitrator, and since this is an arbitration specifically dedicated to setting a reasonable deadline for the implementation recommendations and rulings of the DSB, the same article also lays down the duration of the reasonable period.

The determination of the duration of arbitration proceedings under Article 21 of the DSU is not left to the parties to the dispute or even to the arbitrator. Indeed, the same article specifies that the reasonable period for implementation must be determined within 90 days of the date of adoption of the recommendations and rulings of the DSB, including a period of 10 days in which the parties to the dispute must agree on the choice of an arbitrator, without which agreement it is the General Director of the WTO who appoints an arbitrator after consulting the parties. However, in reviewing some arbitral awards rendered in this context, it is quickly apparent that, in practice, the 90-day period laid down in Article 21 is not always respected, but is prolonged either by agreement between the parties or by the arbitrator that the arbitral proceedings begin only a short time before the expiry of the period fixed by Article 21.

An example of this is the US - CERTAIN LABELING REQUIREMENTS INDICATING THE COUNTRY OF ORIGIN (EPO) (the complaining parties are Canada and Mexico). In that case, the DSB adopted the Appellate Body Report on 23 July 2012, therefore the 90-day period within which the arbitrator's decision should take place would have expired[29] on 21 October 2012. However, the appointment of the arbitrator by the General Director of the WTO took place only on 4 October 2012, that is to say 17 days before the expiry of the said period, during which it seems impossible to arbitral decision.

As , the arbitrator declared, upon his appointment, that he undertook to render the decision by 4 December 2012 at the latest (which was the case), after which the parties agreed that the decision would be deemed be an arbitral decision under Article 21, notwithstanding the expiry of the 90-day period provided for in the same article. Therefore, we see that in this case the period of 90 days has been extended to 134 days.

However, the purpose of Article 21 is to determine a reasonable period for the implementation of DSB rulings, in order to ensure the efficiency and speed of WTO dispute settlement, the same article lays down a time limit, in principle, for the same reasonable period. Indeed, paragraph 3 (c) of Article 21 makes it clear that: "... In this arbitration proceeding, the arbitrator should assume that the reasonable period of time for the implementation of the panel's recommendations or the Appellate Body should not exceed 15 months from the date of adoption of the panel or Appellate Body report. However, this period could be shorter or longer, depending on the circumstances ".

It is concluded that the principle is that the reasonable period of time must not exceed 15 months, but the peculiarities of the circumstances of the dispute may diminish or prolong it. Consequently, the arbitrator's assessment of those circumstances is of such importance that it is incumbent on him to manipulate that period.

Though, having consulted the list[30] of Article 21 arbitrations on the WTO's official website, it is clear that there is only one case, the reasonable period of which exceeds 15 months. it specifies that the period is exceeded only by one week, and only for the period to expire on January 1st and not five days before, date which coincided with the period of 15 months.

In fact, this is the case EUROPEAN COMMUNITIES - REGIME APPLICABLE TO THE IMPORTATION, SALE AND DISTRIBUTION OF BANANAS, in which the arbitrator stated in his decision: "Moreover, the complexity of the The implementation process, as demonstrated by the European Communities, appears to favor the principle of compliance, with a slight modification, so that the "reasonable period of time" for implementation would expire on 1 January 1999[31] ". Contrary to that, as soon as the arbitrator realizes that the reasonable period of time is shorter than 15 months he applies it, moreover, it is the case of the majority of the arbitrations appearing on said aforementioned list.

2.      Arbitration in Article 22 of the Dispute Settlement Understanding

Article 22 of the DSU concerns the compensation and suspension of concessions in cases where there has been no implementation of the recommendations and rulings of the DSB by the member who was to do so. Thus, after finding that the reasonable period for the implementation of the DSB's recommendations has expired without the party to the dispute having complied with its obligations with respect to implementation, the complaining party may request that the DSB authorization to suspend the application of concessions or other obligations to the recalcitrant party, in accordance with the provisions of the second paragraph of Article 22 of the Dispute Settlement Understanding. However, when the complaining party reviews the concessions or other obligations to be suspended, it is bound to apply the principles and procedures set forth in the third paragraph of the same Article, so that such suspension of concessions is not made arbitrarily without taking into consideration the actual damage caused by the inconsistent measures in question.

However, if there is a dispute as to the level of the suspension proposed by the complaining party, or if the responding party asserts that the principles and procedures set out in paragraph 3 have not been followed, the matter will be referred to arbitration. It should be noted that it is up to the party who has an interest to prove the incompatibility[32] of the suspension in question. Therefore, we will first look at the choice of the arbitrator in the arbitration, then the mandate of the arbitrator, to finally look at the characteristics and the course of the arbitration procedure.

Contrary to the principle of arbitration that it is the parties to the dispute who agree on the choice of arbitrator, the arbitration procedure under Article 22 of the DSU does not leave this freedom of choice to the parties. In fact, the sixth paragraph of the same article makes it clear that the said arbitral proceedings will be conducted by the members of the panel that originally settled the basic dispute, the said members will sit as arbitrators[33]. In the event that such members are not available for arbitration, the WTO's Director will appoint an arbitrator without consulting the parties.

It is understandable that the fact that Article 22 provides for the referral of arbitration to panelists, who have had inconsistent measures that are the subject of the underlying dispute, is only for the sake of efficiency of the proceedings. In fact, the members of the said group will be in the best position to know all the questions relating to the dispute that they have already settled before, and this, given all the information they have been able to deal with. Thus, in the absence of availability of such panelists, it is understandable that the same Article 22 provides that it is for the Director to appoint an arbitrator for the case, only for the sake of speed of the proceedings. Because the length of time that an agreement between the parties can take to appoint an arbitrator only delays the proceedings.

Accordingly, it should be noted that in all Article 22 arbitration cases that have been available on a list[34] of disputes available on the official WTO website, it is the members of the panel who sat as arbitrator in this arbitrations. It also remains to be noted that dispute settlements which have resorted to this arbitration procedure are only very rare (according to the list of disputes). This may mean that it is not customary for a WTO member to comply, either spontaneously or negotiated, with its obligations arising from a conviction at the end of a dispute settlement proceeding.

Regardless of how, the Article 22 of the DSU sets out and clearly delineates the arbitrator's task, and that, first, if there is a dispute as to the level of the suspension proposed by the complaining party or the provisions of the third paragraph of the same article have not been respected when determining the suspension, the matter will be submitted to arbitration. Therefore, the arbitrator's mandate is limited, on the face of it, to examine the merits of the level of the suspension proposed by the party requesting it, which falls within the scope of his retaliation[35] measures, and to examine whether the principles and procedures set out in paragraph 3 of the same Article have been complied with by the same party when it designates the sector or sectors in which the suspension of concessions or other obligations will take place.

Then, the seventh paragraph of Article 22 provides that: "The arbitrator, acting under paragraph 6, shall not consider the nature of the concessions or other obligations to be suspended, but shall determine whether the level of the suspension is equivalent at the level of nullification or impairment. The arbitrator may also determine whether the proposed suspension of concessions or other obligations is permitted under the covered agreement ... ". Thus, this paragraph expressly prohibits the arbitrator from examining the nature of the concessions to be suspended, which remains at the free choice of the complaining party to the extent that it complies with the provisions of paragraph 3 of the same article. An example of this, is the statement by the arbitration panel in CANADA - EXPORT CREDITS AND LOAN GUARANTEES FOR REGIONAL AIRCRAFT, that "We note that Canada has not raised any questions regarding the type of countermeasure proposed in this case. Our mandate under Article 4.11[36] of the SCM[37] Agreement with respect to the violation of Article 3[38] of that Agreement is therefore solely to determine whether the level of proposed countermeasures is appropriate[39]. "

Therefore, the arbitrator's mandate is limited to an economic and quantitative[40] analysis of the proposed suspension. However, it is a mission of great importance because it is the last resort against the party who has not complied with its obligations, so the amount of the suspension of concessions must to be as important as the harm caused by the inconsistent measures practiced by the recalcitrant member so that this countermeasure is dissuasive and is actually having its intended effect. With respect to the arbitration procedure, it is normally the party that has not complied with its obligations under the DSB ruling that uses this procedure. This is logical to the extent that it challenges the amount of countermeasures that the complaining party intends to apply to it.

Such arbitration is generally conducted by the original panel members sitting as arbitrators, who must issue their decision, in accordance with the provisions of the paragraph 6 of Article 22 of the DSU, within 60 days of the date on which the reasonable time would have expired. However, given the complexity of the decision to be made, this period is, in practice, not always respected. For example, in US - MEASURES FOR THE TRANSBOUNDARY SUPPLY OF GAMING SERVICES AND PARIS, the United States challenged the level of the suspension proposed by Antigua in accordance with Article 22.6 of the DSU and alleged that Antigua had not followed the principles and procedures of Article 22.3 of the DSU in its request. At its meeting on 24 July 2007, the DSB agreed that the matter raised by the United States be referred to arbitration. Nevertheless, the arbitral award is only made on 21 December 2007[41], approximately five months after the DSB's decision to refer the matter to arbitration.

Anyhow, during the period of the arbitration the party concerned can not proceed with the suspension of concessions or other obligations, this is logical since the suspension will only be authorized by the DSB after the adoption of the arbitration decision which will determine its level.

Finally, it should be noted that the parties to the dispute must accept the arbitral award as final without the possibility of any remedy, in order to end the length of the proceedings and ensure the binding nature of the decision. Therefore, after being informed of the arbitral award, the DSB will grant, on application that is to be consistent with the arbitrator's decision, leave to suspend concessions or other obligations, unless the DSB decides by consensus to reject the application.

II.                Arbitration in Article 25 of the Dispute Settlement Understanding

In addition to further arbitrations in dispute settlement proceedings by panels and the Appellate Body, DSU proposes another arbitration, which is not complementary to the original proceeding, but is a method of dispute settlement in its own right. Indeed, it is an alternative dispute settlement method to the panel process. However, the DSU reserves only one article (consisting of four paragraphs) to the arbitration, although it is a dispute settlement procedure and not only a subsidiary to a basic procedure, it is Article 25.

This can help us make findings a priori. Indeed, one can try to explain this lack of legal provisions reserved for this procedure first by a lack of importance that it actually presents in the settlement of disputes in the WTO, given the complexity and technicality its disputes, and thus it will be more timely for members to use the panel process that specializes in the multilateral trading system of the WTO. Especially since the panel system is of a dual jurisdictional nature by offering the parties to a dispute the opportunity to appeal to the Appellate Body for a second review of the dispute, giving more chance and above all trust parties to reach the most appropriate decision (sentence). Therefore, it will be necessary to understand the lack of importance accorded to this arbitral proceeding as resulting from the fact that it is reserved solely for the settlement of small international trade disputes that may arise and that a simple arbitration award will be effective in resolving.

Or, quite simply, this lack of legal provisions amounts to the fact that arbitration, properly so called, is a fairly common and well-known method of settling international trade disputes, and that it will be pointless to devote more to this than legal provisions, which express the possibility of resorting to it. Therefore, the arbitration procedure as it is presented by the provisions of Article 25 of the DSU will first be examined, and then the only dispute, in which the parties have resorted to said arbitration procedure.

Article 25 of the DSU proposes the possibility of recourse to arbitration as the main procedure, although this remedy seems to be forgotten[42], or perhaps it has not been effective. The first paragraph of the same article provides that the parties to a dispute may have recourse to "swift" arbitration within the WTO. This may imply that an arbitration held under the auspices of another arbitral institution does not fall within the scope of the provisions of Article 25.

Such arbitration is considered to be an alternative mode of dispute settlement, in addition to panel proceedings, and may facilitate the resolution of certain disputes over matters clearly defined by both parties. It may be inferred that this arbitral proceeding is essentially about disputes that are not very complicated or about specific issues that have arisen between members or even in the course of a panel proceeding, ie, matters other than those covered by the dispute by resorting to arbitrations in Article 21 and 22 of the DSU.

Thus, it is clear that recourse to this arbitration procedure is subject to the mutual consent of both parties to the dispute. Moreover, this condition is general for all arbitral proceedings in general. Therefore, expressly underlining it can be explained by the desire to differentiate the procedure, although it must take place within the WTO, from the panel procedure in which the triggering is almost automatic after the complaining party requests it unilaterally. Just as it is the parties who are free to agree on the procedures applicable during the arbitral proceedings, which is also one of the main features of arbitration.

Once the parties agree on the recourse to arbitration, they must notify the agreement to all members long enough before the actual opening of the arbitration procedure. This obligation can be explained by the fact that the procedure falls within the scope of the WTO dispute settlement system. Except that for the obligation to notify the agreement long enough before the opening of the procedure will not have much interest without there being means that the members, thus notified, have the opportunity to oppose the opening of the said arbitral proceedings[43], or to join them without the members of the dispute agreeing to them. Both possibilities are not included in DSU provisions.

So, the third paragraph of Article 25 clearly states that "Other Members may become parties to an arbitration proceeding only with the agreement of the parties who have agreed to have recourse to arbitration ..." This seems quite logical given the interest of being arbitration. However, even if there is a member who has a substantial interest[44] in being part of the arbitral proceedings, he can only do so with the agreement of both parties to the dispute. In this way, the parties who decide to resort to this arbitration procedure, must accept that the arbitration decision is binding on them and therefore comply with it, ie, the parties will not be able to benefit from any appeal[45] against the arbitration award. Just as arbitral awards must be notified to the DSB as well as to the Council or Committee of any relevant agreement. It is only at this level that any member who has an interest in it can raise any question relating to the arbitral award.

Definitely, the last paragraph of Article 25 specifies that the provisions of Articles 21 and 22 shall apply mutatis mutandis to arbitral awards. As a result, even these arbitration awards are subject to the supervision and implementation conditions applied in the WTO dispute settlement system, and it is the only system that provides for the monitoring of the implementation of arbitration awards, this can be seen as a guarantee of efficiency. Therefore, the application of the provisions of Articles 21 and 22 to this arbitration procedure further proves that this is really an alternative dispute resolution procedure, except that it remains to practice to prove it.

Since the entry into force of the WTO Agreements, members have only resorted to arbitration under Article 25 of the DSU in only one dispute; US - Section 110 - 5) of the Copyright Act, in which the European Communities filed a complaint and requested consultations with the United States on January 26, 1999, and concerning Section 110 - 5) of the United States Copyright Act as amended by the Fair Play Rights Act, promulgated on October 27, 1998. The European Communities (EC) argued that Article 110 - 5) was inconsistent with the United States' obligations under Article 9.1[46] of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The United States Copyright Act provides for exceptions which allow certain publicly-owned establishments to broadcast musical works on their premises by means of radio or television. And without having to ask for prior authorization or pay a fee. These are the provisions that the EC challenged. For the settlement of this dispute, the EC opted for the basic WTO procedure, that of the consultations and the panel, which means, a priori, that the arbitral proceedings did not serve as an alternative means of the dispute settlement from the beginning. It was only after the first proceeding that both parties to the dispute resorted to arbitration under Article 25 of the DSU. Therefore, to better study this dispute, we will first focus on the pre-arbitration phase, then examine the arbitral one.

-          The pre-arbitration phase of the dispute settlement :

Firstly, the EC requested consultations with the United States in accordance with Article 4 of the DSU, but failed to reach a mutually satisfactory solution and requested the establishment of a special group.

Following the establishment of the panel, five other members reserved their rights to participate in the proceedings as a third party. These are Australia, Brazil, Canada, Japan, and Switzerland. The report of this group mentions that paragraph A of Section 110 (5) of the US Copyright Act is consistent with US obligations under the TRIPS Agreement. While paragraph B is inconsistent with the TRIPS Agreement[47]. The DSB adopted this report and recommended that the United States bring paragraph B of the said law into conformity with the TRIPS Agreement.

Therefore, for the implementation of the DSB's decision, the United States could not comply with it immediately after the adoption of the decision, and needed a delay to do so. Not having reached an agreement with the United States on the time required for the implementation of these recommendations and rulings, since the EC argued that the said deadline could not exceed 10 months, whereas the United States United believed that at least 15 months is required for implementation. The EC requested that this period be determined by binding arbitration, in accordance with the third paragraph of Article 21 of the DSU.

Actually, the reasonable period of time in the United States for the implementation of the DSB's recommendations was set by arbitration at 12 months from 27 July 2000, the date of adoption of the Panel Report by the DSB. The reasonable period of time will expire on July 27, 2001[48]. Thus, ended the pre-arbitral phase of the resolution of this dispute. It remains to be noted that at this level of proceedings, recourse to arbitration under Article 25 of the DSU does not appear obvious, since the procedure was carried out as provided by the provisions of the DSU for resolve any disputes.

-          The arbitration phase of the dispute settlment :

On 23 July 2001, even before the expiry of the reasonable period of time allowed to the United States for the implementation of the DSB's recommendations of 27 July 2001, the EC and the United States mutually agreed to initiate a proceeding under Article 25 of the DSU to determine the level of nullification or impairment resulting from the provisions of Section 110 (5) (B) of the United States on copyright.

This explains the fact that the parties to the dispute have realized that even after the expiration of the reasonable period of time the United States will not comply with the DSB's recommendations[49]. Therefore, they planned to use Article 22 of the DSU by attempting to mutually agree on compensation (which will normally be based on the award of that arbitration). Failing such an agreement, this arbitration will not be of much interest since the suspension of the concession is subject to arbitration, under the sixth paragraph of Article 22, who is supposed to make a decision to determine the level of suspension that can be exercised, normally on the basis of the value of the injury caused by measures inconsistent with an agreement administered by the WTO[50]. 

So, the parties have agreed that the arbitral award will be final and binding, as well as accepting it as determining the level of nullification or impairment for purposes of any proceedings that may be commenced at future[51] under Article 22 of the DSU.

With regard to the procedural rules to be followed during the arbitration, the parties first agreed to submit the arbitration to the original panel members who will sit as arbitrators, failing which the parties have conferred the right appointing arbitrators to the WTO's Director (which was the case for the chair of the panel and one member who could not be available and who were replaced by WTO arbitrators).

The parties then clarified that the legal principles established in previous arbitration proceedings under Article 22 of the DSU, such as the allocation of the burden of proof between the parties, will apply to the arbitration. The parties are not far removed from WTO dispute settlement procedures, although they have the option to freely choose the rules of procedure without any conditions[52]. Finally the parties agreed not to accept any third party to arbitration. After only about 3 months of the commencement of the arbitral proceedings[53], the arbitrators rendered their decision by determining that the level of EC benefits that are nullified or impaired as a result of the application of Section 110 (5) B ) is 1 219 900 euros per year[54].

Anyhow, after the expiry of the reasonable period of time in the United States for the implementation of the DSB rulings, and in the absence of such implementation by the United States, the EC sought authorization from the United States to suspend concessions under Article 22 of the DSU. Therefore, the parties did not reach a mutual agreement on compensation, (counterpart of non-implementation), such an agreement could normally be facilitated by the decision of the arbitration under Article 25.

Although the arbitration award determined the level of loss of benefits for the EC. The European Communities does not seem to have been convinced of this decision since they will propose a level of suspension of concessions higher than the amount that arbitrators of Article 25 arbitration have set. This has led the United-States to challenge the level of suspension of obligations proposed by the EC and requested the DSB to refer the matter to arbitration, in accordance with Article 22 of the DSU.

Therfore, the parties did not respect the binding nature of the said arbitration decision, and this, by neglecting the amount that was fixed there. Thus, the parties continued the basic WTO dispute settlement procedure, without recourse to the Arbitration under Article 25 of the ADR as an alternative means of settlement of the dispute, or even that he did not change anything in the course of the resolution of the case. Thus, after suspending the arbitration proceedings under Article 22 of the DSU, the parties to the dispute informed the DSB that they had arrived at a mutually satisfactory temporary arrangement, and that they were in close cooperation to arrive at a mutually satisfactory solution.

As a result, Therefore, the arbitration procedure in this dispute has no value and is, at least, ineffective in the settlement of the dispute, especially since it dealt only with a subsidiary question to the main dispute.

 

 

 

 

 

Actually, the Dispute Settlement Understanding provides for compulsory recourse to arbitration, under certain conditions, in Articles 21 and 22. However, this remedy is only ancillary to the main procedure of the panel, and this, in terms of the implementation of the recommendations and rulings of the DSB and in the event of recourse to set-off or suspension of concessions. It also provides, in Article 25, for the use of arbitration as a full-fledged dispute settlement mechanism to replace the panel proceedings. However, practice has shown that this arbitration procedure is not really favored by the members in this context since there was only one recourse and not as an alternative procedure to the panel proceeding, indeed, it was an appeal only to settle a subsidiary question and not the main dispute.

Therefore, the importance and the very existence of this arbitration procedure in the framework of the WTO dispute settlement system is less convincing since it remains, practically so far, a dead letter without proving its validity, efficiency and failing to produce its desired effects.

However, if the interest of this arbitration procedure could not be proven, it shows that WTO members are much more confident in the panel and Appellate Body procedures enacted in the DSU.

Just as the WTO dispute settlement system is more efficient and appropriate for the settlement of interstate commercial disputes in the WTO than any other dispute settlement procedure, let alone arbitration. This can be explained by the importance of the pre-established strict rules that direct DSU's procedures and impose a certain automaticity in the conduct of these procedures. Indeed, the complexity of interstate commercial disputes makes it very difficult to reach an agreement on the rules and procedures that may govern their settlement, as is the case with arbitration proceedings.

For that reason, arbitration as a dispute settlement mechanism within the WTO framework could regain importance if its procedure is framed by more rules appropriate to the nature of WTO disputes.

 

 

 

 

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[1] The General Agreement on Tariffs and Trade is signed on 1947, 30th October, by 23 countries.

[2] J. Haddock and R. Sharma. Products and International Trade Division. http://www.fao.org/3/X7352F/x7352f05.htm

[3] Eric CANAL-FORGUES, The Dispute Settlement at the WTO, Third edition BRUYLANT Brussels 2008, p 14.

[4] Also says negative consensus, whereby decisions are automatically adopted unless there is a consensus to not  adopt them.

[5] Eric CANAL-FORGUES, The Dispute Settlement at the WTO, Third Edition BRUYLANT Brussels 2008, p 6.

[6] The Article 3, paragraph 8 of the legal text concerning the Dispute Settlement Understanding (DSU), provides the General provisions : « In cases where there is a breach of obligations under a covered agreement, the measure is presumed to nullify or impair a benefit. In other words, there is normally a presumption that a breach of the rules has an adverse effect on other Members party to the covered agreement, and it will then be up to the complaining Member to prove otherwise ». https://www.wto.org/french/docs_f/legal_f/28-dsu_f.htm.

[7] Andrea HAMANN, Dispute Settlement Litigation in the WTO Dispute Settlement, Leiden edition; Boston: BRILL, 2014, p 697.

[8] « In such cases, Members: will not determine that there has been a breach, that benefits have been nullified or impaired, or that the achievement of an objective of the covered agreements has been frustrated other than through the use of dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination in the light of the findings of the panel or Appellate Body report adopted by the DSB or of an arbitral award made under this memorandum of understanding » ; DSU, Article 23, paragraph 2 (a).

[9] least developed country Members receive special treatment and technical assistance from the Director General or the President of the Dispute Settlement Body to assist the parties in settling the dispute in question, even before establishment of a special group. DSU, Article 24 (2).

[10] It is true that confidentiality remains one of the hallmarks of all arbitration proceedings. In an ICSID dispute, in this case Metalclad v. Mexico, the arbitral tribunal considered that "there remains a question to be made about the general principle of confidentiality that would operate to prohibit public discussion of the arbitration proceedings by that party." Neither the NAFTA nor the ICSID (Additional Facility) Rules The following is a limitation on the use of arbitration and arbitration. to speak of the arbitration of the rules of arbitration and the arbitration of the rules of international arbitration (...) Arbitral tribunal de l'Arbitral Tribunal These are the limits of the relationship between the parties and the parties, and they are both limited to a minimum, subject to any externally imposed obligation of disclosure. Arbitration, vol XXVI, 2001, pp. 103-104.

[11] BOISSON DE CHAZOURNES, Laurence. WTO arbitration. Review of Arbitration, 2003, no. 3, p. 957. Available at: http://archive-ouverte.unige.ch/unige:42318

[12] According to the provisions of Article 17 paragraph 1 of the DSU « A permanent appellate body will be established by the DSB. This body will hear appeals concerning cases submitted to special groups. It will consist of seven people, three of whom will serve on a given case. Appellate Body Appellants will rotate. This turnover will be determined in the working procedures of the Appellate Body ».

[13] World Trade Organization, Understanding the WTO, Division of Information and External Relations, Fifth Edition 2011, p 55.

[14] DSU, Article 19, paragraph 1.

[15] The "Member concerned" is the party to the dispute to which the panel or the Appellate Body make their recommendations.

[16] With regard to recommendations in cases that do not involve a violation of the GATT 1994 or any other agreement referred to.

[17] About the Time limits for DSB rulings, according to the article 20 of the DSU, unless the parties to the dispute agree otherwise, the period between the date on which the DSB establishes the panel and the date on which it considers the report of the panel or the Appellate Body for its adoption shall not, as a general rule, exceed nine months in cases where the report is not appealed or 12 months in cases where an appeal is lodged. In cases where either the panel or the Appellate Body has made arrangements, in accordance with article 12, paragraph 9, or article 17, paragraph 5, to extend the time limit for the submission of its report, the additional time allowed will be added to the above periods.

[18] Article 21.3 of the DSU provides that at a meeting of the DSB to be held within 30 days of the adoption of the report, the defaulting member must inform the DSB of its intentions regarding the implementation of the recommendations and decisions. If it is impractical for the member to comply immediately with the recommendations, exceptions are provided and the member may be given a reasonable period of time to comply. This time will be either: - the one proposed by the defaulting member to the ORD and accepted by the latter; - a mutually agreed reasonable period of time between the parties to the dispute; - a period determined by a binding arbitration held within 90 days of the adoption of the report. The arbitrator must assume that this reasonable period of time should not exceed 15 months from the date of adoption of the report.

[19] DSU, Article 12 paragraph 9 or Article 17 paragraph 5.

[20] According to the Article 21, paragraph 6 of the DSU, there is therefore close scrutiny by the DSB of the measures taken by the offending member to implement the recommendations. Moreover, this monitoring is not only done by the complaining member, but by all WTO members. The fact that this item is on the agenda of each meeting implies that it can be discussed at these meetings and that WTO members can, as a result, exert some political pressure. Indeed, some do not hesitate to say that the follow-up of the implementation of the DSB's rulings is an essentially political phase which sometimes leads to heated exchanges between WTO members and suggests cleavages between the members, whether we are talking about the Europe-United States divide or the North-South divide.

[21] Renouf Yves. Mechanisms for the adoption and implementation of dispute settlement in the WTO. Are they viable? In: French Yearbook of International Law, Volume 40, 1994. p. 786.

[22] In principle, full implementation of the recommendations adopted by the DSB is preferable to any other solution. As a result, compensation and suspension of concessions should be applied only temporarily, until the measure found to be inconsistent has been withdrawn or a mutually satisfactory solution found.

[23] Julien BURDA, "The effectiveness of the WTO dispute settlement mechanism: towards greater predictability of the multilateral trading system" (2005) 18.2 R.Q.D.I. 1. 26.

[24] « If the parties can not agree on the selection of an arbitrator within 10 days after the matter has been referred to arbitration, the Director General shall appoint the arbitrator within 10 days after consulting the parties », Footnote 12 of Article 21 of the DSU.

[25] The Egyptian arbitrator Georges Michel. ABI-SAAB who was a member of the Appellate Body from 2000 to 2008 (for two terms).

[26] Decision of the Arbitrator, UNITED STATES - COUNTERVAILING MEASURES ON CERTAIN PRODUCTS FROM CHINA, Arbitration under Article 21.3 (c) of the Understanding on Rules and Procedures Governing Dispute Settlment, WT / DS437 / 16 of 9 October 2015, p. 28 (available at https://www/wto.org/english/tratop_e/dispu_e/437_99_e.pdf ). 

[27] Decision of the Arbitrator, US - DUMPING COMPENSATION AND SUPPORT COMPENSATION ACT, 2000, Arbitration under Article 21.3 (c) of the Understanding on Rules and Procedures Governing Dispute Settlement, WT / DS217 / 14 WT / DS234 / 22 of 13 June 2003, Paragraph 48 (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds234_e.htm ).

[28] Decision of the Arbitrator, CHINA - COUNTERVAILING DUTIES AND ANTI-DUMPING DUTIES ON ROLLED GRAIN ORIENTED MAGNETIC STEELS FROM THE UNITED STATES, Arbitration under Article 21.3 (c) of the DSU, WT / DS414 / 12 May 3, 2013, p. 24 (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds414_e.htm ).

[29] Decision of the Arbitrator, UNITED STATES - CERTAIN COUNTRY OF ORIGIN LABELING REQUIREMENTS (EPO), DSU Article 21.3 (c) Arbitration, WT / DS384 / 24 WT / DS386 / 23 of 4 December 2012, footnote 13, p. 3. (Available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds384_e.htm ).

[30] Arbitration under Article 21.3 (c) of the Dispute Settlement Understanding (available at https://www.wto.org/english/tratop_e/dispu_e/arbitrations_e.htm ).

[31] Decision of the Arbitrator, EUREPEAN COMMUNITIES - REGIME APPLICABLE TO IMPORTATION, SALE AND DISTRIBUTION OF BANANAS, Arbitration under Article 21.3 (c) of the DSU, WT / DS27 / 15 of 7 January 1998, para. 19, p. 6 (available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds27_e.htm ).

[32] Brigitte STERN; Hélène RUIZ FABRI, Jurisprudence of the WTO, / 1991-1, Leiden Edition; Boston: Mr. Nijhoff Publishers 2007, p 222.

[33] « The term "arbitrator" means either a person or a group or members of the original panel sitting as an arbitrator », Footnote 16 to the seventh paragraph of Article 22 of the DSU.

[34] Chronological list of disputes, http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm ).

[35] Jamal BAFARI, Private Actors in the Dispute Settlement System of the World Trade Organization (WTO), PhD Thesis directed by Mr. Pierre ECKLY, Graduate School of Law, Political Science and History, University of Strasbourg, defended on 28 September 2013, p 15.

[36] Paragraph 11 of Article 4 of the Agreement on Subsidies and Countervailing Measures provides the following terms of reference for arbitrators: "In the event that a party to the dispute requests arbitration in accordance with paragraph 6 of Article 22 of the Dispute Settlement Understanding agreement, the arbitrator shall determine whether the countermeasures are appropriate. "

[37] The Agreement on Subsidies and Countervailing Measures.

[38] The first paragraph of Article 3 of the SCM Agreement relates to prohibited subsidies.

[39] Decision of the Arbitrator, CANADA - EXPORT CREDITS AND LOAN GUARANTEES FOR REGIONAL AIRCRAFT, Recourse by Canada to Arbitration under Article 22.6 of the DSU and of Article 4.11 of the SCM Agreement, WT / DS222 / ARB of 17 February 2003, paragraph 2.4, p3 (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds222_e.htm ).

[40] World Trade Report 2005, III Mathematical Essays, A- Quantitative Economics in WTO Dispute Settlement, p. 189, (available at https://www.wto.org/english/res_e/booksp_e/anrep_e /wtr05-3a_f.pdf ).

[41] Award of the Arbitrator, UNITED STATES - MEASURES FOR THE TRANSBOUNDARY SUPPLY OF GAMBLING AND PARIS SERVICES, US Recourse to Arbitration under Article 22.6 of the DSU, WT / DS285 / ARB of 21 December 2007, paragraph 1.9, p. 2 (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm ).

[42] Bashar MALKAWI, 'Arbitration and the World Trade Organization-The Forgotten Provisions of Article 25 of the Dispute Settlement Understanding', (2007) Journal of International Arbitration, Volume 24, Issue 2, p. 173-188.

[43] Laurence BOISSON DE CHAZOURNES, Arbitration at the WTO, Review of Arbitration, 2003, no. 3, p. 949-988, p 982, (available at http://archive-cover.unige.ch/unige:42318 ).

[44] Bashar MALKAWI, ‘Arbitration and the World Trade Organization - The Forgotten Provisions of Article 25 of the Dispute Settlement Understanding', (2007) Journal of International Arbitration, volume 24, Issue 2, pp. 173- 188, p 185.

[45] David JACYK, The Integration of Article 25 Arbitration in WTO Dispute Settlement: The Past, Present and Future, Australian International Law Journal, Vol. 15, 2008, pp. 235-266, p 239.

[46] Article 9 (1) of the TRIPS Agreement provides that "Members shall comply with Articles 1 to 21 of the Berne Convention (1971) and the Annex to that Convention ...". This is the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, revised and completed in Paris in 1971.

[47] Panel Report in United States - Article 110 (5) of the Copyright Act, WT / DS160 / R of 15 June 2000, p. 80 (available at https://www.wto.org/french/tratop_f/dispu_f/cases_f/ds160_f.htm ).

[48] Award of the Arbitrator, United States - Article 110 (5) of the Copyright Act, Arbitration under Article 21.3 (c) of the Understanding on Rules and Procedures Governing the Settlement of disputes, WT / DS160 / 12 of 15 January 2001, p. 12 (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm ).

[49] Request for authorization to retaliate (including Article 22.6 arbitration) on 7 January 2002. https://www.wto.org/french/tratop_f/dispu_f/cases_f/ds160_f.htm

[50] If the Member concerned fails to comply with the DSB's recommendations and rulings within the prescribed period, the complainant may seek authorization to impose retaliatory measures (suspension of the concessons or other obligations) in respect of the respondent. If the respondent disputes the level (value) of the retaliation and / or sector, an arbitration may be requested under Article 22.6 or 22 :7 of the DSU. This category includes both (1) disputes currently under arbitration under Article 22.6 and (2) disputes in which the authority to propose retaliatory measures has been requested, but arbitration proceedings did not start. https://www.wto.org/french/tratop_f/dispu_f/cases_f/ds160_f.htm

[51] Communication addressed to the president of the Dispute Resolution Body, United States - Article 110 (5) of the Copyright Act, Recourse to Article 25 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT / DS160 / 15 of 3 August 2001, paragraph 3, p. 1.

[52] DS 160: United States - Article 110 (5) of the Copyright Act. https://www.wto.org/french/tratop_f/dispu_f/cases_f/ds160_f.htm

[53] The appointment of the arbitrators took place on 13 August 2001 and the first meeting with the parties, and the arbitration award was adopted by the DSB on 9 November 2001, making the arbitration proceedings last three months and a few days.

[54] Arbitrators' Decision, United States - Section 110 (5) of the Copyright Act, Arbitration under Article 25 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT / DS160 / ARB25 / 1 of 9 November 2001, paragraph 5.1, p. 39, (available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm ).