Advocacy before the Dispute Settlement Body of the World Trade Organization
The real innovation of the World Trade Organization (WTO) was the Dispute Settlement Body (DSB) and Dispute Settlement Understanding (DSU), which for the first time allow for real relief, free from the politically infeasible requirement that all member countries (including the losing member country) agree that recommendations of the arbitration should be implemented, free from the prejudice against foreign exporters that is typically present in domestic courts, and free from the formulaic rubber-stamping that domestic judicial review is in many jurisdictions around the world.
Proceedings before the DSB are different in complexity, procedure, and formality from domestic courts. Further, the arguments and decisions are a mixture of international trade law, international trade policy, and international politics. While only member countries have standing to bring disputes before the DSB, private parties often petition their government to sponsor their dispute. Thus private parties able to seek relief when foreign domestic courts do not provide an adequate avenue for relief (as is typically the case).
Attorneys in the Antidumping Defense Group have successfully presented arguments before the WTO, and we affiliate experienced WTO advocates to join in providing expert legal advocacy on behalf of private parties and member countries. We analyze potential claims, providing guidance regarding procedural intricacies and likelihood of success. We also advocate before DSB Panels and Appellate Body on behalf of private parties, as permitted under the sponsorship of their government. We offer expertise in analysis and advocacy to governments of member countries who seek to rein in the use of trade remedies (such as antidumping proceedings, countervailing measures, and safeguards) when other member countries use these remedies in a manner inconsistent with their WTO obligations.
While the experienced WTO advocates we affiliate have years of direct experience in dozens of DSB proceedings, U.S. members of the Antidumping Defense Group have direct advocacy experience in the following matters:
Proceedings before the DSB are different in complexity, procedure, and formality from domestic courts. Further, the arguments and decisions are a mixture of international trade law, international trade policy, and international politics. While only member countries have standing to bring disputes before the DSB, private parties often petition their government to sponsor their dispute. Thus private parties able to seek relief when foreign domestic courts do not provide an adequate avenue for relief (as is typically the case).
Attorneys in the Antidumping Defense Group have successfully presented arguments before the WTO, and we affiliate experienced WTO advocates to join in providing expert legal advocacy on behalf of private parties and member countries. We analyze potential claims, providing guidance regarding procedural intricacies and likelihood of success. We also advocate before DSB Panels and Appellate Body on behalf of private parties, as permitted under the sponsorship of their government. We offer expertise in analysis and advocacy to governments of member countries who seek to rein in the use of trade remedies (such as antidumping proceedings, countervailing measures, and safeguards) when other member countries use these remedies in a manner inconsistent with their WTO obligations.
While the experienced WTO advocates we affiliate have years of direct experience in dozens of DSB proceedings, U.S. members of the Antidumping Defense Group have direct advocacy experience in the following matters:
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WTO Procedure
Procedure at the DSB is governed by the Dispute Settlement Understanding, and allows for member countries to obtain relief from the measures of other member countries that are inconsistent with WTO obligations. Before proceeding, a private party or member country must assure that it has a complete understanding of the other member country's legislation and/or the measure applied that may be inconsistent with WTO obligations. A private party must obtain sponsorship by their government to either fully adopt the private-party's cause, or allow the private party to hire its own counsel to bring the claim under the guise of the member country. At this point, members of the Antidumping Defense Group prepare the first submission, which provides a reference point for developing questions to be raised in consultations, and answers to anticipated questions from the other member country. After analysis is completed and authorization/sponsorship has been received, the DSB procedures may be initiated.
In the preliminary stages of a DSB proceeding, a member country must formally request consultations with the member country with the allegedly inconsistent measure. Consultations may be held in Geneva, in a mutually acceptable location, or via secure video conferencing. Consultations may be helpful to clarify issues, understand the application of domestic laws, and seek a negotiated outcome. The member country to which the request for consultations is directed has 10 days to respond, and consultations must be held within 30 days of the request. If consultations are not successful, the complaining member country may request establishment of a panel within 60 days of the initial request for consultations. Although the request for establishment of a panel may be blocked by any member country one time, a second request cannot be blocked unless all member countries (including the complaining member country) agree to prevent establishment of the panel. The preliminary stages may be as short as 3 1/2 months, but may be longer depending upon whether consultations are productive and can lead to a negotiated outcome.
The panel should be composed within 20 days after the successful request for establishment of the panel, and the timetable for the proceeding is established within 7 days after composition of the panel. Generally, first written submissions are due within 3-6 weeks, with the first meeting in Geneva 1-2 weeks later. Members of the Antidumping Defense Group finalize submissions once it is clear that consultations have failed to produce the possibility of a negotiated outcome, and prepare answer to anticipated questions in the first meeting. The opening statement must be prepared and submitted in writing. Although answers to questions asked by panelists are only official to the extent they are submitted in writing, it is better to have an answer that can be supplemented with further review after the first meeting. To the extent that the complaining member country wishes to review and approve answers, or approve answers before they are provided in the first meeting or in writing afterwards, answers can be deferred until provided in writing. Rebuttals are submitted 2-3 weeks later, with the second meeting 1-2 weeks after rebuttals. The second meeting proceeds in a similar fashion as the first meeting, with opening statements and answers to questions submitted after the meeting in writing.
The panel issues the descriptive part of its decision 2-4 weeks after the second meeting, allowing comments on the descriptive part within 2 weeks after issuance. The interim report is released to the member countries 2-4 weeks later, with request to review the report due within the following week, with a period of 2 weeks permitted to review the report. The final report is issued 2 weeks later, and submitted to the DSB and issued publicly 3 weeks later. The panel proceedings last approximately 6 months. Thus, a complaining party may know within 9-10 months whether it may obtain relief from the complained measure.
The panel decision may be appealed to the Appellate Body within 60 days of issuance of the panel report. The Appellate Body hearing and decision occur during the next 60 days, and the DSB adopts the Appellate Body report within 30 days of issuance of the Appellate Body decision.
If the complaining member country has prevailed, the losing member country must announce within 30 days of adoption of the final report or decision whether it intends to implement the recommendations of the panel or Appellate Body. The time period allowed to implement the recommendations is generally set within 90 days of adoption of the panel report or Appellate Body decision, and generally is a maximum of 15 months (a "Reasonable Period of Time" or "RPT"). If the losing member country has not fully implemented the recommendations, a compliance panel may be convened 90 days after the RPT expires. The prevailing and losing member countries may negotiate compensation within 20 days after the RPT, or a Retaliation panel may be convened 60 days after expiration of the RPT or the compliance panel's decision.
Given the possible outcomes (including a refusal to implement, and retaliation which may only raise tariffs on imports from the losing member country), and the minimum of nearly 3 years to conclusion, complaining parties must take into consideration that relief may only come in the form of increased import duties for imports from the losing member country into the prevailing member country. These tariffs may be set with an eye towards causing certain industries of the losing member country to pressure the government of the losing member country to implement the recommendations, but ultimately, the losing member country can avoid implementing the recommendations for many years. It is more often the case, however, that the losing member country will implement the recommendations of the panel or Appellate Body; thus the complaining party can obtain relief through the DSB, where relief in domestic court would have been impossible or improbable.
Members of the Antidumping Defense Group, and its affiliates, have the knowledge and experience necessary to help you obtain the best result possible from WTO proceedings.
In the preliminary stages of a DSB proceeding, a member country must formally request consultations with the member country with the allegedly inconsistent measure. Consultations may be held in Geneva, in a mutually acceptable location, or via secure video conferencing. Consultations may be helpful to clarify issues, understand the application of domestic laws, and seek a negotiated outcome. The member country to which the request for consultations is directed has 10 days to respond, and consultations must be held within 30 days of the request. If consultations are not successful, the complaining member country may request establishment of a panel within 60 days of the initial request for consultations. Although the request for establishment of a panel may be blocked by any member country one time, a second request cannot be blocked unless all member countries (including the complaining member country) agree to prevent establishment of the panel. The preliminary stages may be as short as 3 1/2 months, but may be longer depending upon whether consultations are productive and can lead to a negotiated outcome.
The panel should be composed within 20 days after the successful request for establishment of the panel, and the timetable for the proceeding is established within 7 days after composition of the panel. Generally, first written submissions are due within 3-6 weeks, with the first meeting in Geneva 1-2 weeks later. Members of the Antidumping Defense Group finalize submissions once it is clear that consultations have failed to produce the possibility of a negotiated outcome, and prepare answer to anticipated questions in the first meeting. The opening statement must be prepared and submitted in writing. Although answers to questions asked by panelists are only official to the extent they are submitted in writing, it is better to have an answer that can be supplemented with further review after the first meeting. To the extent that the complaining member country wishes to review and approve answers, or approve answers before they are provided in the first meeting or in writing afterwards, answers can be deferred until provided in writing. Rebuttals are submitted 2-3 weeks later, with the second meeting 1-2 weeks after rebuttals. The second meeting proceeds in a similar fashion as the first meeting, with opening statements and answers to questions submitted after the meeting in writing.
The panel issues the descriptive part of its decision 2-4 weeks after the second meeting, allowing comments on the descriptive part within 2 weeks after issuance. The interim report is released to the member countries 2-4 weeks later, with request to review the report due within the following week, with a period of 2 weeks permitted to review the report. The final report is issued 2 weeks later, and submitted to the DSB and issued publicly 3 weeks later. The panel proceedings last approximately 6 months. Thus, a complaining party may know within 9-10 months whether it may obtain relief from the complained measure.
The panel decision may be appealed to the Appellate Body within 60 days of issuance of the panel report. The Appellate Body hearing and decision occur during the next 60 days, and the DSB adopts the Appellate Body report within 30 days of issuance of the Appellate Body decision.
If the complaining member country has prevailed, the losing member country must announce within 30 days of adoption of the final report or decision whether it intends to implement the recommendations of the panel or Appellate Body. The time period allowed to implement the recommendations is generally set within 90 days of adoption of the panel report or Appellate Body decision, and generally is a maximum of 15 months (a "Reasonable Period of Time" or "RPT"). If the losing member country has not fully implemented the recommendations, a compliance panel may be convened 90 days after the RPT expires. The prevailing and losing member countries may negotiate compensation within 20 days after the RPT, or a Retaliation panel may be convened 60 days after expiration of the RPT or the compliance panel's decision.
Given the possible outcomes (including a refusal to implement, and retaliation which may only raise tariffs on imports from the losing member country), and the minimum of nearly 3 years to conclusion, complaining parties must take into consideration that relief may only come in the form of increased import duties for imports from the losing member country into the prevailing member country. These tariffs may be set with an eye towards causing certain industries of the losing member country to pressure the government of the losing member country to implement the recommendations, but ultimately, the losing member country can avoid implementing the recommendations for many years. It is more often the case, however, that the losing member country will implement the recommendations of the panel or Appellate Body; thus the complaining party can obtain relief through the DSB, where relief in domestic court would have been impossible or improbable.
Members of the Antidumping Defense Group, and its affiliates, have the knowledge and experience necessary to help you obtain the best result possible from WTO proceedings.