Considering Development in the Implementation of Panel and Appellate Body Reports
Trade, Law and Development, Vol. 4, No. 1, pp. 150-199, Summer 2012
53 Pages Posted: 16 Jun 2012
Date Written: June 13, 2012
Dispute settlement at the WTO does not end once the Panel and Appellate Body have issued their reports. Implementation proceedings, including arbitration on the reasonable time period for implementation, the level and manner of retaliation and further Panel proceedings on whether implementation has taken place, can be equally critical in order to secure compliance with the WTO agreements for developing members. Yet, either as complainants or as implementing parties, they may face specific challenges due to their socioeconomic vulnerabilities or costs associated with implementation. While the dispute settlement process includes a number of special and differential treatment (SDT) provisions for developing members, implementation proceedings offer much more limited safeguards and flexibilities, and their use by litigants and adjudicators has been very inconsistent. This article analyzes how members, parties, disputes, arbitrators, Panelists, the Appellate Body and the Dispute Settlement Body have addressed developmental claims and arguments in implementation proceedings. It finds that developing members have often argued that, based on SDT provisions, their development status should have a bearing on the time for implementation (by themselves or by an opposing party).
While arbitrators have been sensitive to such concerns, the time period granted has been rarely modified. By contrast, there are no specific SDT provisions relating to retaliation, yet arbitrators seem to have been more receptive to considering development-related arguments as part of their analysis. This may be a rare instance of development considerations being “mainstreamed” in the interpretation of WTO rules.
Beyond this doctrinal analysis, the article assesses the trajectory of attempts to reform implementation procedures from the Uruguay Round to the Doha Round. Drawing lessons from the practice of members and adjudicators, it offers a cautionary perspective on the likely effect of current proposals. The article concludes by offering avenues for improving the consideration of development and the consistency of arbitrators’ responses to developmental claims in implementation proceedings despite the absence of formal amendments or a Doha package.
Keywords: WTO, development, dispute settlement, panel, Appellate Body, arbitration, developing country, trade, Special and differential treatment, SDT, China, India, Brazil, Indonesia, Philippines
Suggested Citation: Suggested Citation