Abstract
The sequencing between the procedures under Articles 21.5 and 22 of the Dispute Settlement Understanding (DSU) is one of the controversial issues arising in the implementation stage of the WTO Dispute Settlement System. The sequencing issue concerns the possibility of a party to obtain authorization for suspension of concessions under Articles 22.2 and 22.6 while there is a discussion on the compliance of the contentious measure under Article 21.5. The time frames established under the DSU result in an overlap between these two procedures, and the understanding is silent on whether these steps have to take place one after the other. The controversy first arose in the EC-Bananas III dispute and has reemerged several times since then. No consensus on the issue was reached under DSU review negotiations, and parties in disputes had to resort to ad hoc agreements to settle the controversy in each case. Until now, more than 30 ad hoc agreements on sequencing procedure under Articles 21.5 and 22 were reached. This article aims to analyze the agreements involving sequencing in order to assess how these ad hoc solutions have been addressing the sequencing issue.
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Notes
- 1.
European Communities – Regime for the Importation, Sale and Distribution of Bananas (DS27).
- 2.
WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, decision by the arbitrators, 9 April, 1999, WT/DS27/ARB, para 4.9.
- 3.
WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, decision by the arbitrators, 9 April, 1999, WT/DS27/ARB, para 2.9.
- 4.
WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, decision by the arbitrators, 9 April, 1999, WT/DS27/ARB, para 4.8.
- 5.
WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, decision by the arbitrators, 9 April, 1999, WT/DS27/ARB, para 4.15.
- 6.
WTO, Australia – Subsidies provided to producers and exporters of automotive leather, Recourse by the United States to Article 21.5 of the DSU, 4 October, 1999, WT/DS126/8.
- 7.
WTO, Brazil – Export Financing Programme for Aircraft, Recourse by Canada to Article 21.5 of the DSU, 26 November, 1999, WT/DS46/13 and WTO, Canada – Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, 23 November, 1999, WT/DS70/9.
- 8.
WTO, Brazil – Export Financing Programme for Aircraft, Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, Decision by the Arbitrators, 28 August, 2000, WT/DS46/ARB, para. 2.2.
- 9.
WTO, Brazil – Export Financing Programme for Aircraft, Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, Decision by the Arbitrators, 28 August, 2000, WT/DS46/ARB, Footnote 7.
- 10.
WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Understanding between Malaysia and the United States Regarding Possible Proceedings under Articles 21 and 22 of the DSU. 12 January, 2000, WT/DS58/16.
- 11.
WTO, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 by Canada, Report of the Panel, 18 February, 2000, WT/DS18/RW, para 1.3.
- 12.
See Zimmermann (2006), p. 100.
- 13.
Zimmermann (2006), p. 101.
- 14.
Palmeter and Mavroidis (2004), p. 287.
- 15.
Palmeter and Mavroidis (2004), p. 287.
- 16.
India – Measures Concerning the Importation of Certain Agricultural Products, DS430.
- 17.
WTO, India – Measures Concerning the Importation of Certain Agricultural Products, Recourse to Article 22.6 of the DSU by India, 19 July, 2016, WT/DS430/17.
- 18.
WTO, 2016 News Item – Dispute Settlement, US request for retaliation against India in farm goods dispute referred to arbitration, 19 July 2016.
- 19.
WTO, 2016 News Item – Dispute Settlement, Colombia blocks EU’s panel request in dispute over imported spirits, 5 September 2016.
References
Palmeter D, Mavroidis P (2004) Dispute settlement in the World Trade Organization – practice and procedure, 2nd edn. Cambridge University Press, Cambridge
WTO, 2016 News Item – Dispute Settlement, Colombia blocks EU’s panel request in dispute over imported spirits, 5 September 2016
WTO, 2016 News Item – Dispute Settlement, US request for retaliation against India in farm goods dispute referred to arbitration, 19 July 2016
WTO, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 by Canada, Report of the Panel, 18 February, 2000, WT/DS18/RW
WTO, Australia – Subsidies provided to producers and exporters of automotive leather, Recourse by the United States to Article 21.5 of the DSU, 4 October, 1999, WT/DS126/8
WTO, Brazil – Export Financing Programme for Aircraft, Recourse by Canada to Article 21.5 of the DSU, 26 November, 1999, WT/DS46/13
WTO, Brazil – Export Financing Programme for Aircraft, Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, Decision by the Arbitrators, 28 August, 2000, WT/DS46/ARB
WTO, Canada – Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, 23 November, 1999, WT/DS70/9
WTO, Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding, TN/DS/W/1, 13 March, 2002
WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, decision by the arbitrators, 9 April, 1999, WT/DS27/ARB
WTO, India – Measures Concerning the Importation of Certain Agricultural Products, Recourse to Article 22.6 of the DSU by India, 19 July, 2016, WT/DS430/17
WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Understanding between Malaysia and the United States Regarding Possible Proceedings under Articles 21 and 22 of the DSU. 12 January, 2000, WT/DS58/16
Zimmermann TA (2006) Negotiating the review of the WTO Dispute Settlement Understanding. Cameron May, London
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Grytz, V.K., Müller, C.J. (2019). Sequencing: Ad Hoc Solutions to a Systemic Problem. In: do Amaral Júnior, A., de Oliveira Sá Pires, L.M., Lucena Carneiro, C. (eds) The WTO Dispute Settlement Mechanism. Springer, Cham. https://doi.org/10.1007/978-3-030-03263-0_13
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