Dispute Settlement in the WTO:

An Update and Some Reflections

of a Soon-To-Retire WTO Legal Adviser

Presentation to the Washington International Trade
Association (WITA)
Bruce Wilson
Director, Legal Affairs Division
WTO Secretariat
April 28, 2010
(Embargoed until Delivered)

Order of Presentation
Introduction
Current Activity in WTO Dispute Settlement System
Recent Developments of Interest at the Panel/Compliance
Panel/Arbitration Level
Compliance/Implementation Developments of Note
Recent Appellate Body Happenings (or Lack Thereof)
Some Predictions About What Lies Ahead in WTO Dispute
Settlement
Some Reflections on My Eight Year Tenure as WTO Legal Adviser
A Final Word About LAD and Succession


-- Attached to this presentation are three documents a statistical
overview of WTO dispute settlement activity from 1995 through the
present, a listing of current cases in WTO litigation, a listing of
completed panel/compliance panel/arbitration proceedings


Introduction
Fourth and final presentation on this topic in my current position.

Will dispense with the statistical information of a historical nature; I
have included a lot this info in three handouts available in the room.

Focus today will be on recent and current developments, and then
share some personal reflections.

My position is one of best legal jobs in the world in the field of
international trade.

As is customary practice, due to WTO Rules of Conduct, I will not
comment on individual cases.

But welcome your own comments about individual cases that have
been decided.




Current Activity in WTO Dispute Settlement
Current level of litigation activity at the panel level is the highest it
has ever been 19 original panel proceedings
10 are non trade remedy cases and 9 are trade remedy cases
Currently no IP, Ag, or Services cases are in litigation
There is one 22.6 Arbitration
No ongoing compliance panels, 21.3 RPT arbitrations, appeals
US (15) continues to be most active litigating Member (5 as C, 10 as
R)
EU (9) continues as second most active litigating Member (4 as C,
5 as R)
China (6) has become third most active litigating Member (5 as C, 1
as R)
Only 11 other Members are currently active as a C or R
Recent Developments of Interest at Panel/Compliance
Panel/Arbitration Level
Increased time to produce panel reports
Litigation continues to be primarily among a dozen or so Members
Chinas increasing role as a complainant
Continued request for preliminary rulings
Recent Surge in SPS/TBT cases
Continued litigation over use US use of zeroing in administrative
reviews of AD orders
Appearance of new litigants e.g. Vietnam, several Arab countries
as 3
rd
Ps
Issuance finally of EC-Airbus report with US-Boeing report later this
year (longest panel proceedings in WTO history)
Inactivity of compliance panels over past 18 months
Continued non-uniform approach in arbitrations over permissible
level of retaliation (as manifested in US-Cotton Subsidies arbitration)


Compliance/Implementation Developments
Continued stated commitment by all to comply with WTO rulings,
which reinforces the legitimacy of the system.
A number of negotiated settlements involving EU have occurred
over last year flowing from past WTO litigation EC-Beef
Hormones, EC-Bananas, EC-GMOS (with Canada, Argentina but
not US); use of DG as a mediator in EC-Bananas dispute.
By contrast, continuing concerns about lack of, or delay in,
compliance by US in a number of cases.
US/Brazil agreement over compensation in US-Cotton subsidies
case in recent days has captured everyones attention.
Recent EU use of increased export subsidies in sugar has created
angst among the complaining parties in the original case
First experience with Chinese compliance with adverse panel/AB
reports has generally been positive from all indications.

Recent Appellate Body Happenings
2 new AB Members in 2009 Van den Bosche (Belgium) replacing
Sacerdoti (Italy) and Ramirez (Mexico) replacing Baptista (Brazil)

After extremely busy 2008, there has been a marked decrease in
appellate litigation in 2009 and 2010 ). No appeals expected before
late summer or early fall this year.

Appellate activity tends to follow and lag panel activity, so we can
expect an explosion of appellate activity in fall of 2010 and
throughout all of 2011 and well into 2012

AB has embarked on first set of amendments to its procedures since
2004 and hopes to have those in place later this year

Some Predictions About What Lies Ahead
in WTO Dispute Settlement
WTO Dispute Settlement System will continue to be used actively
China has become and will continue to be among the top three
litigating parties in the WTO along with the US and the EU
U.S. will continue to resolve zeroing complaints on administrative
reviews of AD orders through expedited WTO cases
Challenges to the trade remedy practices of developing countries
will begin to appear in the system
SPS/TBT cases will continue to proliferate
Implementation of adverse WTO reports by US requiring legislative
action will only ultimately be resolved as part of a fast track bill
implementing the results of the Doha Round
Appellate activity, as noted previously, will resume vigorously this
fall and continue at a heavy pace at least through 2012.


Some Reflections on My Tenure as WTO Legal Adviser
WTO and, especially its dispute settlement system, has moved from
a somewhat difficult beginning to a much more mature and stable
organization with global legitimacy
The ultimate success or failure of the DS system depends on the
performance and behaviour a varied and broad cross-section of
players.
Collective commitment to the system, but special mention of work of
panel adjudicators.
Their hard work and dedication and their determination to deliver
quality reports and well-reasoned decisions is impressive and
inspiring


Reflections (cont.)
LAD has assisted on some 50 different litigation proceedings during
my tenure (including 11 proceedings currently underway)

Bringing more transparency to the WTO DS system

Assisting the WTO on other legal issues

It has been a fascinating, exciting, and deeply rewarding eight years
for me.



A Final Word About LAD and Succession
Many individuals in the WTO assist in the operation of the DS
system

However, in closing, I would like to pay special tribute to my
colleagues in LAD with whom I have had the pleasure to work over
these past eight years.

As befits a multilateral organization, LAD represents 14 different
nationalities and, although most WTO litigation is done in English,
we collectively speak 10 different languages.

I like to think that LAD is a shining example of the professionalism,
technical competence, dedication, and hard work of WTO
Secretariat staff.

LAD has the best internship program in the WTO

Finally, a word about my successor, Ms. Valerie Hughes of Canada