Procedure in the panels

In the GATT/WTO system, the mechanism for obtaining independent decisions is through panel proceedings. The purpose of panels is to assist the Dispute Settlement Body in discharging its responsibilities under the DSU. This means that when a case is referred to a panel it is required to make an objective assessment of the facts and the law and to 'make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements' (Article 11). A panel is also required to 'consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution' (ibid.). It is therefore evident that panel proceedings have a special character, including, on the one hand, many of the typical features of arbitration, and, on the other, an underlying emphasis on conciliation.

The establishment of a panel requires a decision from the DSB, but a request can now be refused only if there is consensus. This means that there is effectively a 'right to a panel' and the procedure.

The qualifications of panel members, which include relevant governmental or nongovernmental experience,22 are laid down in Article 8(1).

Panel’s proceedings: written submission of the party- first substantive meeting with parties- written rebuttals- second substantial meetings – descriptive part of the report of the parties – parties comments- interim review- final report (to parties)- final report (to all members).

26.Appellate procedure in WTO. Execution of the decisions of the panels and Appellate Body in WTO

The Appellate Body is a standing organ consisting of seven individuals, of whom three, selected in rotation, serve for each case. The persons concerned are appointed by the DSB for a four-year term and may be reappointed, but only once. The Appellate Body's task is to hear appeals from panel cases. Only parties to the dispute may make such an appeal, but it will be recalled that, during panel proceedings, third parties can present submissions if they have notified the DSB of a substantial interest in the matter, and a similar right extends to appellate proceedings.

Appeals are limited to 'issues of law covered in the panel report and legal interpretation developed by the panel' (Article 17(6)). Since panel reports often contain extensive findings offact, this is an important restriction on the Appellate Body's functions. Its reports may 'uphold, modify or reverse the legal findings and conclusions of the panel' (Article 17(13)) and are subject to strict time-limits, the normal duration of proceedings being no more than sixty days from the notification of the intention to appeal and the maximum duration no more than ninety days (Article 17(5)).

Implementation of rulings and recommendations

Article 19(1) of the DSU concerns the results of the panel process and provides that, where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it must recommend that the member concerned bring the measure into conformity with the agreement. In addition, the panel or Appellate Body may suggest ways in which the member could implement the recommendations. With adoption of the report of the panel or Appellate Body by the DSB now subject only to the negative consensus procedure, the question of implementation of recommendations and rulings received close attention during the negotiation of the DSU, and two quite detailed provisions finally emerged: Article 21, concerned with surveillance by the DSB, and Article 22, concerned with compensation and the suspension of concessions.

Date: 2015-12-18; view: 779