Arbitration as an Alternative Dispute Settlement Mechanism at the WTO

Abstract

Abstract This study examines the WTO provisions for arbitration and their underutilisation when compared with litigation. It specifically assesses Articles 21.3(c), 22.6 and 25 of the Dispute Settlement Understanding (DSU). Of these provisions for arbitration, DSU Article 21.3(c) is most often invoked, while Article 25 is seldomly used. The paralysis in the Appellate Body and the proposed Multi-Party Interim Appeal Arbitration Arrangement (MPIA) have renewed the WTO s attention on Article 25. The study examines this new feature and makes some projections about the WTO s future. It argues that there is a direct relationship between MPIA s success and Article 25's increased usage. There is a concern, however, about whether MPIA s success will disincentivise interest and urgency in resolving the Appellate Body's gridlock. While MPIA Members have signalled their commitment to resolving the issue, it remains to be seen whether this will happen and whether the Appellate Body will become functional once again.