Appellate Body Research Articles

The Analysis of World Trade Organization Panel Decision of Indonesia Measures Relating to Raw Materials

European Union has requested a panel regarding Indonesia's restriction of exports and downstreaming of raw materials. According to the European Union, Indonesia's export and downstream policies violate World Trade Organization (WTO) provisions, namely Article XI:1 of the General Agreement on Tariffs and Trade (GATT) 1994. In the panel report, the World Trade Organization Dispute Settlement Body (WTO DSB) decided that Indonesia had been proven to have violated these WTO provisions. This thesis examines whether the WTO's ruling on Indonesia's restrictions on raw materials is justified and explores Indonesia's arguments in Appellate Body with the European Union regarding restrictions on nickel ore exports and downstreaming. The research methodology involves normative legal research, analyzing primary legal sources like legislation and secondary sources such as textbooks and case studies. The study delves into Indonesia's challenges in defending its policies at the WTO's Appellate Body. The primary research object is Indonesia's Measures relating to Raw Materials, particularly nickel ore, and relevant agreements like GATT 1994. Legal materials include Indonesian regulations on exports and GATT 1994, while secondary sources encompass statutory regulations, scientific journals, and related literature. The data collection method relies on library research. Using a qualitative approach, the thesis seeks a deep understanding of the core issues. Analytical methods include statutory interpretation, case studies, and grounded theory. The research finds Indonesia's measures non-compliant with GATT 1994 but suggests leveraging Article XXI, the Security Exception, as a strategic defense in the Appellate Body.

The utility of appellate review at the WTO and its optimal structure

Abstract The impasse over the appointment of judges to the World Trade Organization (WTO) Appellate Body shows no signs of abating, raising considerable doubt about the future of appellate review in WTO disputes. This paper examines the rationale for appellate review in the WTO, drawing on both the history of the General Agreement on Tariffs and Trade and the economic literature assessing the desirability of appellate review in judicial systems. It argues that the WTO does not present a compelling economic case for a two-stage judicial process. It further argues that if some form of appellate review is to be retained in the WTO, a discretionary ‘certiorari-like’ mechanism may be the best option.

Peran Panel dan Appellate Body dalam Penyelesaian Sengketa di WTO

The aim of the research is to determine the role of panels and the Appellate Body in resolving disputes at the WTO. The research method used in this paper is a research method with a normative juridical approach with descriptive-analytical research specifications. The dispute resolution mechanism in the WTO involves five main stages. The first stage is consultation, where the disputing countries try to resolve the problem directly. The second stage includes settlement efforts through good services, conciliation and mediation. The third stage is the establishment of a panel, where independent experts examine the dispute and prepare a report. The fourth stage is the appeals process, where the appeals body reviews the panel's decision if there is an appeal. The final stage is the implementation of the decisions and recommendations issued. The panel is formed within approximately 90 days of the application, consisting of independent experts selected by the DSB. The panel works based on the Terms of Reference (ToR) which regulate the procedures for resolving disputes and is tasked with carrying out an objective assessment of the problems faced, assisting the DSB in making recommendations. If consultations fail, the aggrieved country can request the formation of a panel from the Dispute Settlement Body (DSB). If the panel fails to reach a solution, they must submit a written report to the DSB. This process ensures dispute resolution within a certain time period to ensure legal certainty. In addition, there is an appeal mechanism through the Appellate Body which consists of seven international trade law experts. The appeal process must be completed within 90 days, and the Appellate Body report is final and must be adopted by the DSB.

On some aspects of the WTO Jurisprudence and Dispute Settlement Mechanism

The paper first explores certain aspects of dispute resolution mechanism implemented within the World Trade Organization and then proceeds with the legal analysis of a number of legal presumptions, concepts and principles both of procedural and substantive legal nature developed and applicable within the framework of the above mentioned mechanism for resolving disputes between the WTO member-states. The Paper examines the main features that distinguish the dispute resolution mechanism used within the WTO from the GATT mechanism, which mechanism, i/e/ the one implemented within the WTO framework, is recognized to be more legal in nature in contrast to the more political nature of the GATT dispute resolution mechanism, given that under the GATT mechanism the direct negotiations had more weight in reaching the final settlement than within the WTO system, where formal juridical disciplines, as the practice of dispute settlement indicates, play far more role and has become a key element of the system. Also, certain procedural presumptions and principles applicable in the adjudication process as well as the procedure and feature characteristic for the enforcement of decisions are examined in the paper based on and with reference to the number of panel and Appellate Body decisions. Decisions delivered by panels and the Appelate Body represent a very important tool for the interpretation of the WTO law and shapes the practice of its implementation. In this regard, although it is not considered a formal source, Appelate Body and panel decisions should be considered as an important source of both procedural and substantive WTO law. The DSB practice established under the GATT/WTO law, on the one hand, defines a set of applicable procedural rules and on the other hand, develops the WTO substantive law by way of developing the criteria and rules governing the application of provisions of the WTO agreements and other sources governing rights and obligations of the member-states. Particular attention in this regard is paid to the peculiarities of the application of the principle of responsibility for lawful actions applied in the WTO jurisprudence, under the relevant WTO agreements and more specifically under the GATT, GATS, TRIPS and SCM Agreements. Also a number of procedural concepts the principles e.g. the “prima facie case”, “rational relationship” elaborated in the “Hormone” case, principle of multi-criteria assessment initially applied in «Korea - fresh, chilled and frozen meat» case and negative presumption rule applied by the panels are analysied.

Permanent Sovereignty vs. International Obligations

This research analyses Indonesia's policies related to downstreaming and restrictions on raw nickel exports that have caused international debate, especially the European Union which complained against Indonesia to the World Trade Organization (WTO) in Dispute Settlement 592 (DS-592). The study explores Indonesia's position as a WTO member that is being questioned for its policy of banning nickel ore exports to the European Union, and examines the DS-592 ruling in relation to the permanent sovereignty debate. This article uses a normative juridical method with doctrinal, comparative, and case approaches. The results show that Indonesia has permanent sovereignty over its nickel ore guaranteed by UN Resolution 1803. Therefore, Indonesia must exercise this sovereignty with due regard to international obligations. Indonesia should learn from China's export regulations as it prioritises export restriction policies rather than export bans. By applying China's approach, Indonesia can prevent the problems that occurred in DS 592. However, a series of nickel downstream policies implemented by Indonesia have violated the provisions of the WTO Agreement. This article also explains that the vacuum of the Appellate Body does not negate the EU's authority to retaliate against Indonesia. This article concludes that Indonesia must implement a policy determining the percentage of downstream nickel ore, as well as nickel ore that will be exported. This conclusion has resulted in the theoretical idea that no sovereignty can be exercised in violation of the country's international obligations. Thus, each country must be able to establish policies that can balance national interests with international obligations. KEYWORDS: Export Restrictions, International Obligations, Nickel Ore, Soverignty, WTO.

Can informal judicial norms protect against political pressure?

International tribunals are pulled between a commitment to judicial autonomy and the need to manage their members’ political expectations, lest these rein in the tribunal’s power. We argue that when the formal design of international institutions leaves them exposed to political control, institutional actors can respond by self-imposing constraints to protect themselves from excessive oversight. We examine this phenomenon in the context of the World Trade Organization’s (WTO) Appellate Body (AB), touted until recently as one of the most successful international tribunals in existence. We argue that the early insistence on collegiality and consensus opinions among WTO AB members had the effect of (i) deflecting political blame and (ii) providing cover for adjudicators who did not dissent when governments might have wished them to. As the informal norm of consensus opinion was weakened, political control by WTO members grew stronger, culminating in the United States’s move to paralyze the AB. Weaker actors can thus improve their position under formal rules, yet this requires a strong commitment to a set of informal norms, which comes with its own challenges.

Appeals after the Appellate Body

AbstractThe Appellate Body (AB) of the World Trade Organization (WTO) has not heard an appeal since 2019. This article explores how adjudicators and member states have navigated WTO dispute settlement in this post-AB world. It begins by providing an overview of dispute settlement practice from 2020 to 2022, including by cataloguing appeals into the void, appeals to arbitration, and appeals forewent. It explains the incentives created by the lack of a functioning appeals mechanism and provides background on the alternative appeals procedure agreed to among a subset of WTO members: the Multi-Party Interim Arbitration Arrangement (MPIA). Moreover, it closely examines five WTO disputes: Colombia–Frozen Fries, Turkey–Pharmaceutical Products, EU–Steel Safeguards, Thailand–Cigarettes, and Costa Rica–Avocados. Through these five disputes, the article examines the circumstances in which members have agreed to binding appeals arbitration even absent formally committing to the MPIA, the circumstances in which members have appealed to arbitration or foregone such appeals, and whether facilitated negotiations present a workable alternative to an effective appeals mechanism. Finally, this article closely analyzes the reasoning of two appeals arbitration awards issued to date – Colombia–Frozen Fries and Turkey–Pharmaceutical Products – with a special focus on how those awards depart from AB precedent and what those departures can tell us about the current crisis.

The Roots of the Crises in the WTO Appellate Body and Reform Proposals

Since the WTO Appellate Body "suspension" crisis, how to reform the Appellate Body has become a hot topic among member states. Especially after the official "suspension" of the Appellate Body, member states have put forward proposals to reform the Appellate Body, but these proposals have failed to achieve substantive results, and the reform of the Appellate Body has been stalled. Therefore, analyzing and studying the reform of the WTO Appellate Body is conducive to promoting the reform of the Appellate Body, getting rid of the crisis of the Appellate Body, and also has positive significance to the reform of the WTO dispute settlement system. The three parts of this article are as follows: the first part studies the WTO Appellate Body's fundamental procedures and gives a general overview of the body to lay the theoretical foundation for the subsequent investigation of the WTO Appellate Body's issues; The second portion examines the legal ramifications of the WTO suspension conundrum. The more divisive practical matters, such as overtime hearings, confusing hearing scope, and the influence of Appellate Body decisions on precedent; The third section of the WTO Appellate Body Reform Suggestions includes suggestions from WTO members regarding current trends in the reform, academic theory surrounding the reform, Appellate Body cases, and reform of the practice of combining future reform of the WTO-specific measures.

“NON-TRADITIONAL” AUTHORITIES OF COMMERCIAL COURTS REGARDING THE CONSIDERATION OF PETITIONS OF THE ANTIMONOPOLOGY COMMITTEE OF UKRAINE FOR THE GRANT OF PERMISSIONS FOR INSPECTIONS OF BUSINESS ENTITIES, INCLUDING ACCESS TO THE PREMISES, INSPECTION, SEALING, AREAS STATEMENT AND EXTRACTION OF PROPERTY

The article is devoted to the legal regulation of the powers of commercial courts regarding the granting of permission to carry out inspections, imposing arrests, seizing documents and information, as well as obtaining access to the premises and electronic communications systems of business entities, associations, authorities, local self-government bodies, administrative and economic bodies management and control at the request of the Antimonopoly Committee of Ukraine (hereinafter – AMCU) according to Article 252-1 of the Economic Procedure Code of Ukraine. It was determined that one of the innovations of the European integration changes to the legislative framework of Ukraine was the possibility of commercial courts to consider petitions of the Antimonopoly Committee of Ukraine regarding inspections of business entities, imposing arrests, seizing documents and information, as well as obtaining access to premises and electronic communications systems in cases of violations legislation on the protection of economic competition. It was established that the powers of the commercial court to consider petitions of the Antimonopoly Committee of Ukraine under Article 252-1 of the Economic Procedural Code of Ukraine fulfil the role of judicial control and should become a counterweight to abuses by the bodies of the Antimonopoly Committee of Ukraine. It was analyzed that access to the judicial practice of commercial courts regarding the granting of permission to the Antimonopoly Committee of Ukraine for inspection is not open and is not subject to publication in electronic form during the year. Accordingly, it is possible to analyze the real results of such European integration legislative changes no earlier than the end of the current or the beginning of the next calendar year. Changes are proposed to the provisions of domestic legislation, namely to the Commercial Procedure Code of Ukraine by including them in the powers of first instance courts in Section III “Claim Proceedings” and excluding them from the powers of appellate bodies in order to avoid instance conflicts and to part 4 of Art. 4 of the Law of Ukraine “On Access to Court Decisions” regarding the terms of publication of resolutions granting the right to the Antimonopoly Committee of Ukraine for inspection from one year to the date of completion of the inspection.

An Analysis of the Challenge Facing WTO Panels in the Context of MPIA

Since the Appellate Body came to a complete standstill, the DSB in WTO has been stuck in an intractable situation, where many disputes are still in the appeals process and cannot be appropriately resolved. Whatever the disputing parties chose, the Panels reports could not be adopted by the DSB. As a result, the Appellate Body and the Panel process are facing an unprecedented crisis. As a contingency to preserve the multilateralism of WTO, MPIA was established as an interim replacement by 19 WTO members in 2020. In the context of MPIA, this paper will analyze the necessity of reformation for the dispute settlement system, especially the Panel. Furthermore, this paper will provide workable solutions by examining the ad hoc Panels crisis and shortcomings.

Challenges Faced by Vietnam and Other Developing Countries in Participating in the WTO Dispute Settlement System (DSS)

The World Trade Organization (WTO) is currently experiencing a crisis in its dispute system, driven by an increasing number of disputes, escalating complexity of case law, and the ongoing blockade by the United States of Appellate Body appointments since 2016. This blockade has resulted in significant delays in the WTO’s litigation process, disproportionately affecting developing countries - majority members of the WTO - due to the substantial financial costs associated with pursuing litigation. This study aims to analyze the challenges faced by Vietnam and other developing nations in navigating the WTO dispute system. Employing a qualitative methodology, this research will draw on primary sources including legal documents, official WTO reports, and governmental statements. The findings are expected to highlight the limitations of current WTO regulations, the inadequate support from the Advisory Centre on WTO Law (ACWL), and the financial obstacles that deter developing countries from participating actively in the Dispute Settlement System.

An Evaluation of the Dispute Settlement System in the World Trade Organization

The main goal of the World Trade Organization (WTO) upon its founding was to guarantee the unhindered and unrestricted flow of goods and services. The Dispute Settlement System, which guarantees prompt resolution of disputes, is the foundation of the WTO. The purpose of this study was to examine how the WTO's Dispute Settlement Body resolves trade disputes. This study explicitly looked at the WTO Dispute Settlement System, identifying its goals and determining whether it facilitates the realization of these goals. The study also assessed the types of disputes that fall under the purview of the WTO Dispute System Body. The research used the doctrinal research approach to accomplish this aim. In the World Trade Organization, trade disputes often occur when a member state or states adopt a measure or measures that the WTO deems to be at odds with the commitments outlined in the WTO agreements. Realizing the practical significance of the member states' obligations requires the prompt and organized settlement of trade disputes. Thus, the study outlined some of the difficulties DSB is facing as well as future directions. These include, among other things, the protracted dispute resolution procedure, the appellate body dilemma, the lack of transparency, and the handling of new trade issues. The study suggested that the system be made more open and visible to the general public as a result. Additionally, the system has to select panelists who are qualified to handle the cases that are brought before panels due to their increasingly complicated substance.

MPIA as Solution of Appellate Body Dilemma: An Overview of the Advantages of New Mechanism of WTO Dispute Settlement

In December 2019, the WTO Appellate Body, the heart of global trade governance, encountered an unprecedented impasse due to the United States blockade on the appointment of its members. This paper delves into the emergence of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) as a provisional solution to this deadlock. Established by the European Union and trade partners, and now endorsed by 53 WTO members, the MPIA aims to temporarily fill the void left by the paralyzed Appellate Body by utilizing Article 25 of the DSU. Through a juridical normative methodology complemented by historical and descriptive analysis, this study critically evaluates the MPIA's role within the context of international trade dispute resolution. It compares the MPIA's innovative mechanism against the traditional WTO dispute settlement mechanisms, illuminating both its merits and limitations. The paper argues that while the MPIA represents a creative and necessary stopgap, beyond this, it is not a solution for the challenges facing the WTO's dispute settlement mechanism. The findings emphasize the crucial element for comprehensive reform within the WTO's Dispute Settlement Mechanism (DSM) to regain its functionality and credibility in international trade dispute settlement.

The Dilemma and Improvement of the International Trade and Investment Settlement Mechanism--Take the WTO Appellate Body and China's Belt and Road

The Dilemma and Improvement of the International Trade and Investment Settlement Mechanism--Take the WTO Appellate Body and China's Belt and Road

Reforms on the WTO Dispute Settlement System from the Perspective of the Appellate Body

Reforms on the WTO Dispute Settlement System from the Perspective of the Appellate Body

Experience of Individual Northern European Countries in Providing Protection of Justice (Criminological Aspect and Criminal Law Aspect)

The purpose of the article is to describes experience of Denmark, Finland, Norway and Sweden in providing criminological protection of justice. . This article is the qualitative research with a historical and comparative approach. Thus, as of 01 January, 2023, employees of the Court Security Service in Ukraine ensured public order and security in 590 appellate and local courts and bodies of the justice system, which is more than 80% of their total number , and as of 01 January 2024 security was ensured in 639 (87 %) objects of the justice system. To a large extent, this is related to introduction of restrictions in Ukraine provided for by martial law as a result of the armed aggression of the Russian Federation.The results of the study concluded that the it has been established that today in some countries of Northern Europe, in contrast to Ukraine, permanent security checks for all visitors are implemented only in those courts where such checks are needed for security reasons, and implementation of such a criminological function is entrusted to security inspectors represented by police officers, court employees, as well as security companies. Based on the results of the research, promising directions for improving activities of the Court Security Service of Ukraine were determined, and expediency of strategic planning practice in the sphere of ensuring protection of justice in Ukraine was also emphasized.

Editorial: New Trade Regulatory Barriers and a Look at the WTO- Appellate Body

Editorial: New Trade Regulatory Barriers and a Look at the WTO- Appellate Body

WTO Dispute Settlement and Trade Sanctions as Permissible Third-Party Countermeasures under Customary International Law

Abstract The requirements for invoking WTO security exceptions as expounded in recent WTO dispute settlement cases are notably stricter than previously thought by WTO members. Consequently, not all WTO members who have imposed trade sanctions against Russia will be able to invoke these exceptions to justify their actions when accused by Russia of violations of their WTO obligations. This article considers whether WTO members who may be unsuccessful in invoking security exceptions may nonetheless be able to justify their measures within the context of WTO dispute settlement under the customary international law on third-party countermeasures. It does so by exploring the scope of the relevant provisions within the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) as well as competence of WTO adjudicative bodies (i.e., WTO panels and the Appellate Body) to look beyond the four corners of the WTO covered agreements.

From Confrontation To Coexistence: An Appeal Opt-Out Arrangement As An Inclusive Approach To Revive The WTO Dispute Settlement System?

Resolving the crisis in the dispute settlement system is a priority issue for the reform of the World Trade Organization (WTO), and Members have made sustained efforts in this regard. Since the Twelfth Ministerial Conference (MC12), discussions on the dispute settlement system have entered a new phase, focusing on facilitator-organized meetings and proposals from Members. The reform negotiations have made some progress, but still face a number of significant challenges, in particular with regard to the appellate procedures. It is highly uncertain whether a comprehensive solution can be reached by 2024 as mandated by the MC12. Taking into account the different positions of Members and the imminent approach of the Thirteenth Ministerial Conference (MC13), this paper recommends that Members show more pragmatism and flexibility, puts forward a compromise proposal to establish a multilateral arrangement that would allow Members to opt out of the appellate review process under the Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU), and argues that this could be conducive to restoring a fully and well-functioning dispute settlement system. WTO, Appellate Body Crisis, Dispute Settlement Reform, Opt-out Arrangement

THE REFORM OF DISPUTE SETTLEMENT SYSTEM OF THE WORLD TRADE ORGANIZATION: CONTRIBUTION AND PERSPECTIVES FROM INDONESIA

The WTO dispute settlement system is currently in crisis as the Appellate Body has been unable to perform its appellate review since December 11th, 2019. The US asserted that the AB has exceeded its authority. The crisis can be detrimental, especially for developing countries in international trade. The WTO Members have made efforts to reform the system. This paper uses qualitative and descriptive research to analyse the contribution of Indonesia to the system and its perspectives on the reform negotiations.
 Indonesia has contributed to the system and the Organization by clarifying interpretations of WTO agreements. In the reform negotiations, Indonesia has actively participated by joining a proposal to commence the selection of new AB members, supporting the result of “Walker Process” negotiations as a basis for future negotiation, and making some proposals such as formal communication to the WTO on a process in an informal process to implement the mandate of MC12 Outcome Document. As a negotiation strategy, Indonesia should continue its active participation by prioritizing accessible aspects that are interests of developing and LDC members, emphasizing the need to limit negotiation scope and urging the fulfilment of the 2024 deadline, safeguarding a legalistic system, and conducting a comprehensive analysis on two-tier litigation.