LLAW6132 Chap.3 WTO Dispute Settlement and WIPO
WTO Dispute Settlement and WIPO
From diplomacy to adjudication
The Dispute Settlement Understanding, built on GATT Articles XXII and XXIII and incorporated into TRIPS by Article 64, settles whether a member has complied with its WTO obligations. Its objective is security and predictability for the multilateral trading system.
The decisive change from the old GATT is that a ruling stands unless every member joins in rejecting it, which the lecture captures with the remark that soft international law is becoming hard.
The sequence and its clock
A dispute runs from consultations under Article 4 to panel establishment, terms of reference and composition, examination with the parties and third parties, interim review, circulation of the report, possible appeal and adoption.
Good offices, conciliation and mediation remain available throughout. From panel establishment to adoption usually takes up to nine months without an appeal and twelve with one.
After adoption, the losing member implements within a reasonable period, negotiates compensation if it does not, and faces authorised retaliation, which may cross sectors and agreements, if compensation fails.
The appeal stage has stopped working
The Appellate Body ceased functioning at the end of 2019 after the United States blocked new appointments, leaving more than thirty appeals pending.
An interim appeal arbitration arrangement exists but had not heard a case when the lecture was prepared.
Any realistic advice on a WTO claim must account for the risk that an appeal leaves a report unadopted.
Critics, and a different institution
The lecture lists six concerns about trying IP disputes in a trade forum, from the mismatch between state litigants and private right holders to the lack of resources for developing countries.
WIPO plays a different role: based in Geneva, it drafts and administers treaties, supports cooperation, and runs international registration and classification, an arbitration and mediation centre and online domain name dispute resolution.
What this chapter covers
- 01
The DSU and its incorporation into TRIPS by Article 64
- 02
Negative consensus and the shift from diplomacy to adjudication
- 03
Consultations, panel establishment and composition
- 04
Adoption, reasonable period, compensation and retaliation
- 05
The Appellate Body crisis and the interim arrangement
- 06
Six criticisms of IP disputes in a trade forum
- 07
WIPO's functions and services
Worked example · free
Advise on the realistic value of winning a panel
- 2State what an appeal does to adoption.
- 3Explain the current position of the appeal stage.
- 3Set out the route to retaliation if the report is adopted.
Key terms
- Dispute Settlement Body
- The WTO organ that establishes panels, adopts reports and authorises retaliation in disputes between members.
- Reasonable Period of Time
- The time a losing member has to implement a ruling, set by agreement or, failing that, by an arbitrator, in which case it is roughly fifteen months.
- Cross-retaliation
- Retaliation authorised in a sector or agreement other than the one in which the breach occurred.
- Appellate Body
- The standing WTO body that heard appeals from panel reports and has not functioned since the end of 2019.
- WIPO Arbitration Center
- The WIPO service that offers arbitration and mediation of IP disputes between private parties, alongside online domain name dispute resolution.
WTO Dispute Settlement and WIPO FAQ
Can a company bring a TRIPS complaint to the WTO itself?
No. Only members are parties to WTO disputes, so a right holder needs its government to take up the complaint, and the claim concerns a member's law or practice rather than a particular infringer. The lecture lists this mismatch between state litigants and private right holders among the concerns about the system.
How long does a WTO dispute normally take?
The lecture's chart gives up to nine months from panel establishment to adoption without an appeal, and twelve months with one, under Article 20. Consultations add sixty days before that, and implementation, compensation and retaliation come after, so a full cycle runs well beyond a year.
What does WIPO do if it does not rule on disputes between states?
It negotiates and drafts treaties, administers twenty-six of them including its own convention, and supports international cooperation. For private parties it runs international registration and classification services such as the PCT, an arbitration and mediation centre, and online resolution of domain name disputes.
Exam move
Redraw the dispute sequence from memory with the article number beside each stage, then add the timings. Finish by writing two sentences on what the appeal crisis means for a member that wins at panel stage, because that is the point most answers leave out.
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