Dispute Settlement Course

Panel request and

composition
Müslüm Yilmaz, Carlo Cantore
Legal Affairs Division

Geneva, 18-19 March 2024

Phases in dispute settlement
1 Consultations

2 Panel

3 Appeal

4 Adoption

5 Implementation
Panel establishment

Article 6 of the DSU – Establishment of Panels

• Established by the DSB following the rule of negative consensus

(Article 6.1 of the DSU)

• Strict requirements for the request for the establishment of a panel

(Article 6.2 of the DSU)
Request for the establishment of a panel
(Article 6.2)
Form? In writing

To whom? • Addressed to the DSB

• Article 6.2 of the DSU and specific dispute settlement

Legal basis?
provisions of the covered agreements

• Indicate whether consultations were held

Content? • Identify the specific measures at issue
• Brief summary of the legal basis (claims)
Circulation To Members as document WT/DSXXX/X
 Rationale for the precision in the request

Panel request:

• Defines panel’s mandate (jurisdiction)

• Gives notices to respondent and potential third parties (due
process)
 1 - Identify the measure(s) at issue

• What is a measure?
Any act or omission attributable to a WTO Member can be a measure of that
Member for the purposes of dispute settlement proceedings

• Measures may take the form of:

Laws, regulations, administrative instructions, specific application of laws etc.
(tariffs, quotas, anti-dumping/CVD measures, safeguards ...)
 2 - Identify the claims
• What is a claim?
A claim that the respondent party has violated, or nullified or impaired the
benefits arising from, an identified provision of a particular covered
agreement.
• How to identify the claims?
Provide a summary – and it may be a brief one – of the legal basis of the
complaint that is “sufficient to present the problem clearly”.
Panel establishment

Article 6.1 of the DSU

• 1st DSB meeting after panel request – respondent can block or panel can
be established (positive consensus)
• 2nd DSB meeting after panel request – respondent cannot block → panel
will be established (negative consensus)

• Quasi-automatic establishment – significant difference from GATT panels

Panel’s terms of reference

Article 7 of the DSU

• “To examine, in the light of the relevant provisions in [name of the

covered agreement(s) cited by the parties to the dispute] the matter
referred to the DSB by [name of the applicant] in document [request for
the establishment of the panel].”
• Standard terms of reference (unless the parties agree otherwise)
Panel composition
Article 8 of the DSU
• No permanent panels / panelists (ad hoc)
• Indicative list of panelists
• Secretariat proposes nominations, parties can oppose “for compelling reasons”
(no explanation needed)
• Well-qualified governmental and/or non-governmental individuals
• If no agreement 20 days after panel request, at request of either party: DG
appoints panelists (within 10 days)
The Panel
Composition
Process

11
Composition of panels (1995 – 2023)

32%

68%

Agreed by Parties Decided by DG

Multiple complainants
Article 9 of the DSU
• Where more than one Member requests the establishment of a panel
related to the same matter → “whenever feasible”, a single panel may be
established (Article 9.1) (directive, not mandatory)
• If more than one panel established related to the same matter → “to the
greatest extent possible”:
▪ (1) same persons serve as panelists
▪ (2) timetables are harmonized (Article 9.3)
Third parties

Article 10 of the DSU

• “Substantial interest”
• Usually, Members notify their substantial interest at the DSB meeting at
which the panel is established
• No DSU deadline (in practice – within 10 days after panel establishment,
but flexibility possible)