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Summary
 EXAMINING PROPOSALS TO THE WTO’S SEQUENCING ISSUE

I. INTRODUCTION
42
The sequencing issue in the World Trade Organisation‟s[“WTO”] Dispute Settlement
4
Understanding [“DSU”] arises primarily during the compliance stage of the Dispute Settlement
Body's [“DSB”] recommendations and rulings.1 Since the language of Article 21 and 22 of the
DSU allows for simultaneous proceedings, the complexity lies in deciding whether to, only
32
initiate a compliance panel under Article 21.5 of the DSU or simultaneously seek retaliation
50
under Article 22 of the DSU, particularly as the expiration of the Reasonable Period of Time
[“RPT”] approaches.
2
The key issue for such a situation to arise is the tight timing2, a request under Article 22.2 of the
55 35
DSU must be made within 20 days of the expiration of the RPT,3 and authorization for
suspension of concessions and obligations must occur within 30 days of the expiration of the
15
RPT.4 And from the point of view of the respondent an arbitration to decide the level of
nullification and impairment must be done within 60 days of the expiration of the RPT.5 Thus, if
a party must await a compliance report before considering retaliation, a time conundrum will
arise, because the compliance panel has up to 90 days to circulate its report 6, potentially longer if
19
extensions or appeals occur, and this would in turn lead to exhaustion of the window period
provided for seeking retaliation.7 Therefore, avoiding this possibility can lead to a situation
wherein an authorization for suspension might be given before the panel decides upon the
compliance of the measures.8

This situation therefore forces disputing parties into a dilemma, i.e. either to pursue retaliation
without a compliance report or risk missing the window for authorization under Article 22.2 and
22.6.

41
1
31
Vera Grytz and Carolin Müller, „Sequencing: Ad Hoc Solutions to a Systemic Problem‟ in Alberto Júnior, Luciana
Pires, and Cristiane Carneiro (eds), The WTO Dispute Settlement Mechanism A Developing Country Perspective (Springer
2019) 195.2
2 Matilda Brolin, „Procedural Agreements in WTO Disputes: Addressing the Sequencing Problem‟ (2016) 85(1)

Nordic Journal of International Law 65, 68.

23
3 Understanding on Rules and Procedures Governing the Settlement of Disputes (15 April 1994) LT/UR/A-

2/DS/U/1 (DSU 1994) art 22.2.

4 DSU 1994 art 22.6.
5 Ibid.
6 DSU 1994, art 21.5.
21
7 Gorbylev, Sergei and Milica Novaković, „Retaliation under the WTO Agreement: The “Sequencing Problem”‟

(2013) 14(2) The Estey Centre Journal Of International Law and Trade Policy 118, 122.
8 Grytz and Müller (n 1) 192.
 Also, there is a critical need to avoid an endless cycle of recourse to compliance reviews9 where
new measures are continuously introduced after old ones are found in violation of WTO
27
obligations.10 This lack of clear sequencing between Articles 21.5 and 22.6 of the DSU can lead
to significant delays, and endless loops of litigation11 as parties might struggle to agree on
compliance before considering compensation or retaliation. But, foregoing this by assuming that
compliance has not taken place and unilaterally seeking authorization of suspension is also
prohibited.12

EC-banana13 dispute is an illustrative example of this problem wherein the two requests for
review of compliance of the reviewed measures at the end of RPT could have interfered and
prevented retaliation by the complaining party if it had waited for its report.14 This ambiguity not
only hinders timely dispute resolution but also complicates the effective navigation of the dispute
resolution process by WTO members.

Summary of the issue

Herein, first, the arbitrator is expected to authorize suspension within a shorter time frame,
however making this decision without a compliance report results in a unilateral action. Second,
conversely awaiting a panel report can trap the complaining party in an endless loop of
43
compliance reviews, or third, lead to a lapse of rights under Article 22.2 or Article 22.6 of the
DSU due to the stringent time frames. This sequencing issue thus presents a significant challenge
to the effective and timely resolution of disputes within the WTO framework. Hence, as a result,
4
in practice parties often conduct parallel proceedings under Articles 21.5, 22.2 and 22.6 of the
DSU.

II. STATE PROPOSALS AT THE WTO

Various states have submitted comprehensive proposals to the WTO to solve the issue of
sequencing, such proposals deals with the issue in a three-pronged manner;
56
i) They alleviate the concerns about losing the right to retaliate due to the expiry of the reasonable time
period.

36
9 European Communities: Regime for the Importation, Sale and Distribution of Bananas (1996) DS27.
30
10 Kym Anderson, „Peculiarities of Retaliation in WTO Dispute Settlement‟ (2002) 1(2) World Trade Review 123.
11 Ibid.
12 DSU 1994, Article 23.2.
16
13 European Communities; Regime for the Importation, Sale and Distribution of Bananas (1996) DS27.
14 Grytz and Müller (n 1).

28
2|Page
This has been addressed, first, by omitting two prerequisites a) the requirement to initiate the
33
negotiations under Article 22.2 within the expiry of RPT,15 and b) the requirement to suspend
concessions or other obligations within 30 days of the expiry of RPT.16 Second, by replacing the
5
time frame of within 60 days of expiry of RPT for Article 22.6 arbitration to a time period where
the point of reference is the time when either such request has been made or; the compliance
report has been circulated. For example, 45/60 days after the request has been made17; or 20
20
days after the report of the compliance panel has been circulated.18 But some proposals have
missed out on this detail by not eliminating the requirement.19

ii) They provide a clear pathway for moving forward with Article 22.

This has been addressed, first, by cross-referring the articles by either

34
a) Modifying Article 22 to allow a party to request authorization for suspension only if the
compliance panel under Article 21.5 has determined that the member concerned has failed to
comply;20 or

b) Adding article 22bis which provides for sufficient conditions in order to move forward with a
request under Article 22.2.21 Usually this includes a few implicit conditions where the actions of
the respondent to not adhere by procedural requirements indicate non-compliance. However,
15
the issue of sequencing is solved by the last sub-clause as it requires a demonstration of non-
compliance under Article 21.5 to proceed with retaliation.
38
Second, by providing a framework for parties to request arbitration to determine the level of
nullification or impairment before seeking authorization for the suspension of concessions.22

iii) They prevent parties from being stuck in a loop of inadequate reforms.

12
15 Dispute Settlement Body Special Session - Textual Contribution to the Negotiations on Improvements and
Clarifications of The Dispute Settlement Understanding - Non-Paper Presented by Argentina, Brazil, Canada, India,
New 3
Zealand and Norway (19 May 2004) JOB(04)/52, 3.
16 Dispute Settlement Body Special Session - Amendment of the Understanding on Rules and Procedures

Governing the Settlement of Disputes - Proposal by Japan (22 January 2003) TN/DS/W/32, 7; Non-Paper by
Argentina and others (n 15) 4.
17 Ibid.
3
18 Dispute Settlement Body Special Session - Negotiations on Improvements and Clarifications of the Dispute

Settlement Understanding - Proposal by Ecuador (23 January 2003) TN/DS/W/33, 2.

19 Dispute Settlement Body Special Session - Negotiations on Improvements and Clarifications of the Dispute

Settlement Understanding - Communication from Australia (17 February 2003) TN/DS/W/49, 6.

20 Ibid 4.
21 Non-Paper by Argentina and others (n 15); Proposal by Japan (n 16); Proposal by Ecuador, (n 18) 4.
3
22 Dispute Settlement Body Special - Text for the African Group Proposals on Dispute Settlement Understanding

Negotiations - Communication from Kenya (24 January 2003) TN/DS/W/42, 4.

3|Page
This has been addressed only in a few proposals, first, the proposal by Japan does so by, adding a
provision after paragraph 1 of Article 22 which emphasizes the pursuit of negotiations after a
panel under Article 21.5 reports a lack of compliance, unless only in a situation where confidence
in full compliance is assured.23 Second, the Indian block does so by clarifying that members are
not entitled to an additional RPT under the dispute settlement procedures, thus eliminating the
scope of new reforms after the time given to the concerned party has lapsed.24

In addition to these changes, there have been proposals to sequence and mandatorily require the
process of consultation a) before establishing the compliance panel,25 or b) before requesting
suspension and after the compliance panel has come out with its report. 26 Indian block on the
other hand for the compliance part explicitly stated that such consultations are not required.27

Viability of the Proposals

Therefore, in conclusion, while these amendments navigate through the issue of sequencing. Any
single proposal does not come close to addressing the intricate details of the required language.
47
The proposal by Japan, a subsequent proposal by the European Union, and the proposal by
Argentina, Brazil, Canada, India, New Zealand and Norway [“Indian block”] come close to
addressing all the issues but the following considerations should enhance the outcome of the
solution

a) Specifically for the issue of preventing inadequate reforms where the terminology “full
confidence” proposed is ambiguous in itself, inculcating language from proposals such as that of
the Indian block will be a better option;
15
b) The proposal by Ecuador requiring to establish the arbitration to determine the level of
nullification before seeking suspension by keeping in mind the developing nations shall be given
due importance; and

c) Considering the disparity of disputes filed by High-Income Economies and Low-Income

Economies the proposal of mandatory consultations should also be considered.

23 Proposal by Japan (n 16) 6.

24 Non-Paper by Argentina and others (n 15).
825
Dispute Settlement Body Special Session - Contribution of the European Communities and its Member States to
the Improvement and Clarification of the WTO Dispute Settlement Understanding - Communication from the
European Communities (23 January 2003) TN/DS/W/38, 8.
26 Proposal by Ecuador (n 18) 4.
27 Non-Paper by Argentina and others (n 15).

4|Page
In addition to these amendments to the DSU, Canada has reiterated the role of sequencing
agreements in solving the issue by establishing the pre-requirement of a compliance panel report
in order to move forward with a request to retaliate.28 Use of these sequencing agreements was
marked by the Australia-Canada Salmon dispute.29 Since that time, there have been significant
developments on the issue, and the contemporary forms of sequencing agreements may
44
provide an insight to contractual language helpful to solve the existing lacunae between Article
21 and Article 22 of the DSU.

III. PRACTICE OF SEQUENCING AGREEMENTS

In order to solve the issue of sequencing states undertake the practice of contractually agreeing
to a specific order of events of the dispute resolution mechanism. The major downside to such
an agreement is that irrespective of whom the contracting parties are such agreement can‟t be
relied on for future disputes, because parties willfully consent to a structure viable specifically to
the dispute at hand.30 Therefore, this approach permits varying sequences of proceedings across
different disputes, but these agreements generally address the issue through two primary ways
i.e. [A] by facilitating the suspension of arbitration proceedings and [B] by enabling a waiver to
assert Reasonable Time Period Argument. Additionally, a third type of sequencing agreement
combines these two approaches and provides more flexibility but less assurance of the order of
the events.

A. Suspension of Arbitration
57
Such agreements do not set new time frames except for the decision of the Arbitration panel and
instead relies on the text of DSU. But to ensure that the party does not lose out on the
opportunity to retaliate it provides for following positive actions,

 First, there has to be a request for authorization of suspension within the prescribed 30
day time frame.31
27
 Second, following the authorization for suspension the responding party makes a request
for arbitration to determine the level of nullification.32

2
28 Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct
of WTO Disputes (3 August 2016) JOB/DSB/1/Add.6.
29 Australia: Measures Affecting Importation of Salmon (1995) DS18.
30 Brolin (n 2) 70.
2
31 European Communities: Measures Affecting the Approval and Marketing of Biotech Products - Understanding between the

European Communities and the United States Regarding Procedures under Articles 21 and 22 of the DSU (17 January 2008)
11
WT/DS291/38, 3; United States: Subsidies on Upland Cotton - Understanding between Brazil and the United States Regarding
Procedures under Articles 21 and 22 of the DSU and Article 4 of the SCM Agreement (8 July 2005) WT/DS267/22, 2.

5|Page
  Third, after that, both parties mutually decided to ask the arbitrators to halt their work
and resume it after the compliance panel determines any failure on the part of the
respondent.33 Moreover, there may be specific additional conditions for resuming
which are tailored to the parties and dispute in question.

1
 Fourth, the parties have to cooperate to enable the arbitration panel to deliver and
circulate its report within a time frame after the resumption of work, which mostly is
60 days.34

For the first instance, in the Australia-Canada Salmon dispute,35 the parties agreed to the following
24
agreement, “Canada and Australia agreed that the arbitration proceedings would be held in abeyance until after
the circulation of the panel report under Article 21.5.” 36

This agreement differed majorly in one aspect i.e. the conditions for restarting arbitration
explicitly state that this can happen regardless of whether either party has appealed. This could
create a situation where an appeal under Article 21.5 and Arbitration under 22.6 occurs at the
same time.

Agreements in present day use makes sure to avoid such possibilities. And instead mention
additional details for resumption of the arbitration panel. Like, in European Communities-United
States Biotech Products dispute,37 only United States could have requested the resumption whereas in
US-Korea Oil Country Tubular dispute38 both the parties could have made the request.

B. Waiver to Assert RPT Argument

Such agreements are based on the premise of party autonomy which in turn allows parties to
agree to waive off the time period for seeking retaliation. This is ensured by a negative action
from the side of respondent, following are the requirements set therein,

32 Understanding between Brazil and the United States (n 31).

33 Ibid.
5
34 United States: Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea - Understanding between the Republic

of Korea and the United States Regarding Procedures Under Articles 21 and 22 of The DSU (10 February 2020)
WT/DS488/16, 2.
35 Measures Affecting Importation of Salmon (n 29).
25
36 Australia: Measures Affecting Importation of Salmon - Recourse to Article 21.5 by Canada - Report of the panel (18 February

2000) WT/DS18/RW [1.3].

4
37 Understanding between the European Communities and the United States (n 31).
5
38 Understanding between the Republic of Korea and the United States (n 34).

6|Page
 4
 First, a compliance panel report under article 21.5 is made a compulsory precursor for a
request to be initiated under Article 22.6.39
1
 Second, the party agrees to not assert that complaining party was precluded from
obtaining such authorization because the request was made outside the time period
specified under Article 22.6.40
 Third, this is to be without prejudice to the respondent‟s right to seek arbitration to
4
address the question of level of suspension under Article 22.6.41

From, the United States-Malaysia Shrimp dispute42of year 2000 to China-Japan Stainless Steel Products
dispute43of year 2024 similar language has been in use. And one detail all of these agreements miss
out on is to sustain the opportunity of negotiations subsequent to the report, as its time frame is
not modified and has to be requested before the expiry of the RPT.

Viability of the Sequencing Agreements

The approach of signing different agreements for different disputes is prone to certain issues.
First, since parties come up with their own variations of procedures for sequencing, this diversity
of procedures reduces the system's predictability for resolving disputes.44
1
Second, as a general rule smaller and weaker members benefit from a more rule based system
1
rather than bilateral ad hoc arrangements.45 Herein, also since the procedural agreements require
the consent of both parties46 and it is not a onetime consent but dispute specific. So in disputes
1
where there is a power imbalance between the contracting parties because of differences in the
1
negotiating strength of the parties, smaller and less powerful members might be forced to agree
to terms imposed by larger, more experienced members.47

13
39 United States: Import Prohibition of Certain Shrimp and Shrimp Products - Understanding between Malaysia and the United States
Regarding Possible Proceedings under Articles 21 and 22 of the DSU (12 January 2000) WT/DS58/16, 1; Brolin (n 2) 71.
18
40 China: Certain Measures Affecting Electronic Payment Services - Understanding Between China and the United States Regarding
22
Procedures under Articles 21 and 22 of the DSU, (21 August 2013) WT/DS413/10 [6]; Australia: Anti-Dumping Measures on
A4 Copy Paper - Understanding between Australia and Indonesia Regarding Procedures under Articles 21 And 22 Of The DSU (7
October 2020) WT/DS529/18 [7].
41 Ibid.
42 Understanding between Malaysia and the United States (n 39).
20
43 China: Anti-Dumping Measures on Stainless Steel Products from Japan - Understanding Between China and Japan Regarding

Procedures under Articles 21 And 22 of the DSU (29 May 2024) WT/DS601/12.
10
44 Cherise Valles and Brendan McGivern, „The Right to Retaliate under the WTO Agreement: The Sequencing

Problem‟ (2000) 34(2) Journal Of World Trade 63, 84.

6
45 Y Suzuki, '"Sequencing" and Compliance‟ in Dencho Georgiev and Kim Borght (eds), Reform and Development of the

WTO Dispute Settlement System (Cameron May 2006) 391.

46 Ibid 382.
47 Ibid.

7|Page
 52
Third, it creates another legal lacuna in context of Article 10 of the DSU which provides for
third party rights. Third party is only allowed to raise their interests into account during panel
process but Article 22.6 is an arbitral proceeding.48 So if a sequencing agreement allows for the
arbitrator to decide upon compliance then the third party might challenge the procedural
agreement as it modifies its rights without its consent.49

Bringing in new amendment to the DSU should be considered during the upcoming rounds of
reforms for the DSB, however this is a lengthy process as evidenced by the fact that the initial
59
proposals to the issue were made in the early 2000‟s and still the issue has not been resolved.
Moreover, sequencing agreements as discussed has its own shortcomings so in the meantime
scholars have proposed alternate solutions to the sequencing issue within the ambit of existing
text.

IV. UNDERSTANDING SCHOLARLY PROPOSALS FOR SEQUENCING

53
Scholars have proposed [A] An Alternative Interpretation to the Meaning of the Words, and [B]
6
Understanding the Principle of Sequencing as Part of Customary International Law.

A. An Alternative Interpretation to the Meaning of the Words

62
Since DSU lies under the definition of covered agreements,50 relying on Article 3.2 of the DSU,
16
existing provisions creating the issue of sequencing can be clarified by the help of rules of
17
customary rules of interpretation of public international law.51 And as per Article 31(1) of the
Vienna Convention on the Law of Treaties, treaty provisions should be interpreted in good faith,
according to their ordinary meaning, and in light of the treaty's object and purpose.52
1
Therefore, primarily Article 22.6 which reads as, “fails to bring the measure found to be
inconsistent with a covered agreement into compliance therewith or otherwise comply with the
recommendations and rulings…”53 should be interpreted as dealing with a situation where a
7
party does absolutely nothing to bring measures into compliance. So in that scenario such
58
request should be made within the reasonable period of time.
4
But, Article 21.5 which reads as, “where there is disagreement as to the existence or consistency
with a covered agreement of measures taken to comply with the recommendations and

48
Brolin (n 2) 86.
49
Ibid 87.
50 DSU 1994, Appendix 1.
51 DSU 1994, art 3.2.
37
52 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), art 31.
53 DSU 1994, art 22.6.

8|Page
rulings…”54 needs to be interpreted as dealing with a situation where the losing party does
something in compliance but there is disagreement as to its adequacy. This is a new scenario not
covered by Article 22, and hence the time period for retaliation in such cases shall start from the
8
day the panel or the appellate body finds it against the respondent.
48
Additionally, the purpose and objective of dispute settlement which includes, “positive solution
to a dispute”55 and “satisfactory adjustment of matter in good faith”56 will be fulfilled with
measures towards ending the dispute instead prolonging it with litigation.57

Viability of the interpretation

4
Although the retaliatory measures irrespective of the lapse of reasonable period of time are
7
available till the time panel is satisfied with the reforms, but it opens the possibility for the
respondent to make an endless series of inadequate reform.58 Therefore the core issue is the
potential for the respondent to avoid full compliance by making only partial or superficial
changes. Each time the panel finds the reforms inadequate, the respondent can implement new,
51
still inadequate reforms, leading to indefinite non-compliance. This undermines the effectiveness
of the dispute resolution process, allowing the respondent to delay genuine compliance
indefinitely.

B. Understanding the Principle of Sequencing as Part of Customary International

Law

Principle of sequencing can be considered a part of customary international law59 as it fulfills the
46
criteria of [i] State Practice, and [ii] Opinio Juris.

i) State Practice

In order to fulfill the first necessary requisite consider the following definition of State Practice,
“state practice is to be general meaning sufficiently widespread and representative.”60Moreover, for a general
9
customary rule the majority or even substantial minority of the interested states can be sufficient

45
54 DSU 1994, art 21.5.
55 DSU 1994, art 3.7.
56 DSU 1994, art 3.10.
14
57 Petros Mavroidis, „Remedies in the WTO Legal System: Between a Rock and a Hard Place‟ (2000) 11(4) European

Journal of International Law 795.

58 Kym Anderson, „Peculiarities of Retaliation in WTO Dispute Settlement‟, World Trade Review, 1 (2002), pp. 123-

134.
26
Note 10
59 Garima Shahani, „The Sequencing Dilemma: Will the European Union Succeed against Indonesia‟ (2015) 49(3)

Journal of World Trade 517.

6
60 „Identification of Customary International Law‟ (2018) 2(2) Yearbook of the International Law Commission 91.

9|Page
to create new customs.61 Such as, in the Continental Shelf dispute wherein, position of significant
60
maritime States was taken in as customary international law irrespective of the fact that several
eligible coastal states lacked similar state practice.62

Therefore, the consistent adoption of the sequencing approach by member states, demonstrated
by the binding agreements that they have entered into to implement sequencing, shows
articulation of claims and responses which in turn represents State practice.63 This is because the
widespread and consistent practice by nations consisting of the bloc controlling majority of
trade, represents a general acceptance and acknowledgment of the approach in the given
industry.

ii) Opinio Juris

9
In order to fulfill the requirement of opinion juris, States have to believe that a course of action
is legal and perform it, even if done once, it is to be inferred that they have tactically consented
to the rule involved64 and based on this the requirement of over manifestation the duration is
minimized.65

Therefore, the expressed intent to follow sequencing in these agreements reflects opinio juris,
the belief that such practice is not just a social or moral convention and is legally obligatory as
this shows positive evidence of the adoption of the rule by the state.

Viability of the Proposal

Being dispute specific certain states have inconsistent practice of sometimes signing the
agreement while sometimes refraining,66 depending upon factors such as if it is the complaining
party or not. But this can be solved by giving weightage to the representative practice as it is not
necessary to take into account a few uncertainties or contradictions.67 Nonetheless, there might
also arise an issue of accelerated formulation of customary international law because the time
passed for the practice has not been much.

61 Malcolm Shaw, International Law (5th edn, Cambridge 2003) 87-88.

49
62 Continental Shelf (Libya v Malta) (Merits) [1985] ICJ Rep 13.
29
63 Michael Scharf, „Accelerated Formation of Customary International Law‟ (2014) 20 ILSA Journal of International

and Comparative Law 305,314.

64 Shaw (n 59) 71.
65 Dionisio Anzilotti, Corso di Diritto Irternazionale (3rd edn, 1928) 73-76.
66 Shahani (n 57) 535.
67 Fisheries (United Kingdm v Norway) (Merits) [1951] ICJ Rep 116.

10 | P a g e
 V. WAY FORWARD
10
The most apparent course of action for resolving the sequencing issue is an amendment to the
existing DSU under the procedure laid down in the Marrakesh Agreement. The twelfth
Ministerial Conference also called for final reforms to the DSU by 2024. But, having more
8
important issue of the state of the Appellate Body, and the requirement of adoption by
consensus especially during such ongoing crisis delayed modifications to the DSU, with no
fruitful conclusion on the negotiations of the reforms during the thirteenth ministerial
conference.

With such an obscure position on future reforms on the thematic issues of the DSU, relying on
2
the natural course, as in the EC-Banana dispute where the arbitration and compliance panel was
7
composed of the same people who then synchronized timelines by merging the deadlines for
Article 21.5 and Article 22.6 proceedings, is also not a guarantee for a fix to the sequencing issue.
61
This is because, in the first place as laid down in US-Wool Shirts and Blouses, “the panels or appellate
19
bodies are not empowered to make law by clarifying existing provisions of the WTO Agreement outside the
39
context of resolving a particular dispute.” And it also poses the issue that it is dependent that an Article
22.6 arbitrator might just as well decide compliance in the absence of which, i.e. in case of pre-
occupation, the coordination between different arbitrators and panelists might again prolong the
issue.

This leaves us with signing sequencing agreements separately for each dispute, and although the
varied interpretation and considering sequencing as customary international law allow a fix for
the issue but with lack of viability of those proposals and lack of acceptance of such
interpretations they cannot be universally enforced.
2
Instead an authoritative interpretation by the Ministerial Conference and general Council under
the Marrakesh Agreement as compared to amendment is a less cumbersome way to clarify the
existing provisions as it requires comparatively less votes, i.e. votes of the two third majority in
order for adoption. But it is essential to note that, Article IX:2 is limited to interpretation and
cannot modify the contents of the DSU. Therefore, clarification can be given to the extent that
Article 21 and Article 22 deals with two separate scenarios, that are, first, where the losing party
does something in compliance but there is disagreement as to its adequacy, and second, where a
7
party does absolutely nothing to bring measures into compliance.

But in order to resolve every aspect of the issue this approach should also consider inculcating
the following interpretation

11 | P a g e
 6
i. A suspension will be requested only after the expiry of reasonable period of time,
1
without any modifications to the 30 day time period mentioned under Article 22.6. This
will ensure that a suspension is not requested before a compliance panel is requested.
7
Moreover, since a remedy under article 22 is to be allowed only in case of a situation
where the party does absolutely nothing to bring measures into compliance, this will also
limit the counter arguments from the defending parties where they might argue that
although no measures have been taken yet but implementation of certain measures are in
pipeline.
1
ii. While, it is to be acknowledged that Article 22 does not deal with the scenario where
40
there is disagreement as to the adequacy of the compliance measures. The exclusive
authority of the Ministerial Conference and General Council laid under Article IX is also
54
to be used to rely on Article 3.2 of the DSU in order to allow for retaliation under Article
22 after the panel report is circulated even after expiry of RPT just for this new scenario,
so that the purpose and objective of the DSU is fulfilled.
iii. Disagreement under Article 21.5 is to be understood to be cleared once a panel report is
circulated, and thus entering the arena of the new scenario described above, and allowing
for the application of Article 22 thereafter. Any new measures brought after the expiry of
RPT, should not be considered to create a new disagreement as to the adequacy of
measures. This will ensure to keep loop of inadequate reforms at bay.

12 | P a g e
 Similarity Report

32% Overall Similarity

Top sources found in the following databases:
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Crossref database Crossref Posted Content database
26% Submitted Works database

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Queen Mary and Westfield College on 2015-01-22

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Internet

hse.ru
24 <1%
Internet

University of Lincoln on 2022-10-11

25 <1%
Submitted works

University of Durham on 2016-09-01

26 <1%
Submitted works

icrier.org
27 <1%
Internet

ksmith2.teammetro.net
28 <1%
Internet

Australian National University on 2015-11-05

29 <1%
Submitted works

s3-ap-southeast-2.amazonaws.com
30 <1%
Internet

University of Warwick on 2022-05-07

31 <1%
Submitted works

law.stanford.edu
32 <1%
Internet

Sources overview
 Similarity Report

Al Saud, Turki(Ssenyonjo, M). "A comparison between the dispute settl...

33 <1%
Publication

The WB National University of Juridical Sciences on 2013-09-26

34 <1%
Submitted works

Terence Stewart, Amy Dwyer. "Handbook on WTO Trade Remedy Dispu...

35 <1%
Crossref

University of Durham on 2024-05-19

36 <1%
Submitted works

cambridge.org
37 <1%
Internet

De Montfort University on 2015-09-07

38 <1%
Submitted works

Matilda J. Brolin. "Procedural Agreements in wto Disputes: Addressing...

39 <1%
Crossref

University of Melbourne on 2009-09-03

40 <1%
Submitted works

University of New South Wales on 2020-11-26

41 <1%
Submitted works

stax.strath.ac.uk
42 <1%
Internet

Holborn College on 2009-12-17

43 <1%
Submitted works

University of Edinburgh on 2020-08-29

44 <1%
Submitted works

Sources overview
 Similarity Report

University of Leeds on 2024-01-13

45 <1%
Submitted works

University of Strathclyde on 2020-03-29

46 <1%
Submitted works

digitalcommons.ilr.cornell.edu
47 <1%
Internet

legal.un.org
48 <1%
Internet

pure.rug.nl
49 <1%
Internet

wto.org
50 <1%
Internet

Indian Institute of Management Calcutta on 2012-03-27

51 <1%
Submitted works

R. Rajesh Babu. "Remedies under the WTO Legal System", Brill, 2012
52 <1%
Crossref

The Chartered Insurance Institute on 2019-09-24

53 <1%
Submitted works

Universitaet Hamburg on 2023-08-15

54 <1%
Submitted works

University of Melbourne on 2009-09-25

55 <1%
Submitted works

University of Westminster on 2007-09-20

56 <1%
Submitted works

Sources overview
 Similarity Report

Queen Mary and Westfield College on 2017-08-16

57 <1%
Submitted works

University of East Anglia on 2022-08-30

58 <1%
Submitted works

University of Technology, Sydney on 2017-10-27

59 <1%
Submitted works

core.ac.uk
60 <1%
Internet

ctrc.sice.oas.org
61 <1%
Internet

europainstitut.de
62 <1%
Internet

Sources overview