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

Mohamed Salah Adawi Ahmed; Zhang Junxiang; Basel Khaled Alsaeed; Muhammad Zeeshan Ajmal

doi:10.18535/ijsrm/v12i05.lla01

Abstract

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.

Keywords

MPIAWTODispute settlementAppellate Body

References

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[refR-2] Amrita Bahri, “Appellate Body Held Hostage”: Is Judicial Activism at Fair Trial?", Journal of World Trade, (2019).Google Scholar ↗

[refR-3] Arata Kuno, "Japan’s joining MPIA an outside chance to boost momentum for WTO reform”, Asia University, May 14 (2023).Google Scholar ↗

[refR-4] B. Hoekman and C.Sabel, “open plurilateral agreements global Spillovers and the multilateral trading system”, BertelsmannStiftung Working Paper, March 25, (2020).Google Scholar ↗

[refR-5] Baroncini, E, “Preserving the Appellate Stage in the WTO Dispute Settlement Mechanism: The E.U. and the Multiparty Interim Appeal Arbitration Arrangement", The Italian Yearbook of International Law Online, vol 29(1), (2020).Google Scholar ↗

[refR-6] Bartels, Lorand, “Jurisdiction and Applicable Law in the WTO”. Society of International Economic Law (SIEL), Fifth Biennial Global Conference Working Paper No.18, June 29, (2016).Google Scholar ↗

[refR-7] Bernard Hoekman & Petros C. Mavroidis, "Preventing the Bad from Getting Worse: The End of the World (Trade Organization) As We Know It?", European University Institute, Robert Schuman Centre for Advanced Studies, Global Governance Programme Working Paper No. RSCAS 2020/06 (2020).Google Scholar ↗

[refR-8] Bown, Chad P, “Participation in WTO dispute settlement: complainants, interested parties and free riders”, World Bank Economic Review, (2005).Google Scholar ↗

[refR-9] Bowon Choi, "Three Years of the Multiparty Interim Appeal Arbitration Arrangement: An Interim Evaluation of Arbitration as a Means to Appeal WTO Panel Reports", August 11 (2023).Google Scholar ↗

[refR-10] David A. Gantz, James E. Rogers. "An Existential Threat to WTO Dispute Settlement: Blocking Appointment of Appellate Body Members by the United States” University of Arizona, Discussion Paper No. 18-26, July (2018).Google Scholar ↗

[refR-11] Elisa Baroncini, "Saving the Right to Appeal at the WTO: The E.U. and the Multiparty Interim Appeal Arbitration Arrangement", federalism.it July (2020).Google Scholar ↗

[refR-12] Frank Altemöller,”WTO Appellate Body without Legitimacy? The Criticism of the Dispute Settlement System and the Response of the WTO Member States”, Global Trade and Customs Journal, Vol 16, Issue 4 (2021) pp. 139–148.Google Scholar ↗

[refR-13] GAO, Henry S. "Finding a rule-based solution to the appellate body crisis: Looking beyond the multiparty interim appeal arbitration arrangement", Journal of International Economic Law. Vol. 24/3, (2021).Google Scholar ↗

[refR-14] Gao, Henry S., Disruptive Construction or Constructive Destruction? Reflections on the Appellate Body Crisis, March 1, (2019). Chang-fa Lo, and others,” The Appellate Body of the WTO and Its Reform”, (2019), pp. 215-238.Google Scholar ↗

[refR-15] Giorgio Sacerdoti, "The WTO and its Dispute Settlement System in 2021 and the outlook after MC12 in June 2022", Bocconi University, (2022).Google Scholar ↗

[refR-16] Guillaume Van der Loo, G. "Getting the WTO’s dispute settlement and negotiating function back on track: Reform proposals and recent developments". Leuven Centre for Global Governance Studies Working Paper Series, no. 232. (2022).Google Scholar ↗

[refR-17] Guzman, Andrew T. "Determining the Appropriate Standard of Review in WTO Disputes," Cornell International Law Journal: Vol 42, Article 3. (2009).Google Scholar ↗

[refR-18] H. Scholz, "Rebalancing the Rules of the Multilateral Trading System in Favor of the Poor," Annual 2011 Session of the Parliamentary Conference on the WTO Geneva, PC-WTO/2011/2(b)-R.2, March 21, 2011.Google Scholar ↗

[refR-19] Jens Lehne& Carl Grossmann Verlag, "Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified?", Berlin/Bern, (2019).Google Scholar ↗

[refR-20] Jesse Kreier, "The new “Multiparty Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU", International Economic Law and Policy Blog, March 27 (2020).Google Scholar ↗

[refR-21] John H. Jackson, Robert E. Hudec and Donald Davis, "The Role and Effectiveness of the WTO Dispute Settlement Mechanism", Brookings Institution Press, (2000), pp. 179-236Google Scholar ↗

[refR-22] Kanungo, Anil Kumar, "Experience of Recently Acceded Member Countries to the WTO", September 11, (2012).Google Scholar ↗

[refR-23] Loo,”Getting the WTO dispute settlement and negotiating function back on track: Reform proposals and recent developments".Google Scholar ↗

[refR-24] Magnuson, William J., "WTO Jurisprudence and its Critiques: The Appellate Body's Anti-Constitutional Resistance", Harvard International Law Journal Online, Vol. 51, No. 121, (2010).Google Scholar ↗

[refR-25] Mariana de Andrade, "Procedural innovations in the MPIA: A way to strengthen the WTO dispute settlement mechanism", Aug, (2020).Google Scholar ↗

[refR-26] Marie Van Luchene, The MPIA: A Mere Interim Solution or the Pathway to Fixing the WTO”, Stanford-Vienna TTLF Working Paper No. 90, (2022).Google Scholar ↗

[refR-27] Oesch, Matthias, 'Domestic Law', Standards of Review in WTO Dispute Resolution, International Economic Law Series (Oxford, 2003; online edn, Oxford Academic, March 22 (2012)Google Scholar ↗

[refR-28] Pauwelyn, J, "The WTO's Multiparty Interim Appeal Arbitration Arrangement (MPIA): What's New?", World Trade Review, (2023).Google Scholar ↗

[refR-29] See "Multiparty Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU”, JOB/ DSB/1/ Add.12. (April 30 2020).Google Scholar ↗

[refR-30] Simon Lester, "Can Interim Appeal Arbitration Preserve the WTO Dispute System?", Free Trade Bulletin Num 77, September 1, (2020).Google Scholar ↗

[refR-31] Van der Loo, G. "Getting the WTO dispute settlement and negotiating function back on track: Reform proposals and recent developments". Leuven Centre for Global Governance Studies Working Paper Series, no. 232. (2022).Google Scholar ↗

[refR-32] Yining Yang, "Crisis and Reform Direction of WTO Appellate Body", Atlantis Press SARL, (2021).Google Scholar ↗

[refR-33] See "Report on the Appellate Body of the World Trade Organization", Office of the United States Trade Representative, Feb (2020).Google Scholar ↗

[refR-34] See Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and The Netherlands, Arbitration under Article 25 of the DSU, Award of the Arbitrators, WT/DS591/ARB25, December 21 (2022).Google Scholar ↗

[refR-35] See establishment of Multiparty Interim Appeal Arbitration Arrangement (MPIA), Geneva trade platform, March (2020). available at: https://wtoplurilaterals.info/plural_initiative/the-mpia/Google Scholar ↗

[refR-36] See Multiparty Interim Appeal Arbitration Arrangement (MPIA)’ (Geneva Trade Platform, July 31 2020) https://wtoplurilaterals.info/plural_initiative/the-mpiaGoogle Scholar ↗

[refR-37] See the General Council, "Communication from the European Union, China and India", WT/GC/W/753. November 23, (2018).Google Scholar ↗

[refR-38] See the WTO Appellate Body Report, in Chile - Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R. The Appellate Body held in Chile – Price Band such panel acts 'ultra petita'.Google Scholar ↗

[refR-39] See USTR, "Report on the Appellate Body of the World Trade Organization", Feb (2020).Google Scholar ↗