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Law Professor Breaks Down Novelties Found in WTO Appellate Body Alternative Ruling

The first ruling from the World Trade Organization's multiparty interim appeal arbitration arrangement (MPIA), an alternative to the defunct Appellate Body, put on display the various new facets of the new MPIA, according to one of the arbitrators who is also a Geneva Graduate Institute law professor. The ruling involved Colombian antidumping duties on frozen fries from certain EU countries, with novelties including word and time limits, a prehearing conference, and an online recording of the hearing, Joost Pauwelyn said in a March 6 blog post.

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In the MPIA ruling, arbitrators said the antidumping duties violated global trade rules while also overturning some of the WTO panel's original conclusions (see 2302010022). One new aspect of the system is a shorter time frame, with the arbitral award issued 74 days from the notice of appeal. The average duration of the last 20 AB appeals was 360 days. A second new feature is not taking staff from the Legal Affairs or the Rules divisions but from other Secretariat divisions, with that staff "answerable" only to the arbitrators.

The process also introduced word and time limits for briefs and oral statements. Notices of appeal are set for 2,000 words; appellant or appellee submissions, 27,000 words, or 40% of the panel report's word count, whichever is highest; third-party submissions, 9,000 words; and submissions in Spanish or French an additional 15% to those limits. Time limits are given as 30-35 minutes for opening statements and five minutes for closing statements. Third parties are limited to seven minutes for opening statements and five minutes for closing statements.

The MPIA limits Dispute Settlement Understanding Article 11 claims, or appeals of factual findings, which clogged up the AB system. Other novelties include a prehearing conference to identify the issues to be addressed, an online recording of the hearing, shorter reports and a specific standard of review.

"As MPIA (and other Article 25) arbitration appeals can be adjusted and moulded case-by-case by the disputing parties in their appeal arbitration agreements, one can expect further developments and innovations as more appeals are processed," the blog post said. "In this sense, the MPIA can serve not only as an interim stop-gap to preserve WTO dispute settlement. It can also function as a laboratory to explore and test new ways of making WTO dispute settlement more efficient and in line with WTO Members' goals and interests."