The Proposed Level of DSU Article 22 Suspension: Formulas versus Monetary Amounts
DSU Article 22.2 allows WTO complainants, in the event of non-compliance, to "request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements." How explicit must they be in this suspension request? Do they have to specify an amount of suspension? Is it OK just to identify a formula that can be used to calculate the amount? How detailed must that formula be? This is from the U.S. statement, at the January 12 DSB meeting, related to the India - Solar Cells (DS456) dispute:
4See, e.g., United States – Measures Affecting the Production and Sale of Clove Cigarettes: Recourse to Article 22.2 of the DSU by Indonesia (WT/DS406/12) (“…the level of suspension proposed is equivalent on an annual basis to the nullification or impairment of benefits accruing to Indonesia…”); European Communities – Measures Affecting the Approval and Marketing of Biotech Products: Recourse to Article 22.2 of the DSU by the United States (WT/DS291/39) (“…the United States requests authorization from the Dispute Settlement Body ("DSB") to suspend concessions and other obligations with respect to the European Communities under the covered agreements at an annual level equivalent to the annual level of nullification or impairment of benefits accruing to the United States resulting from the European Communities' failure to bring measures of the European Communities and its member States concerning the approval and marketing of biotech products into compliance with the recommendations and rulings of the DSB…”); and, in United States – Continued Dumping and Subsidy Offset Act of 2000 (DS217 and DS234), requests by the European Union (WT/DS217/22), Brazil (WT/DS217/20), Japan (WT/DS217/24), Korea (WT/DS217/25), Canada (WT/DS234/25), Mexico (WT/DS234/26), Chile (WT/DS217/21), and India (WT/DS217/23).
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A full list of DSU Article 22.2 suspension requests is available here (DSC subscribers only). Most of the requests indicate specific monetary amounts, but the U.S. is correct that some of them are more vague about things.
It seems to me that at some point in the process, the party proposing to suspend concessions or other obligations needs to indicate with some specificity the amount of the suspension, either by providing an actual amount or by offering a detailed formula to be used in calculating the amount. Ideally, this would be set out in the Article 22.2 suspension request. If it is not, the responding party has no way to evaluate whether it should object to the proposed level of suspension and therefore whether to have the matter referred to arbitration. As a result, the Article 22.6 process could be undermined.
Alternatively, I suppose, the responding party could object even without having any sense of the proposed level, and then during the Article 22.6 arbitration process the complainant would offer more details. As long as the Arbitrator is able to evaluate whether the level of proposed suspension is equivalent to the level of nullification or impairment, the process should work.