There are two new developments with the MPIA.
First, Australia and China have agreed "to enter into arbitration under Article 25 of the DSU to decide any appeal from any final panel report as issued to the parties in dispute Australia – Anti-Dumping and Countervailing Duty Measures on Certain Products from China (DS603)." That dispute is a long way from a panel report, though, with the panel just having been composed on September 5.
Second, it looks like another DSU Article 25 appeal arbitration might be coming soon. On September 16, the panel in Colombia - Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands (DS591) issued a communication in which it indicated that the final report had been issued to the parties on August 29. The panel said that on September 12, it received a communication from Colombia requesting the Panel to suspend its work in the dispute in accordance with Article 12.12 of the DSU, in order to facilitate arbitration under the Agreed Arbitration Procedures. Upon receipt of this request, on September 13 the Panel instructed the WTO's Dispute Settlement Registry to "transmit immediately the original English language version of the final Panel Report … to the pool of arbitrators." (The pool of arbitrators is here.) The Spanish and French translations were transmitted on September 16, and on that date the Panel granted the request to suspend the panel proceedings.
Under the Agreed Arbitration Procedures, "[t]he arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no later than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has taken effect." So, unless there is a settlement here, it seems as though we will see a notice of appeal filed in the coming weeks. And, of course, "the Notice of Appeal shall include the final panel report in the working languages of the WTO," which is when we in the general public get to see the report.
This dispute will be an interesting test of how DSU Article 25 arbitration appeals handle trade remedy disputes. Trade remedies are a sensitive area, and one of the main issues that led to U.S. objections to the Appellate Body. How much deference will the MPIA arbitrators give to the panel and to domestic anti-dumping authorities? That is something many people, including U.S. government officials, will be watching closely.
And the dispute will also be interesting because it's the first MPIA appeal. The Turkey - Pharmaceutical Products DSU Article 25 arbitration appeal was an ad hoc appeal arbitration because Turkey is not a party to the MPIA, but the Frozen Fries dispute will be a full-fledged MPIA case. The Agreed Procedures in the case say that selection of the MPIA arbitrators will take place as follows:
The selection from the pool of arbitrators will be done on the basis of the same principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of rotation.4
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a national of a participating Member shall be excluded from the selection process. Two nationals of the same Member shall not serve on the same case.
(As far as I can tell, neither element of the footnote applies here.)
Rule 6(2) of the Working Procedures for Appellate Review says:
The Members constituting a division shall be selected on the basis of rotation, while taking into account the principles of random selection, unpredictability and opportunity for all Members to serve regardless of their national origin.
Which 3 of the 10 arbitrators in the pool will make it through the random selection process? My understanding is that everyone in the pool has been working hard to prepare for the possibility of being put to work, and they should soon have an opportunity to show us what the MPIA can do.
