On 21 December 2022, more than two and a half years after its creation, the World Trade Organization’s (WTO’s) Multi-Party Interim Appeal Arbitration Arrangement (MPIA) finally produced its first appellate award.[1]
The inaugural MPIA award was issued in a dispute filed by the EU in November 2019 against anti-dumping duties imposed by Colombia on frozen fries from Belgium, Germany and The Netherlands. The three MPIA appeal arbitrators reversed one panel finding of violation, and confirmed three other panel findings that were appealed by Colombia.[2]
In this series of three posts, the first post explains what the MPIA is; a second post will ask whether the MPIA worked; a third and final post will describe some of the novelties that can be found in the first MPIA procedure.
Part I: What is the MPIA?
The MPIA was created in April 2020, by a sub-set of WTO Members, originally 19, today 25, out of a total of 136 (counting the EU and its 27 member states as one).[3] The MPIA was set up as an interim response to the demise of the WTO’s Appellate Body in December 2019, brought about by a US block on appointments to the Appellate Body.
Pending negotiations to fix the situation relating to the Appellate Body, MPIA participants wanted, above all, to preserve the functioning of WTO dispute settlement. More specifically, the main goal was to prevent “appeals into the void”, that is, blocking of the dispute resolution process by appealing a panel report to an Appellate Body that no longer functions. Instead, MPIA participants committed ex ante “not [to] pursue appeals under Articles 16.4 and 17 of the DSU [Dispute Settlement Understanding]”[4] and to use the alternative of (appeal) arbitration, explicitly foreseen in Article 25 of the DSU, to complete possible appeals in disputes between MPIA participants.[5]
The MPIA’s primary objective is, therefore, to preserve the system’s “binding character and two levels of adjudication”[6]: a panel stage, which remains the same as before (pre-2019), and an appellate stage, now conducted through Article 25 arbitration instead of the old Appellate Body.
Importantly, as the MPIA is, in effect, a form of arbitration implemented within a regular WTO dispute, albeit only at the appeal stage (see Part II), the MPIA is not a plurilateral agreement. It is nested within the multilateral WTO and explicitly foreseen and allowed for under DSU Article 25 (entitled “Arbitration”). Illustrating the multilateral character of the MPIA, MPIA arbitrators hearing an appeal are paid out of the regular WTO dispute settlement budget and assisted by regular Secretariat staff.
The second post in this series will examine whether the MPIA, in its first dispute, has achieved the goal of preserving the functioning of WTO dispute settlement.
A secondary goal of the MPIA was to test the waters with possible innovations to enhance “the procedural efficiency of appeal proceedings”.[7] This includes a mandate for MPIA appeal arbitrators to “take appropriate organizational measures to streamline the proceedings” including “decisions on page limits, time limits and deadlines as well as on the length and number of hearings required”.[8] MPIA participants also allowed arbitrators to “propose substantive measures to the parties, such as an exclusion of claims based on the alleged lack of an objective assessment of the facts pursuant to Article 11 of the DSU”[9] and explicitly limited the scope of appellate review to “only address those issues that are necessary for the resolution of the dispute” and “only those issues that have been raised by the parties”.[10]
The third post in this series will describe to what extent the first MPIA award brought about any such innovations.
(*) Full disclosure: the author was one of the three arbitrators in the first MPIA appeal. This contribution is written in the author’s personal capacity, conveys only publicly available information, and is limited to providing factual information about (not a critical or substantive assessment of) the MPIA and its process in order to enrich the public debate about WTO dispute settlement, its state-of-play and reform process.
[1] One earlier appeal arbitration award was issued under DSU Article 25, in a dispute between the EU and Türkiye, but this was not formally under the MPIA (as Türkiye is not an MPIA participant) but as a result of an ad hoc appeal arbitration agreement between the parties which incorporated some but not all elements of the MPIA. See Turkey — Certain Measures concerning the Production, Importation and Marketing of Pharmaceutical Products, Arbitration under Article 25 of the DSU, Award of the Arbitrators, WT/DS583/ARB25, 25 July 2022.
[2] 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, 21 December 2022.
[3] For updated information on MPIA participants and cases, see https://wtoplurilaterals.info/plural_initiative/the-mpia/.
[4] MPIA Pursuant to Article 25 of the DSU, 30 April 2020, JOB/DSB/1/Add.12 (hereafter “MPIA”), para. 2.
[5] DSU Article 25 provides, in crucial parts, as follows:
- Expeditious arbitration within the WTO as an alternative means of dispute settlement can facilitate the solution of certain disputes that concern issues that are clearly defined by both parties.
- Except as otherwise provided in this Understanding, resort to arbitration shall be subject to mutual agreement of the parties which shall agree on the procedures to be followed …
- … The parties to the proceeding shall agree to abide by the arbitration award. Arbitration awards shall be notified to the DSB … where any Member may raise any point relating thereto.
- Articles 21 and 22 of this Understanding [on implementation and enforcement of WTO panel/Appellate Body rulings] shall applymutatis mutandis to arbitration awards.
[6] MPIA, 4th preambular paragraph.
[7] Ibid., Annex 1, para. 12.
[8] Ibid.
[9] Ibid., Annex 1, para. 13.
[10] Ibid., Annex 1, para. 10.
