In my first post of last week, I briefly explained what the MPIA is.
In this second post, I ask the question whether the MPIA worked, now that the first MPIA appeal was filed. I also offer a roadmap with the key steps of the MPIA process.
Did it Work?
The answer to the question of whether "it worked" is clear: Yes, the MPIA worked, in the sense that it enabled the completion of the EU-Colombia frozen fries dispute, without blockage, thereby preserving the system’s “binding character and two levels of adjudication”.
In earlier disputes between MPIA participants, no MPIA appeal materialized. More importantly, however, in those cases too, the process was completed and neither party appealed into the void. Indeed, the mere existence of the MPIA, and its commitment not to appeal into the void, may have contributed to the parties reaching a settlement (as in Canada – Wine, DS537 (complaint by Australia)) or agreeing to the adoption of the panel report without appeal (as in Costa Rica – Avocados, DS524 (complaint by Mexico)).
In the EU-Colombia frozen fries dispute, as before, the EU was able to obtain the establishment and composition of a first level panel. That panel found that Colombia’s anti-dumping duties violate a number of provisions of the WTO Anti-Dumping Agreement.[1] Colombia’s right to appeal the panel report was preserved and exercised. The EU could have but did not appeal the panel report. The MPIA appeal arbitrators reversed one but confirmed three other panel findings. The MPIA award was notified to, and discussed at, the WTO’s Dispute Settlement Body (DSB). Pursuant to DSU Article 25, paragraph 3, there is no need for formal DSB adoption. At the DSB meeting, Colombia said that “while it disagreed with some of the findings, it intends to implement the arbitrators' award in a manner that respects Colombia's WTO obligations”.[2]
In the event that Colombia fails to comply, the EU can invoke the implementation, compliance and retaliation mechanisms that apply to standard panel and Appellate Body report (as explicitly confirmed in DSU Article 25, paragraph 4). At the DSB meeting, Colombia also added that “the MPIA procedure has now proven to be a viable and well-functioning interim mechanism that can replace, on a temporary basis, the Appellate Body and preserve members' right to appeal”. The EU, and a long list of other WTO Members, agreed.
Roadmap for MPIA appeals
The key stages of the MPIA process are as follows:
1. A WTO Member decides to join the MPIA. This is normally done outside of any specific dispute and merely implies joining a communication issued in April 2020 that contains a political commitment to enter into an appeal arbitration agreement in future disputes where both parties are MPIA participants. This needs to be done within 60 days after the establishment of the panel. Both the EU and Colombia are original MPIA participants.
As occurred in Turkey —Pharmaceutical Products, WTO Members (though not both MPIA participants) may also decide ad hoc, in one or more specific disputes, to enter into Article 25 appeal arbitration using all or part of the MPIA rules and/or pool of arbitrators.
2. Once a panel is established between MPIA participants, the parties conclude an appeal arbitration agreement. When a dispute arises between two WTO Members that are both MPIA participants (say, between Colombia and the EU, or between Australia and China or Mexico and Brazil), the parties in the dispute must enter into a dispute-specific appeal arbitration agreement. Under the old process, no dispute-specific agreement to rely on the Appellate Body was needed. Since the MPIA is implemented under DSU Article 25 for each dispute, a separate appeal arbitration agreement is needed for each MPIA case.
In the frozen fries dispute, such agreement was concluded between the EU and Colombia in July 2020.[3] Attesting to the flexibility and adaptability of appeal arbitration, to be defined and implemented in each specific dispute, in April 2021 the EU and Colombia revised their appeal arbitration agreement, mainly to make the panel report available to the pool of MPIA arbitrators right before the suspension of panel proceedings, instead of waiting to do so until the notice of appeal is filed (this gives MPIA arbitrators 20 more days to read the panel report and get acquainted with its findings).[4]
3. If a party wants to appeal, it can request the suspension of panel proceedings before the panel report is circulated. Once the appeal arbitration agreement concluded, the panel proceeding runs its usual course, with two rounds of submissions and two hearings, an interim report and final report issued to the parties. Up to 10 days before the circulation of the final panel report to all WTO Members, either party can request the panel to suspend its proceedings which the panel must grant, as stipulated in the appeal arbitration agreement. Such suspension paves the way for a potential MPIA appeal.
4. Either party can initiate an MPIA appeal with a notice of appeal. Once the panel suspends its proceedings at the request of a party, either party has 20 days to file a notice of appeal. This notice of appeal starts the 90-day clock for the MPIA award to be issued, includes the final panel report and is circulated to all WTO Members. With its notice of appeal, the party must concurrently file its written appeal submission. The other party then has 5 days to submit a notice of other appeal which must also include its appeal submission.
5. The appeal arbitration process itself. The MPIA consists of a pool of 10 arbitrators, selected by consensus of all MPIA participants in July 2020.[5] Any given MPIA appeal is, however, decided by only 3 arbitrators randomly selected out of the pool of 10.[6] Nationals of a party can sit as MPIA arbitrators. However, “two nationals of the same Member shall not serve on the same case”.[7] By day 18 (counting from the day of the notice of appeal), appellee (or response) submissions must be filed. By day 21, third parties in the dispute (which may or may not be MPIA participants themselves) can file a third party submission. Next comes the oral hearing (between day 30 and day 45). By day 90 at the latest, the MPIA arbitrators must issue their award to the parties.
6. The MPIA award, its bindingness and enforcement. The MPIA appeal award includes the panel’s un-appealed findings. Awards must be translated in the WTO’s three official languages. Pursuant to DSU Article 25, paragraph 3, arbitration awards must be notified to the DSB, where any Member may raise any point relating to the Award. There is no need for the DSB to formally adopt the award before it is binding on the parties. The binding effect of MPIA awards is triggered by DSU Article 25, paragraph 3, itself (“parties to the proceeding shall agree to abide by the arbitration award”) and is confirmed in the MPIA itself (“the parties agree to abide by the arbitration award, which shall be final”).[8] DSU Article 25, paragraph 4, makes it clear that DSU Articles 21 and 22 on implementation and enforcement of WTO panel/Appellate Body rulings “shall apply mutatis mutandis to arbitration awards”. In this sense, an MPIA award is exactly like an adopted Panel or Appellate Body report.
Conclusion to Part II
In sum, considering the first MPIA award in the EU-Colombia frozen fries dispute, the MPIA has proven to be operational. It ensured both the right of parties to appeal panel reports and to get a final, binding ruling, without loopholes to block the process. Although the MPIA as such is only a political commitment to sign appeal arbitration agreements in the future in specific cases, in all eight WTO disputes between MPIA participants where panels have been established to date, such agreements have been entered into within the set 60-day time limit.[9] While originally some doubt had been expressed as to whether this would happen, whether panels would suspend proceedings to allow for MPIA appeals and whether parties would follow the MPIA process instead of appealing into the void[10], so far, none of these concerns have materialized.
(*) 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] Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Report of the Panel, attached to Notification of an Appeal by Colombia under Article 25 DSU, WT/DS591/7, 10 October 2022.
[2] WTO News Item, Panels established to review EU complaints regarding Chinese trade measures (summary of the DSB meeting of 27 January 2023), 27 January 2023. See also Communication of Colombia,
[3] Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Agreed Procedures for Arbitration under Article 25 of the DSU, WT/DS591/3, 15 July 2020.
[4] Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Agreed Procedures for Arbitration under Article 25 of the DSU, Revision, WT/DS591/3/Rev.1, 22 April 2022, para. 4(i).
[5] The list of MPIA arbitrators was communicated to WTO Members in JOB/DSB/1/Add.12/Suppl.5, 3 August 2020. See also https://wtoplurilaterals.info/plural_initiative/the-mpia/. The MPIA states that “the participating Members will, periodically, partially re-compose the pool of arbitrators, starting two years after composition”. In July 2022, MPIA participants “agreed that the pool of 10 standing arbitrators … is to remain unchanged” (JOB/DSB/1/Add.12/Suppl.8, 6 July 2022). They added that should the situation related to the Appellate Body remain unresolved in two years’ time, “the participating Members will consider a partial re-composition of the pool of arbitrators with effect from 31 July 2024”.
[6] The three arbitrators in the EU-Colombia frozen fries dispute were: José Alfredo Graça Lima (chair), Alejandro Jara, and Joost Pauwelyn. See Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Recourse to Article 25 of the DSU, Constitution of the Arbitrator, WT/DS591/8, 12 October 2022.
[7] MPIA, Annex 1, footnote 4.
[8] Ibid., Annex 1, paragraph 15 and confirmed in Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Agreed Procedures for Arbitration under Article 25 of the DSU, Revision, WT/DS591/3/Rev.1, paragraph 15.
[9] To date, there are 8 disputes between MPIA participants where panels have been established and where the 60-day time period has lapsed (DS522, 524, 537, 589, 591, 598, 602 and 603). In all 8 of these disputes, bilateral appeal arbitration agreements have been concluded. See https://wtoplurilaterals.info/plural_initiative/the-mpia/.
[10] See, for example, Geraldo Vidigal, Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis, 20 Journal of World Investment & Trade (2019), 862-890 at 884-9 and Henry Gao, Finding a Rule-Based Solution to the Appellate Body Crisis: Looking Beyond the Multiparty Interim Appeal Arbitration Arrangement 24 JIEL (2021) 534-550 at 541-544.
