Now that I addressed what the MPIA is and whether/how it works, let me turn to the third, and final, post in this series:
What are some of the novelties that can be found in the first MPIA procedure?
The list of eight items below is limited to procedural/systemic issues and does not address the case-specific substantive findings in the award:
1. Timing: Like the Appellate Body, the MPIA operates under a strict deadline of 90 days. The first MPIA procedure was completed in 74 days, from notice of appeal to issuance of the award. The last time the Appellate Body circulated a report within the 90-day time limit dates from July 2014. The average duration of the last 20 appeals filed before the Appellate Body was 360 days.[1]
2. Secretariat support: Since the demise of the Appellate Body, the Appellate Body Secretariat has been disbanded. In line with para. 7 of the MPIA[2], MPIA arbitrators are supported by staff from the WTO Secretariat. However, in order to ensure independence, this staff is housed in neither the Legal Affairs nor the Rules Division which normally support first-instance panels. Staff is seconded to the MPIA from other Secretariat divisions and for the duration of the process is “answerable, regarding the substance of their work, only to appeal arbitrators”. Supervisors or the Director of the Division where staff is seconded from are not in the picture. Like MPIA arbitrators themselves, staff is paid not by the disputing parties but out of the normal WTO budget. This is in line with other arbitration procedures that have been conducted pursuant to Article 25 of the DSU. As noted earlier, the MPIA is not a plurilateral deal that operates outside of the WTO. Via the hook of DSU Article 25, it is housed squarely within the multilateral DSU itself.
3. Word and time limits: As envisaged in para. 12 of the MPIA procedures agreed between the parties (hereafter “Agreed Procedures”)[3], the arbitrators set word limits for written documents and time limits for the hearing and oral statements. Since the appellant’s submission must be filed together with its Notice of Appeal, these limits were set in a pre-arbitration letter, sent out on behalf of the pool of 10 MPIA arbitrators (not the three arbitrators that would eventually hear the appeal) after the panel suspended its proceedings but before an appeal was even filed. In this pre-appeal letter, the following “indicative guidelines” were set[4]:
- Notices of Appeal/Other Appeal should normally be limited to a maximum of 2,000 words;
- Appellant/Other Appellant/Appellee submissions should normally be limited to a maximum of 27,000 words or 40% of the word count of the appealed Panel report, whichever is the highest;
- Third Parties who wish to make a submission should normally limit them to a maximum of 9,000 words; and
- where MPIA appeal proceedings are conducted in French or Spanish, the above indicative limits are increased by 15%.
No such word limits had ever been set by the Appellate Body. The arbitrators also set time limits for statements at the hearing:
Opening statements by parties shall be no longer than 30 to 35 minutes each; opening statements by third parties shall be limited to seven minutes each; and closing statements by parties shall be limited to five minutes each.[5]
4. DSU Article 11 claims: It is well-known that so-called Article 11 claims where parties appeal factual (not legal) findings by panels have considerably complicated and delayed the Appellate Body process. Para. 13 of the Agreed Procedures provides that “[i]f necessary in order to issue the award within the 90 day time-period, the arbitrators may also 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”.
In their pre-appeal letter, MPIA arbitrators invited the parties “to consider refraining from making [such Article 11] claims” and added that “any Party considering making such claims is encouraged to … (i) appraise how any such Article 11 claim would affect the 90 day time-period … (ii) evaluate … whether such Article 11 claim has the potential to impact the substantive outcome of the dispute and whether and how it is "necessary for the resolution of the dispute." … [and (iii)] consider whether the substance of any possible Article 11 claim could be brought under one of the substantive treaty provisions at issue in the dispute”.
If a party nonetheless decides to file such Article 11 claim, MPIA arbitrators requested that party to “set forth succinctly” in its appeal:
- whether and how the alleged panel error was raised before the Panel, in particular during the interim review stage …
- in what way the Article 11 claim is an issue "necessary for the resolution of the dispute" … and a matter that cannot be brought under one of the substantive treaty provisions at issue in the dispute; and
- in what way the alleged panel error is not simply an appreciation of a factual issue (within the exclusive domain of panels [6]
Colombia’s appeal in this procedure refrained from making any Article 11 claims.
5. Pre-hearing conference: On 9 November 2022, 6 days before the actual hearing and on top of an earlier organizational meeting held on 18 October 2022, the arbitrators convened a so-called pre-hearing conference. According to the arbitrators, the purpose of this novel step included for the first time in a WTO appeal process, was to “assist us in identifying the issues to be addressed at the hearing, and to avoid issues that were not within our mandate, were not necessary for the resolution of this dispute, or were not contested between the parties … The purpose of the conference was not to replace the hearing, but to signal to the parties what we would like to explore or focus on at the hearing, and to allow the parties an opportunity to limit their submissions should they so wish”.[7]
6. Online recording of the hearing: For the first time in WTO history, a video recording of parts of the oral hearing is permanently available online. So far, public hearings in WTO dispute settlement meant the possibility to attend, in person, a projection of a recording of the hearing in a physical meeting room in Geneva, most often weeks after the actual hearing took place. In the few cases where video recordings were made available online, this was time-limited (e.g. available for 72 hours only). In the first MPIA appeal, the opening statements of some of the parties/third parties were recorded and uploaded on the WTO website. The arbitrators “did not consider that limiting the time period for public viewing of the video recording was necessary”.[8] The recording is available here: https://www.wto.org/english/tratop_e/dispu_e/material_e/ds591_arb25.mp4 (one needs a registered account with the WTO, but this can be set up by anyone, without restrictions).
7. Length of award and citations to prior Appellate Body reports: The first MPIA award is 39 pages long. The actual analysis by the arbitrators is 28 pages long. This is short compared to recent Appellate Body reports. The average length of the last 10 Appellate Body reports is 112 pages.[9] The first MPIA report refers to 10 prior Appellate Body Reports (counting multiple references to the same report only once). The average number for Appellate Body reports is 22. Counting per page, the first MPIA report includes 2 Appellate Body references every 3 pages. In the last five years of the Appellate Body, the average number of prior reports cited is around 6 every 3 pages (2 per page).
8. Standard of review: Article 17.6(ii) of the Anti-Dumping Agreement, the key substantive agreement at issue in the first MPIA appeal, provides for a specific standard of review/interpretative approach:
the panel shall interpret the relevant provisions of the [Anti-Dumping] Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
Although Colombia did not file an appeal directly under Article 17.6(ii) itself, it did ask the arbitrators to take a different approach to this provision as compared to that taken by the Panel. Both parties agreed that the arbitrators had to take a position on Article 17.6(ii) when assessing the Panel’s substantive findings under Articles 3 and 5 of the Anti-Dumping Agreement, which Colombia did appeal.
The arbitrators summarized the panel’s approach to Article 17.6(ii) as follows:
4.11 The Panel stated that whether a provision admits of more than one "permissible" interpretation (under the second sentence) depends on whether more than one such interpretation emerges after the Panel has examined the relevant provision under customary rules of interpretation of public international law (under the first sentence).
The arbitrators then deviated from this approach and adopted the following, novel interpretation of Article 17.6(ii) to their assessment of whether the Panel erred under Article 5 of the Anti-Dumping Agreement:
4.13. … we will begin by asking ourselves whether Colombia's proposed interpretation of the phrase "where appropriate" in Article 5.2(iii) … is a "permissible" one. As a yardstick for "permissibility", the first sentence of Article 17.6(ii) refers us to the customary rules of treaty interpretation. However, we will not engage in our own, de novo interpretation of the terms "where appropriate" so as to arrive at what we consider to be the "final" or "correct" application of Articles 31 and 32 of the Vienna Convention. Instead, we will ask whether a treaty interpreter, using the method for treaty interpretation set out in the Vienna Convention … could have reached Colombia's interpretation. And this even though we, as de novo treaty interpreters, might have reached a different conclusion.
4.15. Thus, the ultimate question for us when testing a proposed interpretation is to draw a line beyond which an interpretation is no longer "permissible" under the Vienna Convention method for treaty interpretation … the question is whether someone else's interpretation is "permitted", "allowable", "acceptable", or "admissible" as an outcome resulting from a proper application of the interpretative process called for under the Vienna Convention.
Conclusion
As WTO Members remain engaged to put WTO dispute settlement back on the rails, following the demise of the Appellate Body in late 2019, the interim solution of the MPIA deserves wider attention.
More than two and a half years after the creation of the MPIA, the first MPIA appeal award is now out. This series of blog posts tried to explain what the MPIA is and offered a step-by-step roadmap of how WTO Members can take advantage of the MPIA arrangement in specific disputes. It illustrated how the first MPIA appeal process achieved the MPIA's main objective of preserving the system’s “binding character and two levels of adjudication” and highlighted some of the procedural innovations that can be found in the first MPIA appeal: from faster and shorter reports, to word limits and a pre-hearing conference; a new approach to Secretariat support, online hearings, Art. 11 claims and 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. 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 interets.
(*) 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] See https://worldtradelaw.net/databases/abtiming.php.
[2] MPIA, para. 7: «the support structure will be entirely separate from the WTO Secretariat staff and its divisions supporting the panels and be answerable, regarding the substance of their work, only to appeal arbitrators”.
[3] 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.
[4] See Pre-Arbitration Letter, 19 September 2022, section 1, attached as Annex 2 to the Additional Procedures for Arbitration under Article 25 of the DSU, Adopted by the Arbitrators on 19 October 2022, which itself is Annex A-2 to the Award (Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Arbitration under Article 25 of the DSU, Award of the Arbitrators, Addendum, WT/DS591/ARB25/Add.1, 21 December 2022). In detailed endnotes, the arbitrators explain on what basis these numbers were arrived at.
[5] Colombia – Anti-Dumping Duties on Frozen Fries From Belgium, Germany and The Netherlands, Arbitration under Article 25 of the DSU, Award of the Arbitrators, Addendum, WT/DS591/ARB25/Add.1, 21 December 2022, Annex A-2, Additional Procedures for Arbitration under Article 25 of the DSU, Adopted by the Arbitrators on 19 October 2022, para. 23.
[6] Pre-Arbitration letter, section 3. The arbitrators noted that these requirements are “without prejudice to the question of whether (and, if so, under what conditions) such claims fall within the appeal mandate set out in Article 17.6 of the DSU and/or paragraph 9 of the Agreed Procedures”.
[7] Award, para. 1.11 and 1.12.
[8] Additional Procedures for BCI Protection and Partial Public Viewing of the Hearing, Adopted by the Arbitrators on 1 November 2022, Annex A-3 to the Award, para. 2.
[9] See data available at https://www.wto.org/english/tratop_e/dispu_e/ab_reports_e.htm. For the increase in length of Appellate Body reports, see Joost Pauwelyn, ‘Minority Rules: Precedent and Participation before the WTO Appellate Body’, in Joanna Jemielniak, Laura Nielsen and Henrik Palmer Olsen (Eds.), Establishing Judicial Authority in International Economic Law (Cambridge: Cambridge University Press, 2016), 139 ff.
