The second appeal of a WTO panel report to the MPIA is underway in the China - IPRs Enforcement (EU) dispute (DS611). It will be interesting to see what approach the arbitrators take in terms of their scrutiny of the panel report. On the fairly technical IP issues that were the main subject of the dispute, along with some systemic issues related to the existence of a measure, how much deference to the panel will the arbitrators show?
With regard to who exactly will be deciding on the approach, the WTO announced on Friday that the following arbitrators will hear the case:
- Dr Penelope RIDINGS (Chairperson)
- Ms Claudia OROZCO
- Mr Mateo Diego-Fernández ANDRADE
Recall that the arbitrators in the first MPIA appeal were:
- Mr José Alfredo GRAÇA LIMA (Chairperson)
- Mr Alejandro JARA
- Mr Joost PAUWELYN
So who is left in the MPIA arbitrator pool that hasn't served yet? At the moment, it is these four:
- Mr Thomas COTTIER
- Ms Locknie HSU
- Ms Valerie HUGHES
- Mr Guohua YANG
(Note that Diego-Fernández Andrade and Yang served on a non-MPIA DSU Article 25 appeal arbitration.)
I said "at the moment" because there's also the question of the makeup of this pool going forward. A WTO document from last July suggests that there could be some adjustments coming to the composition of the pool:
The Members participating in the MPIA wish to inform the DSB that, should the conditions laid down in paragraph 15 of the MPIA communication still prevail on 1 March 2025, the process of partial re-composition of the pool of arbitrators will be launched at that point in time with a call to Members participating in the MPIA to nominate candidates by 31 March 2025. The participating Members intend to finalise the process of partial re-composition by 31 May 2025.
But I haven't heard anything more about this and it's not clear to me whether the process has started.
The next case on the MPIA's docket could be a repeat of the first one: There is a Colombia - Frozen Fries Article 21.5 panel going on right now, with the panel saying it expects to issue its final report to the parties during the third quarter of 2025.
