AMITY LAW SCHOOL

INTERNATIONAL TRADE LAW

    ARTICLE WRITING

Criteria of Preparation/Choice of List of

Panellist in DSB
            

SUBMITTED TO: SUBMITTED BY:

Mr. MAHESH SHARMA PRADHUMAN K. GAUR
IX SEMESTER
B.A., LL.B.(HONS)
INTRODUCTION

Dispute Settlement Body (DSB) is responsible for the administration of the whole dispute
settlement system. The DSB is chaired by the General Council and is composed of
representatives of all members. For the administration of the dispute settlement system the
DSB is entrusted with the functions under Article 2 Para. 1 of the Dispute Settlement
Understanding. Following are the powers of the DSB1:

 Power to appoint Panellists and adopt terms of reference for Panels.

 Power to adopt or reject a recommendation of a Panel or the Appellate Body.
 Maintain surveillance of the implementations of recommendations.
 Appoint arbitrators to make recommendations on the ‘reasonable period of time’.
 Appoint a second, ‘implementation’ Panel to make recommendations on measures to
restore conformity with the Agreement(s).

Each panel appointed by the Dispute Settlement Body is an ‘ad-hoc’ body and hence such
power to make appointment is significant. The DSB gives parties to the dispute some power
in appointments of panellists in panel but the final discretion rest with the DSB.

DISPUTE SETTLEMENT PANEL

Panels are the quasi-judicial bodies responsible for adjudicating disputes between the parties.
The DSB establishes a panel at the request of the parties to the dispute when the parties
cannot reach a solution to the dispute through consultation. Such request to the DSB must be
made in writing by the parties to the dispute. Such request must also consist of details as to
whether consultations were held and summary of the legal basis of the complaint2. The
parties requesting shall also define the limit and scope of jurisdiction of the panel3. In EC-
Banana III Case4, the Appellate Body observed that it is of utmost importance that a request
for panel is precise as it often forms the basis of terms of reference of the Panel pursuant to
1
Greg Buckman, Global Trade, 35-40 (Fernwood Publishing 2nd ed.,2005)
2
Article 6 Para. 2 of Dispute Settlement Understanding.
3
Article 7 Para. 1 of Dispute Settlement Understanding.
4
WT/DS27/AB/RW2/ECU, available at http//www.wto.org
Article 7 of the Dispute Settlement Understanding and also the request informs the defending
party and the third parties of the legal basis of the complainant.

Once the panel is established the process of adjudication begins. After receiving the written
statements, the Panel holds meeting with the parties. The Panel also has authority to ask any
WTO member regarding information on the case. Panel deliberations are confidential and the
reports are drafted in the light of arguments and information presented before the Panel
without the presence of the parties5

COMPOSITION OF THE PANEL

The Dispute Settlement Body establishes the Panel at the request of the disputants and for
such establishment the Dispute Settlement Body requires WTO secretariat to propose
members for the Panel. The panel consist of Three members but if the disputants so request
for a five members Panel within ten days of the establishment of the Panel than the Panel
shall be organised as requested according to the rules6 so laid in the Dispute Settlement
Understanding. The Dispute Settlement Understanding (DSU) contains rules as to
composition of the Panel and lays the role of Director-General if the parties fail to agree to
the composition of the Panel. The WTO Secretariat maintains an indicative list of
governmental and non- governmental members from which the panellists are selected 7. The
DSU prohibits a potential panel member from being a member of panel if he is a citizen of
any disputant party or of any third party unless the parties to the dispute agrees otherwise8.
This rule has its basis from as most disputes involve economic powers such as USA, Europe,
Japan, it is argued that this practice within GATT acted as a “de facto ban” on publicly
known trade specialists from these states9. Generally, many panellists are trade delegates of
WTO members or capital-based trade officials, but former Secretariat officials, retired
government officials, legal practitioners and academics also regularly serves on Panels10.

5
Article 14 Para. 1 and Article 14 Para. 2 of Dispute Settlement Understanding.
6
Article 8 Para. 5 of Dispute Settlement Understanding.
7
Article 8 Para. 6 of Dispute Settlement Understanding.
8
Article 8 Para. 6 of Dispute Settlement Understanding.
9
Pierre Pescatore, ‘The GATT Dispute Settlement Mechanism: Its Present Situation and Its Prospects’, 27-30,
Vol. 10, J. INT’L ARB. (1993
10
Ernst-Ulrich Petersmann, Strengthening GATT Procedures for Settling Trade Disputes, Vol. 11 World
Economy 55-74 (1988)
When qualified individual nominations are proposed by the WTO secretariat as the Panellists,
the parties may oppose them but only for compelling reasons. If there is no agreement
between the disputants on the composition of the Panel within twenty days of its
establishment, either party to the dispute may request the Director-General of the WTO to
determine the composition of the Panel. Such request made shall be disposed within ten
days11.

The selected members of the Panel must fulfil their duty with full independence and not as a
representative of any government or organisation. Members too are prohibited from giving
panellists instructions or influencing them with regard to the matter sub judice before the
Panel12.

In consonance with the Article 3 Para. 1 of the Dispute Settlement Understanding, the WTO
continues the GATT practice of providing preferential treatment to developing nations. Upon
request, the DSU will require one panel member from a developing nation to be appointed in
the Panel in dispute involving a developing country and a developed country. This provision
ensures the independence of Panel members and further guarantees that the panel will not
issue a power-oriented report13.

CONCLUSION

The article examines the composition of the ad-hoc Panel appointed by the Dispute
Settlement Board. The Panel is a third-party adjudication by a three-member panel appointed,
who decides that whether the conduct of any WTO member violates the WTO treaty. For
each case WTO Secretariate proposes the members of the Panel which must not have member
from the nations at the dispute. Such members proposed may be rejected by the parties. If
there is no consensus as to members of the Panel, any party my request the Director-General
of WTO in writing to appoint members to the Panel. Finally, if any party is not satisfied with
the decision of the Panel it may file an appeal to the Appellate Body.

11
Article 8 Para. 7 of Dispute Settlement Understanding.
12
Article 8 Para. 9 of Dispute Settlement Understanding.
13
Kantchevski. Petko. D., The Difference Between the Panel Procedures of the GATT and the WTO: The Role of
GATT And WTO Panels in Trade Dispute Settlement, Vol.3 BYU Int’l L. Mgmt. Rev. 79,97 (2006)