TABLE OF ABBREVIATIONS 1 AB Appellate Body 2 ACWL Advisory Centre for WTO Law 3 AD Anti- Dumping 4 DSB Dispute Settlement Body 5 DSM Dispute Settlement Mechanism 6 DSS Dispute Sett
THIRD PARTY INTERVENTION IN THE WTO DISPUTE
Overview of the WTO dispute settlement system of WTO
1.1.1 History of the establishment and development of the WTO dispute settlement system
World Trade Organization (WTO) came into existence since the 1 st of January
The World Trade Organization (WTO) was established in 1995 as the culmination of the Uruguay Round of negotiations (1986–1994) and as the successor to the General Agreement on Tariffs and Trade (GATT) of 1947 Today, more than 95% of global commercial activities are governed by WTO agreements, highlighting the organization’s central role in shaping international trade.
1.1.1.1 Dispute settlement mechanism of GATT 1947
The GATT 1947 dispute settlement mechanism rests on Articles XXII and XXIII, establishing consultation procedures among signatories on the application and implementation of the GATT (Article XXII) and a conciliation procedure between disputing parties when their commercial rights are nullified or impaired by the acts of a contracting party (Article XXIII) The GATT 1947 Agreement stipulates that the body competent to settle disputes is the GATT General Assembly.
In fact, most of the dispute resolution was entrusted to the working groups and from
Since 1952, GATT's dispute settlement mechanism has operated through expert groups appointed by the GATT General Assembly, designed to favor reconciliation over litigation Its core aim is to help disputing parties better understand each other's positions, guiding them toward a solution that is acceptable to both sides By prioritizing dialogue and mutual accommodation, the mechanism promotes cooperative resolution and helps safeguard stable, predictable international trade relations.
The reconciliation task was assigned to the expert team, consisting of 03 or 05 members who were often selected among diplomats working at a delegation in
Key sources cited here include Ian F Fergusson’s "The World Trade Organization: Background and Issues," a CRS Report for Congress updated May 9, 2007, available at https://nationalaglawcenter.org/wp-content/uploads/assets/crs/98-928.pdf (consulted December 12, 2018), and a Vietnamese page on WTO dispute-resolution mechanisms available at http://www.trungtamwto.vn/wto/gioi-thieu-co-me-giai-quyet-tranh-chap/gioi-thieu-ve-co-me-giai-quyet-tranh-chap-trong-wto (consulted January 15, 2019).
Geneva or government officials of third countries who have experienced years on GATT’s issues
The expert team objectively reviews the dispute contents, including any violation of the agreement and any potential damages to a party, and prepares a report for submission to the GATT General Council for consideration Approval of the report rests on the principle of positive consensus, meaning there should be no objection from any contracting party However, this principle can hinder the GATT dispute settlement mechanism in practice, since any signatory could oppose or delay the establishment of expert groups and block the progression of reports.
Such a system might seem unworkable Why would a respondent relinquish its right to block the establishment of a panel if it feared losing the case? Why would the losing party refrain from blocking the panel’s report? How could a party avoid vetoing the authorization of countermeasures that would hurt it economically? If domestic judicial systems operated on a consensus rule, they would probably fail in many instances Moreover, the delay inherent in dispute resolution has not produced a practical benefit for the prevailing party, since the harmed product or industry often loses competitiveness during the prolonged process.
Many potential disputes were never brought to the GATT because complainants feared a veto by the respondent, which weakened the dispute‑settlement system Vetoes did occur, particularly in economically important or politically sensitive areas such as anti‑dumping, further undermining confidence in the process The system deteriorated in the 1980s as contracting parties increasingly blocked the establishment of panels and the adoption of panel reports.
Additionally, adopting a number of Codes from the 1979 Tokyo Round—such as those governing government procurement and civil aviation—introduced separate dispute settlement mechanisms that ran alongside the core multilateral framework This fragmentation reduced uniformity across the trading system and weakened the overall general dispute settlement mechanism As a result, traders and governments faced a more complex and uneven set of rules, undermining predictable enforcement of obligations in international trade.
New disputes have emerged over trade measures linked to investment, intellectual property protection, and trade in services, issues that lie outside the jurisdiction of GATT 1947 Because these disputes are not resolved within the multilateral trading system, they have sometimes led to unilateral sanctions on developing countries. -**Support Pollinations.AI:** -🌸 **Ad** 🌸Powered by Pollinations.AI free text APIs [Support our mission](https://pollinations.ai/redirect/kofi) to keep AI accessible for everyone.
As inherent problems in the GATT dispute settlement system grew more acute in the 1980s, many contracting parties to GATT 1947, both developing and developed, pressed for reform and strengthening of the framework Consequently, dispute settlement negotiations were prioritized in the Uruguay Round agenda The WTO dispute settlement mechanism inherits the rules that had delivered positive effects for nearly five decades under GATT 1947 Learning from the shortcomings of the old system, the new mechanism incorporates fundamental improvements that enhance the efficiency of the procedure and fortify the binding nature of dispute resolution decisions.
The WTO's dispute settlement mechanism rests on four core principles: fairness, speed, effectiveness, and acceptability to the disputing parties It is designed to preserve the rights and obligations of WTO members while ensuring compliance with the relevant trade agreements The mechanism operates in accordance with international customary law and the interpretation of international treaties, providing a legally sound framework for resolving disputes Together, these elements create a credible, timely, and mutually acceptable process for enforcing trade rules on the global stage.
Under the DSU, the veto power of the party whose measure is under challenge is removed, so the DSB automatically establishes panels and adopts both panel and Appellate Body reports unless there is a consensus to block them This “negative” consensus approach marks a clear departure from GATT 1947 practice and extends not only to the establishment of panels and the adoption of reports but also to the authorization of countermeasures against a party that fails to implement a ruling.
Two important new features of the WTO dispute settlement system are the appellate review of panel reports and the formal surveillance of implementation following the adoption of panel and Appellate Body reports The appellate review provides an added layer of scrutiny for panel findings, while formal surveillance ensures ongoing monitoring and compliance with the adopted rulings.
Today, the WTO dispute settlement mechanism is seen as the most effective dispute resolution instrument in the international legal order, serving both as a judicial forum and as a preventive tool to balance the rights and obligations of WTO members It pursues three core functions: first, to keep the multilateral trading system safe and predictable by strengthening and enforcing the rule of law; second, to protect the rights and obligations of WTO members; and third, to clarify these rights and obligations through interpretation of the WTO Agreement in line with customary rules of international interpretation.
Under these functions, the claimants are required to comply with their commitments under the relevant agreements, and the recommendations and rulings of the Dispute Settlement Body are enforceable on the parties to the dispute.
1.1.2 Principles of WTO dispute settlement system
In the process of settling disputes between WTO members, these disputes are resolved on the basis of WTO rules comply with the following specific principles:
WTO rules on third party intervention
Under Article 10.2 of the DSU, any Member with a substantial interest in a matter before a panel that has notified its interest to the DSB (referred to here as a "third party") shall be afforded the opportunity to be heard by the panel and to submit written submissions These submissions shall be provided to all parties to the dispute and shall be reflected in the panel’s report.
Under this provision, a third party is any participant in the WTO dispute settlement process who is neither the complainant nor the respondent Third parties have the right to participate, present their views, and receive written submissions at the various stages of the dispute settlement process In practice, third parties often side with the position of one party.
1.2.2 Conditions for becoming a third party
In order to become a third party in a WTO dispute, the following conditions must be met:
First, a third party in a dispute must be a WTO Member
WTO members include sovereign countries and certain territories (for example, the European Union), and in disputes arising under a discretionary trade agreement among a subset of members, the term "Member" refers solely to the parties to that agreement When the Dispute Settlement Body (DSB) applies the dispute settlement provisions of such a discretionary trade agreement, only those members that are parties to the agreement may participate in the DSB’s decisions and activities related to that dispute.
In WTO dispute settlement, any member has the right to participate as a third party when there is evidence that its substantial commercial interest in the consultation or its substantial interest in the panel stage relates to the dispute submitted to the DSB Even if WTO members only cite that they have a “systematic interest” in the dispute, such requests for third-party participation are sometimes accepted.
In practice, most third-party participation requests are approved under the DSB consensus principle, which treats the DSB as having agreed on the matter to be filed once the request is submitted for review If no member at the DSB meeting formally objects to the proposed decision, the request is deemed approved.
1.2.3 The third party status in each stage of dispute settlement
Participation as a third party is regulated under different conditions in each stage of the DSU
The consultation phase is the initial stage of the dispute settlement mechanism
These agreements embody the spirit of goodwill cooperation among the participating members The consultation period is designed to be confidential, without prejudice to any member's rights in subsequent proceedings or to any ongoing operations Provisions made within the territory of the member to be consulted must pay particular attention to the specific issues and interests of the developing-country members.
Disputes are typically resolved at the consultation stage, allowing for a quick settlement This swift resolution delivers substantial cost and time savings for all parties, while helping to maintain good relations between them.
Participation as a third party is specified in Article 4.11 of the DSU: details are as follows:
Non-disputing Members may participate in the consultative stage if they determine that they have a substantial trade interest in the consultations carried out under paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding provisions in other agreements, including the Agreement on Agriculture and the Article 19 provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures.
Notify the consulting Members and the Dispute Settlement Body (DSB) about the request for consultation within 10 days from the date of circulation of the request under the relevant Article Members receiving such requests shall review and approve initiating consultations on the basis that the requesting party has a substantial trade interest affected by the matter.
When a request to participate in consultations is not accepted, there is no recourse by which the interested Member can compel its presence at the consultations, regardless of how legitimate the invoked substantial trade interest may be This denial leaves the member without a mechanism to enforce attendance, underscoring the lack of remedy even where its trade interests are significant.
Under Article 4.11 of the DSU, a Member that is not one of the consulting Members and that believes it has a substantial trade interest in consultations opened under paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or their counterparts in other covered agreements may notify the consulting Members and the DSB within 10 days after circulation of the request for consultations to seek to join the proceedings Joining is granted if the Member addressed accepts that the claim of substantial interest is well-founded, and they must inform the DSB accordingly If the request to join is not accepted, the applicant Member may pursue consultations under paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATT 1994, or the corresponding provisions in GATS or other relevant agreements, which will open a new, separate dispute settlement procedure under Article 4.11 of the DSU.
1.2.3.2 The panel establishment and procedures
Any Member with a substantial interest in the matter reviewed by the panel and who has notified its rights to the Dispute Settlement Body (DSB)—even if it did not participate in the consultations—has the right to participate in the dispute as a third party, in accordance with the applicable Article.
There is a difference between “substantial trade interest” which is required for third parties in consultations and “substantial interest” before the panel Most significant is the fact that it is possible to join consultations only with the respondent’s acceptance (and in the case of non-acceptance, there is no recourse to enforce participation) On the other hand, any Member who invokes a systemic interest, in practice, is admitted to a panel procedure as a third party without any scrutiny whether the interest truly is “substantial”
At this stage, a third party is provided with a number of rights expressing its role and influence on the dispute, specifically as follows:
First: Present the matter to the Panel and submit it to the Panel (by oral report at the first meeting of DSB and written submission in next meetings) These submissions must also be submitted to the parties to the dispute and must be reflected in the panel report
Second: Must receive the written submission of the disputing parties for the first subtantice meeting of the panel (Article 10.3 of the DSU)
Third: If a measure that is the subject of a settlement at the Panel nullifies or prejudices a party's rights under any relevant agreement, the Member may invoke the standard dispute resolution procedures provided by this agreement Such disputes should, where possible, be referred to the original panel.
PRACTICES INVOLVED IN DISPUTE SETTLEMENT AS
The developed country members
Many scholars argue that countries do not pursue all suspected WTO violations; instead, they make strategic decisions about which disputes to initiate Controlling for the legal merit of a case, states are more likely to initiate WTO disputes when they have greater past experience with dispute settlement, when their economies are larger, when the value of trade at issue is higher, and when they possess stronger retaliatory capacity against the defendant Conversely, countries are less likely to initiate disputes if they are economically dependent on the defendant or if they have a preferential trade agreement with the defendant.
Developed countries account for about a quarter of WTO members, yet their third-party participation in WTO dispute settlement cases is relatively small but meaningful in reinforcing the WTO's judicial function This group's involvement, though limited in number, contributes significantly to shaping and validating dispute outcomes within the WTO dispute settlement mechanism Typical members include the United States, the European Union, Japan, Korea, and Canada.
Table 2.4: Participate as a third party of developed members
Rank Member Accession date Complainant Respondent As third party
Source: Website of World Trade Organization (Feb/2019)
The pro-activeness of developed countries in disputes is resolved through the WTO dispute settlement mechanism
Japan’s trade history stretches back to the forced opening of its ports by the United States in 1854 The fifty years following the Meiji Restoration in 1868 were a remarkable period of modernization, during which Japan adapted a wide array of foreign social and technological innovations to its own ends The Japanese leadership of the late nineteenth century was driven by the urgency of preserving national sovereignty, and Japan was one of the few non-Western nations to avoid colonization Economic liberalism, which would become the dominant ideology of the world system, never really took hold in Japan; rather, Japan conformed to the practices and procedures embodied in the international system when it was compelled to do so, and deviated when it had the opportunity.
In 1952, Japan sought admission to the General Agreement on Tariffs and Trade (GATT) Because of the GATT’s flawed dispute-settlement mechanism, numerous trade conflicts were resolved through bilateral arrangements, often in ways that resembled discriminatory practices In addition to GATT‑consistent protections such as antidumping measures, Japanese exports faced gray-area restrictions and non-tariff barriers that constrained market access.
16 Marcus Noland, “Japan and the International Economic Institutions”, Paper prepared for the Centre for
At the Fifth Biennial Conference on Japanese Economic Studies, “Can the Japanese Change? Economic Reform in Japan,” held at Macquarie University in Sydney on July 6, 2000, the discussion traces the lineage of trade-control measures from the 1950s—Japan and the United States developing area measures and orderly marketing arrangements (OMAs) for textiles, the precursor to voluntary restraint agreements (VRAs) or voluntary export restraints (VERs) later used by the United States and the European Union on Japanese steel and automobile exports in the 1980s—and notes that in the 1990s Japan and the United States pioneered voluntary import expansions (VIEs).
On January 1, 1995, the World Trade Organization (WTO) introduced a new and stronger dispute settlement mechanism that redefined how trade disputes are resolved This milestone marked a turning point in Japan’s global trade relations, giving Tokyo a substantially stronger ability to challenge discriminatory trade remedies used by trading partners Unlike the GATT, whose dispute settlement framework was comparatively weak, the WTO’s system promotes a rules-based, fairer international trade environment that reduces the impact of biased measures.
In 2003–2004, commentators judged Japan to be more firmly established in practice than active legalism However, the country faced significant constraints from a lack of internal legal resources, with Japan having only about 16,000 trained lawyers compared with roughly 900,000 in the United States Security remained dependent on the United States, and there was a lack of agreement on the authority of Japan’s leading institutions—the Ministry of International Trade and Industry (MITI, now METI) and the Ministry of Foreign Affairs (MOFA).
Both METI and MOFA face a persistent shortage of in-house WTO law experts METI’s WTO division has long relied on secondments from outside the bureaucracy—senior officials from the Supreme Court, private-sector lawyers, and even law professors—whose contributions have helped Japan advance a more aggressive interpretive stance, but the pool remains too small The problem is further compounded by language requirements: the WTO dispute settlement process demands strong English proficiency, both in writing and in overall communication, forcing Japan, like many members, to rely on external advisers and language support to participate effectively.
Ichiro Araki maintains that Japan relies on the expertise of external legal professionals to advance and defend its position in WTO dispute proceedings, a point he discusses in “Beyond Aggressive Legalism: Japan and the GATT/WTO Dispute” within WTO and East Asia: New Perspectives (Matsushita & Ahn, Cameron May, 2004).
Legal policy reforms have overcome the previous disadvantages, with reform in legal education serving as a core pillar The primary aim of this reform is to substantially expand the legal population by establishing a new legal training system, including law schools By around 2018, the number of actively practicing legal professionals is expected to reach 50,000.
As of February 2019, Japan participated in the role of complainant 25 cases, respondent 15 cases and third party role in 197 cases 19
Japan has consistently acted as a complainant in WTO disputes, with the United States as the primary counterpart, and to date seven out of ten complaints have been filed against the United States The main issues involve trade remedy measures, especially United States antidumping actions, which have been the core disputes Additionally, Japan’s automotive industry has actively leveraged the WTO dispute settlement system to challenge WTO-inconsistent trade barriers in foreign markets.
Japan has been challenged predominantly by the European Communities and the United States in a World Trade Organization (WTO) dispute, covering a range of issues from Japan’s domestic tax system to distribution services and sanitary and phytosanitary (SPS) measures for agricultural products The consultation for this case remains technically pending Since then, Japan has not been challenged by any other WTO Members.
As a third party, Japan has accessed in 197 cases 20
19 Website of WTO, https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm (accession date
This article provides an exhaustive inventory of DS identifiers used across the dataset, listing DS7, DS12, DS14, DS27, DS34, DS35, DS38, DS58, DS62, DS67, DS68, DS88, DS95, DS103, DS108, DS113, DS114, DS122, DS136, DS141, DS146, DS152, DS160, DS163, DS165, DS175, DS176, DS177, DS178, DS179, DS189, DS195, DS199, DS202, DS204, DS206, DS207, DS210, DS211, DS213, DS214, DS219, DS221, DS234, DS236, DS248, DS251, DS252, DS253, DS254, DS257, DS258, DS260, DS264, DS267, DS268, DS273, DS276, DS277, DS281, DS282, DS285, DS294, DS296, DS299, DS301, DS308, DS312, DS315, DS316, DS317, DS327, DS331, DS332, DS335, DS337, DS339, DS340, DS341, DS342, DS343, DS344, DS345, DS347, DS350, DS352, DS353, DS355, DS357, DS358, DS359, DS360, DS362, DS363, DS365, DS367, DS369, DS375, DS377, DS379, DS381, DS382, DS383, DS384, DS386, DS391, DS394, DS395, DS397, DS398, DS399, DS400, DS401, DS402, DS404, DS405, DS413, DS414, DS420, DS422, DS425, DS426, DS427, DS429, DS430, DS431, DS432, DS434, DS435, DS437, DS438, DS440, DS441, DS444, DS445, DS449, DS455, DS456, DS458, DS460, DS462, DS464, DS467, DS469, DS471, DS472, DS475, DS476, DS477, DS478, DS479, DS480, DS483, DS484, DS485, DS487, DS489 Each DS ID represents a distinct data element or module, making the list a quick reference that supports indexing and SEO, while guiding readers to the exact DS entry they need.
Japan is notably active as both a party and a third party in cases involving the automotive sector, antidumping measures, and intellectual property, and it has shown a strong interest in disputes concerning measures taken by the United States or the European Union.
2.1.2 The United States of America
Since GATT was established in 1947, the United States has remained a leading force in global trade, ranking as the second-largest export economy and the seventh-most complex economy according to the Economic Complexity Index (ECI) In 2017, the United States exported $1.546 trillion and imported $2.408 trillion, highlighting its role as a major hub of international commerce.
The top exports of the United States are Refined Petroleum, Cars, Planes, Helicopters, and/or Spacecraft, Gas Turbines, and Packaged Medicaments, using the
1992 revision of the HS (Harmonized System) classification Its top imports are Cars, Crude Petroleum, Broadcasting Equipment, Computers and Vehicle Parts
The top export destinations of the United States are Mexico, Canada, China, Japan and Germany The top import origins are China, Mexico, Canada, Japan and Germany 22
The developing countries members
Since its establishment on January 1, 1995, the World Trade Organization (WTO) has codified international trade rules with greater detail, accuracy, and binding enforcement than the GATT 1994 framework Nominally, all WTO members stand equal before the system, with both developed and developing countries governed by the same rules.
Developing-country members enjoy special preferences in dispute settlement under the DSU framework In disputes involving a developing country, the plaintiff must be a developed-country party, and the case should not be brought into DSU proceedings, nor should parties seek authorization to take retaliation measures.
Where the Plaintiff or the Complainant is a developing country, this Party may require the use of Decision 1966 (the procedure applicable to disputes between a developed country and a developing country) When the Complainant is a developing country, the DSB, when considering appropriate actions, must take into account not only the commercial scope of the alleged measure but also its actions and their impact on the whole economy of the developing country concerned The WTO Secretariat must provide objective, neutral legal advice and technical assistance to developing-country member countries.
During consultations, attention should be focused on the special issues and interests of developing countries If consultations fail, developing countries may request the Director-General to act as an intermediary and to mediate disputes with developed countries When resolving a dispute involving a developing country, it is necessary for a member of the developing country to sit on the Panel if required by the disputing party If a developing country is a defendant, the parties may agree to extend the consultation period, and once a panel is established, it is the panel’s responsibility to determine appropriate procedural deadlines to ensure the disputing developing country has sufficient time to prepare and present its arguments.
(9) The panel should indicate in the Report the process of considering specific and
28 Article 12.3 of Understanding on Rules and Procedures Governing the Settlement of Disputes
29 Article 21.8 of Understanding on Rules and Procedures Governing the Settlement of Disputes
30 Article 27.2 of Understanding on Rules and Procedures Governing the Settlement of Disputes
31 Article 4.10 of Understanding on Rules and Procedures Governing the Settlement of Disputes
32 BISD 14S/18: The contracting parties of Decision of 5 April 1966 on procedures under Article XXIII
33 Article 8.10 of Understanding on Rules and Procedures Governing the Settlement of Disputes
DSU Article 3.12 of the Understanding on Rules and Procedures Governing the Settlement of Disputes states that the specific provisions cited by a disputing party, particularly when the party is a developing country, must be considered during the dispute resolution process It also requires that, in monitoring the implementation of recommendations and decisions, the Dispute Settlement Body (DSB) pay attention to how those recommendations may affect the interests of developing countries.
Participation in the WTO dispute settlement system shows a clear divide between developed and developing countries Since its establishment in 1995, the EU and the United States have dominated dispute settlement proceedings, appearing as respondents or complainants in about 80 percent of WTO cases By contrast, developing countries have accounted for only a small share of these proceedings, underscoring a persistent gap in access and influence within the system.
46 percent of all cases 37 Yet even within these figures, trends show that only a select few developing countries have participated in WTO disputes on more than one occasion
The reasons for developing countries to be reluctant and less involved in the WTO dispute settlement system may include the following main reasons:
Developing countries often lack a dedicated team of legal experts with experience in international trade disputes and do not have the financial capacity to hire local specialists This gap in expertise and funding hampers their ability to navigate complex trade regimes and defend national interests, particularly in dealings with more resource-rich Western economies.
Second, pursuing lawsuits in developed countries can cost developing nations more than they gain, leaving them financially strained and emotionally taxed—their cheeks swollen from the burden The dependence on Western markets and financial resources helps explain why developing countries fear direct confrontations with developed powers; when disputes do occur, they often opt for discreet, bilateral negotiations and are prepared to yield in order to protect broader economic interests.
Third, developing countries understand that even if they prevail and compel legitimate retaliatory measures, such steps are unlikely to be effective and may instead positively influence the behavior of developed countries.
35 Article 11.2 & Article 21.2 of Understanding on Rules and Procedures Governing the Settlement of Disputes
36 Kara Leitner and Simon Lester, ‘WTO Dispute Settlement 1995–2014—A Statistical Analysis”
37 Kara Leitner and Simon Lester, ibid
Third-party participation offers tangible benefits that address key limitations by boosting the quality of legal human resources at a low cost, streamlining the participation process, and giving stakeholders a voice that the DSB can hear and weigh in This inclusive approach enables the DSB to issue well-considered judgments, and when those judgments are applied, they benefit all members—including the country itself as a third-party participant.
Recognizing the vital role of third-party participation in the WTO dispute settlement mechanism, developing countries have increasingly pursued this approach in recent years Countries like China, India, and Thailand have demonstrated positive moves by actively engaging as third parties, signaling a stronger commitment to protecting their trade interests within the multilateral trading system and contributing to the resolution of global trade disputes.
Table 2.5: Participate as a third party of developing members
Rank Member Accession date Complainant Respondant As third party
Source: Website of World Trade Organization (Feb/2019)
China is the largest export economy in the world and the 33rd most complex economy according to the Economic Complexity Index (ECI) 38 In 2017, China exported $2.263 trillions 39 and imported $1.844 trillions 40
Based on the 1992 revision of the Harmonized System (HS) classification, China's top exports are broadcasting equipment, computers, office machine parts, integrated circuits, and telephones Its top imports are integrated circuits, crude petroleum, iron ore, cars, and gold.
38 China, https://atlas.media.mit.edu/en/profile/country/chn/ (consulted on 5 March 2019)
China's leading export destinations are the United States, Hong Kong, Japan, Germany, and South Korea Its top import origins are Other Asia, South Korea, Japan, the United States, and Germany.
China is rapidly rising to become the world’s second-largest economy, yet it still identifies itself as a developing economy Chinese economists point to a low GDP per capita, a sizeable urban–rural gap, and ongoing weaknesses in industrial competitiveness and innovation Latest data show that China’s GDP per capita in 2016 was about 80% of the world average, roughly one-seventh of the U.S level, and ranked around 68th in global rankings.
Therefore, here we will consider China in the group of developing countries
Since joining the World Trade Organization (WTO) in 2001, China's exports have frequently been the subject of investigations by its trading partners Acknowledging this reality, China has effectively utilized the WTO's dispute settlement mechanism to offset the disadvantages of its trade relations with other countries One key tactic has been to participate in WTO disputes as a third party, which allows China to influence rulings and safeguard its interests without initiating disputes.
2.2.1.1 Characteristics of Chinese participation as a third party
General evaluation and lessons for Vietnam
Based on international practice and the experience of WTO member countries, third-party participation in the WTO dispute settlement system is increasingly the norm worldwide This trend is especially significant for members with large import and export values, regardless of whether they are developed or developing economies.
These countries have increasingly recognized the value of third‑party participation and are leveraging these opportunities more substantively to improve dispute resolution in international trade Government bodies have largely developed bespoke legal frameworks—encompassing statutes, regulations, and guiding documents—that underpin their national organizational structures, core principles, and procedures for addressing disputes in international trade.
Member States have developed mechanisms to coordinate WTO dispute settlement bodies with government institutions and other private actors, including businesses, professional associations, and writers Strengthening domestic private-law defenses helps promote financial resilience, and the scientific and technical knowledge of these organizations and their stakeholders remains a central strength.
For member countries with developing economies, participation supports capacity-building by expanding international business-law knowledge among domestic business entities It also offers a valuable opportunity to develop practical skills in cross-border trade, contract enforcement, and regulatory compliance.
58 DS266: European Communities — Export Subsidies on Sugar, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds266_e.htm understanding of WTO's dispute settlement system with low cost and high efficiency Since then, accumulating experience, skills and litigation skills for the country's human resources team
There are also opposite opinions that valuates the participation of the third party members in WTO dispute settlement systems, others argue that third parties complicate dispute settlement and make it more costly by adding more voices and potential issues more case 59 Some reseachers find that private disputes are on average 38% more likely to reach settlement than disputes with third parties Busch and Reinhardt (2006) 60 However, it is undeniable that the involvement of third parties will prevent disputants from making bilateral settlements that discriminate against other members and undermine the regime’s cooperative multilateral equilibrium, will be the cause of the lack of transparency and fairness under the WTO MFN principle
Contributing their voices during panel proceedings and through third-party appeal reviews has shaped DSB rulings on disputes These input channels push judgments toward a deeper, broader perspective, reflecting a wider range of considerations beyond the core parties By taking into account the interests of all members, these decisions achieve greater balance, legitimacy, and robustness in the dispute resolution process under the DSB framework.
Therefore, here are many proposals for reforming the DSU call for stronger
In WTO dispute settlement, third-party rights in consultations carry substantial influence, since most disputes are resolved through consultations, so ignoring third parties before a panel is requested would greatly understate their impact Third parties who reserve rights at the panel stage typically intervene first during the consultation, meaning nearly all formal third parties begin as informal participants Moreover, members themselves often do not distinguish clearly between formal and informal participation The issue remains hotly debated at regular WTO meetings, and no official decision has been reached.
Actually in some cases, panels have granted enhanced third party rights on the basis of, inter alia, the significant economic effect of the measures at issue on certain
59 Marc L Busch and Eric Reinhardt, “Three’s a crowd: Third parties and WTO Dispute Settlement”
Third parties participate in WTO disputes when the product at issue is materially important to their trade interests and the outcome could significantly affect their trade policy, and they may be granted standing if they maintain measures similar to those at issue, if at least one party supports enhanced third‑party rights, or if the measures derive from an international treaty to which the third party is a party Additional factors include whether the third party has previously been granted enhanced rights in related panel proceedings and practical considerations arising from their involvement in parallel panel proceedings.
Drawing on the experiences of other countries, Vietnam should study and adapt best practices to fit its own practical context, enabling a proactive use of this tool to safeguard the rights and benefits of exporters and the nation.
Third-party participation in dispute settlement mechanisms is generally less complex than participation by the disputing parties themselves, especially in terms of procedures, records, documents, and the burden of proof By engaging as a third party, we not only safeguard our interests but also gain a valuable opportunity to learn from the experiences and practices of Member States, using these insights to prepare for future roles as a plaintiff or defendant This approach has important implications for developing countries like Vietnam, which often lack the capacity and experience to participate effectively in international legal proceedings, underscoring the value of third-party involvement as a pathway to capacity building.
Third-party participation in international dispute settlement does not require extensive manpower to pursue the case like a plaintiff or defendant Functional institutions can appoint full-time legal staff, domestic lawyers, and technical experts to prepare pleadings, assemble legal bases, and present established positions before international dispute settlement bodies as third-party representatives.
Drawing on practical experience participating in the WTO, an effective mechanism for participation and coordination among authorities, businesses, and industry associations significantly shapes the outcome of the dispute resolution process When these stakeholders engage in structured, transparent collaboration within a shared framework, information exchange is smoother, regulatory objectives align with market realities, and dispute settlements become more efficient and predictable Therefore, multi-stakeholder engagement within the WTO is a key driver of successful dispute resolution outcomes.
Businesses and associations act as partners of the authorities by providing evidence, establishing the legal basis, and fulfilling proof-of-obligation requirements when needed They can also supply funding and connect government authorities with experienced litigation teams to participate in long-term, costly disputes that demand substantial human resources and coordination with international organizations.
Encouraging and facilitating the participation of non-governmental organizations, experts, and scientists as third‑party participants in dispute proceedings is essential, because their voices help shape the consideration and settlement outcomes of dispute‑settlement bodies within international organizations.
Practices of Vietnam’s intervention as third party
3.1 Practices of Vietnam’s intervention as a third party
Like other developing countries, Vietnam faces legal resource constraints, financial difficulties, and concerns about retaliation and the ability to implement World Trade Organization (WTO) Dispute Settlement Board (DSB) recommendations and rulings As a result, Vietnam has participated as a plaintiff in only five WTO cases However, engaging in WTO dispute settlement as a third party does not require complex procedures and provides a valuable opportunity to learn from petitioners on issues of interest to Vietnam and potentially gain practical benefits.
According to WTO data, Vietnam has participated in the WTO dispute settlement mechanism in five cases as a plaintiff, in zero cases as a defendant, and as a third party in 33 dispute resolution cases at the WTO, including 61 case codes listed in Appendix 01, the List of Disputes Vietnam Involved as a Third Party.
3.1.1.1 According to the kind of dispute:
Vietnam has participated in 12 cases under the Anti-Dumping Agreement (ADA), including DS402, DS405, DS414, DS422, DS449, DS464, DS471, DS474, DS494, DS504, DS529, and DS534, among which three are dual cases covering both anti-dumping and anti-subsidy measures: DS414, DS449, and DS464 In the area of Subsidies and Countervailing Measures (SCM), Vietnam has taken part in five cases, comprising three dual cases (DS414, DS449, DS464) along with DS437 and DS533 With regard to tariffs, Vietnam is involved in four cases (DS375, DS376, DS377, and DS517); the remaining cases relate to tariffs and restrictions or prohibitions on imports.
In the above cases, the issues that Vietnam is interested in mainly focus on the method for non-market economies, national tax rates, double tax remedies, definition
61 Data from WTO’s website, https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm, Feb
In 2019, industry groups and public authorities debated the method for calculating dumping margins, with particular focus on the zeroing (zero-down) method and its implications for U.S.-targeted dumping The discussion also covered the injury indicators used in anti-dumping investigations and how these factors influence the application of trade defense measures.
An analysis of third-party involvement cases across regional economies shows China leading with 166 cases, followed by Thailand (91), Vietnam (62), Singapore (50), Indonesia (35), Malaysia (21), and the Philippines (17) This distribution indicates that Vietnam is also quite active in third-party participation.
Assessing Vietnam's progress and initiative when participating in the dispute settlement mechanism as a third party, we can refer to the following data table
Chart 3.1: Participate as a third party of Vietnam
Source: World Trade Organization website 63
According to the data table, the number of disputes rises steadily year after year, reflecting Vietnam’s growing awareness of the issue and the increasing priority placed on promoting and developing effective dispute resolution and governance.
Especially in 2012, Vietnam participated in 06 disputes in the context that Vietnam needs to learn more experiences to prepare for the frozen shrimp lawsuit for the United States
62 Data from WTO’s website, https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm, feb
63 https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm
3.1.1.2 Classification by level of participation of Vietnam
Third-party participation in WTO disputes is generally less complex and resource-intensive than acting as a disputing party (plaintiff or defendant) Third-party submissions tend to be simpler and more concise, allowing governments to prepare or hire attorneys at a substantially lower cost Even without a formal written submission, developing member states can observe the process, attend litigation sessions, and accumulate initial experience to better understand the issues In practice, this means WTO disputes and regulations create accessible avenues for non-party states to engage and learn while the dispute unfolds Overall, third-party involvement adds value by promoting transparency and capacity-building in international trade law.
Evaluating on the criteria of Vietnam's participation level as a third party can be classified as follows:
Participation but not expressing opinions
Among the 33 cases in which Vietnam participated as a third party, 18 cases involved Vietnam (67% of the total); however, none of these cases included written submissions or oral statements before the Panel or the Appellate Body regarding the dispute content The identified disputes include DS343, DS375, DS376, DS377, DS399, DS402, DS414, DS422, DS430, DS431, DS432, DS433, DS437 and DS449.
Vietnam participates in WTO dispute settlement as a third party to protect its commercial interests while gaining strategic insight into how disputes are handled This third-party role serves several purposes First, at the time of joining the WTO—as part of the group of developing countries—Vietnam used third-party participation to become familiar with the DSU dispute settlement procedures, effectively rehearsing for future cases and building readiness to participate in upcoming disputes Second, third-party participation allows Vietnam to systematically monitor the explanations and arguments put forward by the disputing parties and to grasp the legal reasoning behind the positions taken, helping shape its own approach to future WTO disputes.
64 Data from WTO’s website, https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm, feb
In 2019, the WTO Dispute Settlement Body meticulously considered and evaluated the arguments presented by the parties in its proceedings Even when Vietnam did not directly submit or comment before the Dispute Settlement Body, its active participation as a third party yielded valuable experience for Vietnam, enhancing the country’s ability to explain and apply WTO rules and to engage more effectively in dispute settlement processes.
Joining but not yet giving opinions
According to WTO statistics, Vietnam participated in disputes as a third party but did not submit comments in 11 cases In this capacity, Vietnam has not expressed any opinions or comments, and these inputs have not been recorded in the Panel’s report for a number of reasons.
Two main factors shape Vietnam's approach to WTO dispute settlement First, some new disputes require the establishment of a panel and undergo review by the Dispute Settlement Body (DSB) after the mandatory consultations between the disputing parties have been completed Second, panel-delayed cases may prompt the DSB to extend the deadline for the final report for specific reasons if timely completion is not possible under the rules This mechanism also represents one of Vietnam's ways to participate as a third party in WTO disputes By participating as a third party, Vietnam can pursue the goals and significance of WTO dispute settlement and gain experience in handling cases within the WTO framework.
So far, Vietnam has submitted comments in words and documents in 04 cases (accounting for 12.1% of the total number of cases involved) with codes DS360, DS405, DS464, and DS471 Specifically:
DS360 case: India — Additional and Extra-Additional Duties on Imports from the United States 65
Regarding to the United States' request for a panel to consider India's imposition of additional taxes (abbreviated AD "additional custioms duties" according to US
65 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds360_e.htm calls or "additional duties" by Indian calling) or additional tax (abbreviated EAD
Under the WTO dispute DS360, the terms “extra duties” in the United States or “SUAD” (such additional duties) in India refer to duties imposed on distilled alcoholic beverages imported from the United States, classified under HS codes 2204, 2205, 2206, and 2208, which are alleged to violate GATT 1994 Articles II:1, III:2, and III:4; during the Panel proceedings, Vietnam submitted an oral statement on the dispute, and those remarks are recorded in paragraphs 5.63–5.67 of WT/DS360/R dated 9 June 2008.
DS405 case: European Union — Anti-Dumping Measures on Certain Footwear from China 66
On February 4, 2010, China requested consultations with the European Union over three measures that imposed anti-dumping duties on Chinese leather shoes; after consultations failed, China requested the WTO Dispute Settlement Body (DSB) to establish a panel, and on May 18, 2010 the DSB established the panel, with third-party participants including Australia, Brazil, Colombia, Turkey, the United States, and Vietnam As the plaintiff, China asked the Panel to find that the EU’s measures violated the GATT 1994, the WTO Agreement, and the Protocol of Accession, while Vietnam, participating as a third party, submitted a written opinion to the Panel expressing its views on the dispute.
Viet Nam's comments are recorded in paragraphs 7.81, paragraph 7.97, and paragraph 7.919 in the panel report (report WT / DS405 / R on October 28, 2011)
DS464 case: United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea 67
Vietnam and some other Member States participate as a third party in the case of South Korea suing the United States regarding countervailing measures and anti-
66 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds405_e.htm
DS 464 addresses alleged dumping of Korean-imported household washing machines On August 29, 2013, South Korea requested WTO consultations with the United States regarding countervailing measures and anti-dumping duties on imported washing products South Korea contends that the U.S measures are likely to violate the Anti-Dumping Agreement, the SCM Agreement, GATT 1994, and the WTO Agreement China and Japan proposed to join the consultations from the outset After the consultation phase failed to resolve the matter, on December 18, 2013 South Korea formally requested the WTO Dispute Settlement Body to establish a panel to resolve the dispute.
General evaluation and some orientation for Vietnam
Firstly, there are regulations on the functions and duties of some state institutions in the process of dispute settlement at the WTO
Legal documents clearly define the functions and tasks of the Ministry of Industry and Trade, the Vietnam Competition Administration Department, and the Permanent Mission of Vietnam to international organizations in Geneva, providing the legal basis for their participation in disputes at the World Trade Organization (WTO) These documents underscore the Ministry of Industry and Trade’s representative role in protecting Vietnam’s interests at the WTO and in other international economic and trade organizations, helping to end unnecessary debates among the Ministries of Industry and Trade, Foreign Affairs, and Justice They also establish the foundation for mobilizing the resources needed to carry out dispute-resolution activities within the framework of these international bodies.
Second, there is a certain coordination between government institutions in the process of participating in disputes at the WTO
The coordination between Vietnam's Competition Administration Department and the Permanent Representative Mission in Geneva governs WTO dispute matters When Vietnam is the plaintiff, this coordination includes the timely transfer of dispute documents to the United States, Indonesia, or the Dispute Settlement Body (DSB), and communicating timely information domestically to the Permanent Mission or the WTO delegation on behalf of the Vietnam Competition Administration, as well as supporting litigation before the WTO Panel and Appellate Body When Vietnam participates as a third party, coordination mainly involves providing dispute information from the Permanent Mission to the Competition Administration Department so the Department can decide whether to participate as a third party.
Third, Vietnam has built up an information channel to enhance information exchange between public actors and private entities
Today, there are three main channels for trade-related updates in Vietnam: the early warning system for anti-dumping lawsuits, accessible at canhbaosom.vn; the information channel of the WTO Center – National Economic Integration, which operates directly under the Vietnam Chamber of Commerce and Industry (VCCI); and other official channels that disseminate economic integration and regulatory information.
Chamber of Commerce and Industry) 78 , TRC council 79 (advisory council for international trade defense measures)
This system helps the business community respond effectively to trade lawsuits Once in operation, domestic enterprises will know whether the industry they operate in is under warning and what level of risk it carries, enabling proactive risk assessment and informed strategic decisions.
However, in addition to the achievements, organizations and mechanisms to participate in Vietnam's dispute settlement system in the WTO are still facing many confusion and limitations
Aside from a narrow set of traditional dispute areas, there is no single agency with clearly defined jurisdiction over many types of disputes Under Decree No 06/2006/ND-CP 80, the Vietnam Competition Authority's role is limited to participating in resolving disputes related to anti-dumping, anti-subsidy, and self-defense measures Disputes in areas such as technical barriers, epidemiological hygiene measures, intellectual property, trade in services, or trade-related investment measures are not within the Authority's remit.
State institutions, including the Ministry of Industry and Trade, the Ministry of Foreign Affairs, and the Ministry of Justice, are tasked with specialized duties, yet other agencies still lack a clear understanding and effective cooperation Although an early warning system has been implemented, its coverage does not meet the practical needs of international business.
From the practice of applying the provisions of Article 13 of DSU on rights seeking information, WTO Dispute Settlement Bodies have gradually created process
79 http://chongbanphagia.vn/gioi-thieu-ve-hoi-dong-tu-van-ve-phong-ve thuong-mai-hoi-dong-trc- n1251.html
Decree 06/2006/ND-CP defines the functions, tasks, powers, and organizational structure of the Vietnam Competition Administration Department, establishing the legal framework that underpins the country’s competition policy within its trade regime and WTO commitments However, this resource has not received adequate attention, resulting in gaps in policy development and limited exploitation of the department’s inherent strengths to strengthen competition enforcement and market governance.
From international and practical lessons learned when joining WTO dispute settlement system Vietnam needs to identify the development and management of this policy in a number of directions as follows:
First, complete the legal basis and develop a separate internal mechanism for participating in lawsuits as a third party, specifically through some contents as follows :
Identify the key areas and define clear evaluation criteria to determine whether Vietnam should participate in the lawsuit, either as a petitioner or as a third party The criteria should be grounded in the coordinated input of all relevant line ministries and assessed holistically across economic, legal, and diplomatic dimensions, including potential impacts on trade and investment, regulatory alignment with national and international obligations, and implications for Vietnam’s diplomatic posture and strategic interests.
Vietnam should produce periodic reports detailing its activities as a third-party participant in international disputes, highlighting outcomes and lessons learned from direct observation and participation These insights should inform subsequent recommendations and analyses, which in turn advise the Government and relevant authorities on appropriate guidance for related issues and for upcoming cases.
Second, participation is more substantive, deep, broad and proactive in the stages of the dispute settlement mechanism
Vietnam needs to participate more substantially in the dispute by preparing and submitting documents and arguments in the litigation process to WTO dispute settlement bodies
Expand the scope of areas in which Vietnam can participate as a third party in WTO disputes Vietnam needs to be more actively involved in disputes as a third party in areas other than the "traditional" areas that Vietnam has participated in as a third party at the WTO Other areas include: intellectual property (related TRIPs agreements), trade-related investments (related to TRIMs agreements), high technology
Up to the present time according to WTO statistics, most of the cases that Vietnam participates as a third party only focus on the review stage by the Panel 81 Pursuant to WTO rules regarding participation as a third party may participate at any stage of the DSU From the empirical experience of Member States and Vietnam's participation practices as a third party, we need to be proactive and active from the consultative stage between the parties in the dispute Participating as a third party at this initial stage will enable Vietnam to quickly access information, legal grounds, and arguments made by the requesting party and the consulted party In addition, Vietnam should actively participate as a third party at the next stage as at the review stage by the Appellate Body and the enforcement phase of the judgment
Third, enhancing the role of enterprises and associations in participating in the tournament dispute
Close coordination between the State and the private sector in WTO dispute settlement is a key driver of effective use of the mechanism, since enterprise interests closely align with national goals The benefits to enterprises are connected to the State's interests, so proactive participation from state institutions is essential for implementation Active coordination is demonstrated through timely information sharing, joint case planning, policy alignment with WTO rules, and continuous dialogue with the private sector to mobilize resources and expertise for dispute settlement.
Establish a regular information channel between the focal body, enterprises, and associations to receive, review, and respond to proposals about whether to bring a case to the World Trade Organization (WTO) New businesses are those directly affected by measures that may violate WTO Members' agreements, so their proposals should be a key factor in deciding participation in the Dispute Settlement Understanding (DSU) mechanism.
81 Nguyen Ngoc Ha, “Thực tiễn 10 năm tham gia cơ chế giải quyết tranh chấp WTO của Việt Nam”
Prepared within the framework of the Research Group “New Legal Issues in the International Integration of Vietnam” at Foreign Trade University (2016, p.6), this article examines how claimants in general—and as third parties in particular—participate in litigation in an active and effective manner It also highlights the role of enterprises and associations in supplying evidence, carrying the burden of proof, and presenting legal arguments to facilitate government institutions’ participation in lawsuits.
Create conditions for representatives of enterprises and associations to participate in the Government Union on dispute settlement Although a business or association cannot be a formal party to a dispute, approval by the Government makes their participation legal This involvement draws on the field-specific expertise of business representatives and associations who deal with disputes directly related to their sectors Including businesses and associations in the Government Delegation will yield reports with more relevant legal data and evidence for WTO disputes.