THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM

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

MIMISTRY OF EDUCATION AND TRAINING

FOREIGN TRADE UNIVERSITY

MASTER THESIS

THIRD PARTY IN THE WTO DISPUTE

SETTLEMENT SYSTEM: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM

Specialization: The master of International Trade Policy and

Law

NGUYEN THI NGOC HA

MIMISTRY OF EDUCATION AND TRAINING

FOREIGN TRADE UNIVERSITY

MASTER THESIS

THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM

Major: International economics Specialization: The master of International Trade Policy and Law

Code: 8310106

Full name : Nguyen Thi Ngoc Ha Supervisor : Dr Nguyen Ngoc Ha

Ha Noi - 2019

ACKNOWLEDGEMENT

I’d like to thank Dr Nguyen Ngoc Ha, my supervisor during the research period, for his patient guidance and support I admire not only his academic knowledge but also his personal qualities

I would also like to thank my teacher Ms Nguyen Hong Vinh and the Faculty

of University – Foreign Trade University, for giving me the opportunity to carry on

my advanced studies and for their ultimate support

I would like to thank everyone in the class MITPL5 for their support in the course of the program

Finally, I would like to thank all my family members, friends and colleagues who have given me valuable support during my studies

This thesis studies on the third party in the WTO dispute system is not new but

a very complicated issues required various knowledge, skills and practical experiences Thus, the thesis has the inevitable shortcomings and limitations I look forward to receiving valuable comments for improving the thesis

CERTIFICATION

I hereby certify that the thesis with the title: “Third party in the WTO Dispute

Settlement System: International Experiences and Lessons for Vietnam” is my own

research and does not reproduce any other materials The data indicated in the thesis

is clear, accurate and are collected from the confident sources of information

The Author

Nguyen Thi Ngoc Ha

TABLE OF CONTENT

ACKNOWLEDGEMENT i

TABLE OF ABBREVIATIONS v

LIST OF CHART/ TABLE vi

INTRODUCTION 1

CHAPTER 1: THIRD PARTY INTERVENTION IN THE WTO DISPUTE SETTLEMENT SYSTEM 5

1.1 Overview of the WTO dispute settlement system of WTO 5

1.1.1 History of the establishment and development of the WTO dispute settlement system 5

1.1.2 Principles of WTO dispute settlement system 8

1.1.3 Dispute settlement Bodies 11

1.1.4 Dispute settlement process 16

1.2 WTO rules on third party intervention 25

1.2.1 Identification 25

1.2.2 Conditions for becoming a third party 26

1.2.3 The third party status in each stage of dispute settlement 26

1.2.4 The role of third party intervention 30

CHAPTER 2: PRACTICES INVOLVED IN DISPUTE SETTLEMENT AS THIRD PARTY OF SOME WTO MEMBERS 32

2.1 The developed country members 35

2.1.1 Japan 36

2.1.2 The United States of America 39

2.2 The developing countries members 43

2.2.1 China 46

2.2.2 India 52

2.2.3 Thailand 54

2.3 General evaluation and lessons for Vietnam 55

2.3.1 General evaluation 55

2.3.2 Lessons for Vietnam 57

CHAPTER 3: PRACTICES OF VIETNAM INTERVENTION AS THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM AND

RECOMMENDATIONS 59

3.1 Practices of Vietnam’s intervention as third party 59

3.1.1 Classification 59

3.1.3 Legal basis and mechanisms of participation in Vietnam 65

3.2 General evaluation and some orientation for Vietnam 72

3.2.1 Evaluation of achieved results 72

3.2.2 Some orientation for Vietnam 75

3.3 Recommendations 79

3.3.1 For the Government 79

3.3.2 To enterprises 85

CONCLUSION 88

REFERENCES 90

APPENDIX 93

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 Settlement System

7 DSU Dispute Settlement Understanding

8 EU European Union

9 GATT General Agreement on Tariffs and Trade

10 MFN Most Favoured Nation

11 SCM Subsidies and Countervailing Measures

12 SG Safeguard

13 SPS Snaitary and Phytosanitary Measures

14 TRIMs Trade-Related Investment Measures

15 TRIPs Trade-Related to Aspects of Interllectual Property Rights

16 US United State

17 WTO World Trade Organization

LIST OF CHART/ TABLE

Chart 1.1: WTO Dispute Settlement Process 15

Chart 2.1: WTO members most involved in disputes, 1995 to 2017 32

Chart 3.1: Participate as a third party of Vietnam 60

Table 2.1: Top countries access WTO DSS as third party 33

Table 2.2: World’s export countries in 2017 33

Table 2.3: World’s import countries 2017 33

Table 2.4: Participate as a third party of developed members 36

Table 2.5: Participate as a third party of developing members 46

The thesis also carefully studies the practices of some WTO member both

developed and developing countries (Japan, the USA, China, India, and Thailand) that frequently involved in WTO Dispute Settlement System as a third party The studies show the root reason, the benefit which these members get when they

participate as a third party and the way they organize the related resources and building regulation and law

The thesis analyzes the practice of Vietnam intervention as a third party in the WTO Settlement System, its achieved results and restrictions until now From these

characteristics of Vietnam and international experiences gives the orientations and proposes some recommendations to improve Vietnam’s participation in the WTO Dispute Settlement System

INTRODUCTION

1 Research rationale

Every economy that wants to grow and develop must participate in international trade activities, participate in the international economy Thanks to bilateral and multilateral economic agreements, the international economy is increasingly developing and closely linked to benefits In which, there are over 95% of world trade activities currently governed by the World Trade Organization’s (WTO) Agreements1 This international organization was established and operated since January 1st, 1995 with the goal of establishing and managing a free and transparent global trade

This organization inherits, develops the rules, and practices implementing the General Agreement on Trade and Tariffs - GATT 1947 (limited to trade in goods only) and is a direct result of the Uruguay Round (covering the areas of trade in goods, services, intellectual property and investment As of March, 2019, this organization has 164 members Through agreements, countries have an opportunity to cooperate not only in trade but also in some social fields

However, deeper participation in the world economy will breed conflicts of interest among member countries These conflicts sometimes become cornerstones that prevent trade flows between nations To ensure the full and serious implementation of the provisions of the Agreement, prevent trade measures that violate the Agreements, contribute to the implementation of the WTO's great objectives, a disputes settlement system within this organization have been established This mechanism is the realization of the trend of legalizing the process

of settling international trade disputes today, gradually replacing the methods of resolving political and diplomatic disputes in this area WTO has one of the most active international dispute settlement system in the world Since 1995, over 500 disputes have been brought to WTO and over 350 rulings have been issued2

(consulted on 12 December 2018)

2 https://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm (consulted on 15 February 2018)

As a member of WTO, Vietnam can use this mechanism for settling possible trade disputes with other WTO members The consideration of this dispute settlement mechanism and its massive case system are of great practical significance not only in understanding the provisions of the WTO Agreements, but also in protecting them However, the participation as a plaintiff or a defendant often requires high manpower, experiences and skills as well as financial resources Then, participation as a third party constitutes a very interesting option, because it will be an opportunity to not only reinforce the Members’ presence in the DSS, but also to allow them to learn and accumulate experience when the WTO dispute settlement process is becoming more and more technical In the practice, some WTO’s Members, as the United States, the European Union, Japan, China and other developing Members have profited from its participation as third party in DSS From this point of view, Vietnam could use third party intervention as a legal instrument for reinforce its participation in the DSS Nonetheless, for more than 10 years of participating in DSS, Vietnam did not consider third party intervention as a useful tool, especially in order to strengthen its capacities Therefore, what are WTO’s rules governing third party intervention in DSS? What is the role of third party and third party intervention in this mechanism? How are international experiences on this issue? How can Vietnam use these international experiences to gain practical benefits to reinforce its role in DSS? To answer these

questions, I have chosen the topic “Third party in the WTO Dispute Settlement

System: International Experiences and Lessons for Vietnam” as my graduation

thesis topic

2 Literature review

Given the practical benefits, WTO members actively involve in dispute settlement system at the WTO as a third party Vietnam is also aware of this issue and is actively participating in this capacity in the DSU dispute settlement cases Since the date of accession (January 11th, 2007), Vietnam has so far participated in

38 cases, in 5 of which cases stood as plaintiffs and participated as a third party in 33 cases However, in terms of theoretical basis and research projects of scale and overall, this regulation in Vietnam has not been properly concerned

In the curricula of law schools and economics of our country, the law has not mentioned the system of participating in the settlement of trade disputes of WTO as

a third party both in terms of theory and Practice Also, in scientific works in specialized journals such as Journal of Law, Law and State Magazine mentioned the above issue, however, these studies only study participation The WTO's general dispute settlement system has not studied in depth the WTO dispute settlement system as a third party Some monographs, documents, articles related to WTO and dispute settlement system of WTO can be mentioned as:

Participating in trade dispute settlement mechanism as a third party (Vu Quoc Khanh, Faculty of Law - Hanoi National University 2012); China participates as a third party into the World Trade Organization's dispute settlement mechanism and experiences for Vietnam (Dr Nguyen Ngoc Ha - Law and State magazine No11 (343), 2016) Foreign experience and strengthening Vietnam's participation in dispute settlement mechanism at the World Trade Organization (WTO) (VNU Journal of Science - Law No 28, pages 165–181) and “Some issues from a procedural perspective in Vietnam's first lawsuit at WTO” (Journal of Legislative Studies No

16, pages 19–29); Acessing the WTO Settlement System as a third party (website: http://chongbanphagia.vn – 24/9/2014); Improving the effectiveness of Vietnam's participation in the WTO dispute settlement mechanism (http://isl.vass.gov.vn -10/3/2015)…

3 Objectives of the research

The thesis focuses on studying the issue of joining WTO's dispute settlement system (hereinafter referred to as DSU) as a third party with the aim of determining the legal basis and experiences from the praticial particiapation as third party of some members, thereby drawing lessons for Vietnam This research also focuses on analyzing the practice of Vietnam’s participation in WTO’s DSS as third party, and

on proposing for Vietnam some recommendations in order to improve its participation in this system in the upcoming dispute resolution cases of WTO

4 Scope of the research

In the context of international economic integration today, the issue of resolving trade disputes arising between countries has always been recognized as complex and diverse On the other hand, with the development of current international relations, the practice of resolving disputes in international organizations in general and WTO

in particular has been posing many issues that need to be addressed research center The thesis does not address all the issues, but focuses on the following contents: Theoretical issues of participating in the WTO trade dispute settlement system as a third party; the practice of participating in the WTO dispute settlement system as a third party of some WTO’s Members and Vietnam; recommendations for Vietnam to improve its participation in the WTO's dispute settlement system as a third party

5 Methodology

The topic is studied on dialectical materialist perspective, combined with methods of statistical analysis, synthesis methods, comparisons, historical methods and developmental methods

The thesis is also carried out from the point of view of the State of the Socialist Republic of Vietnam through guidelines and policies on economic integration and development in the new era

The thesis is presented by the method of analysis, interpretation and inductive combined with comparative and statistical methods

6 Outline of the thesis

In addition to the introduction and conclusion and lists of references, abbreviations the thesis is divided into three chapters as follows:

Chapter 1: Third party intervention in the WTO Dispute Settlement System Chapter 2: Practices involved in dispute settlement as a third party of some WTO Members

Chapter 3: Practices of Vietnam intervention as third party in the WTO Dispute Settlement System and recommendations

CHAPTER 1: THIRD PARTY INTERVENTION IN THE WTO DISPUTE

SETTLEMENT SYSTEM

1.1 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 1st of January

1995 It was the result of the Uruguay Round (1986-1995) with the precursor to the General Agreement on Tariffs and Trade (GATT 1947) According to calculations, there are over 95% of commercial activities in the world today are governed by the Agreement of this Organization3

1.1.1.1 Dispute settlement mechanism of GATT 1947

The dispute settlement mechanism of GATT 1947 was built on the basis of Article XXII and Article XXIII of the GATT Agreement Article XXII provides for consultations procedures between the signatories regarding the application and implementation of GATT Article XXIII provides for the conciliation procedure between dispute parties in the case of a nullification of commercial rights or impairment due to the acts of a contracting party other 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

1952 to expert groups by the GATT General Assembly GATT's dispute settlement mechanism is more “reconciled” than “litigated”, which aims to make the parties of dispute better understand each other to come up with a solution that is acceptable to both sides

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

3 Ian F Fergusson, “The World Trade Organization: Background and Issues”, CRS Report for Congress, Updated May 9, 2007, available at: https://nationalaglawcenter.org/wp-content/uploads/assets/crs/98-928.pdf (consulted on 12 December 2018) &

quyet-tranh-chap-trong-wto (consulted on 15 January 2019).

http://www.trungtamwto.vn/wto/gioi-thieu-co-che-giai-quyet-tranh-chap/gioi-thieu-ve-co-che-giai-Geneva or government officials of third countries who have experienced years on GATT’s issues

The expert team is responsible for objectively reviewing the content of the dispute, any violation of the agreement and any possible damages to a party of dispute and will prepare a report to submit to the GATT General council to consider The approval of report is based on the principle of positive consensus Positive consensus meant that there had to be no objection from any contracting party to the decision However, this principle made it difficult for the GATT dispute settlement mechanism because, in theory, any signatory could oppose or delay the establishment of expert groups and blockade through reports

One might think that such a system could not possibly have worked Why would

a respondent not use its right to block the establishment of a panel if it thought that it might lose the case? Why would the losing party not block the adoption of the panel report? How could a party refrain from using its veto against the authorization of countermeasures, from which it would suffer economically? If domestic judicial systems were to operate on the basis of such a consensus rule, they would probably fail in most instances The delay in resolving disputes in many cases has not resulted

in a practical effect for the prevailing party because the damaged product or industry has lost competitiveness after a period of dispute resolution prolonged

Certainly, there were a significant number of disputes that were never brought before the GATT because the complainant suspected that the respondent would exercise its veto Thus, the risk of a veto also weakened the GATT dispute settlement system In addition, such vetoes actually occurred, especially in economically important or politically sensitive areas such as anti-dumping Finally, there was a deterioration of the system in the 1980s as contracting parties increasingly blocked the establishment of panels and the adoption of panel reports

In addition, the adoption of a number of Codes of the 1979 Tokyo round with separate dispute settlement mechanisms (government procurement, civil aviation ) has affected uniformity and weakening the general dispute settlement mechanism of

GATT Some new disputes arise as disputes over trade measures related to investment,

on protection of intellectual property rights, on trade in services are not under the jurisdiction of GATT 1947 and resolution of such disputes outside the multilateral trading system has sometimes led to unilateral sanctions for developing countries

1.1.1.2 WTO dispute settlement mechanism

As the inherent problems in the GATT dispute settlement system led to increasing problems in the 1980s, many contracting parties to GATT 1947, both developing and developed countries, felt that the system needed improving and strengthening Negotiations on dispute settlement were accordingly included and given high priority on the agenda of the Uruguay Round negotiations The WTO dispute settlement mechanism is an inheritance of the rules for dispute settlement that have promoted positive effects for nearly 50 years in GATT 1947 history Learning from the shortcomings in the old mechanism, some fundamental improvements have been included in the new mechanism, contributing significantly to improve the trial nature of this procedure as well as strengthening the binding of dispute resolution decisions

The WTO's dispute settlement mechanism is built on four principles: they are basically fair, fast, effective and acceptable to the parties of dispute, consistent with the goal of preserving the rights and obligations, in accordance with the relevant trade agreements on the basis of compliance with the rules of international customary law

on interpretation of international treaties

Arguably, the most important innovation is that the DSU eliminated the right of individual parties, typically the one whose measure is being challenged, to block the establishment of panels or the adoption of a report Now, the DSB automatically establishes panels and adopts panel and Appellate Body reports unless there is a consensus not to do so This “negative” consensus rule contrasts sharply with the practice under the GATT 1947 and also applies, in addition to the establishment of panels and the adoption of panel and Appellate Body reports, to the authorization of countermeasures against a party which fails to implement a ruling

Other important new features of the (WTO) dispute settlement system are the appellate review of panel reports and a formal surveillance of implementation following the adoption of panel (and Appellate Body) reports

The WTO dispute settlement mechanism is now seen as the most effective dispute settlement mechanism in the international legal system This mechanism not only serves as a judicial body but also as a mechanism to prevent disputes, help balancing the rights and obligations of WTO members It performs three main functions: (i) ensure that the multilateral trading system operates safely and predictably by strengthening and enforcing the mandatory enforcement of the law (rule of law); (ii) ensure the rights and obligations of WTO members; (iii) clarify these rights and obligations through the interpretation of the WTO Agreement in accordance with customary rules of international legal interpretation

With these functions, the claimants are required to comply with their commitments under the relevant agreements The recommendations and rulings of the Dispute Settlement Body are enforceable to the parties in 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:

1.1.2.1 Prompt settlement of disputes

The DSU emphasizes that prompt settlement of disputes is essential if the (WTO) is to function effectively and the balance of rights and obligations between

the Members is to be maintained (Article 3.3 of the DSU) It is well known that, to be

achieved, justice must not only provide an equitable outcome but also be swift Accordingly, the DSU sets out in considerable detail the procedures and corresponding deadlines to be followed in resolving disputes The detailed procedures are designed to achieve efficiency, including the right of a complainant to move forward with a complaint even in the absence of agreement by the respondent

(Articles 4.3 and 6.1 of the DSU) If a case is adjudicated, it should normally take no

more than one year for a panel ruling and no more than 16 months if the case is

appealed (Article 20 of the DSU) If the complainant deems the case urgent, consideration of the case should take even less time (Articles 4.9 and 12.8 of the DSU)

The essential issue for effective implementation of WTO functions and maintaining the appropriate balance between the rights and obligations of members

is the quick resolution of disputes (Article 3.3 of the DSU) Therefore, once the direct

or indirect benefit of the member in accordance with the relevant Agreement is violated, it must be protected quickly

1.1.2.2 Principles of efficiency

The effectiveness of WTO dispute settlement systems is ability to provide easy access to all member states, to resolve disputes in a relatively short time, and to ensure that rulings are complied with within a reasonable period of time

In order to protect the rights of the disputing parties, the members expressed their determination to enhance the effectiveness of the dispute resolution This is

affirmed in Article 4.1 of the DSU "Members affirmed their determination to enhance

and improve the effectiveness of consultations used by Members", in order to be

effective specified in the consultation period, a first procedure in the dispute resolution process In addition, during the entire process of the WTO dispute settlement process, the parties to the dispute favored a negotiated solution that could

be acceptable to the parties Article 3.7 of the DSU)

1.1.2.3 Confidentiality

This principle in the WTO dispute settlement mechanism is embodied in conducting consultations and organizing the Panel meetings as well as the proceedings of the appellate hearing process Accordingly to this principle, the

consultation process must be kept confidential (Article 4.6 of the DSU: "The

consultation process must be kept confidential, and must not prejudice the rights of any Member in any process."), meetings of the Panel must be conducted in a non-

public manner whereby the disputing parties and interested parties may only attend when invited by the Panel (Point 2, Annex) Table 3 of the DSU on working

procedures: “The panel must be closed The parties to the dispute, and interested

parties, must be present at meetings only when invited by the Panel” The proceedings

of the Appellate Body (AB) must be kept confidential (Article 17.10 of the DSU: "The

Appellate Body's proceedings must be kept confidential Newspapers The Appellate Body's report must be drafted without the participation of the parties to the dispute and in the spirit of the information provided and the opinions raised ")

1.1.2.4 Mutual acceptance

Although the dispute settlement system is intended to uphold the rights of aggrieved Members and to clarify the scope of the rights and obligations, which gradually achieves higher levels of security and predictability, the primary objective

of the system is not to make rulings or to develop jurisprudence Rather, like other judicial systems, the priority is to settle disputes, preferably through a mutually

agreed solution that is consistent with the WTO Agreement (Article 3.7 of the DSU)

Adjudication is to be used only when the parties cannot work out a mutually agreed solution By requiring formal consultations as the first stage of any dispute, the DSU provides a framework in which the parties to a dispute must always at least attempt

to negotiate a settlement Even when the case has progressed to the stage of adjudication, a bilateral settlement always remains possible, and the parties are

always encouraged to make efforts in that direction (Articles 3.7 and 11 of the DSU)

WTO Members have agreed to use the multilateral system for settling their WTO

trade disputes rather than resorting to unilateral action (Article 23 of the DSU) That

means abiding by the agreed procedures and respecting the rulings once they are issued and not taking the law into their own hands

1.1.2.5 Negative consensus principle

The principle of veto consensus (also known as the reverse consensus principle)

is expressed in Article 6.1, Article 16.4 and Article 17.14 of the DSU In accordance with this principle, the decision of the DSB, the establishment of a Panel, the report

of the Panel, the Appellate Body's report will not be passed unless all members The DSB agreed to not approve

In practice this rule allows the report to be adopted quasi-automatically After the establishment of a panel the adoption of a panel report by the DSB is the second key instance in which the decision-making rule of negative consensus applies in the WTO dispute settlement system The quasi-automatic adoption of a panel report pursuant to the negative consensus rule is important because the panel's report only becomes binding after the DSB has adopted it

1.1.3 Dispute settlement Bodies

The dispute settlement procedure in the WTO is carried out by different bodies, each with its own function, creating independence in the investigation activity and adopting decisions in this mechanism

1.1.3.1 Dispute Settlement Body (DSB)

According to article IV.3 of the WTO Agreement, “The General Council shall

convene as appropriate to discharge the responsibilities of the Dispute Settlement

the multilateral trading system The Members recognize that it serves to preserve the rights and obligations

of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law Recommendations and rulings

of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements”

covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements”

Body provided for in the Dispute Settlement Understanding The Dispute Settlement Body may have its own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of those responsibilities”

The DSB is responsible for administering the DSU, i.e for overseeing the entire dispute settlement process The DSB has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations and authorize the suspension of obligations under the covered

agreements (Article 2.1 of the DSU) A later chapter on the stages of the dispute

settlement procedure will explain exactly what all these actions mean In less technical terms, the DSB is responsible for the referral of a dispute to adjudication (establishing a panel); for making the adjudicative decision binding (adopting the reports); generally, for supervising the implementation of the ruling; and for authorizing “retaliation” when a Member does not comply with the ruling

The general rule is for the DSB to take decisions by consensus (Article 2.4 of

the DSU) Footnote 1 to Article 2.46 of the DSU defines consensus as being achieved

if no WTO Member, present at the meeting when the decision is taken, formally objects to the proposed decision This means that the DSB's decisions are almost automatically passed because it is difficult to imagine a decision that can be objected

by all DSB members

The DSB has its own chairperson, who is usually one of the Geneva-based ambassadors, i.e a chief of mission of a Member’s permanent representation to the

WTO (Article IV: 3 of the WTO Agreement) The chairperson is appointed by a

consensus decision of the WTO Members The chairperson of the DSB has mainly procedural functions, that is, passing information to the Members, chairing the meeting, calling up and introducing the items on the agenda, giving the floor to delegations wishing to speak, proposing and, if taken, announcing the requested

Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision”

decision The chairperson of the DSB is also the addressee of the Members’ communications to the DSB

1.1.3.2 Panels

Panels are the bodies in charge of adjudicating disputes between Members in the first instance The panel consists of 3-5 experts selected on an ad hoc basis who are responsible for considering a specific issue that is disputed on the basis of WTO rules cited by the plaintiff This means that there is no permanent panel at the (WTO); rather, a different panel is composed for each dispute Anyone who is well-qualified

and independent (Articles 8.1 and 8.2 of the DSU) can serve as panelist The WTO

Secretariat maintains an indicative list of names of governmental and

non-governmental persons, from which panelists may be drawn (Article 8.4 of the DSU)

Selected experts are not nationals of a disputing Party or of a country that is a member

of a Customs Union or a Common Market with one of the claimants (e.g European Union)

The results of the panel are a report to the DSB for approval, helping the DSB make recommendations to the disputing Parties The WTO Secretariat is responsible for the administrative aspects of the dispute settlement procedures, as well as for

assisting panels on the legal and procedural aspects of the dispute at issue (Article

27.1 of the DSU)

1.1.3.3 Appellate Body

The Appellate Body (AB) is the second and final stage in the adjudicatory part

of the dispute settlement system It is a new institution in the WTO's dispute settlement mechanism, which allows the report of the Panel to be reviewed (upon request), ensuring the correctness of the dispute settlement report The Appellate Body consists of 7 members appointed by the DSB for a term of 4 years (can be re-elected once) Members of the Appellate Body are selected among prestigious and professional figures in the field of law, international trade and in the matters covered

by the related agreements Appellate Body members must be persons of recognized authority, with demonstrated expertise in law, international trade and the subject

matter of the covered agreements generally, and they must not be affiliated with any

government (Article 17.3 of the DSU) The seven Appellate Body members must be broadly representative of the membership of the WTO (Article 17.3 of the DSU),

although they do not act as representatives of their own countries but rather they represent the WTO membership as a whole

In resolving the dispute, AB only reviews the legal aspects and legal interpretations in the Panel Report but does not re-investigate the factual elements of the dispute The AB work result is a report in which it may remain, modify or reverse

conclusions in the Panel report (Article 17.13 of the DSU) The Appellate Body report

is passed at the DSB and cannot be challenged or further filed

Chart 1.1: WTO Dispute Settlement Process

Source: Website of WTO 7

1.1.4 Dispute settlement process

1.1.4.1 First stage: Consultation (up to 60 days)

The preferred objective of the DSU is for the Members concerned to settle the dispute between themselves in a manner that is consistent with the WTO Agreement

(Article 3.7 of the DSU) Accordingly, bilateral consultations between the parties are the first stage of formal dispute settlement (Article 4 of the DSU) They give the

parties an opportunity to discuss the matter and to find a satisfactory solution without resorting to litigation (Article 4.5 of the DSU) The request for consultations formally initiates a dispute in the WTO and triggers the application of the DSU A request for consultations must be submitted in writing and must give the reasons for the request The complaining Member addresses the request for consultations to the responding Member but must also notify the request to the DSB and to relevant

Councils and Committees overseeing the agreement(s) in question (Article 4.4 of the

DSU) Members only have to send one single text of their notification to the

Secretariat, specifying the other relevant Councils or Committees The Secretariat then distributes it to the specified relevant bodies The request for consultations informs the entire Membership of the WTO and the public at large of the initiation of

a WTO dispute

A majority of disputes so far in the (WTO) have not proceeded beyond consultations, either because a satisfactory settlement was found, or because the complainant decided for other reasons not to pursue the matter further This shows that consultations are often an effective means of dispute resolution in the WTO and that the instruments of adjudication and enforcement in the dispute settlement system are by no means always necessary

Together with good offices, conciliation and mediations, consultations are the key non-judicial/diplomatic feature of the dispute settlement system of the WTO Consultations also allow the parties to clarify the facts of the matter and the claims

of the complainant, possibly dispelling misunderstandings as to the actual nature of

the measure at issue In this sense, consultations serve either to lay the foundation for

a settlement or for further proceedings under the DSU

It is common for countries to try to resolve disputes at the consultative stage to minimize the loss of benefits to all parties while ensuring the confidentiality of the information related to dispute

Procedure for consultations

The respondent (i.e the Member to whom the request for consultations is addressed), is obliged to accord sympathetic consideration to, and afford adequate

opportunity for, consultations (Article 4.2 of the DSU) Consultations typically take place in Geneva and are confidential (Article 4.6 of the DSU), which also means that

the (WTO) Secretariat is not involved The fact that they take place behind closed doors also means that their content remains undisclosed to any panel subsequently assigned the matter

Unless otherwise agreed, the respondent must reply to the request within ten days and must enter into consultations in good faith within a period of no more than

30 days after the date of receipt of the request for consultations If the respondent fails to meet any of these deadlines, the complainant may immediately proceed to the adjudicative stage of dispute settlement and request the establishment of a panel

(Article 4.3 of the DSU) If the respondent engages in consultations, the complainant

can proceed to the request for establishment of a panel at the earliest 60 days after the date of receipt of the request for consultations, provided that no satisfactory solution has emerged from the consultations However, the consultation stage can also be concluded earlier if the parties jointly consider that consultations have failed to settle

the dispute (Article 4.7 of the DSU) In practice, parties to a dispute often allow

themselves significantly more time than the minimum of 60 days

In cases of urgency, including those that concern perishable goods, Members must enter into consultations within a period of no more than ten days after the date

of receipt of the request If the consultations fail to settle the dispute within a period

of 20 days after the date of receipt of the request, the complaining party may request

the establishment of a panel (Article 4.8 of the DSU)

1.1.4.2 Second stage: Conciliation, mediation

In addition to consultative procedures, DSU also provides other "political" forms of dispute resolution such as conciliation and mediation These forms are conducted on a voluntary and confidential basis between the Parties at any time after the dispute arises (even if the Panel has been established and conducted) Similarly, these procedures may also terminate at any time, by any party

Conciliation and mediation functions are undertaken by the WTO Secretary

General (Article 5 of the DSU) In a dispute settlement procedure involving a

least-developed country Member, when a satisfactory solution has not been found during consultations, the Director-General will, upon request by the least-developed country Member, offer his or her good offices, conciliation or mediation in order to help the

parties resolve the dispute, before a request for a panel is made (Article 24.2 of the

DSU)

With certain advantages such as saving time, money, good relations between the parties to the dispute the main methods based on this diplomatic negotiation

are strongly encouraged by DSU (Article 3.7 of the DSU)

1.1.4.3 Third stage: Panel Establishment and Procedures (up to 45 days for a panel to be appointed, plus 6 months for the panel to conclude)

If the consultations have failed to settle the dispute, the complaining party may request the establishment of a panel to adjudicate the dispute The complainant may

do so any time 60 days after the date of receipt by the respondent of the request for consultations, but also earlier if the respondent either did not respect the deadlines for responding to the request for consultations or if the consulting parties jointly consider

that consultations have failed to settle the dispute (Article 4.7 of the DSU) This

procedure is equally important for the respondent as an opportunity to defend itself because it may disagree with the complainant on either the facts or the correct interpretation of obligations or benefits under the WTO Agreement The adjudicative

stage of dispute settlement is intended to resolve a legal dispute, and both parties must accept any rulings as binding (although they are always able to try to settle the dispute amicably at any time)

The request for establishment of a panel initiates the phase of adjudication A request for the establishment of a panel must be made in writing and is addressed to the Chairman of the DSB This request becomes an official document in the dispute

in question and is circulated to the entire (WTO) membership

Establish a panel

Establishing panels is one of the functions of the DSB and is one of the three situations in which the decision of the DSB does not require a consensus In the first DSB meeting in which such a request is made, the responding Member can still block the panel’s establishment, as was the case in the dispute settlement system under GATT 1947 At the second DSB meeting where the request is made, however, the panel will be established, unless the DSB decides by consensus not to establish the

panel (i.e the “negative” consensus rule applies (Article 6.1 of the DSU)) This

second meeting usually takes place around one month later, but the complainant can also request a special meeting of the DSB within 15 days of the request, provided that

at least ten days’ advance notice of the meeting is given (footnote 5 to Article 6.1 of

the DSU)8

The rule of negative (or reverse) consensus means that the complainant ultimately has a guarantee that the requested panel will be established if it so wishes The only possibility to prevent the establishment is a consensus in the DSB against establishment, but this will not happen as long as the complainant is unwilling to join

in that consensus Therefore, one speaks of a virtually automatic DSB decision to establish a panel

days of the request, provided that at least 10 days' advance notice of the meeting is given”

The Panel Procedures

One of the first tasks for the panel is to draw up a calendar for the panel’s work

(Article 12.3 of the DSU) The procedure is primarily set out in Article 12 and

Appendix 3 to the DSU but offers a certain degree of flexibility The panel can follow

different procedures after consulting the parties (Article 12.1 of the DSU, paragraph

11 of Appendix 3) In practice, panels generally follow the working procedures of

Appendix 3 to the DSU, but often adopt additional rules where the specific dispute

so requires The calendar of work adopted on the basis of the suggested timetable in Appendix 3 to the DSU sets dates and deadlines for the key stages of the panel proceeding, (e.g the dates by which submissions have to be filed, the oral hearings (called “first” or “second substantive meeting”) take place, when the interim and the final panel report are to be issued, etc.)

In accordance with the panel’s calendar, the substantive panel process may start with an exchange of submissions between the parties on any preliminary issue raised

by the respondent

When there are no such preliminary issues, the parties start by exchanging a first set of written submissions The complainant normally is the first to file its submission,

to which the respondent replies in its first submission (Article 12.6 of the DSU) The

DSU envisages that the Secretariat is to receive these submissions and transmit them

to the other party or parties to the dispute (Article 12.6 of the DSU)

All these submissions are kept confidential (Article 18.2 of the DSU and

paragraph 3 of the Working Procedures in Appendix 3 to the DSU), but the panel

report, which is ultimately circulated to all Members and made public, reflects and summarizes the factual and legal allegations and arguments of the parties before the panel (in the so-called descriptive part of the panel report)

After the exchange of the first written submissions, the panel convenes a first oral hearing, called the first substantive (as opposed to “organizational”) meeting This oral hearing is not public Only the parties and third parties to the dispute, the panelists, the Secretariat staff supporting the panel, and the interpreters are entitled to

attend this meeting At this meeting, which is recorded on tape, the parties present their views orally After the oral statements, the parties (and third parties) are invited

to respond to questions from the panel and from the other parties in order to clarify

all the legal and factual issues (paragraph 8 of the Working Procedures in Appendix

absence of the parties (Article 14.1 and 14.2 of the DSU and paragraph 3 of the

Working Procedures in Appendix 3 to the DSU)

Dispute settlement panels operate under strict deadlines, which illustrates the importance the Members attribute to a “prompt settlement” of (WTO) disputes As a general rule, a panel is required to issue the final report to the parties within six months from the date when it was composed (and, as the case may be, the terms of reference agreed) In cases of urgency, the panel attempts to issue its report to the

parties within three months from the date of its composition (Article 12.8 of the DSU)

Appendix 3 to the DSU provides a proposed timetable for panel work This timetable may be adjusted depending on the circumstances of the case

Adoption of panel reports

The DSU provides that the DSB must adopt the report no earlier than 20 days, but no later than 60 days after the date of its circulation to the Members9, unless a

and adopt the report (footnote 7 to Article 16.4 DSU: Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal This adoption procedure is without prejudice to the right of Members to express their views on a panel report.)

party to the dispute formally notifies the DSB of its decision to appeal or the DSB

decides by consensus not to adopt the report (Article 16.4 of the DSU)

If a party has notified its decision to appeal, the panel report cannot yet be adopted, given that the Appellate Body could modify or reverse it In that case, the panel report will be considered for adoption by the DSB only after completion of the

appeal (Article 16.4 of the DSU)

If there is no appeal by either party, the DSB is obliged to adopt the report, unless there is a so-called negative (or reverse) consensus, i.e a consensus in the DSB against the adoption This is (after the establishment of the panel) the second key instance in which the decision-making rule of reverse consensus applies in the WTO dispute settlement system By contrast, under GATT 1947, a rule of positive consensus applied at the stage of adopting panel reports This gave the losing party the ability to block or veto the adoption of a report

If there is no appeal, the dispute proceeds immediately to the implementation phase after the DSB has adopted the panel report

1.1.4.4 Fourth stage: Appellate Review

If the panel report is appealed, the dispute is referred to the Appellate Body The appellant must notify the DSB of its decision to appeal before the adoption of the panel report Since the appeal must be filed before adoption actually occurs10, the effective deadline for filing an appeal is variable and could be as short as 20 days, but

it can also be longer, e.g 60 days

Article 16.4 of the DSU makes clear that only the parties to the dispute, not the third parties, can appeal the panel report Both the “winning” and the “losing” party (i.e more than one party) can appeal a panel report

Appeals are limited to legal questions They may only address issues of law

covered in the panel report and legal interpretations developed by the panel (Article

17.6 of the DSU) An appeal cannot address the facts on which the panel report is

panel report If the panel report was the only item on the agenda, the DSB meeting is then cancelled

based, for example, by requesting the examination of new factual evidence or by examining existing evidence Evaluating the evidence and establishing the facts is the task of panels in the dispute settlement system The distinction between legal and factual questions is therefore important in defining the scope of appellate review Approximately 30 to 45 days after the notice of appeal, the Appellate Body

re-division assigned to the case holds an oral hearing (Rule 27(1) of the Working

Procedures), which is not open to the public (Article 17.10 of the DSU) At this oral

hearing, the participants and the third participants make a brief opening statement, after which the Appellate Body division poses questions to the participants and third participants The main differences between an oral hearing and a substantive meeting

of the panel are: (i) there is only one oral hearing on appeal; (ii) oral statements are kept short; (iii) an oral hearing rarely lasts longer than one full day; and (iv) the participants in an oral hearing may not ask questions directly of each other

Following the exchange of views with the other Appellate Body members, the division concludes its deliberations and drafts the Appellate Body report All deliberations of the Appellate Body are confidential, and the drafting of the report

takes place without the presence of the participants and third participants (Article

17.10 of the DSU) There is no interim review at the Appellate Body stage

The DSU prescribes that the Appellate Body must address each of the legal

issues and panel interpretations that have been appealed (Articles 17.6 and 17.12 of

the DSU) The Appellate Body may uphold, modify or reverse the legal findings and

conclusions of the panel (Article 17.13 of the DSU)

As for recommendations and suggestions, Articles 19 and 26 of the DSU apply

to Appellate Body reports as well as to panel reports Where the conclusion is that the challenged measure is inconsistent with a covered agreement, the Appellate Body recommends that the responding Member bring the inconsistent measure into

conformity with its obligations under the covered agreement in question (Article 19.1

of the DSU, first sentence) In practice, these recommendations are addressed to the

DSB, which is then to request the Member concerned to bring its measure

The DSB must adopt, and the parties must unconditionally accept, the Appellate Body report unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to Members11 The deadline for adoption of an Appellate Body report is only 30 days

Although Article 17.14 does not mention the panel report, it is understood that the Appellate Body report must be adopted together with the panel report because one can understand the overall ruling only by reading both reports together The DSU also provides in Article 16.4 that the DSB will only consider the panel report for adoption after completion of the appeal Thus, both reports are placed on the DSB agenda for adoption, and the DSB adopts the Appellate Body report together with the panel report, as upheld, modified or reversed by the Appellate Body report

1.1.4.5 Fifth stage: Implementation of adopted reports

When the Report is adopted to determine that a Party's measure is in violation

of WTO rules, the Reporting Authority must make a recommendation to force the Party in breach to comply with WTO rules (required the defendant withdraws or modifies the relevant measure) and can make suggestions (optional) on how to implement the recommendation

In the case of a non-infringement complaint, the losing Party shall not have to withdraw the relevant measure (because there is no violation) but the Report may recommend that the losing Party perform certain arrangements to satisfy the Parties concerned (the report may provide suggestions for adequate settlement, for example: compensation.The losing party must notify its intention to implement the recommendation at the DSB meeting convened within 30 days from the date of adoption of the Report If it is not immediately implemented, that Party may be extended for a reasonable period of time (this time period shall be decided by the DSB on the basis of the proposals of the Parties, or agreed by the Parties during the

adopt the report (footnote 8 to Article 17.14 of the DSU: If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose)

time) 45 days from the date of adoption of the recommendation, or according to the arbitral award made within 90 days from the date of adoption of the recommendation The DSB also oversees the implementation of the recommendations of the Parties concerne

Compensation and retaliation are provisional remedies used to ensure the interests of the prevailing Party during the losing Party's failure to comply with the Dispute Settlement Body (DSB) recommendation (phase paragraph while waiting for the losing Party to make recommendations These measures do not end the obligation

to implement the Party's recommendations

If the Parties fail to reach an agreement on compensation within 20 days of the expiry of the recommendation, the prevailing Party may request the Dispute Settlement Authority to permit the application of parallel retaliation measures or cross retaliation The level and timing of retaliation are determined by the Dispute Settlement Body (DSB)

1.2 WTO rules on third party intervention

1.2.1 Identification

“Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a “third party”) shall have an opportunity to be heard by the panel and to make written submissions to the panel These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report” (Article 10.2 of the DSU)

Based on this provision, we can understand basically that the third party is parties participating in the dispute settlement other than complainants or respondants They are entitled to participate, express their opinions and receive written submissions in the stages of the WTO dispute settlement process Third parties often side with the positions taken by one of the parties

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 are countries, territories (EU ) and in disputes arising from a related agreement, which is a discretionary trade agreement of some members, the term The "Member" here refers solely to the parties to the discretionary Trade Agreement of some of these members When the DSB applies the dispute settlement provisions of a discretionary trade agreement of some members, only members who are parties to this Agreement may participate in the decision or activities of DSB relates to that dispute

Second, Any member has the right to participate as a third party when there is

evidence that his substantial commercial interest (in the consultation) or substantial interest (in the panel stage) are related to the dispute submitted to the DSB Even if WTO members only need to cite that they have “systematic interest” in the dispute, the request is also in some cases accepted for participation as a third party

In fact, most third party participation requests are approved because of the DSB's consensus principle (ie the DSB must be deemed to have agreed on the matter

to be filed) submit to the DSB for review, if no member at the DSB meeting decides

on this issue to formally object to the proposed decision

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

1.2.3.1 Consultation stage

The consultation phase is the initial stage of the dispute settlement mechanism

It demonstrates the spirit of goodwill cooperation among members in the relevant Agreements The principle of this consultation period is to be kept confidential, without prejudice to any member's rights in any subsequent proceedings, without

prejudice to any operation Any relevant provisions made in the territory of the Member to be consulted must pay particular attention to the specific issues and interests of the Members that are developing countries

The disputes are expected to be resolved at the consultation stage This quick resolution will help the parties save a lot of cost, time, and maintain good relations between the parties

Participation as a third party is specified in Article 4.11 of the DSU: details are

as follows:

A Member (not a party to a dispute) may participate in the consultative stage if

it considers “has a substantial trade interest” in the process of consultations being

carried out in accordance with paragraph 1 of Article XXII of the GATT 1994, paragraph 1 of Article XXII of GATS, or corresponding provisions in other agreements such as the Agreement on Agriculture, Article 19 - Agreement on the Application of Sanitary and Phytosanitary Measures

Notify the consultingmembers and the DSB about the requestfor consultation process within 10 days afte the date of the circulation of the request for consultations under the said Article Members receiving requests for consultations will review and

approve this aspiration based on the fact that the "has a substantial trade interest"12

are affected

In case, the request to participate in consultations is not accepted (there is no recourse through which the interested Member can impose its presence at the consultations, no matter how legitimate the invoked substantial trade interest may be),

substantial trade interest in consultations being held pursuant to paragraph 1 of Article XXII of GATT 1994,

paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements, such Member may notify the consulting Members and the DSB, within 10 days after the date of the circulation of the request for consultations under said Article, of its desire to be joined in the consultations Such Member shall be joined in the consultations, provided that the Member to which the request for consultations was addressed agrees that the claim of substantial interest is well-founded In that event they shall so inform the DSB If the request to be joined in the consultations is not accepted, the applicant Member shall be free to request consultations under paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or the corresponding provisions in other covered agreements”

the interested member be free to consult under Clause 1 of Article XXII or Clause 1

of Article XXIII of GATT1994, Clause 1 of Article XXII or Clause 1 of Article XXIII

of GATS, or the corresponding provisions in other relevant Agreements and will open

a new, separate dispute settlement procedure (article 4.11 of the DSU)

1.2.3.2 The panel establishment and procedures

Any Members who have a substantial interest in the matter reviewed by the panel and has notified their rights to the DSB (even if they have not participated in

the consultations) has the right to participate in the dispute as a third party (Article

10.2 of the DSU)

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 it is assumed that a measure is the subject of a settlement at the Panel,

it either annihilates or prejudices that party's rights under any relevant agreement, then the Member may use common dispute resolution procedures under this agreement Such disputes must be referred to the original panel when possible

With its official voice spoken at this stage of the third party has a significant influence on the decisions of the Panel Thereby, third parties also raised other aspects

of the dispute to protect their legitimate commercial interests that could be affected

by the dispute Although the panel report does not include conclusions and recommendations with respect of third parties, a third party can always switch to a more active role at a later stage and initiate a dispute settlement proceeding in its own

right (Article 10.4 of the DSU)

1.2.3.3 Appelate Review

In this appellate stage, the third party participation is stipulated in Article 17.4

of the DSU and explained as follows:

First, the fact that a Member continues to participate in the appellate procedure

does not depend on the consent of the disputing parties in the above period This member who has requested to participate as a third party to submit the DSB during the review period by the Panel will continue to be engaged in this capacity at the review stage by the Appellate Body;

Second, the third party is entitled to express its opinions in the report submitted

to AB when considering the dispute settlement;

Third, a third party is allowed to present their views and opinions to AB during

meetings chaired by this body;

Fourth, the opinions of third parties during this period must be acknowledged

and reflected in AB's report

Based on the provisions on participation in the review period by the appellate body, the third party is once again facilitated to express its will and opinion to the body that adjusts the dispute with the item The goal is to protect your interests

1.2.3.4 Implementation of adopted reports stage

After the report of the Panel or the Appellate Body adopted by the DSB on the principle of "veto consensus", the recommendations and rulings of the DSB will be binding and immediate effect to the disputing party This is one of the essential rules that help the goals of dispute resolution be effective and ensure the interests of all WTO Members The third parties participating in the judgment execution stage is also clearly defined under the DSU and explained as follows:

First, the Member has the right to request the DSB to maintain and supervise

the implementation of the approved and enforceable recommendations or rulings with the parties to the dispute in accordance with Article 21.6 of the DSU The third party members participating also be Members of the DSB, so the third parties may use the right to request that the dispute settlement bodies continue to monitor implementations of their recommendations;

Second, during the implementation of the DSB decision, a third party has the

right to initiate a new lawsuit if it believes that its rights are nullified or affected by the dispute resolution bodies’recommendations or decisions Relevant to any relevant

agreements (Article 10.4 of the DSU)

It can be affirmed that participation as third parties is not only in the implementation of the ruling but also in other dispute resolution stages to ensure the interests of all other WTO member (and not disputing parties)

1.2.4 The role of third party intervention

The participation of members other than complaiment and respondant increases transparency in dispute settlement at the WTO Because without the participation of

a third party, at the stage of consultation two sides easily have tacit agreements, do not publish and report to the DSB Since then, leading to unfair treatment among members, contrary to the principle of most favored nation treatment (MFN)13 of WTO

Third party involvement also helps with the extension of other aspects and perspectives of a problem This makes the problem that is being addressed and consulted by the parties become more useful and thorough not only for the concerned countries but also makes the DSB's decisions more meaningful

On the other hand, with member countries (both developed and developing), taking part as a third party into the WTO dispute settlement system has many benefits for them in terms of participation experience dispute resolution; opportunity to express their voice and increase their influence in this system

MFN is the basic principle in the general agreement on trade in goods (GATT) to ensure fair treatment of the countries participating in the agreement, not allowing more or less special treatment between participating nations in GATT There is not a common definition of MFN for all areas, but in essence, MFN simply means that if a country treats most favorably to any one country, it is also the same treatment for all other members

of the WTO Therefore, the nature of MFN is equal treatment, non-discrimination and this principle has contributed to promoting trade liberalization