Unit 16 Settlement of International Disputes

1. Unit 16 Settlement of International Disputes Text I Alternative Dispute Resolution Systems -To understand international principles of options of international dispute resolution Text II WTO’s Procedure of Settling Disputes -To study the principles and procedures of WTO dispute settlement and learn about the structure of the DSB. Typical Sentence Patterns: Jury Instructions

2. Text I Alternative Dispute Resolution Systems Useful expressions: party to litigation, court costs, productive and ongoing relationship, refer…to…, limited review, advance agreement, at issue, in the presence of sb., interested party, dress rehearsal, (jury) return a verdict, litigation costs, unbiased and disinterested third party, disputing party Terms: ADR, arbitration (award，submission), mock trial, mini-trial, mediation (mediator), negotiated settlement, prehearing conferences, discovery

3. Major question in TextI Compare different features of the ways in ADR and conclude the advantages and disadvantages of each way.

4. Terms alternative dispute resolution 任择解决争端方法 arbitration 仲裁 mock trial 模拟审判 mini-trial 小型审判 mediation 调解 negotiated settlement 协商解决 prehearing conferences 审前会议 discovery 要求告知（指法院可以通知一方当事人，使他了解他方当事人或证人所知道的事实，以便准备受审的一种程序 ）

5. Major standards of evidence In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the burden of proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof beyond a reasonable doubt, is used in criminal cases and very few civil cases.

6. Preponderance of evidence优势证据 The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence (generally thought to be greater than 50%, although numeric approximations are controversial) has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true.

7. Clear and convincing evidence令人信服之证据 It is the intermediate level of burden of persuasion sometimes employed in the U.S. civil procedure. In order to prove something by “clear and convincing evidence”, the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than “proof beyond a reasonable doubt” which requires that the trier of fact be close to certain of the truth of the matter asserted, but a stricter requirement than proof by “preponderance of the evidence”, which merely requires that the matter asserted seem more likely true than not.

8. Beyond a Reasonable Doubt排除合理怀疑的证据 It is the highest standard of proof that must be met in any trial. The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. It does not mean that no doubt exists as to the accused’s guilt, only that no reasonable doubt is possible from the evidence presented. This standard is distinguishable from the standard of proof applied in civil lawsuits: a preponderance of the evidence, which means that the evidence more likely than not establishes a particular point.

9. Probable cause合理案由 It is a relatively low standard of proof, which is used in the United States to determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgment remedy.

10. Text II WTO’s Procedure of Settling Disputes Useful expressions: fellow WTO members, live up to (prep.), target figure, panelist, in another guise, in dispute, complaining country, in the dock, perishable goods, responding country, interim report, be circulated to, points of law, with recognized standing, be affiliated with / to, bring…in line with, outstanding case, on agenda Terms: rule of law, rebuttal Proper names: WTO General Council, director-general, WTO Appellate Body, DSB

11. Major points of Text II • WTO organization chart • DSB: General Council in another guise • DSU: Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex2 to the Agreement Establishing the World Trade Organization ): 27 articles and 4 appendices Full text: http://www.wto.org/english/docs_e/legal_e/28-dsu_e.htm

12. Key articles in the DSU -Covered agreement -Establishment of DSB -Consultations -Good Offices, Conciliation and Mediation -Establishment of Panels -Terms of Reference -Composition of Panels -Third Parties -Appellate Body -Arbitration

13. 5. Reverse consensus 6. Prohibition of unauthorized unilateral retaliation 7. Permitting cross-sector or cross-agreement retaliation 8. Strict timetable

14. Ministerial Conferences部长级会议 The topmost decision-making body of the WTO is the Ministerial Conference, which has to meet at least every two years. It brings together all members of the WTO, all of which are countries or customs unions. The Ministerial Conference can take decisions on all matters under any of the multilateral trade agreements.

15. General Council总理事会 The General Council is the WTO’s highest-level decision-making body in Geneva, meeting regularly to carry out the functions of the WTO. It has representatives (usually ambassadors or equivalent) from all member governments and has the authority to act on behalf of the ministerial conference which only meets about every two years. The current chairman is H.E. Mr. Muhamad NOOR (Malaysia). The General Council also meets, under different rules, as the Dispute Settlement Body and as the Trade Policy Review Body.

16. Covered agreements适用协定 Article 1: Coverage and Application 1. The rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the “covered agreements”). …

17. Establishment of DSB Article 2: Administration 1. The Dispute Settlement Body is hereby established to administer these rules and procedures and, except as otherwise provided in a covered agreement, the consultation and dispute settlement provisions of the covered agreements. Accordingly, the DSB shall have the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements. …

18. Consultations 磋商 Article 4: Consultations 1. Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members….

19. Good Offices, Conciliation and Mediation斡旋、调解、调停 Article 5: Good Offices, Conciliation and Mediation 1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree. … 3. Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begin at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are terminated, a complaining party may then proceed with a request for the establishment of a panel. … 5. If the parties to a dispute agree, procedures for good offices, conciliation or mediation may continue while the panel process proceeds. 6. The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute.

20. Establishment of Panels Article 6: Establishment of Panels • 1. If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB's agenda, unless at that meeting the DSB decides by consensus not to establish a panel.(5) • 2…

21. Terms of Reference职权范围 Article 7: Terms of Reference of Panels 1. Panels shall have the following terms of reference unless the parties to the dispute agree otherwise within 20 days from the establishment of the panel: “To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s).”…

22. Composition of Panels Article 8: Composition of Panels • 1. Panels shall be composed of well-qualified governmental and/or non-governmental individuals, including persons who have served on or presented a case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a Member…. • 4. To assist in the selection of panelists, the Secretariat shall maintain an indicative list of governmental and non-governmental individuals possessing the qualifications outlined in paragraph 1, from which panelists may be drawn as appropriate. • 5. Panels shall be composed of three panelists unless the parties to the dispute agree, within 10 days from the establishment of the panel, to a panel composed of five panelists. Members shall be informed promptly of the composition of the panel….

23. Third Parties第三方 Article 10: Third Parties • 1… • 2. 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. • 3. Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel. • 4. If a third party considers that a measure already the subject of a panel proceeding nullifies or impairs benefits accruing to it under any covered agreement, that Member may have recourse to normal dispute settlement procedures under this Understanding. Such a dispute shall be referred to the original panel wherever possible.

24. Appellate Body（常设）上诉机构 Article 17: Appellate Review Standing Appellate Body • 1. A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body….

25. Arbitration Article 25: Arbitration • 1. Expeditious arbitration within the WTO as an alternative means of dispute settlement can facilitate the solution of certain disputes that concern issues that are clearly defined by both parties. …

26. Reverse consensus反向协商一致 Eg. Art. 6 (1) If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB's agenda, unless at that meeting the DSB decides by consensus not to establish a panel. Art. 16 (4) Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting (7) 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.