First MPIA Appeal Arbitration Award Issued Under WTO Alternative Appeal Mechanism

December 21, 2022

The first arbitration award has been issued under the appeal procedure set out in the Multi-Party Interim Appeal Arbitration Arrangement (MPIA). The appeal of the Report of the Panel in Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands (DS591) was filed by Colombia on 6 October 2022. The award was issued 75 days later, well within the 90 days set out in the procedures agreed to by Colombia and the European Union (see WT/DS591/3 and WT/DS591/3/Rev.1).

The MPIA addresses the current suspension of the WTO Appellate Body due to the blockage of new members from being appointed. It is an interim contingency measure based on Article 25 of the DSU to preserve the essential principles and features of the WTO dispute settlement system, which include its binding character and two levels of adjudication through an independent and impartial appellate review of panel reports.

The arbitrators, selected from the pool of 10 arbitrators, were José Alfredo Graça Lima (Chairperson), Alejandro Jara, and Joost Pauwelyn.

To facilitate the issuance of the award within 90 days from the filing of the notice of appeal, the arbitrators provided guidelines on, inter alia, the length of written submissions and of the hearings (e.g., maximum of 27,000 words or 40% of the word count of the appealed panel report, whichever is the highest) and the language of the proceedings (Colombia agreed to conduct the proceedings in English). In addition, the parties were encouraged to be selective in the number of claims they submitted on appeal and to refrain from making claims under Article 11 of the DSU.

The Arbitrators reversed the Panel’s finding concerning Article 5.2(iii) of the Anti-Dumping Agreement (regarding information on prices contained in the application for an investigation) and 5.3 (regarding the examination of the accuracy and adequacy of the evidence contained in the application to determine whether it is sufficient to justify the initiation of an investigation). However, they upheld the Panel’s findings concerning Articles 6.5 (confidential information and redactions) and Articles 3.1, 3.2, 3.4 and 3.5 (injury and causation). The Arbitrators also upheld the Panel’s finding that a claim under Article 2.4 (fair comparison between normal value and export price) was within its terms of reference.

Pursuant to the agreed procedures, the Arbitrators concluded that the findings of the Panel that had not been appealed in the arbitration were deemed to form an integral part of the award together with the Arbitrators’ findings. The Arbitrators recommended that Colombia bring into conformity with the Anti-Dumping Agreement those measures that had been found in the award, and in the panel report as modified by the award, to be inconsistent with that Agreement.

The award resembles an Appellate Body report, albeit significantly less complex and more concise. Also, given that it was issued within 75 days, it required significantly less time than Appellate Body reports have generally required (which, in later years, often exceeded the 90-day specified time frame).

Tereposky & DeRose LLP regularly provides advice and acts as counsel in international trade disputes, including WTO dispute settlement proceedings. If you have any questions about the foregoing subject, please do not hesitate to contact us.


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