Multi-Party Interim Appeal Arbitration Agreement

23 It should be noted that in a recent case between South Korea and the United States, neither of which has joined the multi-party arbitration procedure, the parties stated in their agreement on the enforcement procedures that “if the parties accept arbitration under Article 25 of the DSU in order to provide for a review of the Committee`s report in accordance with Article 21.5. they will amend this agreement on procedures accordingly. Simon Lester, “Agreement Not to Appeal and Possibility of an Article 25 Appeal in a Case Involving the U.S.,” International Economic Law and Policy Blog, February 10, 2020. Valerie Hughes, Senior Counsel in the International Trade – Investment practice of Bennett Jones, has been selected as a member of the permanent pool of arbitrators for the WTO Multi-Party Inter-Arbitration Arrangement. In this prestigious role, Valerie will hear appeals in WTO panel reports involving Canada and 22 other WTO members who have agreed to participate in the agreement. MPIA members include China, the European Union, Mexico, Brazil, Chile, Australia and New Zealand. Other WTO members can join at any time. Paragraph 3 of the communication states that “[d]. the appeals arbitration process is based on the material and procedural aspects of the section 17 appeal procedure of the DSU, […] to increase the procedural effectiveness of the appeal procedure. In particular, two major innovations are aimed at improving the procedural effectiveness of appeal procedures: the creation of a pool of 10 arbitrators and the rationalization of the 90-day sentence period. However, other WTO members were not prepared to drop the appeal review. They insisted that a negotiated solution be found, with amendments to the appeal procedure that could satisfy the United States, but a solution does not seem imminent. They also proposed a temporary redress mechanism, known as the Interim Multi-Party Arbitration Settlement, in accordance with Article 25 of the Dispute Settlement Agreement, to maintain the operational system until a lasting solution can be found. As of July 31, 2020, MPIA applies to the 23 contracting parties that have signed and other WTO members can join at any time.

Canada was involved in the creation of the MPIA. It was first announced in March 2020 by Canada and 15 other WTO members as an interim appeal procedure. MPIA members have reached an agreement to obtain an independent and impartial appeal phase in the WTO dispute settlement, a key feature of the WTO dispute settlement mechanism. Like the EU-Canada agreements and the EU-Norway agreements, the MPIA is created in accordance with Article 25 of the DSU, but the MPIA differs from the latter two by the following originalities: the MPIA is divided into three parts: a communication to the WTO dispute resolution body (DSB), which is responsible for judging disputes between WTO members; Schedule 1, which provides for the submission of an arbitration agreement; and Schedule 2 setting out the procedure for selecting arbitrators.