Evans, D; Ridings, P --- "A Decade of WTO Dispute Settlement: New Zealand's Experience" [2006] NZYbkIntLaw 2; (2006) 3 New Zealand Yearbook of International Law 1

This article examines New Zealand’s experience during the first ten years of dispute settlement in the World Trade Organization (WTO). The effectiveness of New Zealand’s use of WTO dispute settlement can be assessed against a number of different criteria. Consideration is given to whether it has provided an effective means to resolve disputes; whether resolution of disputes has occurred within a satisfactory timeframe; the value of trade affected; and whether alternative means of resolving disputes were available. The sum of New Zealand’s experience has been highly positive. But as New Zealand’s experience of WTO dispute settlement has matured, so too has its approach to handling cases. This article also examines that approach and outlines the rationale for New Zealand’s involvement in WTO disputes.

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II. New Zealand’s Use of WTO Dispute Settlement

A. The Jewel in the Crown

The WTO came into existence on 1 January 1995, and with it came a new era in the settlement of multilateral trade disputes. The Dispute Settlement Understanding (DSU) sets out the rules and procedures for dispute settlement under the WTO.^[1]

The DSU has been called the “jewel in the crown” of the WTO, and for good reason. In many ways, the system was a bold experiment and a significant departure from dispute settlement under the old GATT system. The DSU introduced binding dispute settlement procedures, automatic adoption of panel and appellate body reports,^[2] and a standing Appellate Body.^[2] It also elaborated detailed procedures for the conduct and timeframe of disputes, and set out the procedures for implementation of rulings and the suspension of concessions in the case of non-compliance. The WTO DSU binds countries into compulsory arbitration, including those that have traditionally had reservations about compulsory dispute settlement in other multilateral contexts.

In September 2003 the number of disputes initiated under the WTO exceeded the 300 mark.^[3] By the end of 2004 this figure had risen to 324.^[4] There have been more cases in ten years of dispute settlement under the WTO than in the entire 50-year history of the GATT.

B. New Zealand’s Experience as a Complainant

During the first ten years of its operation, New Zealand has been an active user of the DSU. New Zealand has initiated six cases (see Table 1). Of the 148 WTO Members, this makes New Zealand the 13^th most active user, just behind Australia (see Tables 2 and 3).^[5]

Of those six cases, four have progressed from the consultation phase to panel proceedings, three of those have also involved appellate proceedings, and one has been pursued through additional compliance proceedings. All six cases have resulted either in a “mutually agreed solution”, and/or the termination of the measure at issue (see Table 1). Drawing definitive conclusions about the effectiveness of dispute settlement action is not always a straightforward task. In this section, the effectiveness of New Zealand’s use of WTO dispute settlement is assessed against the objectives of the DSU, the time taken to resolve disputes, the value of trade affected, and the alternative means available to resolve disputes.

1. Objectives of the DSU

Ultimately, the aim of dispute settlement is to assist in the resolution of trade disputes where it has not been possible to resolve them by other means. The DSU states that:^[6]

So the objective of the DSU is to resolve trade disputes either by securing a “mutually acceptable solution” and/or the removal of the measure at issue (that is, the law or regulation that is being challenged).^[7] Against this objective, New Zealand’s use of the DSU has been highly effective. As noted, all six cases initiated by New Zealand have resulted either in “mutually agreed solutions”, or the termination of the measure at issue, or both.

Breaking this down, in all three cases in which rulings were issued (Canada Dairy, US –Lamb Safeguards and US – Steel Safeguards) New Zealand has ‘won’ the case. That is, the Panel and Appellate Body have ruled that the measure New Zealand challenged was inconsistent with WTO rules. Two of those cases involved challenges to safeguard measures imposed by the United States. The third involved a protracted dispute regarding Canadian export subsidies on dairy products. In each case the Panel and the Appellate Body recommended that the WTO Member complained against bring its measures into conformity with WTO rules.^[8] To put this in perspective, complainants ‘win’ approximately 80% of cases initiated in the WTO.^[9]

As a number of other WTO Members have discovered to their frustration, however, it can be one thing to win a case, and quite another to see the rulings in that case fully implemented. The issue of the implementation (or lack thereof) of Panel and Appellate Body rulings is one of the most contentious issues in the current negotiations aimed at clarifying and improving DSU rules. Some WTO Members and commentators consider the track record of implementation in the DSU to be poor and one of its main failings of the first ten years. This has resulted in a number of proposals to reform the DSU by increasing the incentives for compliance, for example, by introducing concepts such as collective retaliation and transferable retaliatory rights. However others take the opposite view, pointing out that while there are certain high profile cases of non-implementation (such as challenges to the European Communities beef hormones laws and banana imports regime), in the majority of cases Panel and Appellate Body rulings are implemented. Some recent research suggests that implementation rates may be as high as 83%.^[9]

Whatever view one might take on this issue, New Zealand’s experience regarding implementation has been a positive one. As noted above, in each case that New Zealand has initiated, mutually agreed solutions were reached, either at the consultation phase (India – Quantitative Restrictions, and Hungary Agricultural Products), during the Panel proceedings (EC – Butter), shortly after the Appellate Body ruling was issued (US – Steel Safeguards), during the “reasonable period of time” allowed for implementation (US – Lamb Safeguards) or after further “compliance” proceedings to determine the WTO-consistency of measures taken to comply with Panel and Appellate Body rulings (Canada – Dairy).

During the first ten years, then, in each case New Zealand has initiated, the DSU has delivered on its objectives of resolving the dispute by way of a mutually acceptable solution and/or the withdrawal of the measure at issue.

2. Timeframe of Disputes

A second issue to consider in assessing the effectiveness of WTO dispute settlement action is the time it takes to resolve a dispute. The DSU states that “prompt settlement” of disputes is “essential to the effective functioning of the WTO”.^[10]

In New Zealand’s experience the average time taken from the initiation of WTO consultations to the notification of the mutually agreed solution/termination of the measure has been 875 days (or 29 months), and ranges from 484 days in Hungary - Agriculture Products to 1,947 days in Canada Dairy (see Table 4). This significant variation reflects the fact that the former case was resolved at the consultation phase whilst Canada Dairy required not only panel and appellate proceedings, but also two additional “compliance” proceedings where Canada’s replacement scheme was challenged.

Timeframes are a particular issue in the context of safeguards cases. The Safeguards Agreement provides a safety valve whereby WTO Members can raise tariffs in response to surges in imports, provided certain strict requirements are met. However this emergency relief is temporary, and safeguard measures are limited to a four-year maximum, with the possibility of extending this to no more than eight years in certain circumstances.^[11] In both the Lamb and Steel safeguards cases the US Administration applied safeguard measures for an initial period of three years (1095 days). Following dispute settlement action the safeguard measure was removed in the Lamb case after 785 days, and in Steel after 570 days.

Does this represent a satisfactory outcome? On the one hand it can be argued that the WTO disputes system, which takes on average about two years to issue a ruling (assuming an appeal), provides very little effective relief in safeguards cases. By the time the ruling is issued the safeguard measure is almost due to be terminated anyway. Moreover, there is no provision for the repayment of funds collected under measures subsequently ruled WTO-inconsistent. This has led to calls by some Members to halve the disputes timelines applicable to safeguards cases, and for the introduction of retroactive remedies.

On the other hand, in both safeguards cases New Zealand has been involved in, the measures were removed well in advance of the date on which they were due to expire - in one case 310 days before and in the other 525 days. And this does not take into account the possibility that the safeguard measures could have been “rolled over” for a further four or five years. So the timeframes for dispute settlement, while reasonably long, can still provide some relief in safeguards cases.

Finally on the question of timeframes, it has been calculated that the average time in cases involving panel and appellate proceedings and a “reasonable period of time”^[12] to comply, is 1500 days.^[13] This suggests that two conclusions can be drawn on timeframes. The first is that New Zealand’s disputes have actually been resolved relatively quickly in comparison to many other WTO disputes. And the second is that disputes are not resolved particularly quickly in WTO dispute settlement.^[14]

3. Value of Trade Affected

A third factor to consider in assessing the effectiveness of dispute settlement action is the value of the trade affected by the measure in dispute. This is not always easy to assess accurately, and there is no formal multilateral assessment of the value of the “nullification and impairment” of benefits in a case unless and until a complaining party seeks to suspend concessions in response to continuing non-compliance. Fortunately, no case that New Zealand has been involved in has progressed to this phase. In addition, as noted, there is no provision in the WTO for the retroactive application of remedies. So dispute settlement action under the WTO does not allow for the recovery of lost revenues incurred as a result of a WTO-inconsistent measure. The remedy under the WTO is that the offending Member must “bring the measure into conformity” with WTO rules.^[15] Finally, it must be recalled that the true ‘value’ of a case may derive in part from the systemic and precedential importance of the findings, rather than direct trade benefits.

With all these caveats in mind it is useful to consider some rough figures. In Canada Dairy it was estimated that Canada’s export subsidy scheme cost the New Zealand dairy industry around $35 million a year.^[16] In the US-Lamb Safeguard case the value of New Zealand’s lamb exports to the United States was approximately $188 million annually. It was estimated that the United States’ safeguard measure cost the New Zealand lamb industry about NZ$20 million.^[17] And in the US-Steel case the value of New Zealand Steel’s exports into the United States market was valued at nearly $70 million before the safeguard (including a 30% additional tariff) was imposed.^[18] Not insignificant amounts of money for the industries concerned. In all three cases, the offending measures were terminated as a result of dispute settlement action.

4. Alternative Means

Finally, in assessing the effectiveness of dispute settlement action it is important to consider what alternative means might have been available to New Zealand to achieve the same results outside the context of binding multilateral dispute settlement. A statement by Trade Negotiations Minister Jim Sutton following the win in US-Steel makes the point:^[19]

Binding dispute settlement with compulsory jurisdiction, such as that provided for in the WTO, levels the international playing field. New Zealand has won (among others) cases against three of the world’s largest economies, relating to three of New Zealand’s top export earners. To paraphrase the Minister, “[i]t is impossible to imagine that by any other means” this could have been achieved.^[2]

C. New Zealand’s Experience as a Respondent

An interesting feature of New Zealand’s track record under WTO dispute settlement is that New Zealand has never been a respondent.^[2] New Zealand is one of only twelve Members to have used the DSU as a complainant, without also having had cases initiated against it. And of those twelve, no WTO Member has used the DSU more than New Zealand.

It is difficult to generalise as to why particular cases are taken at any particular point in time. It will involve a myriad of different factors, both economic and political. However, logically one factor will be the size of the economy involved. Larger economies will generally be more valuable as export markets, and are therefore more likely to be challenged.

In addition, New Zealand is recognised in the WTO as having “one of the most open economies in the world”^[21] and as being at the “forefront of the efforts to reduce trade barriers to agricultural and non-agricultural products.”^[22] The reputation and reality of New Zealand’s transparent, liberal, and market-oriented trading environment helps to reduce the likelihood of WTO challenge.

D. Participation as a Third Party

It is possible to participate in disputes, both in the consultation and panel/appellate stages, as a “third party”. Third parties have fewer rights than the primary disputing parties, however they get access to documentation, and have a right to make submissions to, and appear before, panels and the Appellate Body.

New Zealand has participated as a third party in six consultations, and thirteen cases involving panel/appellate proceedings (see Table 5).^[23] In general terms, New Zealand will consider becoming a third party where it has a significant systemic interest in the subject matter or outcome of the dispute. For example, cases in which New Zealand has participated as a third party have involved questions concerning the interpretation of the Agreement on Agriculture (US-Cotton, EC-Sugar, Korea-Beef) and the Agreement on the Application of Sanitary and Phytosanitary Measures (EC-Hormones, Japan-Apples, EC-Biotech) - both WTO agreements that are of vital importance to New Zealand’s export interests. Where New Zealand has significant direct trade interests in addition to systemic interests, the option of taking a case as a primary complainant would be considered.

III. New Zealand’s Approach to WTO dispute settlement

A. Evolution of the Management of New Zealand’s Approach
to Dispute Settlement

New Zealand’s handling of WTO dispute settlement cases has evolved with the establishment of the DSU. Under the old GATT system New Zealand, like many other countries, treated GATT dispute settlement as ancillary to trade policy. With the advent of a rules-based dispute settlement system New Zealand’s approach took on more of an international legal focus. This was necessitated in part by the approach adopted by the WTO Appellate Body such that international law, and in particular the customary international law rules of interpretation, would form the basis of the decisions of the WTO adjudicatory bodies.^[24] More generally, the first ten years of dispute settlement under the WTO has seen a significant shift from a “diplomatic” to a “judicial” or “legal” model of dispute resolution. These trends have reinforced the desirability of international lawyers providing the leadership of New Zealand’s WTO dispute settlement effort.

The manner in which the Legal Division of the Ministry of Foreign Affairs and Trade (MFAT), which provides advice to the New Zealand Government on international legal issues, has met its WTO responsibilities has also evolved over the last decade. Initially New Zealand’s involvement as a principal party in WTO cases tended to be handled by one or two people from the Division, with limited involvement on the part of external agencies. However, over time it became evident that a team approach would be more appropriate in the WTO era, where pursuit of significant principal party cases involves legal, political, and economic elements, as well as industry and media interests. Successful pursuit of WTO dispute settlement requires a strategy that combines the best legal arguments together with political support and sound economics or science.

The US – Lamb Safeguards case provides an example of the successful use of a team strategy. The team comprised a core of two lawyers from MFAT Legal Division (later three), together with MFAT trade policy officers, economic advisers, and officers with regional responsibilities, trade remedy experts from the Ministry of Economic Development, and economic specialists from the Ministry of Agriculture and Forestry. In addition external expert legal advice and peer review has been a regular feature of New Zealand WTO actions. The advantages of such an approach is that it ensures that both breadth of experience and depth of expertise can be brought to bear in the pursuit of a case.

B. New Zealand’s Approach to Deciding on WTO
Dispute Settlement Action

New Zealand takes a major decision in considering whether to participate in WTO dispute settlement, particularly as a principal party. Taking a WTO case is a significant commitment of resources, both financial and human, and potentially over an extended period. Even participation as a third party raises resource issues that need to be balanced with competing priorities and interests. WTO dispute settlement is therefore taken seriously. It is a measure of last resort after other options for resolving the dispute have been exhausted or are expected to fail.

The DSU is a government-to-government mechanism, and ultimately a decision to initiate dispute settlement action must be taken at Ministerial level. This will involve a broad-based assessment of New Zealand’s interests, taking into account a variety of factors.

First, from a practical perspective New Zealand should have a direct trade interest in pursuing WTO action. Support from stakeholders for New Zealand involvement is an important consideration, as is the economic cost of a WTO Member’s alleged breach of its obligations. For this reason another feature of New Zealand’s approach has been the involvement of stakeholders in decisions on whether to proceed to dispute settlement. In the Lamb case, for example, this extended to consultation on the economic and legal aspects of the case with the lamb industry, primarily with Meat and Wool New Zealand and the Meat Industry Association.

Second, it is essential that the legal arguments are robust. It is not always possible to predict how a panel or the Appellate Body will decide a case, particularly if it raises interpretative issues which have not been addressed in past. However there is usually a “best” interpretation that provides a good basis for a decision whether to proceed to litigation. Even so there is no guarantee of success and the adverse consequences if the legal arguments fail to garner support must also be considered. Similarly, it is important for a case to be supported by strong economic and scientific arguments. If the economic or scientific case is not sufficiently strong, this must be factored into the assessment.

There are various other factors which enter into the cost-benefit analysis of the policy options for resolving the issue, including dispute settlement action. For example, there may be systemic WTO principles at stake, or adverse consequences if a situation continues unchallenged. The Canada Dairy litigation provides a case in point. The jurisprudence developed in that case was recently applied in a successful challenge to the European Communities export subsidies on sugar.

As WTO dispute settlement action takes place on the global stage, the impact on international relations must be balanced against the importance of the issue to New Zealand. The views of other trading partners may be taken into account, and it is useful, although not essential, to be in good company when initiating dispute settlement action. New Zealand was joined by the United States as a co-complainant in the Canada Dairy case, Australia was a co-complainant in US – Lamb Safeguards, and there were seven other co-complainants in US – Steel Safeguards.^[25]

The weighing of various factors and interests provides a sound rationale for the decision to bring a WTO case. In this way the decision is based on a solid foundation that helps to ensure a successful outcome.

While some of the same considerations apply to cases in which New Zealand is a third party, these proceedings provide room for more flexibility in approach. Participation as a third party in WTO actions provides useful practical experience in WTO litigation. It enables the pursuit of systemic interests and enables the third party to concentrate on legal issues of central importance to it. As the rights of third parties in the DSU are less than those of principal parties, third parties have only two opportunities at the panel stage to make a difference, one written, one oral. This limits the opportunities for third parties to influence a WTO dispute. Nevertheless with a well-prepared submission, a third party can have a real impact on a case. It can potentially affect the outcome by raising legal arguments to which the principal party, panel and Appellate Body have to respond.

IV. Conclusion

An examination of New Zealand’s experience tends to confirm the prevailing view of WTO Members that “the DSU has generally functioned well” in its first decade.^[26] And New Zealand has been an active and successful user during that time. In a general sense, this reflects New Zealand’s long-standing and strong support for international law and international judicial institutions to resolve State-to-State disputes.^[27] More specifically, it has proved particularly effective in meeting the objectives of a small economy such as New Zealand, which is heavily reliant on export markets for its economic wellbeing. Some of the success of the WTO DSU can be attributed to the fact that it is a rules-based system which aims for equitable treatment of WTO Members, irrespective of their size or power. For New Zealand, at least, it has been a great leveller.

Annex

Table 1

Case	Agreements	Outcome
Hungary – Agricultural Products (DS35) ¹	Agriculture	Mutually agreed solution before panel composition (1997)
EC – Measures Affecting Butter Products (DS72) ²	GATT, Licensing, TBT	Mutually agreed solution before panel report was circulated (1999)
India – Quantitative Restrictions on Agricultural Products (DS93) ³	Agriculture, GATT, Licensing	Mutually agreed solution during consultation phase (1998)
Canada – Measures on Import of Dairy Products (DS113) ⁴	Agriculture, SCM	Mutually agreed solution following Article 21.5 compliance procedures (2003)
US – Lamb Safeguard (DS177) ⁵	Safeguards, GATT	Safeguard measure terminated following panel and Appellate Body reports (2001)
US – Steel Safeguard (DS258) ⁶	Safeguards, GATT	Safeguard measure terminated following panel and Appellate Body reports (2003)

Notes:

1. Hungary - Export Subsidies in Respect of Agricultural Products, WTO Doc WT/DS35 (1997) (Dispute Settlement Body).

2. European Communities - Measures Affecting Butter Products, WTO Doc WT/DS72 (1999) (Dispute Settlement Body).

3. India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WTO Doc WT/DS/93 (1998) (Dispute Settlement Body).

4. Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO Doc WT/DS113 (2003) (Decision of the Appellate Body).

5. United States - Safeguard Measures on Imports of Fresh, Chilled and Frozen Lamb from New Zealand, WTO Doc WT/DS177 (2001) (Decision of the Appellate Body).

6. United States - Definitive Safeguard Measures on Imports of Certain Steel Products, WTO Doc WT/DS258 (2003) (Decision of the Appellate Body).

Table 2

Most Frequent Users of DSU

Disputes Initiated	Disputes/Population	Disputes/GDP	Dispts/Exports
1. United States	1. Antigua, Barbuda	1. Antigua, Barbuda	1. Honduras
2. EC	2. New Zealand	2. Panama	2. Panama
3. Canada	3. Costa Rica	3. Honduras	3. Guatemala
4. Brazil	4. Honduras	4. Guatemala	4. Nicaragua
5. India	5. Panama	5. Costa Rica	5. Costa Rica
6. Mexico	6. Peru	6. Nicaragua	6. Chile
7. Japan	7. Chile	7. New Zealand	7. Uruguay
8. Korea	8. Switzerland	8. Chile	8. New Zealand
9. Thailand	9. Hungary	9. Ecuador	9. Ecuador
10. Argentina	10. Guatemala	10. Hungary	10. Brazil

Table 3

Top Twelve Most Frequent Complainants/Respondents

Member	No of Cases Initiated	Member	No of Cases Defended
US	80	US	87
EC	68	EC	51
Canada	26	Argentina	15
Brazil	22	India	17
India	16	Japan	14
Mexico	13	Korea	13
Japan	12	Canada	13
Korea	12	Brazil	12
Thailand	10	Mexico	12
Argentina	9	Chile	10
Chile	9	Australia	9
Australia	7	Turkey	7

Table 4

Length of Disputes

Case	Initiated	Mutually agreed solution or termination	Total time
Hungary – Agricultural Products (DS35)	02/04/96	30/07/97	484 days (16 months)
EC – Measures Affecting Butter Products (DS72)	03/04/97	11/11/99	952 days (32 months)
India – Quantitative Restrictions on Agricultural Products (DS93)	22/07/97	17/12/98	513 days (17 months)
Canada – Measures Importation of Dairy Products (DS113)	08/01/98	09/05/03	1 947 days (65 months)
US – Lamb Safeguard (DS177)	22/07/99	15/09/01	785 days (26 months)
US – Steel Safeguard (DS258)	21/05/02	05/12/03	570 days (19 months)
		Average	875 days (29 months)
		Median	678 days (23 months)

Table 5

Joined Consultations

Joined Panel Proceedings

• EC Hormones (DS26)

• India – BOP (DS92)

• Korea – Various Measures on Beef (DS161)

• Venezuela – Import Licensing Agricultural Products (DS275)

• EC - Trademarks and GIs (DS174, DS290)

• EC – Approval and Marketing of Biotech Products (DS291, DS292, DS293)

• EC – Hormones (DS26)

• Korea – Various Measures on Beef (DS161)

• US – Wheat Gluten (DS166)

• EC – Trademarks and GIs (DS174, DS290)

• Japan – Apples (DS245)

• EC – Export Subsidies on Sugar (DS265, DS266, DS283)

• US – Subsidies on Upland Cotton (DS267)

• EC – Approval and Marketing of Biotech Products (DS291)

• US – Zeroing (DS322)

• US – Hormones and Canada – Hormones (DS320, DS321)

• Japan – Dried Laver (DS323)

• US – Softwood Lumber Art 21.5 (DS264)

^[∗] Penelope Ridings is International Trade Law Adviser and Deputy Director of the Legal Division of the New Zealand Ministry of Foreign Affairs and Trade. David Evans is a Senior Legal Adviser in the Legal Division of the Ministry of Foreign Affairs and Trade. The views expressed in this article are the personal views of the authors alone.

^[1] Marrakesh Agreement Establishing the World Trade Organization, Art II(2) makes the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) an integral part of the WTO Agreement.

^[2]Dispute settlement reports under the WTO’s predecessor (the GATT) had required a consensus in order to be adopted. This meant that the adoption of reports could be blocked by the country that lost the dispute. Under the DSU the situation is reversed – dispute settlement reports are adopted unless there is a consensus against adoption – the so-called ‘reverse consensus’ rule. In practice, this amounts to virtual automaticity.

² Understanding on Rules and Procedures Governing the Settlement of Disputes, Art 17.1. The Appellate Body consists of seven persons, each serving a four-year renewable term. It is serviced by an independent Secretariat.

^[3] ‘WTO Disputes Overtake 300 Mark’, WTO Ministerial Conference Press Release,

^[4] The authors wish to thank the Legal Division of the WTO Secretariat for providing the statistical information used in this article.

^[5] Of the 148 WTO Members, 40 have initiated at least one WTO dispute. The number of cases initiated is the simplest way to assess the comparative use of the DSU by WTO Members. However, there may be other more meaningful comparisons. For example, some rough calculations by the authors suggest that on a per capita basis (number of disputes initiated compared to the size of the population) New Zealand is the second most active user of the DSU; measured against GDP New Zealand is seventh; and if disputes initiated are compared to the total value of national exports, New Zealand is the eighth most active user.

^[6] Understanding on Rules and Procedures Governing the Settlement of Disputes, Art 3.7.

^[7] In many, but not all, cases a mutually acceptable solution will involve the removal of the measure found to be inconsistent with WTO rules.

¹⁰This high success rate by complainants has led some to criticise the WTO as a ‘complainants court’. It needs to be remembered, however, that the WTO is an intergovernmental organisation, and formal dispute settlement between national governments is considered a last resort. Strenuous efforts are made to resolve any bilateral trade issues through other channels. Generally, only the most intractable, egregious, or trade-distorting measures are brought before the WTO’s dispute settlement mechanism.

^[10] Understanding on Rules and Procedures Governing the Settlement of Disputes, Art 3.3.

^[12] Under the Understanding on Rules and Procedures Governing the Settlement of Disputes, where a measure has been found to be inconsistent with WTO rules, the Member concerned is given a “reasonable period of time” to comply.

^[13] Diagnosis of the Problems Affecting the Dispute Settlement Mechanism: Some ideas by Mexico, Submission to the Special Session of the Dispute Settlement Body, 10 November 2003.

^[14] Of course, the dispute settlement system in the WTO is not alone in this regard. The time taken to resolve disputes in the WTO compares favourably to other fora, both international and national.

^[15] Understanding on Rules and Procedures Governing the Settlement of Disputes, Art 19.1.

^[16] ‘Canada Renounces Dairy Export Scheme’, Press Release, Hon Jim Sutton, 12 May 2003.

^[17] ‘World Trade Organization Rejects US Lamb Appeal’, Press Release, Hon Jim Sutton, 2 May 2001.

^[18] ‘New Zealand Wins at the WTO Again’, Press Release, Hon Jim Sutton, 11 November, 2003.

^[2]2‘United States to Lift ANZAC Lamb Tariffs’, Press Release, Hon Jim Sutton,

²⁰ Under the GATT (that is, pre-1995), New Zealand was a respondent in New Zealand – Imports of Electrical Transformers from Finland, BISD 32S/55 (1985) (Panel Report). In that case the Panel found that an antidumping measure imposed by New Zealand nullified or impaired benefits and therefore proposed that the GATT Council recommend that New Zealand revoke the antidumping determination.

^[21] Trade Policy Review: New Zealand, 12 &14 May 2003, Minutes of Meeting, WTO Doc WT/TPR/M/115, 17 June 2003, para 110.

^[23] These figures do not reflect New Zealand’s third party participation in disputes where New Zealand was also a primary complainant. In cases where there are multiple complainants it is standard practice to join as a third party in the cases initiated by co-complainants. For example in the US-Steel case New Zealand was a third party in the seven other cases initiated by the seven other complainants.

^[24] US – Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DS2/AB (1996) (Report of the Appellate Body).

^[25] The other co-complainants were Brazil, China, European Communities, Korea, Japan, Norway, and Switzerland.

^[26] Report by the Chairman to the Trade Negotiations Committee, 6 June 2003, WTO Doc TN/DS/9 (2003) (Special Session of the Dispute Settlement Body).

^[27] New Zealand has been involved in international judicial settlement of a number of cases: Nuclear Tests Case (New Zealand v France), Merits (1974) ICJ Rep; the Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 499; the Nuclear Tests Case (New Zealand v France) (1995) ICJ Rep; and the Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures (1995) International Tribunal for the Law of the Sea.

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