One Rule to Rule Them All: Rules for Article 25 DSU Arbitration

Abstract

The Appellate Body faces a crisis and risks being dissolved in December 2019. In order to safeguard the dispute settlement mechanism and ensure a functioning system without the Appellate Body of the World Trade Organization (WTO), many proposals have been put forward. Among these proposals, this Article highlights the potential of arbitration in the WTO. Article 25 of the Dispute Settlement Understanding (DSU), which provides for arbitration as a means of dispute settlement, remains underused due to insufficient procedural guidance. This article provides a set of rules for Article 25 DSU arbitration, which could be adopted by WTO Members ‘off the shelf’ when initiating an arbitration procedure. This formulation of procedural rules combines the need for party autonomy of WTO Members engaged in an arbitration procedure with the need for procedural certainty, which has hampered its usage until date. Experience of past arbitration in the WTO and international sources for trade-related arbitration have been used to shape these customized rules for Article 25 DSU arbitration.