In order to maintain the efficacy of the rules-based trading system and for members to continue to have access to an independent appeal process for dispute settlement, 16 WTO members set up a separate appeal system for trade disputes in March 2020.
Known as the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), it is an alternative system for resolving WTO disputes that are appealed by a Member in the absence of a functioning and staffed WTO Appellate Body.
WTO members can resort to the use of the MPIA under Article 25 of the WTO Dispute Settlement Understanding, as an alternative mechanism for dispute settlement. The MPIA embodies the WTO appellate review rules and in a dispute between members, it will supersede the previous appeal processes and also apply to future disputes between members.
Any member can join the MPIA by notifying the Dispute Settlement Body and a range of members have done so.
The MPIA is likely to remain in place for as long as the WTO Appellate Body is not functioning, and for disputes among those members that are party to it, the MPIA serves as a temporary solution to the WTO Appellate Body gridlock.
In October 2018, the United States blocked the appointment of new Appellate Body members, resulting in only 3 members remaining on the Body. At the end of their terms, the Appellate Body was rendered non-functional as it lacked a quorum under its rules. The United States blockade on appointments remains in place, and the Appellate Body continues to be non-functional to this date. The US claims that the Appellate Body is unfair and does not support US or other WTO members’ interests. The US’s main objections about the system relate to its view that the it has repeatedly overstepped its limits and created new rules never envisaged by the signatories; that it sets up persuasive precedents for future disputes, and that it has procedural problems such as the practice of taking on new cases before clearing the backlog of existing ones. In February 2019 David Walker, New Zealand’s Ambassador to WTO, was appointed to work with WTO members to resolve the issues preventing the functioning of the Appellate Body, including addressing US concerns. Though there have been constructive discussions on this issue in Geneva and in capitals, few expect a resolution in the immediate future. In June 2022 the 12th WTO Ministerial Conference outcome document included the following paragraph:
4. We acknowledge the challenges and concerns with respect to the dispute settlement system including those related to the Appellate Body, recognize the importance and urgency of addressing those challenges and concerns, and commit to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all Members by 2024.
However, to date discussions have not yielded a positive outcome and expectations are muted. Videos and discussions:
On 30 April 2020, a group of 47 WTO members notified the organization of the creation of a new Multi-Party Interim Appeal Arbitration Arrangement (or MPIA) and their intention to resort to use of this mechanism to arbitrate any WTO disputes among themselves which would otherwise be appealed to the non-functional WTO Appellate Body. In their formal communication these members indicated their goal was to preserve and replicate the substantive and procedural aspects of the WTO’s appeal arbitration procedure including independence and impartiality, while enhancing efficiency. These members also reaffirmed their commitment to resovling the impasse at the WTO Appellate Body and to ceasing the operation of the MPIA as soon as that body was restored to function. In describing this new arrangement, then Trade Commissioner of the European Union Phil Hogan said:
“Today’s agreement delivers on the political commitment taken at ministerial level in Davos in January. This is a stop-gap measure to reflect the temporary paralysis of the WTO’s appeal function for trade disputes. This agreement bears testimony to the conviction held by the EU and many other countries that in times of crisis working together is the best option. We will continue our efforts to restore the appeal function of the WTO dispute settlement system as a matter of priority. In the meantime, I invite other WTO Members to join this open arrangement, crucial for the respect and enforcement of international trade rules.”
Earlier that year, Ministers from the European Union and 15 other signatories issued a statement foreshadowing the formation of the MPIA, saying:
“Further to the Davos statement of 24 January 2020, we, the Ministers of Australia; Brazil; Canada; China; Chile; Colombia; Costa Rica; European Union; Guatemala; Hong Kong, China; Mexico; New Zealand; Norway; Singapore; Switzerland; and Uruguay, have decided to put in place a Multi-party Interim Appeal Arbitration Arrangement (MPIA) on the basis of the attached document. This arrangement ensures, pursuant to Article 25 of the WTO Dispute Settlement Understanding, that any disputes among us will continue benefitting from a functioning dispute settlement system at the WTO, including the availability of an independent and impartial appeal stage.
We believe that such WTO dispute settlement system is of the utmost importance for a rules-based trading system. The arrangement is open to any WTO Member, and we welcome any WTO Member to join. We wish to underscore the interim nature of this arrangement. We remain firmly and actively committed to resolving the impasse of the Appellate Body appointments as a matter of priority and urgency, including through necessary reforms.
The arrangement therefore will remain in effect only until the Appellate Body is again fully functional. We intend for the arrangement to be officially communicated to the WTO in the coming weeks. “
In practice, the MPIA is a political agreement and must be individually invoked in each case between MPIA parties. When a case involving two MPIA parties arises at the WTO, the parties submit a joint notification to the WTO’s Dispute Settlement Body under Article 25 of the Dispute Settlement Understanding. This states their formal intention to use MPIA procedures to resolve the dispute should it reach the appellate stage, and outlines the procedures the parties intend to follow in this regard.
The following WTO members are parties to the MPIA:
| Australia | Colombia | Iceland | Nicaragua | Ukraine |
| Benin | Costa Rica | Japan | Norway | Uraguay |
| Brazil | Ecuador | Macao, China | Pakistan | |
| Canada | European Union | Mexico | Peru | |
| China | Guatemala | Montenegro | Singapore | |
| Chile | Hong Kong, China | New Zealand | Switzerland |
In the following disputes, the parties involved have either already indicated they will resolve any appeals through the MPIA or have the option of doing so because both are also parties to the MPIA.
Finalized MPIA Disputes
Ongoing Disputes
Finalized without MPIA Appeal, Withdrawn or Settled Disputes
Compiling this section would not have been possible without the support of Simon Lester and the International Economic Law and Policy Blog of WorldTradeLaw.net.
On 31 July 2020 the MPIA parties formally announced the initiative’s initial pool of 10 standing arbitrators:
- Mr Mateo Diego-Fernández ANDRADE
- Mr Thomas COTTIER
- Ms Locknie HSU
- Ms Valerie HUGHES
- Mr Alejandro JARA
- Mr José Alfredo Graça LIMA
- Ms Claudia OROZCO
- Mr Joost PAUWELYN
- Ms Penelope RIDINGS
- Mr Guohua YANG
The procedures for resolving a dispute using the MPIA are still evolving, but following the resolution of the first case there is now some clarity on the structure. The following set of steps are drawn from an article in IELP by MPIA Arbitrator Joost Pauwelyn. The key stages of the MPIA process as we understand them so far are as follows:
- A WTO Member decides to join the MPIA.This is generally done in writing by joining a communication issued in April 2020 and expressing a political commitment to enter into an appeal arbitration agreement in future disputes where both parties are MPIA pariticipants. As occurred in Turkey —Pharmaceutical Products, WTO Members (though not both MPIA participants) may also decide ad hoc, in one or more specific disputes, to enter into Article 25 appeal arbitration using all or part of the MPIA rules and/or pool of arbitrators.
- Upon establishment of a WTO Dispute Settlement Panel, the parties conclude an appeal arbitration agreement.When a dispute arises between two WTO Members that are both MPIA participants (say, between Colombia and the EU, or between Australia and China or Mexico and Brazil), the parties in the dispute must enter into a dispute-specific appeal arbitration agreement. Previously this would not have been necessary because as WTO Members, both sides are already obliged to use the Appellate Body to handle any appeals. However, with the Appellate Body out of action, something else is needed. Under the MPIA, members in each panel must formally submit a notification that should either of them wish to appeal the panel ruling, they will make use of Article 25 of the DSU to resolve it through the MPIA.
- If a party wants to appeal, it can request the suspension of panel proceedings before the panel report is circulated.Once the appeal arbitration agreement concluded, the panel proceeding runs its usual course, with two rounds of submissions and two hearings, an interim report and final report issued to the parties. Up to 10 days before the circulation of the final panel report to all WTO Members, either party can request the panel to suspend its proceedings which the panel must grant, as stipulated in the appeal arbitration agreement. Such suspension paves the way for a potential MPIA appeal. This effectively means that the panel’s ruling doesn’t apply until the MPIA process has had a chance to run its course.
- Either party can initiate an MPIA appeal with a notice of appeal.Once the panel suspends its proceedings at the request of a party, either party has 20 days to file a notice of appeal. This notice of appeal starts the 90-day clock for the MPIA award to be issued, includes the final panel report and is circulated to all WTO Members. Alongside its notice of appeal, the party must concurrently file its written appeal submission. The other party then has 5 days to submit a notice of other appeal which must also include its appeal submission.
- The appeal arbitration process takes place. The MPIA consists of a pool of 10 arbitrators, selected by consensus of all MPIA participants in July 2020. A panel of three is randomly selected from among the arbitrator pool of ten, and this becomes the panel that will arbitrate the dispute.By day 18 (counting from the day of the notice of appeal), appellee (or response) submissions must be filed. By day 21, third parties in the dispute (which may or may not be MPIA participants themselves) can file a third party submission. Between day 30 and day 45, oral hearings take place. By day 90 at the latest, the MPIA arbitrators must issue their award to the parties.
- The MPIA award is issued The MPIA appeal award includes the panel’s un-appealed findings and any decisions made by the arbitrators – it must be translated into the WTO’s three official languages.Pursuant to DSU Article 25, paragraph 3, arbitration awards must be notified to the DSB, where any Member may raise any point relating to the Award. There is no need for the DSB to formally adopt the award before it is binding on the parties. The binding effect of MPIA awards is triggered by DSU Article 25, paragraph 3, itself (“parties to the proceeding shall agree to abide by the arbitration award”) and is confirmed in the MPIA itself (“the parties agree to abide by the arbitration award, which shall be final”). DSU Article 25, paragraph 4, makes it clear that DSU Articles 21 and 22 on implementation and enforcement of WTO panel/Appellate Body rulings “shall apply mutatis mutandis to arbitration awards”. In this sense, an MPIA award is exactly like an adopted Panel or Appellate Body report.
-
METI - Japanese Cabinet Approves Participation in the MPIA On March 10, the Japanese Cabinet approved Japan’s participation in the Multi-Party Interim Appeal Arbitration Arrangement pursuant to Article 25 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. Japan will notify the WTO Dispute Settlement Body of its intent to join the MPIA.
-
MPIA - Press Release: EU wins in WTO appeal about Colombian anti-dumping duties on frozen fries Arbitrators in the first MPIA case have issued their ruling. In this press release, the European Commission says the 'Arbitrators have in substance ruled in favour of the EU.'
-
MPIA - Video of MPIA Proceedings in Belgium: Fries Case With the permission of the parties, a video recording of an MPIA proceeding in the Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands case is now available.
-
Borderlex - Arbitrators issue first post-Appellate Body report in Geneva Appeal arbitrators issued the first ruling that follows the demise of the Appellate Body in late 2019 at the World Trade Organization. The format and content of the award give an initial indication of what the future of WTO dispute settlement might be.
-
WTO - Arbitrators notify award in EU-Türkiye pharmaceuticals dispute There has been an outcome in the first WTO dispute to go to arbitration (though not the MPIA) after the panel stage, instead of the Appellate Body. On 25 July 2022, arbitrators circulated to WTO members their award in which they reviewed certain findings of the WTO dispute panel ruling in “Turkey — Certain Measures Concerning the Production, Importation and Marketing of Pharmaceutical Products” (DS583). The three arbitrators were appointed by the European Union and Türkiye in accordance with Article 25 of the WTO’s Dispute Settlement Understanding (DSU).
-
MPIA - Arbitration Appeal Requested (Request by Turkey in DS583 - Pharmaceuticals) Turkey informed WTO members on 28 April that it has initiated arbitration proceedings under Article 25 of the Dispute Settlement Understanding (DSU) to review the findings of a WTO dispute panel in “Turkey — Certain Measures concerning the Production, Importation and Marketing of Pharmaceutical Products” (DS583). In addition, Turkey and the European Union, the complainant in the dispute, agreed to make public the panel findings.
-
Agriculture.com - MPIA Avoided - Costa Rica Accepts WTO Decision in Avacado Trade Spat with Mexico Costa Rica's government said on Wednesday that it accepts the World Trade Organization's decision that largely sided with Mexico in a dispute with Costa Rica over import restrictions on Mexican avocados. This means it will not appeal and the MPIA will not need to hear this case.
-
Grinberg Codovil - Brazil to Apply Unilateral Retaliation in Trade Disputes The Brazilian government confirmed last week that it will publish a Provisional Measure, providing for the possibility of carrying out unilateral retaliation, once it has a favorable decision from the World Trade Organization (WTO) panel and an empty appeal is filed by the represented member country. This action follows the example of the European Union seen in February 2021.
-
China Macro Economy - China, Australia agree to move ahead with WTO wine-tariff dispute that has cost 100 million litres in sales China and Australia have agreed to a timetable in their dispute over the Chinese wine tariff, including a pre-agreement to use the MPIA (to which they are both a party) to resolve any appeals rather than have them go to the void.
-
IELP Blog - Tweaking the MPIA Procedures In their revised submissions on Article 25 procedures in Costa Rica - Avacados (DS524) and Colombia Frozen Fries (DS591) the parties changed the wording to provide MPIA arbitrators more time to digest panel reports by getting them in sooner.
-
WTO - Appellate Body issues annual report for 2019-2020 The Appellate Body issued on 31 July 2020 its Annual Report covering 2019 and the first half of 2020. The Report includes information about appeals filed by WTO members, the key findings of reports circulated, the composition of the Appellate Body, the participation of WTO members in appeals, procedural issues arising in appeals, and other activities undertaken by the Appellate Body and its Secretariat during this period.
-
EU Commission - Interim appeal arrangement for WTO disputes becomes effective Press release marking the EU and other WTO members formally notifying the ‘Multi-party interim appeal arbitration arrangement’ (MPIA) to the World Trade Organization (WTO). This notification marked the start of the application of the MPIA to disputes arising between the participating WTO members.
-
WTO - DG Azevêdo to launch intensive consultations on resolving Appellate Body impasse Director-General Roberto Azevêdo told a meeting of the full WTO membership on 9 December that he would launch more intensive, high-level consultations on how to resolve the longstanding impasse over the appointment of Appellate Body members. DG Azevêdo’s intervention came after WTO members were unable to reach consensus on a proposal to address concerns regarding the functioning of the Appellate Body.
-
WTO - General Council Chair appoints facilitator to address disagreement on Appellate Body General Council Chair Junichi Ihara of Japan has appointed Amb. David Walker of New Zealand to assist him in working with WTO members to resolve differences on the urgent matter of the functioning of the organization’s Appellate Body.
-
East Asia Forum: Japan’s joining MPIA an outside chance to boost momentum for WTO reform Author: Arata Kuno
This article explains the reasoning behind Japan's decision to join the MPIA and argues that the only way to interpret this decision is as a strong declaration of support for the rules-based trading system.
-
IELP Blog: The MPIA: What's New? (Part III) Author: Joost Pauwelyn
In this final post in the three part series, MPIA Arbitrator and law professor Joost Pauwelyn offers his views on some of the novelties that can be found in the first MPIA procedure.
-
IELP Blog: The MPIA: What's New? (Part II) Author: Joost Pauwelyn
In this second post, MPIA Arbitrator and law professor Joost Pauwelyn asks whether the MPIA worked, now that the first MPIA appeal was filed. He also offers a roadmap with the key steps of the MPIA process.
-
IELP Blog: The MPIA: What’s New? (Part I) Author: Joost Pauwelyn
In the first entry of this three part series, MPIA Arbitrator Prof. Joost Pauwelyn explains the MPIA in his own words - including its objective to preserve the system’s “binding character and two levels of adjudication.”
-
Akin Gump - WTO Issues First Award Under MPIA and Tackles Standard of Review in Anti-Dumping Disputes Author: Alan Yanovich
This analysis questions whether the decision by the MPIA arbitrators in the Colombia – Frozen Fries (DS591) case to express a view on the Article 17.6(ii) despite Colombia itself not questioning the panel's findings was necessary to reaching a finding on the case. It challenges the conventional wisdom that the arbitrator's decision will be welcomed by those critical of the WTO Appellate Body, and asks whether it could even be seen by some as interpretative activism.
-
McGill Journal of Dispute Resolution - Tracing the Powers of WTO MPIA Arbitrators Authors: Brian McGarry and Zargarnejad
This article explores what the text of the MPIA may tell us about the 'implied' versus 'inherent' powers of international law tribunals and concludes that further practice by the MPIA may refine public perceptions regarding the role of such tribunals.
-
IELP Blog - The Frozen Fries Appeal: Permissible Interpretations under AD Agreement Article 17.6(ii) Author: Simon Lester
A deep dive analysis on the interpretation used by the MPIA arbitrators in the Colombia - Frozen Fries appeal in assessing the claims by the parties regarding the meaning of the Anti-Dumping Agreement's Article 17.6(ii).
-
Legal Issues of Economic Integration - Turkey–Pharmaceuticals: The First WTO Arbitration for Appellate Review Author: Julia Ya Qin
This essay provides a critical review of the findings of the Panel and the Arbitrators on the substantive issues of Turkey-Pharmaceuticals, the first case where DSU Article 25 arbitration procedures (but not precisely the MPIA) were used to review a WTO panel decision, and considers the systemic significance of the case.
-
IELP Blog - The Turkey - Pharmaceutical Products Article 25 (Appellate Review) Award Author: Simon Lester
This post examines the award in the Turkey - Pharmaceuticals case and finds that at first blush, it looks nigh indistinguishable from what a functioning Appellate Body might have produced.
-
SRC - What the new Appeal-Arbitration System Might Mean for the Future of WTO Dispute Settlement Author: Dr. Jan Yves Remy
Even without the United States, the MPIA is a significant development. Just as the GATT – intended as a provisional arrangement – endured for half a century before the WTO was eventually created, the MPIA is likely to serve as a de facto appeal system until and unless another viable option is put on the table. In this SRC Trading Thoughts, the author provides some initial thoughts on the main elements of the MPIA and discuss concerns that non-participating Members, including CARICOM countries, may wish to consider carefully.
-
JoWT - Is the MPIA a Solution to the WTO Appellate Body Crisis? [Paywalled] Author: Olga Starshinova
This article analyses the legal basis of the MPIA and its negotiating history. It also addresses the differences between the appeal mechanisms provided for in the MPIA and the Dispute Settlement Understanding (DSU) and provides a conceptual discussion with regard to the legal nature of the MPIA. Finally, the article identifies the main advantages and drawbacks of MPIA. It should be taken into account that the effectiveness of the MPIA will only be assessed when any of the disputes submitted for consideration under the MPIA rules is resolved.
-
JIEL - Finding a Rule-based Solution to the Appellate Body Crisis: Looking Beyond the Multiparty Interim Appeal Arbitration Arrangement Author: Henry S. Gao
While recognizing the practical utility of this solution, this paper argues that the MPIA, due to its many defects, cannot provide a proper solution to the Appellate Body crisis.
-
Lowy - EU the new kingpin in global trade order Author: Kirsten Hopewell
The author argues that the MPIA is a key part of efforts to make global trade governance less dependent on American leadership and more resilient in the face of US attempts to undermine the rules-based multilateral trading system and that thus the EU is thus playing an important stabilising role in the trading system amid an ongoing US assault.
-
QiL - Procedural innovations in the MPIA: A way to strengthen the WTO dispute settlement mechanism? Author: Mariana De Andrade
This article starts from the concerns advanced made by the US regarding the functioning of the Appellate Body, and considers how some of the procedural innovations introduced by MPIA may serve to address these criticisms.
-
Federalismi - Saving the Right to Appeal at the WTO: The EU and the Multi-Party Interim Appeal Arbitration Arrangement Author: Dr Elisa Baroncini
This article analyses how the EU suggested, developed, and progressively gained support for its MPIA project within the WTO community, illustrating the main aspects of the temporary appeals arbitration arrangement and taking into account the objections the US started to raise against some aspects of the important interim procedure.
-
EU Law Live - Saving Appeals in WTO Dispute Settlement: The Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU Author: Dr. Holger Hestermeyer
In this piece the author explains the origins and intended functions of the MPIA and makes the case that while it's ultimate value will be determined by the number of cases it considers, the instrument has inherent value.
-
Trade Beta Blog - A bit of bother down at the WTO court Author: Peter Ungphakorn
A long and frequently updated read on the challenges facing the WTO Dispute Settlement system and the Appellate Body, including the establishment of the MPIA.