Multi-Party Interim Appeal Arbitration Arrangement (MPIA)
Members: 53/164
Open Initiative
Status: Operational

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.

 

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About this Plurilateral
The Non-Functioning WTO Appellate Body

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:

About the MPIA

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.

Parties to the MPIA

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  
MPIA Cases

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

DS591: Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands
DS583 Turkey — Certain Measures concerning the Production, Importation and Marketing of Pharmaceutical Products
Note: Though this dispute was not between two MPIA parties (Turkey is not an MPIA participant), the disputing parties did enter into an appeal-arbitration agreement under DSU Article 25 that respects the principles of the MPIA, and two of the three arbitrators that heard this appeal arbitration were drawn from the MPIA pool of Arbitrators. 

Ongoing Disputes

DS601: China — Anti-Dumping Measures on Stainless Steel Products from Japan
DS589: China — Measures Concerning the Importation of Canola Seed from Canada
DS598: China — Anti-dumping and countervailing duty measures on barley from Australia
DS602: China — Anti-Dumping and Countervailing Duty Measures on Wine from Australia
DS603: Australia — Anti-Dumping and Countervailing Duty Measures on Certain Products from China
DS607: European Union — Measures Concerning the Importation of Certain Poultry Meat Preparations from Brazil
  • Link to Case: WTO Website
  • Complainant: Brazil
  • Respondent: European Union
  • Status: Formal consultations commenced on 8 November 2021
  • MPIA: No Article 25 Notification yet as no panel established but complainant and respondent are MPIA parties
DS610 China — Alleged Chinese restrictions on the import and export of goods, and the supply of services, to and from Lithuania
DS611 China — Enforcement of intellectual property rights

Finalized without MPIA Appeal, Withdrawn or Settled Disputes

DS522: Canada — Measures Concerning Trade in Commercial Aircraft
DS524: Costa Rica — Measures Concerning the Importation of Fresh Avocados from Mexico
DS537: Canada — Measures Governing the Sale of Wine

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.

MPIA Arbitrators

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
MPIA Procedure

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.  
  6. 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.
How MPIA Disputes Work in Practice
The full procedures for MPIA arbitrators and parties in considering a dispute are still evolving, but we now have video of an MPIA Arbitration Proeeding in the Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands dispute:

News
  • IISD - Reforming the World Trade Organization Author: Alice Tipping

    Written ahead of the 13th WTO Ministerial Conference, this analysis explores the WTO reform topics likely to be on the table and how the members may approach these. This includes reforming the WTO dispute settlement system, for which the MPIA is an interim fix.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

Analysis and Articles
  • 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.

  • 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.

  • 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.