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 Multiparty 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.
By notifying the Dispute Settlement Body any WTO member can join the MPIA and the system is likely to remain in place for as long as the Appellate Body is not functioning.
In a final step operationalise MPIA, in July 2020 ten arbitrators were appointed to hear the appeals of WTO panel reports under the MPIA.
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. 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 aribrate 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 aribration 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; Benin; Brazil; Canada; China; Chile; Colombia; Costa Rica; Ecuador; European Union; Guatemala; Hong Kong, China; Iceland; Macao, China; Mexico; Montenegro; New Zealand; Nicaragua; Norway; Pakistan; Peru; Singapore; Switzerland; Ukraine and Uruguay.
In the following disputes, the parties involved have either submitted Article 25 notifications indicating their commitment to using the MPIA to resolve their dispute should either party decide to appeal the relevant WTO panel’s ruling, or are likely to do so at the panel stage because they are both parties to the MPIA.
Ongoing Disputes
DS583 Turkey – Certain Measures concerning the Production, Importation and Marketing of Pharmaceutical Products
Note: 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.
- Complainent: European Union
- Respondent: Turkey
- Status: Award circulated by the arbitrators on 25 July 2022
- MPIA: Not MPIA but Aritcle 25 Notification Request for Arbitration under Article 25
- Award: Award of the Arbitrators (Full) | Summary of Award Key Findings
DS589: China — Measures Concerning the Importation of Canola Seed from Canada
- Complainent: Canada
- Respondent: China
- Status: WTO Panel composed on 10 November 2021
- MPIA: Article 25 Notification
DS591: Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands
- Complainent: Colombia
- Respondent: The European Union
- Status: WTO Panel composed on 24 August 2020
- MPIA: Article 25 Notification (Revised)
DS598: China — Anti-dumping and countervailing duty measures on barley from Australia
- Complainent: Australia
- Respondent: China
- Status: WTO Panel composed on 3 September 2021
- MPIA: Article 25 Notification
DS602: China — Anti-Dumping and Countervailing Duty Measures on Wine from Australia
- Complainent: Australia
- Respondent: China
- Status: Panel composed on 4 March 2022
- MPIA: Article 25 Notification
DS603: Australia — Anti-Dumping and Countervailing Duty Measures on Certain Products from China
- Complainent: China
- Respondent: Australia
- Status: Panel established, but not yet composed on 28 February 2022
- MPIA: No Article 25 Notification has yet but complainent and respondent are MPIA parties
DS607: European Union — Measures Concerning the Importation of Certain Poultry Meat Preparations from Brazil
- Complainent: Brazil
- Respondent: European Union
- Status: Formal consultations commenced on 8 November 2021
- MPIA: No Article 25 Notification yet as no panel established but complainent 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
- Complainent: European Union
- Respondent: China
- Status: Request for Consultations on 27 January 2022
- MPIA: No Article 25 Notification yet as no panel established but complainent and respondent are MPIA parties
DS611 China — Enforcement of intellectual property rights
- Complainent: European Union
- Respondent: China
- Status: Request for Consultations on 18 February 2022
- MPIA: No Article 25 Notification yet as no panel established but complainent and respondent are MPIA parties
Completed Disputes
[Withdrawn] DS522: Canada — Measures Concerning Trade in Commercial Aircraft
- Complainent: Brazil
- Respondent: Canada
- Status: Withdrawn by complainent on 18 February 2021
- MPIA: Article 25 Notification
[Finalized] DS524: Costa Rica — Measures Concerning the Importation of Fresh Avocados from Mexico
- Complainent: Mexico
- Respondent: Costa Rica
- Status: Panel Has Ruled – Parties Accenpt Decision – 13 April 2022
- MPIA: Article 25 Notification (Revised)
[Settled] DS537: Canada — Measures Governing the Sale of Wine
- Complainent: Australia
- Respondent: Canada
- Status: Settled on 12 May 2021
- MPIA: Article 25 Notification
Note: 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
-
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.
-
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.