1 WTO (2010), Annual Report 2010, Geneva: WTO Secretariat Publication, 82 Google Scholar.

2 Notification of a Mutually Agreed Solution, European Communities – Regime for the Importation, Sale and Distribution of Bananas (DS16), (DS27), (DS105), (DS158), European Communities – Regime for the Importation of Bananas (DS361), (DS364), European Communities – The ACP–EC Partnership Agreement – Recourse to Arbitration pursuant to the Decision of 14 November 2001 (WT/L/616), European Communities – The ACP–EC Partnership Agreement – Second Recourse to Arbitration pursuant to the Decision of 14 November 2001 (WT/L/625); WT/DS27, WT/DS361, WT/DS364, WT/DS16, WT/DS105, WT/DS158, WT/L/616, and WT/L/625; 8 November 2012.

3 Joint Communication from the European Communities and the United States, European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/28, 30 September 2009. Joint Communication from the European Union and Canada, European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/DS48/26, 22 March 2011. As for the case European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC–Biotech), a MAS was reached with Canada (Notification of a Mutually Agreed Solution, WT/DS292/40, 17 July 2009) and Argentina (Notification of a Mutually Agreed Solution, WT/DS293/41, 23 March 2010). The dispute remains unresolved with the US (WT/DS291).

4 On MAS enforcement, see Alvarez-Jiménez, Alberto (2011), ‘Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration’, World Trade Review, 10(3): 343–373 Google Scholar. For a consultation-based focus of MAS, see Baroncini, Elisa (1999), ‘The WTO Dispute Settlement Understanding as a Promoter of Transparent, Rule-oriented, Mutually Agreed Solutions – A Study of the Value of DSU Consultations and Their Positive Conclusion’, in Mengozzi, Paolo (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trading System, Milano, pp. 153–303 Google Scholar. For a dispute-based approach, see Guglya, Leonila (2011), ‘The Interplay of International Dispute Resolution Mechanisms: The Softwood Lumber Controversy’, Journal of International Dispute Settlement, 2(1): 175–207 Google Scholar.

5 Menkel-Meadow, Carrie (1995), ‘Whose Dispute Is It Anyway?: A Philosophical and Democratic Defence of Settlement (in Some Cases)’, Georgetown Law Journal, 83: 2663–2696, at 2667Google Scholar. On the domestic side of the settlements debate, see also Fiss, Owen M. (1984), ‘Against Settlements’, Yale Law Journal, 93: 1073–1090 CrossRefGoogle Scholar and Luban, David (1995), ‘Settlements and the Erosion of the Public Realm’, Georgetown Law Journal, 83: 2619–2662 Google Scholar.

6 Jackson, John H. (1998), ‘Dispute Settlement and the WTO: Emerging Problems’, Journal of International Economic Law, 1(3): 329–351 Google Scholar, at 331 (emphasis added).

7 Marceau, Gabrielle (2009), ‘News from Geneva on RTAs and WTO-plus, WTO-more, and WTO-minus’, Proceedings of the Annual Meeting American Society of International Law, 103: 25–28 March 2009, 124–128Google Scholar.

8 Notification of Mutually Agreed Solution, United States – Reviews of Countervailing Duty on Softwood Lumber from Canada (US–Softwood Lumber), WT/DS311/2, 16 November 2006.

9 Joint Communication from Brazil and the United States, United States – Subsidies on Upland Cotton, WT/DS267/45, 31 August 2010.

10 Joint Communication from the United States and Japan, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/44, 8 February 2012. Joint Communication from the European Communities and the United States, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (‘Zeroing’), WT/DS294/43, and United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/20, 8 February 2012.

11 John H. Jackson (1998), ‘Dispute Settlement in the WTO: Policy and Jurisprudential Considerations’, School of Public Policy, University of Michigan, Discussion Paper, No. 419, at 2–3. See also Hudec, Robert E. (1980), ‘GATT Dispute Settlement after the Tokyo Round: An Unfinished Business’, Cornell International Law Journal, 13: 145–204, at 151–153Google Scholar.

12 Jackson, ‘Dispute Settlement in the WTO’, supra n. 6, at 15, 22.

13 See also Steinbach, Armin (2009), ‘The DSU Interim Review – Need for Its Elimination or Extension to the Appellate Body Stage’, Journal of International Economic Law, 12(2): 417–434 Google Scholar.

14 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador (EC–Bananas III (Article 21.5 – Ecuador)), WT/DS27/RW/ECU, adopted 6 May 1999, para. 7.102.

15 DSU Article 3.5: ‘All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.’ The same requirement of consistency is repeated in DSU Article 3.7.

16 DSU Article 3.6: ‘Mutually agreed solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.’

17 da Silveira, Miguel Burnier, Sennekamp, Andreas, and Zdouc, Werner (2010), ‘Die Bedeutung der konsensualen Elemente des WTO-Streitbeilegungsverfahrens in der Lösung internationaler Handelskonflikte’, in Universität Graz, Konfliktlösung im Konsens, Schiedsgerichtsbarkeit, Diversion, Mediation, Tagungsband zum 7 Google Scholar, Fakultätstag, Graz, 28–50, at 34. More cases are presumed to have been settled, in which no formal MAS notification occurred. See Kara M. Reynolds (2007), ‘Why Are So Many WTO Disputes Abandoned?’, American University Washington DC, Department of Economics Working Paper Series, No. 2007-05.

18 This number is the result of a careful review of the individual dispute settlement records available at www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. Multi-dispute settlements are counted as sum of the individually filed disputes involved. MAS not formally notified and not included in the records of individual disputes are not counted, even if their existence may be discerned based on minutes from DSB meetings. Hence, the number of actual (including not notified) MAS will thus be higher. Because of the methodology used this number may diverge from other counts, e.g. from that of Burnier da Silveira et al., Die Bedeutung der konsensualen Elemente, supra n. 17. MAS formally notified under Article 3.6 until September 2011 are also listed in the WTO Analytical Index under DSU Article 3.6 amounting to 66 MAS, see www.wto.org/english/res_e/booksp_e/analytic_index_e/dsu_01_e.htm#article3B5. This (in contrast to our count) does not include several MAS concluded at the implementation stage, e.g. the Communication from Japan and the United States, Japan – Measures Affecting Agricultural Products, WT/DS76/12, 30 August 2001.

19 Notification of Mutually Agreed Solution, United States – Reviews of Countervailing Duty on Softwood Lumber from Canada (US–Softwood Lumber), WT/DS311/2, 16 November 2006.

20 For examples, see Baroncini, ‘The WTO Dispute Settlement Understanding’, supra n. 4, at 252–254. Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 348.

21 For instance, Notification of Mutually Agreed Solution, Panama – Tariff Classification of Certain Milk Products, WT/DS329/2, 6 October 2005.

22 For instance, Notification of Mutually Agreed Solution, United States – Measures Affecting Textiles and Apparel Products (II), WT/DS151/10, 31 July 2000.

23 The Softwood Lumber dispute involved six WTO cases. See Notification of Mutually Agreed Solution, United States – Reviews of Countervailing Duty on Softwood Lumber from Canada, WT/DS311/2, 16 November 2006. For detailed discussion, see Guglya, Leonila (2011), ‘The Interplay of International Dispute Resolution Mechanisms: The Softwood Lumber Controversy’, Journal of International Dispute Settlement, 2(1): 175–207 CrossRefGoogle Scholar.

24 For instance, in the case India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (India–Quantitative Restrictions), the complainants by Australia (WT/DS91), Canada (WT/DS92), the EC (WT/DS96), New Zealand (WT/DS93), Switzerland (WT/DS94), and the US (WT/DS90) were settled in a MAS see Notification of Mutually Agreed Solution Addendum, India–Quantitative Restrictions, WT/DS90/2/Add.1, WT/DS91/2/Add.1, WT/DS92/2/Add.1, WT/DS93/2/Add.1, WT/DS94/2/Add.1, WT/DS96/2/Add.1, 14 January 1999. It is noteworthy that this happened although the consultation requests were slightly different. Switzerland, for instance, did not claim a violation of the Agreement on Agriculture.

25 For example, the European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC–Biotech) case involved three complainants: the US (WT/DS/291), Canada (WT/DS/292), and Argentina (WT/DS/291). While a MAS was reached with Canada (Notification of a Mutually Agreed Solution, WT/DS292/40, 17 July 2009) and Argentina (Notification of a Mutually Agreed Solution, WT/DS293/41, 23 March 2010), the dispute remains unresolved with the US.

26 Notification of Mutually Agreed Solution, US–Softwood Lumber, supra n. 8, at Annex 2A.

27 Joint Communication from Brazil and the United States, United States – Subsidies on Upland Cotton, WT/DS267/45, 31 August 2010.

28 Communication from Brazil, Colombia, Costa Rica, Ecuador, European Union, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and the Bolivarian Republic of Venezuela, Geneva Agreement on Bananas, WT/L/784, 15 December 2009.

29 For the purpose of this section, we use the term MAS to refer to amicable settlements of WTO disputes. For a more detailed appreciation of the definition of MAS and its relationship to other negotiated agreements such as MoUs, see section 5 below.

30 Exporters thus have an incentive to push their governments into an early settlement to resume normal trading. See Porges, Amelia (2003), ‘Settling WTO Disputes: What Do Litigation Models Tell Us?’, Ohio State Journal on Dispute Resolution, 19(1): 141–184, at 145Google Scholar.

31 Lindeque, Johan and McGuire, Steven (2007), ‘The United States and Trade Disputes in the World Trade Organization: Hegemony Constrained or Confirmed?’, Management International Review, 47(5): 725–744, at 729, 734–735Google Scholar.

32 Busch, Marc and Reinhardt, Eric (2000), ‘Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes’, Fordham International Law Journal, 24(1): 158–172 Google Scholar. Jackson, John H. (1997), The World Trading System: Law and Policy of International Economic Relations, 2nd edn, MIT Press, at 109–110 Google Scholar.

33 Shanker, Daya (2004), ‘Argentina–US Mutually Agreed Solution, Economic Crisis in Argentina and Failure of the WTO Dispute Settlement System’, Idea: Journal of Law and Technology, 44(4): 565–615, at 571Google Scholar.

34 Notification of Mutually Agreed Solution According to the Conditions Set Forth in the Agreement, Argentina–Certain Measures on the Protection of Patents and Test Data, WT/DS171/3, WT/DS196/4, 20 June 2002.

35 Shanker, ‘Argentina–US Mutually Agreed Solution’, supra n. 33, at 566.

36 Baroncini, ‘The WTO Dispute Settlement Understanding’, supra n. 4, at 260–275.

37 Petersmann, Ernst-Ulrich (2002), ‘Constitutionalism and WTO Law: From a State-centered Approach towards a Human Rights Approach in International Economic Law’, in Kennedy, and Southwick, (eds.) (2002), The Political Economy of International Trade Law: Essays in Honor of Robert Hudec, Cambridge: Cambridge University Press, pp. 32–67 Google Scholar. Also producers see their risk premium decrease and profit margins increase in a more stable and predictable world trading system, see Jackson, ‘Dispute Settlement and the WTO’, supra 6, at 17.

38 For instance, in the case Chile – Measures Affecting the Transit and Importation of Swordfish. ‘In addition, Chile and the European Union hereby notify the Dispute Settlement Body and the Council for Trade in Goods that they have unconditionally agreed that neither party shall further exercise any procedural right accruing to it under the DSU in case DS193 Chile–Measures Affecting the Transit and Importation of Swordfish.’ Chile – Measures Affecting the Transit and Importation of Swordfish – Joint Communication from the European Union and Chile – Addendum, WT/DS193/4, 3 June 2010.

39 European Communities – Measures Affecting the Approval and Marketing of Biotech Products Notification of a Mutually Agreed Solution (Canada), WT/DS292/40, 17 July 2009 and Notification of a Mutually Agreed Solution (Argentina), WT/DS293/41, 23 March 2010.

40 Notification of Mutually Agreed Solution, US – Anti-Dumping Measures on Cement from Mexico, WT/DS281/8, 21 May 2007.

41 Luban, ‘Settlements and the Erosion of the Public Realm’, supra n. 5, at 2626, 2652–2653.

42 Notification of Mutually Agreed Solution, Japan – Import Quotas on Dried Laver and Seasoned Laver, WT/DS323/5, 27 January 2006.

43 Nakagawa, Junji (2007), ‘No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia’, Journal of International Economic Law, 10(4): 837–867, at 856–858Google Scholar.

44 Goldstein, Judith and Martin, Lisa L. (2000), ‘Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note’, International Organization, 54(3): 603–632, at 604–605CrossRefGoogle Scholar.

45 Jackson, The World Trading System, supra n. 32, at 109–111.

46 GATT Article XXIII:2.

47 Pauwelyn, Joost (2005), ‘The Transformation of World Trade’, Michigan Law Review, 104(1): 1–65, at 14Google Scholar.

48 Ibid., at 20.

49 Understanding regarding Notification, Consultation, Dispute Settlement and Surveillance, L/4907, 28 November 1979.

50 Ibid., Article 18, and Annex Articles 3, 4, and 6.

51 Ibid., Annex Article 4.

52 The reference is found in so called ‘Dunkel Draft’ in Article 1.7 of the DSU Draft text: ‘A solution mutually acceptable to the parties to a dispute and consistent with the General Agreement is clearly to be preferred’ (emphasis added), Uruguay Round – Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, MTN.TNC/W/FA, 20 December 1991, S.2.

53 Hudec, Robert E. (1980), ‘GATT Dispute Settlement after the Tokyo Round: An Unfinished Business’, Cornell International Law Journal, 13: 145–204 Google Scholar, at 186.

54 Ibid., at 186–187.

55 Ibid., at 159–163.

56 Ibid., at 159.

57 Ibid., at 177, 185–188.

58 Improvements to the GATT Dispute Settlement Rules and Procedures, L/6489, 12 April 1989. For more information on dispute settlement negotiations in the Uruguay Round, see Castel, J. G. (1989), ‘The Uruguay Round and the Improvements to the GATT Dispute Settlement Rules and Procedures’, International and Comparative Law Quarterly, 38(4): 834–849 Google Scholar.

59 Improvements, supra n. 58, Article A.3.

60 Article A.2 requires conformity of ‘all solutions to matters formally raised under the GATT dispute settlement system’ with GATT disciplines and further mandates that these solutions ‘shall not nullify or impair benefits accruing to any contracting party under the General Agreement, nor impede the attainment of any objective of the General Agreement’. Article B.1 stipulates that MAS have to ‘be notified to the Council where any contracting party may raise any point relating thereto’.

61 This approach was chosen for the WTO Analytical Index which lists only MAS notified pursuant to DSU Article 3.6, see www.wto.org/english/res_e/booksp_e/analytic_index_e/dsu_01_e.htm#article3B5.

62 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador (EC–Bananas III (Article 21.5 – Ecuador II)), WT/DS27/AB/RW2/ECU, 11 December 2008, para. 222.

63 Hudec, Robert E. (1993), Enforcing International Trade Law: The Evolution of the Modern GATT Legal System, Salem, NH: Butterworth Legal Publishers, p. 276 Google Scholar.

64 Amelia Porges, ‘Settling WTO Disputes’, n. 30, at 146. See also Appellate Body Report, EC–Bananas III (Article 21.5 – Ecuador II), supra n. 62, para. 212. However, some panels or the Appellate Body may examine possible compliance paths by ways of an obiter dictum.

65 Of course, if no solution can be found, parties can resort to implementation proceedings under DSU Article 21.5 and/or arbitration under DSU Article 25.

66 Request for Consultations under Article XXIII.1 of the GATT 1994 by Singapore, Malaysia – Prohibition of Imports of Polyethylene and Polypropylene, WT/DS1/1, 13 January 1995.

67 Communication from Malaysia, Malaysia – Prohibition of Imports of Polyethylene and Polypropylene, WT/DS1/3, 31 March 1995.

68 Minutes of the DSB Meeting on 19 July 1995, WT/DSB/M/6.

69 Panel Report, Mexico – Measures Affecting Telecommunications Services, WT/DS204/R, 1 June 2004.

70 Notification of an Agreement, Mexico – Measures Affecting Telecommunications Services, WT/DS204/7, 2 June 2004.

71 Minutes of the DSB Meeting on 31 August 2005, held in the Centre William Rappard, WT/DSB/M/196.

72 Although following the distinction made under section 5.2, the Mexico–Telecom agreement may be more accurately described as interim-settlement.

73 Notification of Mutually Agreed Solution, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/58, 2 July 2001.

74 Understanding on Bananas between Ecuador and the EC, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/60, 9 July 2001, 1. It reads: ‘it must be clear that the provisions of Article 3.6 of the DSU are not applicable in this case’.

75 Panel Report, EC–Bananas III (Article 21.5 – Ecuador), supra n. 14, para. 7.107.

76 Appellate Body Report, EC–Bananas III (Article 21.5 – Ecuador II)), supra n. 62, para. 219.

77 Ibid., para. 214.

78 See also ibid., paras. 217–220. To clarify, also MAS understood as final settlements may require future implementation action, e.g. by complying with an agreed yearly reduction of tariffs. This alone does not make it an interim-settlement. What counts is whether the parties' intention, objectively manifested in the agreement, suggests a final settlement agreement (MAS) or merely the roadmap towards such an agreement (interim-settlement).

79 Notification of a Mutually Agreed Solution, Japan – Measures concerning Sound Recordings, WT/DS42/4, 17 November 1997.

80 Notification of Mutually Agreed Solution According to the Conditions Set Forth in the Agreement, Argentina – Patent Protection for Pharmaceuticals and Test Data Protection for Agricultural Chemicals, WT/DS171/3, and Argentina – Certain Measures on the Protection of Patents and Test Data, WT/DS196/4, 20 June 2002.

81 Another reason why members conclude MoUs may be the inherent informality associated with these instruments. In the context of general international law, Aust submits that states conclude MoU as mere ‘diplomatic assurances’ which, unlike international treaties, do not create legally binding rights and obligations. See Aust, Anthony (2007), Modern Treaty Law and Practice, 2nd edn. Cambridge University Press Google Scholar. In the WTO context, this argument has less weight, as MAS are not per se legally enforceable (see section 6). The only major substantive difference between MoUs and MAS is the former's explicit interim-settlement nature.

82 One instance in which a MoU was followed by a MAS is the case Joint Communication from China and the United States, China – Value-Added Tax on Integrated Circuits, WT/DS309/7, 16 July 2004 and Notification of Mutually Agreed Solution, WT/DS309/8, 6 October 2005.

83 Communication from Brazil, Colombia, Costa Rica, Ecuador, European Union, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and the Bolivarian Republic of Venezuela, Geneva Agreement on Bananas, WT/L/784, 15 December 2009.

84 Notification of Mutually Agreed Solution, EC–Bananas, supra n. 2.

85 Matsushita, Mitsuo, Schoenbaum, Thomas J., and Mavroidis, Petros (2006), The World Trade Organization: Law, Practice and Policy, New York: Oxford University Press, pp. 84–85 Google Scholar. The Panel in India–Autos dealt with the question of a possible application of the principle in WTO law. While it found that its conditions had not been met in the specific case, the Panel was sympathetic to the possible existence of a res judicata effect in WTO law. However, it refrained from explicitly deciding this systemic issue. See Panel Report, India – Measures Affecting the Automotive Sector (India–Autos), WT/DS146/R, WT/DS175/R, 21 December 2001, paras. 7.54–7.103.

86 Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 348.

87 Notification of Mutually Agreed Solution, India–Quantitative Restrictions, supra n. 24.

88 Panel Report, India–Autos, supra n. 85, para. 7.113.

89 Ibid., para. 7.115: ‘Without clear guidance in the DSU, this question raises an important systemic issue. On the one hand, the Panel recognizes that the right for any WTO Member to bring a dispute to the DSB is one of the fundamental tenets of the DSU, and that it could not be lightly assumed in what particular circumstances the drafters of the DSU might have intended such right to be foregone. On the other hand, it may also be the case that it could not be lightly assumed that those drafters intended mutually agreed solutions, expressly promoted by the DSU, to have no meaningful legal effect in subsequent proceedings.’

90 Ibid., paras. 7.115–7.132.

91 Ibid., para. 7.134.

92 Panel Report, EC–Bananas III (Article 21.5 – Ecuador), supra n. 14, para. 7.59.

93 Ibid., para. 7.75.

94 Ibid., para. 7.91.

95 Appellate Body Report, EC–Bananas III (Article 21.5 – Ecuador II), supra 62, para. 212.

96 Burnier da Silveira et al., ‘Die Bedeutung der konsensualen Elemente’, supra n. 17, at 49.

97 Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 353–357.

98 Ibid., at 360–362. Also other authors have suggested that MAS could be applicable law before a WTO Panel, see Bartel, Laurent (2001), ‘Applicable Law in WTO Dispute Settlement Proceedings’, Journal of World Trade, 35(4): 499–519 CrossRefGoogle Scholar.

99 Shoyer, Andrew W. (1998), ‘The First Three Years of WTO Dispute Settlement: Observations and Suggestions’, Journal of International Economic Law, 1(2): 277–302, at 289Google Scholar.

100 DSU Article 3.6: ‘Mutually agreed solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.’

101 To demonstrate a ‘substantial trade interests’, it is generally enough to claim ‘systemic interests’ in the dispute. The defendant may object the inclusion, in which case the third party may issue its own consultation request. See Busch and Reinhardt, ‘Bargaining in the Shadow of the Law’, supra n. 32, 76.

102 Ibid.

103 Baroncini, ‘The WTO Dispute Settlement Understanding’, supra n. 4, 243.

104 Panel Report, EC–Bananas III (Article 21.5 – Ecuador), supra n. 14, para. 7.105.

105 Request for Consultations by Hungary – Addendum, Croatia – Measure Affecting Imports of Live Animals and Meat Products (WT/DS297/2), 2 February 2009.

106 Baroncini (1999), The WTO Dispute Settlement Understanding’, supra n. 4, at 259. In particular, this precludes third members from monitoring the consistency of settlements.

107 Background Note by the Secretariat, Notification of Mutually Agreed Solutions under Article 3.6 of the Dispute Settlement Understanding, WT/DSB/W/35, 7 August 1996.

108 Busch and Reinhardt, ‘Bargaining in the Shadow of the Law’, supra 32.

109 In that vein, Baroncini argues that MAS deserve as much attention as panel or Appellate Body reports. See Baroncini, ‘The WTO Dispute Settlement Understanding’, supra n. 4, at 244.

110 For greater details and examples, see ibid., at 261–263.

111 It must be stressed that the success of such a request may nevertheless be closely linked to the notification of a MAS. Under the DSU, the burden of proof is on the complainant to show a breach of the covered agreements, which is then presumed to constitute a prima facie case of nullification or impairment pursuant to DSU Article 3.8. Hence, the complaining member has to gather enough evidence to mount such a prima facie case, which may be more difficult if the notification is incomplete or not detailed enough.

112 Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 347–348.

113 Shanker, ‘Argentina–US Mutually Agreed Solution’, supra n. 33, at 568.

114 Background Note by the Secretariat, supra n. 107.

115 DSU Article 3.5: ‘All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.’ The same requirement of consistency is repeated in DSU Article 3.7.

116 Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 352 suggests that a partial inconsistency of a MAS may not led to its invalidity. However, the text of DSU Article 3.5 makes clear that only WTO compliant outcomes can constitute a ‘solution’. Allowing partially inconsistent MAS because they may contain ‘other clauses … effective to resolve the dispute’ would disregard the effet utile of the provision that aims to protect collective interests in settlements by expressly limiting the contractual freedom of the disputants. This reading also finds support in the general WTO practice of leaving it to members, and not to panels or the Appellate Body, to decide on how to bring a WTO-inconsistent legal instrument back into WTO conformity. MAS contracting parties are perfectly free to adjust the terms of their agreement to benefit from DSU Articles 3.5 and 3.7.

117 Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009 (emphasis added).

118 Ibid., para. 223.

119 Panel Report, EC–Bananas III (Article 21.5 – Ecuador), supra n. 14, para. 7.106.

120 Waivers are recognized as unilateral acts that can bind states internationally, see Skubiszewski, Krzysztof (1991), ‘Unilateral Acts of State’, in Bedjaoui, Mohammed (ed.), International Law Achievements and Prospects, Paris: UNESCO, pp. 221–240 Google Scholar.

121 Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, 13 July 1998, para. 98.

122 Appellate Body Report, EC–Bananas III (Article 21.5 – Ecuador II), supra n. 62, para. 212.

123 Ibid.

124 Ibid.

125 Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 6 March 2006.

126 DSU Article 3.10 limits the use of counter claims. The term is used here to describe parallel proceedings in which two WTO members challenge each other on similar grounds.

127 Brazil – Measures Affecting Patent Protection, WT/DS199.

128 United States – Patent Code, WT/DS244.

129 Tellez, Viviana Muños (2010), ‘Dispute Settlement under the TRIPS Agreement: The United States–Brazil (2000) and United States–Argentina (2002) Patent Disputes’, in Correa, Carlos M. (ed.), Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules, Cheltenham: Edward Elgar Publishing, pp. 215–236 Google Scholar, at 223.

130 Notification of Mutually Agreed Solution, Brazil – Measures Affecting Patent Protection, WT/DS199/4, 19 July 2001.

131 Other WTO members outside the MAS remain of course free to bring a claim.

132 Panel Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321, 31 March 2008, para 7.49.

133 See also Alvarez-Jiménez, ‘Mutually Agreed Solutions’, supra n. 4, at 349–350.

134 The VCLT permits such modification provided that the multilateral treaty allows it or, alternatively, that it does not explicitly prohibit it and that two supplementary conditions are met: the modification ‘(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations and (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.’

135 Pauwelyn, Joost (2003), ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?’, European Journal of International Law, 14(5): 907–951, at 908Google Scholar.

136 Ibid., at 914.

137 Ibid., at 928–936.

138 Carmody, Chios (2006), ‘WTO Obligations as Collective’, European Journal of International Law, 17(2): 419–443 Google Scholar, at 421.

139 Pauwelyn, ‘A Typology of Multilateral Treaty Obligations’, supra n. 135, at 915.

140 WTO Ministerial Conference, The Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes, available at: www.wto.org/english/docs_e/legal_e/53-ddsu.pdf.

141 Doha Ministerial Declaration, 20 November 2001, WT/MIN(01)/DEC/1, para. 30.

142 Communication from India on behalf of Cuba, Dominican Republic, Honduras, Jamaica, and Malaysia, Dispute Settlement Body – Special Session – Dispute Settlement Understanding Proposals: Legal Text, TN/DS/W/47, 11 February 2003. Proposal by Japan, Dispute Settlement Body – Special Session – Amendment of the Understanding on Rules and Procedures Governing the Settlement of Disputes, TN/DS/W/32, 22 January 2003. Proposal by Japan, Dispute Settlement Body – Special Session – Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding, TN/DS/W/22, 28 October 2002. Proposals on DSU by Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania, and Zimbabwe, Dispute Settlement Body – Special Session – Negotiations on the Dispute Settlement Understanding, TN/DS/W/18, 7 October 2002.

143 Report by the Chairman, Ambassador Péter Balás, to the Trade Negotiations Committee, Dispute Settlement Body – Special Session, TN/DS/9, 6 June 2003.

144 Report by the Chairman, Ambassador Ronald Saborío Soto, to the Trade Negotiations Committee, Dispute Settlement Body – Special session, TN/DS/25, 21 April 2011. The new Article 3.6 reads:

145 Communication from the European Communities, Dispute Settlement Body – Special Session – Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement, TN/DS/W/1, 13 March 2002.

146 Ibid., 7, 8.

147 Report by the Chairman, Ambassador Ronald Saborío Soto, supra n. 144, paras. 104–107.

148 Petersmann, Ernst-Ulrich (2002), ‘Additional Negotiation Proposals on Improvements and Clarifications of the DSU, in Petersmann, Ernst-Ulrich (ed.), Preparing the Doha Development Round: Improvements and Clarifications of the WTO Dispute Settlement Understanding, Florence: EUI/RSC, pp. 125–139, at 131Google Scholar. Pauwelyn, Joost (2003), ‘The Limits of Litigation: Americanization and Negotiation in the Settlement of WTO’, Ohio State Journal on Dispute Resolution, 19(1): 121–140, at 134Google Scholar. Shoyer, ‘The First Three Years of WTO Dispute Settlement’, supra n. 99, at 287–290.

149 See also Pauwelyn, ‘The Limits of Litigation’, supra n. 148, at 134.

150 A possible DSU Article 3.6bis could read: