Proposals, Practices, and Interpretations: Examining the WTO’s Sequencing Dilemma

Abstract

The Sequencing issue between Articles 21 and 22 of the Dispute Settlement Understanding (“DSU”) arises from a drafting gap that creates ambiguity regarding the order of compliance and retaliation proceedings. Specifically, the issue pertains to whether compliance with WTO rulings under Article 21.5 must be determined before initiating retaliation measures under Article 22.6 of the DSU. The recent commitment to reform the DSU, prompted by the Appellate Body crisis, presents a timely opportunity to address longstanding issues and advance meaningful resolution. While member states have proposed various solutions, no single proposal has resolved the issue comprehensively. To mitigate the uncertainty and rising legal costs of dispute settlement, states have increasingly relied on sequencing agreements, i.e., contractual arrangements between disputing parties to coordinate the processes. A thorough analysis of these proposals offers a comprehensive checklist for tackling the problem. However, this approach is a matter of convenience and individual choice, rather than a permanent solution. This paper thus attempts to address the issue at its fundamental level, analyzing the language of both Articles 21 and 22 using interpretative tools of Public International Law. Ultimately, a framework of authoritative interpretation is suggested to bring clarity, avoiding the need for extensive amendments.