[WTO Case Review Series No.40] Turkey – Pharmaceutical Products (EU) (DS583): The first use of the DSU Article 25 appeal arbitration mechanism in the context of the dysfunction of the WTO Appellate Body (Japanese)

This case is the first case in which the DSU Article 25 arbitration was used as an ad hoc alternative appeal mechanism against the backdrop of the dysfunction of the WTO Appellate Body since the end of 2019. This arbitration procedure is very similar to the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), which is expected to be utilized soon, and in that sense, it may serve as a touchstone for the future operation of the MPIA. The question is whether this appeal arbitration mechanism is a mere replication of the Appellate Body procedure or a new appeal mechanism that fixes the problems of the Appellate Body. As far as this case is concerned, its arbitral award appears to be generally restrained, and one gets the impression that this appeal mechanism is not a mere replication of the Appellate Body procedure. Nevertheless, it is too early to predict the course of the alternative appeal arbitration mechanism from this award alone, and since, in such a new dispute settlement mechanism, early practices will largely determine the working paradigm and legal culture to be followed thereafter, the future of the appeal arbitration mechanism under the DSU Article 25 will depend on how faithfully arbitrators and parties to a dispute use that mechanism in initial cases.