Spyridoula Katsoni *

Abstract: The amicable settlement of disputes has made its presence in the construction of the World Trade Organization (hereinafter “WTO”) dispute settlement system clear and is undoubtedly the preference of both the covered agreements and the Contracting Parties thereto. However, despite their significant contribution during the current Appellate Body crisis, there are few who raise concerns about the dangers that Mutually Agreed Solutions (“MAS”) pose to the proper function of the WTO dispute settlement system. The present paper initially illustrates the evolutionary course of friendly settlements within the WTO, highlighting their gradual legalization. Subsequently, after drawing the line between MAS and similar agreements, it sets out DSU’s requirements regarding the content of MAS and their notification, and discusses their legal status and binding effect. Furthermore, it addresses the question of whether MAS are a legitimate means of disputes’ settlement. To this end, it analyses the main points of criticism against MAS, as the latter have been raised by academics throughout the years. Precisely, the key-issues of the potential oppression of financially weaker States through MAS and of the enforcement of MAS are addressed, as is the issue of whether the WTO legal framework can be interpreted as permitting the verification of the compatibility of MAS with the covered agreements prior to their entry into force by an objective intra-WTO forum. Eventually, such an alternative interpretation of the DSU is presented and the conclusion that MAS constitute not only an effective, but also a legitimate means of dispute settlement within the WTO is deduced.
Keywords: amicable settlements, Mutually Agreed Solutions, dispute resolution, assurance of legal certainty, Dispute Settlement Understanding
1. INTRODUCTION
From its very first reading, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)  1  makes its favorable attitude towards the amicable settlement of disputes clear. According to DSU Article 3.7, a friendly settlement is the outcome “clearly to be preferred”. Thus, it becomes apparent right from the outset that the DSU provides for a hierarchy; a commonly accepted resolution of the dispute is to be preferred to its judicial resolution.  2  Only in cases of ineffective negotiations, may the dispute at stake be brought before a WTO dispute settlement panel.   3
In line with the aforementioned, a high percentage of disputing parties has opted for a friendly settlement of the dispute arisen; half of about 500 cases, which were brought before the WTO dispute settlement system during the last twenty years, were amicably settled by the parties.  4  Some of the most well-known and complex cases are included among them.  5
Against this background and under the light of the Appellate Body’s crisis,  6  which has left many appeals pending and several disputants, who want to appeal against panels’ decisions, numb, the – previously ignored issue of – friendly settlements has been brought in the front light of discussions on the reform of the WTO and on the available alternatives during the dark period of this crisis.  7
This will seem quite rational, if one considers that friendly settlements provide a faster and cheaper solution of disputes  8  and a “swift and tailored solution” for the disputing parties,  9  who are free to conclude Mutually Agreed Solutions (“MAS”) entailing win-win provisions and terms, which are appealing to all formerly disputing sides. In this sense, MAS do constitute an effective means of dispute settlement. What remains to be seen is whether MAS are also a legitimate means of dispute settlement. It is this very question that the present article purports to explore.
Precisely, the present article aims to answer the question of whether MAS, as a means of dispute settlement, are capable of overcoming the hurdle posed to dispute settlement by the Appellate Body crisis and of providing the parties with an enforceable solution, compatible with the legal framework of the WTO. To this end, the paper will initially provide a brief overview of the progressive evolution of the amicable settlement of  trade disputes since the 1947 General Agreement on Tariffs and Trade (GATT 1947),  10  as well as an analysis of the provisions regulating the conclusion of MAS and of the key elements, which distinguish MAS from other agreements within the framework of the WTO dispute settlement system. Subsequently, a presentation and an assessment of the validity of the main points of criticism imposed on MAS will take place. Specifically, the key-issues of the potential oppression of financially weaker States through MAS and of the enforcement of MAS will be addressed, as will the issue of whether the WTO legal framework, as it stands, can be interpreted as permitting verification of the compatibility of MAS with the covered agreements prior to their entry into force by an objective intra-WTO forum. Eventually, a conclusion as to whether MAS, as regulated by the current legal framework, are indeed an efficient means of dispute settlement will be deduced. 
2. AMICABLE SETTLEMENTS AND MAS IN THE WTO
This Section will discuss the amicable settlements and MAS in the WTO in general and the function of MAS within the WTO dispute settlement system in particular. To this end, it will initially highlight the gradual legalization of friendly settlements within the WTO and it will address the issue of MAS’ definition. Subsequently, it will analyze the DSU’s requirements regarding the content of MAS and their notification and, finally, it will explore their legal status and binding effect.
2.1 The Evolution of Amicable Settlements in the WTO
The WTO dispute settlement system has only gradually settled to the way it is known today. This shall seem quite expected, if one considers, that from the entry into force of the GATT 1947 to the formation of the WTO in 1995 the world trading system underwent a gradual “legalization”,  11  turning from a “power-oriented” to a “rule-oriented” diplomacy.  12  Such a shift could not have left amicable settlements unaffected.
The dispute settlement procedure was initially regulated by Articles XXII and XXIII of the GATT 1947. According to the latter, if the parties’ negotiations, aiming at a satisfactory solution for both disputing sides, did not meet the said desirable objective, the dispute would be referred to all Contracting Parties as a subject matter of negotiations for the sake of mutual concessions’ balance. The mechanism envisaged in the GATT 1947 was – according to the provisions of Article XXIII and contrary to the current provisions on the matter – a process based on diplomacy.  13
Things changed radically during the Tokyo Negotiation Round, when the WTO members adopted the 1979 Understanding regarding Notification, Consultation, Dispute Settlement and Surveillance,  14  which codified the customary GATT dispute settlement practice and added certain new elements and clarifications. The shift of the system’s approach from a purely diplomatic procedure to a legalized, rule-oriented means of disputes’ settlement by a competent body became a reality. However, even though the 1979 Understanding named itself a codification work of customary practice, many noted the “artistic reconstruction of the GATT history” 15   effected through this pact and the indirect emergence of the friendly settlement of disputes as a primary purpose through its provisions.  16
 Against this background, particular emphasis was placed on the resolution of disputes through MAS, as the parties to the GATT expressed vivid concerns about the so-called “wrong cases” that could end up being brought before WTO panels seeking resolution.  17  Precisely, their concerns focused primarily on the sensitive political or economic interests that certain cases comprised, on the inefficiency of their putative arbitral resolution and on the efficiency of the amicable settlement of such disputes through MAS. Specifically, some WTO members urged that such cases should not be subject to resolution by WTO panels, as they feared that some parties would get away with neglecting to comply with panels’ rulings. Such an event would ultimately lead to the undermining of the system’s validity and functionality.   18
For the effective appeasement of such worries, emphasis was placed on the conclusion of MAS even after the initiation of proceedings and, thus, pursuant to a more extensive negotiation between the parties. Particular emphasis was also placed on the adoption of a more active mediatory role of the panels to this end.  19  Moreover, Article 19 of the 1979 Understanding introduced a further step towards transparency, as it allowed third – non disputant – WTO members to request and receive information on an amicable agreement concluded between other members before a WTO panel, provided that this agreement was related to trade matters. However, this possibility was greatly limited, not only due to the restriction as to the subject matter of these agreements, but also due to the fact that Article 19 did not cover bilateral agreements reached at the negotiations’ stage.
 In 1989, significant progress regarding the protection of the collective interest of the Contracting Parties to the GATT was provided by the 1989 GATT decision on “Improvements to the GATT Dispute Settlement Rules and Procedures” 20  , which included provisions underlining the necessity of MAS’ conformity with GATT, as well as MAS’ mandatory notification. Such provisions were later incorporated in DSU Articles 3.5 and 7 with minor adjustments.  21  Thus, MAS were actually formed in the Uruguay Round, gaining the appropriate procedural and substantive safeguards, so as to confer the effective protection of all the parties to the multilateral trading system of the WTO.  22
 Nowadays, the DSU offers the disputing parties a number of opportunities for reconciliation; DSU Article 11 provides that, even when consultations fail and a panel is established, the latter is still obliged to give the parties a sufficient opportunity to find a satisfactory solution. Thus, only when the parties fail to reach a MAS, may the panel submit its legal findings to the Dispute Settlement Body (hereinafter “DSB”)  23  for adoption. Moreover, the parties involved can forego a DSB’s final decision by reaching a MAS up to the last minute.  24  After all, as the Appellate Body has underlined, MAS can take place even after the issuance of recommendations and rulings by the DSB.  25
Indeed, MAS can take place prior to the panel and Appellate Body proceedings, as was the case in Colombia – Customs Measures on Importation of Certain Goods from Panama,  26  or pursuant to such proceedings, as was the case with the Softwood Lumber MAS  27  on the basis of the text of DSU Article 22.8.  28  Most of all, it should be noted that MAS can also take place even while the proceedings before the panels or the Appellate Body have been initiated and the case is pending.  29  In line with the aforementioned, MAS constitute a realistic means of even resolving disputes that – at least for the time being – cannot be brought before the Appellate Body, or are still pending before the latter.
Lastly, according to DSU Article 3.7, MAS must be in conformity with the covered agreements, while, transparency is nowadays better ensured through DSU Article 3.6, which requires the notification of the MAS reached to the DSB and the relevant Councils and Committees, where any WTO member may raise any point relating thereto.
2.2 The Definition of “MAS”
Given the absence of a definition of the term “MAS” within the DSU, many attempts for the repletion of this gap have been made. Initially, it was suggested that all agreements, which have been notified by the contracting parties as such, in accordance with DSU Article 3.6, fall under the scope of the term “MAS”.  30  However, the said suggestion was not wholeheartedly accepted, since many noted that the said notification is not a prerequisite for the conclusion and/or the entry into force of a MAS, according to the provisions of the said DSU Article; as will be indicated in the following Section, it is rather the omission of such a notification that may lead to a violation of DSU Article 3.6.  31 
 Notably, the later trends of state practice added more complexity to the issue of MAS’ definition. The more de facto, unregulated by the DSU and unexpectedly introduced to the WTO dispute settlement system interim agreements were concluded,  32  the more complex the approach of MAS’ definition became. Precisely, instead of concluding the traditional form of MAS, which implies a prior notification to the DSB and the relevant Councils and Committees, States have in certain cases chosen to conclude Memoranda of Understanding (hereinafter “MoU”), the latter being a first step towards the final conclusion of MAS. On such occasions, MoU would eventually be notified in accordance with DSU Article 3.6, if/when they ever turned into a stricto sensu MAS. Additionally, other forms of sui generis agreements have been also preferred to the traditional form of MAS by WTO members amicably settling disputes.  33 
 Such agreements highlight a blank spot within the WTO dispute settlement system, since it is quite likely that – pursuant to their conclusion – an actual MAS will not be eventually concluded. Even when the provisions of such alternative agreements are actually implemented, the formal subsequent conclusion (and proper communication) of MAS is not certain. As a result, these disputes are considered as pending, although they may be deemed as solved by the formerly disputant parties, whereas the terms of these disputes’ resolutions remain unknown to other WTO Members. Hence, on such occasions, the rest of the WTO Members cannot raise their putative concerns on the terms of the said MoU or sui generis agreements and cannot verify their compatibility with the covered agreements. It has, thus, been argued that an important step in addressing this “lacuna” of the DSU, which leaves MoU and sui generis agreements unregulated, will be the insertion of a two-step process, according to which such interim agreements will entail the obligation of their notification on one hand, and the compulsory notification of the final MAS after the interim agreement’s implementation on the other.  34
The irregularity described above certainly raises the question of whether these interim agreements fall within the ambit of MAS. To this question, the answer must be negative, as the term “MAS” must be interpreted narrowly. The said negative answer does not solely follow from the interpretation of the third sentence of DSU Article 3.7, based on its context, as the customary rule  35  enshrined in VCLT  36  Article 31.1 suggests,  37  but is also the response given by the WTO dispute settlement fora themselves. Indeed, the said answer has been already reaffirmed by the panel and the Appellate Body, when they were asked to clarify the nature of the European Communities – United States, Ecuador agreement .  38 The said fora clarified that for the conception of an agreement as a MAS, the very agreement must be the actual solution to the dispute and not its declaration, introducing an objective criterion, which directly precludes the classification of interim agreements as MAS.  39
 The term “MAS” is, thus, used to define agreements, which settle differences between WTO members effectively.  40  Hence, agreements that constitute early-stage understandings for the subsequent conclusion of stricto sensu MAS are not themselves MAS.  41  Nor are the settlement agreements, through which the disputant parties finally agree to a friendly settlement of a case concerning violations of several legal provisions (among which WTO legal provisions are included), which was brought before an extra-WTO competent judicial body seeking resolution.  42
2.3 The Multilateral Elements of MAS
The DSU sets two requirements regarding the content of MAS and their notification. The said two requirements have been also described as their “multilateral elements”.  43  These two elements are as follows:
i) Firstly, according to DSU Article 3.5, MAS “shall be consistent with the WTO covered 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”.  44
ii) Secondly, according to DSU Article 3.6, MAS “shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto”.   45
Pursuant to the statement of the abovementioned two conditions, as set out in the DSU, what should be considered is, whether they are of an “absolute nature”, namely whether the partial inconsistency with (one of) them, renders the conducted agreement void – or whether it at least divests the agreement of its characterization as a MAS. It has been argued, that a partial inconsistency of a MAS at stake with the covered agreements should not immediately lead to the conclusion that the MAS is wholly invalid, provided that some of its clauses stand valid, effective in resolving the dispute and – hence –  applicable.   46
Furthermore, with regard to the second element, namely the compulsory notification of MAS, it should be noted that a thorough analysis of the issue took place in European Communities - Bananas III. The European Communities (Respondent in the dispute) informed the DSB that an agreement with Ecuador and the United States had been achieved.  47  Subsequently, the complainants argued that the necessary notification of DSU Article 3.6 had not been preceded. The panel placed particular emphasis on the importance of the MAS’ notification, in accordance with DSU Article 3.6, as this notification safeguards the opportunity of any Contracting Party to raise its concerns. Subsequently, the Appellate Body noted that primary emphasis should be placed on the substance of the agreement and the expressed intention of the parties thereto and, secondarily, on their subsequent statements.  48  It seems that the Appellate Body avoided encouraging the subsequent arbitrary sabotage of the MAS by its parties. It also seems quite probable, that the Appellate Body would not have followed the same line, if a third party had contested that certain interests had been plagued due to lack of proper notification. At any rate, the Appellate Body suggested that skipping the notification provided for in DSU Article 3.6 does not per se deprive the conducted agreement of its classification as a MAS.
As a result, the conclusion to be reached is that the conditions imposed under the DSU with respect to MAS are not of an “absolute nature” and that deviations are – under certain circumstances – permitted.
2.4 The Legal Status and Binding Effect of MAS
Surprising though it may seem, the classification of MAS as part of the WTO law has been questioned. On this matter, it should be emphasized that three arguments  49  support the indisputable abolition of the aforementioned speculation. Initially, it has been noted that MAS are provided for by a specific covered agreement, namely the DSU. Secondly, they are inextricably linked to WTO rights and obligations, as they are concluded by WTO members to resolve disputes over such rights and obligations. Lastly, the fact that MAS are part of WTO law is also evinced by their mandatory alignment with the covered agreements.  50  This very last observation is the greatest opposition to those who would try to designate MAS as leges speciales. Hence, even though MAS are indeed not part of the WTO covered agreements, they should be deemed as comprised within the wider WTO legal framework.  51
Lastly, reference should be had to the silence of the DSU on the binding or non-binding effect of MAS. This silence could be seen as a deliberate flexibility, allowing the MAS parties at stake to decide themselves on the (non) elasticity of the provisions of the concluded MAS.  52  Indeed, it has been noted that MAS, which include provisions encouraging their parties to commit or abstain from a particular act and, which, thus, do not include a “functional language delimiting the extent of the obligation” 53  , are not binding. Adversely, parties may choose to impose a binding force on the MAS to be concluded.  54  Hence, it would be rather paradoxical to a priori conclude that MAS are binding nor non-binding.  55 Conversely, their binding effect should be rather determined on a de facto basis. And even though the existing case-law on the matter does not seem to have cleared the landscape on MAS’ binding effect,  56  having only confirmed the possibility of MAS creating rights and obligations,  57  as well as having only acknowledged that MAS entail at least procedural obligations,  58  practice under the WTO seems to indicate a strong preference of WTO Members for the conclusion of binding MAS.  59
As the analysis presented above evinces, the friendly settlement of disputes within the WTO has undergone a gradual legalization process throughout the years. Furthermore, the term “MAS” should be used restrictively to describe agreements, which settle differences between WTO members altogether. In this sense, MoU and interim sui generis agreements should not be seen as falling within the ambit of MAS. Most importantly, as was indicated above, MAS can be concluded prior to or after the initiation of proceedings before the panels or the Appellate Body or while the dispute is still pending before the latter and even before or after the issuance of a decision by the DSB. In this sense, MAS constitute a realistic means of even resolving disputes that – at least for the time being – cannot be brought before the Appellate Body, or are still pending before the latter. Furthermore, although the compatibility of MAS with the covered agreements and their communication to the DSB and the relevant Councils and Committees is explicitly required by the DSU, a deviation of some of a MAS’ provisions with the WTO legal framework does not render the whole MAS void, whereas the lack of proper notification is not a prerequisite for the conclusion and/or the entry into force of a MAS. Finally, as was underlined above, MAS are comprised within the wider WTO legal framework, while the DSU allows its parties to decide on the binding or non-binding effect of the MAS at stake.
3. THE LEGITIMACY OF MAS AS A MEANS OF DISPUTE SETTLEMENT
Having already analyzed, how MAS function within the WTO dispute settlement system, the present paper will proceed to a further assessment of their legitimacy as a means of dispute settlement, especially against the background of the current malfunction of the Appellate Body and the inefficiency of the appellate review of decisions. For the purposes of this Section, MAS will be deemed as a legitimate means of dispute settlement, if – aside from being capable of overcoming the hurdle posed to dispute settlement by the Appellate Body crisis – they provide the parties with an enforceable solution, compatible with the legal framework of the WTO.
These remarks having been made, this Section will enumerate the main points of criticism that have been elaborated throughout the years with regard to MAS. Most of all, it will further attempt to combat these points of criticism, on the basis of relevant instances of existing arbitral and academic practice, so as to evaluate whether MAS are indeed capable of maneuvering around the skepticism arisen and whether they can indeed be seen as a legitimate means of disputes’ resolution. Precisely, this Section will explore, whether MAS is – from a legal point of view – a means of oppression of the financially weaker States, whether their enforcement can be demanded under the supervision of a WTO forum and finally whether they actually constitute a lawful means of WTO dispute resolution, namely a means of solving disputes in accordance with the applicable law, i.e. the covered agreements.
3.1 Oppression of Financially Weaker Contracting Parties
From time to time, concerns have been raised as to the danger imposed on financially weaker Members through MAS. Precisely, it has been held that MAS are a way of oppression of the said WTO Members,  60  which (fearing what the WTO’s judicial bodies might adjudicate or even doubt the compliance of the financially stronger party with the decision to be issued) will compromise easily with whatever the wealthier party is willing to offer. It is true that the aforementioned speculations are not unfounded. Indeed, if one considers firstly that in case the dispute is settled by a WTO forum, a certain period of time will elapse for the procedures envisaged in DSU Article 22.2 to take place, and secondly that the WTO legal framework does not – at least according to the prevailing view  61  – provide retrospective remedies, which would effectively relieve the financially weaker parties during the whole period, that the wealthier disputant party did not comply with its obligations, then the insecurity of the financially weaker disputant parties seems quite understandable.
However, it should be highlighted that respecting the sovereignty of States  62  within the framework of international law entails respecting their choices, whichever these may be. Hence, even if a State’s decision to “compromise” may be perceived by some as a form of oppression exercised by the financially stronger to the finically weaker party to the MAS reached, merely due to the fact that it might run counter to some of the latter party’s interests, it should be recalled that no State needs paternalism or guidance as to its choices. After all, sacrificing the satisfaction of certain interests with a view to the satisfaction of more crucial ones’ is the outcome of almost every negotiation. Thus, MAS should not be a priori condemned as pandering States’ inequality and suasion among States. It should be rather seen as entailing the dangers inherent in any inter-State negotiations.
3.2 The Enforcement of MAS’ Provisions
Furthermore, it has been argued that the enforcement of MAS’ provisions, namely the assurance of the implementation of their provisions in cases that the latter are not voluntarily implemented by one of the parties amicably settling a dispute, cannot be effectively ensured. This point of view underlines that MAS actually constitute means of figuratively solving disputes; virtual solutions, which – regardless of the legality of their provisions – will eventually not be implemented. It is this point of criticism that attention will be now turned to. It shall be, however, at this point noted that any discussion regarding MAS’ enforcement requires the existence of a binding MAS. Indeed, if a non-binding MAS is at stake, then such discussions could only revolve around procedural obligations,  63  stemming from its conclusion.
Undoubtedly, the panels’ and the Appellate Body’s findings, once adopted by the DSB, create an obligation of bringing the measure(s) recognized as incompatible with the covered agreements to compliance with the latter.  64  Contrary to the possibilities offered by the DSU in cases of non-executed decisions,  65  the WTO legal framework does not provide for such an assurance, in cases of non-voluntary implementation of MAS’ provisions by the parties thereto. It at least does not provide for such a compulsory enforcement explicitly. Thus, a debate as to whether the WTO dispute settlement system has jurisdiction to resolve disputes emerging from MAS – or the lack of the latter’s provisions’ implementation – has arisen. The subject-matter of this debate is closely linked to the enforceability of MAS, as if the jurisdiction of WTO fora over MAS-related disputes is adequately contended, then disputes stemming from the violation of MAS’ provisions or from the lack of MAS’ provisions’ implementation, will be permissibly brought before the said fora. In this sense, the acknowledgment of a breach of a MAS’ provisions by means of a report, will inevitably lead the DSB to adopt the said report and the respondent Member to bring its measure(s) into conformity with the MAS. On such occasions, DSU Articles 21 and 22 will be accordingly applicable,  66  eventually ensuring the enforcement of the provisions of the MAS at stake.
According to the first view on the mentioned debate – that being Prof. Alvarez-Jiménez’ view – WTO panels have jurisdiction over any dispute stemming from MAS and not just over disputes stemming from MAS, which explicitly provide for the panels’ jurisdiction. This point of view is based on the teleological interpretation of DSU Articles 3.3 and 3.7,  67  as well as on jurisprudential pronouncements of several panels and of the Appellate Body, which have not rejected the WTO fora’s jurisdiction over disputes arising from MAS.  68
Indeed, the line of reasoning followed by Prof. Alvarez- Jiménez, views DSU Article 3.3 as the legal basis of the said WTO fora’s jurisdiction over MAS-related disputes, since it implies the existence of advantages deriving indirectly from the covered agreements.  69  The third paragraph of DSU Article 3.7 is further seen as providing contextual support to the said interpretative outcome, whereas, the interpretation of the DSU in a way, which does not confer jurisdiction to the WTO dispute settlement system over its preferred way of dispute settlement, is also marked as rather absurd, since the very purpose of the dispute settlement mechanism, according to DSU Article 3.6, is to ensure a “positive solution to the dispute”.   70
Undoubtedly, the interpretative route presented above, reinforces the security and foreseeability of the global trading system and strengthens the central character of the WTO dispute settlement system. After all, it should be borne in mind that when the parties wanted to exclude certain disputes from the jurisdiction of the panels and the Appellate Body, they did so explicitly.  71  An a contrario and contextual interpretative argument can, thus, be raised to highlight that, since the Contracting Parties have not similarly excluded MAS-related disputes from the jurisdiction of WTO fora, the latter do enjoy it. Lastly, the WTO system’s evolution and its adaptability to new challenges, that the issue concerning the enforcement of the MAS resolving the Softwood Lumber case brings to mind,  72  seems to provide additional support to the above interpretative conclusion. After all, WTO jurisdictional extensions akin to the one suggested by this side of the debate have also occurred in the past.   73
Conversely, the other side of the debate, which questions the jurisdiction of WTO fora over MAS-related cases,  74  points out that as the word “indirectly”, spotted in DSU Article 3.3,  75  is not included in the text of DSU Article 1.1, the jurisdiction of WTO fora seems to be limited to disputes pertinent to the WTO covered agreement.  76  This point of view, however, overemphasizes the textual interpretation of DSU Article 3.3 and neglects the adverse interpretative outcome, to which the contextual and teleological interpretation of the said provision leads. In this sense, it fails to interpret the said DSU provision in a holistic fashion.  77  After all, even from a textual interpretative point of view, the interpretation of DSU Article 1.1 as including the meaning of the word “indirectly” cannot be precluded, since this provision itself does not clearly preclude such an interpretation and does not include the word “directly” either.
Secondly, in an attempt to contradict the first debated side presented above, proponents of the view that WTO fora do not have jurisdiction over MAS-related disputes argue that the Appellate Body, placing particular emphasis on the intention of the parties, leaves it up to them to provide the MAS at issue with recognition of its jurisdiction to resolve future disputes.  78  This argument is however highly self-referential, as it does not actually contradict the opposite point of view and rather bases its validity on elements extrinsic to the legal framework regulating WTO dispute settlement and intrinsic to MAS. In other words, it seems to hold that the WTO fora do have jurisdiction over disputes stemming from a putative MAS only when its parties consent to that via a MAS provision, whereas what is unclear is whether WTO Members have already consented to WTO fora’s jurisdiction over MAS-related disputes during the drafting of the DSU.
Thirdly, as a criticism to the first debated side presented above, the Softwood Lumber MAS is used to emphasize that a customized transnational arbitration vehicle is in a much better position to manage specific issues than a WTO panel, underlining that the said MAS resolved 20 issues in total arising from national law, NAFTA  79  and WTO law.  80  A counterweight to this criticism is the exclusive jurisdiction of WTO’s dispute settlement mechanism over WTO-related issues and the lack of a need of a hierarchy of international courts and arbitration bodies.
Fourthly, with regard to Prof. Alschner’s point, that other types of agreements, not falling within the ambit of MAS (namely MoU and other sui generis agreements amicably settling WTO disputes) escape the system’s jurisdiction, until they transform into MAS, the only adequate response seems to be the adoption of the system of a mandatory conversion of interim agreements into MAS, as he suggested himself.  81  Finally, as far as the assumption that the Appellate Body, would much rather leave the matter to be resolved by the parties, given the sensitive issue of the implementation of the MAS’s terms,  82  it can be noted that the Appellate Body should be called to fulfil its purpose as a dispute settlement forum by following the correct interpretation of the covered agreements and by avoiding denial of justice.
Inductively, as the argumentation above indicates, the WTO fora do have jurisdiction over disputes stemming from MAS and their enforcement. The following Section will explore the most serious point of criticism on MAS, namely the speculations questioning MAS’ lawfulness.
3.3 The Lawfulness of MAS
To the points of criticism analyzed (and contradicted) above, the following question should be added: “What should be the fundamental objective of the [multilateral trading] system–to solve the instant dispute (by conciliation, obfuscation, power-threats, or otherwise), or to promote certain longer term systemic goals such as predictability and stability of interpretations of treaty text?” 83   The quoted question, raised by Prof. Jackson, highlights yet another disadvantage of MAS, namely their potential adverse effect on the legal certainty within the WTO dispute settlement system. Precisely, the quoted question seems to be suggesting that MAS, which primarily purport to settle a dispute to the mutual satisfaction of the parties, may entail various deviations from the applicable law or flawed interpretations of treaty texts, which –however convenient for the MAS’ parties at stake – are capable of eventually agitating the harmonic waters of lawfulness and foreseeability within the WTO dispute settlement system. From this point of view, MAS could be described as the ideal legal yet unlawful means of dispute settlement; their parties may end their dispute through a means, which is prescribed by the WTO legal framework and yet deviate from the applicable law by agreeing on terms, which are not (wholly) compatible with it.
Such “flawed” MAS can easily escape the collective assessment of the WTO Members, which may abstain from raising points in accordance with DSU Article 3.6, even in situations where MAS’ provisions are incompatible with the covered agreements. This might be the case, either because they would like to conclude similar MAS in the future themselves, or because they want to gain the favor of the contracting parties to the MAS reached, or simply because it is not their primary concern to safeguard MAS’ compliance with the covered agreements. After all, it is apparent that, if a MAS is not properly communicated and/or if the two-step system  84  regarding interim agreements is not adopted, so that the latter are mandatorily incorporated into a subsequent MAS, then third WTO Members will not have the opportunity to detect such irregularities in the first place.
Against this background, the referenced question seems to be hitting MAS to their very core: the purpose of their existence, the “positive solution” 85   of disputes. This will seem quite rational, if one considers that under the WTO system, a system of reciprocal concessions, in which the breach of the contractual framework by one Member is presumed affect the rest of the Members,  86  it is not the parties amicably settling a dispute through MAS that are affected by the latter’s incompatibility with the covered agreements but rather the WTO system in globo. Thus, if the harm done to the WTO long-term systemic goals is so major as to put the legal certainty, the foreseeability and the trustfulness of the WTO dispute settlement at stake, then any conversation on the legitimacy of MAS as a means of dispute settlement will seem inane.
Under these circumstances, the assurance of the long-term systemic objectives of the WTO seems to be only effectively assured through the assurance of MAS’ compliance with the already stable and predictable WTO legal framework. And in turn the MAS’ compliance with the covered agreements seems to be only effectively ensured through the establishment of a previous assessment of its compatibility with the covered agreements by an objective forum as a precondition for its entry into force. Hence, the search for a possible interpretation of the DSU – as it stands  87  – that allows a WTO forum to exercise jurisdiction over MAS, verifying the compatibility of its provisions with the covered agreements is a one-way course for the efficient answer to the question quoted above. At this point, it should be clarified that the following will focus on the search of a possibility of a WTO forum enjoying jurisdiction over MAS’ assessment, however not in terms of MAS’ substantial content, but solely in terms of conformity of the MAS at stake with the covered agreements; the potentially competent forum will not assess the appropriateness of the MAS, or whether it is in fact advantageous for each of the parties, or whether it would be more efficient to resolve the dispute in a different way; it will rather suffice itself in checking whether or not the agreement reached is in conformity with the covered agreements. Most of all, as the partial deviation from the covered agreements, does not per se render the MAS concluded void, the potentially competent forum will also assess, whether the putative deviation is determinative for the annulment of the agreement.
Pursuant to the analysis of Section 4.2 above, the assumption of the WTO dispute settlement system’s jurisdiction over MAS-related disputes, will be taken as granted in the present Section as well. That being said, attention should be turned to DSU Article 2.1, which sets the role of the DSB straight, providing that “the DSB is hereby established to administer these rules and procedures and, except as otherwise provided in a covered agreement, the consultation and dispute settlement provisions of the covered agreements”. To this end, “the DSB shall have the authority to establish panels, […] and authorize suspension of concessions and other obligations under the covered agreements”. 88   Hence, it would appear from the outset that the DSU does not exempt the DSB from its authority to establish panels aiming to verify the legality of the notified (according to DSU Article 3.6) MAS. In fact, the DSB is not obstructed by any other provision of the DSU to transfer the compatibility assessment of a MAS into a panel. In this hypothetical scenario, potential claims raised by WTO Members (in line with DSU Article 3.6) regarding the MAS in question could be transmitted to the panel, which will have been established for the verification of the MAS’s legality by the DSB. As one of MAS’ objectives is the avoidance of long-term proceedings, the deadlines set for the assessment of the MAS and any claims should – in this scenario – be as short as possible, so that the suggested procedure will indeed be effective.
However, the fact that the panels are not already established (i.e. they are not standing bodies) and that their establishment is itself too time-consuming for the short-term demands of the contracting parties to a MAS, is definitely a strong counterpart to their effectiveness and seems to indirectly enhance Prof. Jackson’s implied view that speed and longer-term systemic goals do not go hand in hand.  89  Thus, one would rationally wonder, whether the panels’ establishment could be detoured and – consequently – whether this otherwise short process of examining the legality of MAS would be feasible by the DSB itself.
Although it has been adequately argued that the interpretation of DSU Article 23 provides a basis for the existence of DSB’s jurisdiction, once a dispute regarding the compliance with a MAS arises,  90  it is not self-evident that the same holds true for the verification of a MAS’ legality. However, DSB is established to administer the rules and procedures of WTO law. Thus, it could be rather difficult for one to uphold, that the term “administer” of DSU Article 2, broadly interpreted, in the light of DSU’s object and purpose, does not entail the assessment of the agreement of MAS with the rest of the rules and procedures of WTO law. The interpretation of DSU Article 2, in accordance with VCLT Article 31.1 at least does not preclude that conclusion from being drawn, whereas contextual support of the aforementioned interpretation is provided by DSU Article 3.7, which states that “[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute” .  91 Τhe determination of the solution to be found as “positive” could not be conceived as otherwise than “lawful”; for so positive a solution to be secured by the WTO dispute settlement mechanism, the prior verification of its legality by the competent WTO forum is necessary.
Meanwhile, contextual support is also provided by DSU Articles 3.5 and 3.7, which state that MAS must be in conformity with the covered agreements. It is, thus, quite paradoxical for one to accept that the WTO dispute settlement mechanism’s jurisdiction to determine the legality of MAS is contrary to the provisions of the DSU, unless they manage to subvert the interpretational presumption that the provisions of a treaty are per se not incompatible with each other. Namely, it would seem irrational, if the DSU set legality as a prerequisite for the validity of MAS on one hand and prohibited the previous verification of their legality on the other, since the latter would be the most efficient way to achieve the aforementioned prerequisite.
 Lastly, what should be underlined is that for the purpose of ex ante assessment of MAS by the panels or the DSB, no additional consent of the Contracting Parties is needed, since the aforementioned jurisdiction, the panels’/DSB’s jurisdiction to affirm the compatibility of MAS’ provisions with the covered agreements stems from the interpretation of the DSU, which is already binding for the Contracting Parties. After all, it should be underlined that even MAS clauses barring the initiation of panel proceedings pursuant to their conclusion, will not actually prevent the said proceedings, since the aim of such MAS clauses is simply to avert the parties from referring the dispute to the dispute settlement bodies for solution; they do not seek to exempt MAS’ provisions from the assessment of their compatibility to the covered agreements.
Thus, the argumentation elaborated above leads to the conclusion that the interpretation of the DSU in accordance with the customary rules on treaty interpretation, acknowledges the jurisdiction of the WTO’s dispute settlement mechanism to test the legality of MAS in advance, namely immediately after their notification and before their entry into force. Even though the approach described above could be marked as quite innovative – if not groundbreaking – or quite far-fetched instead, it is certainly in line with the WTO’s constantly evolving  92  and flexible  93  system. Moreover, this approach is the only way to the assurance of the predictability and stability of interpretations of the covered agreements, as well as to the efficient answer to the question raised by Prof. Jackson. This approach is, in other words, a step forward, which must be taken for legal certainty to be ensured and for the process of MAS’ legality assessment to be refined. This way, the MAS will be elevated from being a merely effective means of dispute settlement to being a lawful one, which does not only guarantee a quick, mutually favorable solution of a dispute but also the compatibility of the said solution to the legal framework of the WTO. The fact that concerns about the expanding jurisdictional ambitions and the judicial activism of the WTO dispute settlement fora are multiplying, seems to be the beginning of a different conversation.
Inductively, the argumentation raised in this Section managed to contradict the main points of criticism elaborated against MAS (namely that they foster the oppression of financially weaker parties, that enforcement of their provisions is not certain and that the lawfulness of their provisions cannot be ensured) and highlighted that the latter do constitute a legitimate means of disputes settlement within the WTO.
4. CONCLUSIONS
As the analysis of the Sections above evince, the question of whether MAS constitute an efficient means of dispute settlement, under the light of the ongoing Appellate Body crisis, which the present article purported to explore, should be answered affirmatively.
Indeed, pursuant to the brief overview of the progressive evolution of the amicable settlement of disputes in the WTO and its gradual legalization, the paper proceeded to an analysis of the provisions regulating the function of MAS and of the key elements, which distinguish the latter from other agreements within the framework of the WTO dispute settlement system, which do not actually bring the dispute to an end. This analysis highlighted that, since MAS can be concluded prior to or after the initiation of proceedings before the panels or the Appellate Body or while the dispute is still pending before the latter and even before or after the issuance of a decision by the DSB, MAS constitute a realistic means of resolving disputes that – at least for the time being – cannot be brought before the Appellate Body, or are still pending before the latter. Furthermore, having noted that MAS are comprised within the wider WTO legal framework and that their binding or non-binding effect depends on the parties’ will, the paper highlighted that, although the compatibility of MAS with the covered agreements and their communication to the DSB and the relevant Councils and Committees is explicitly required by the DSU, a deviation of some of a MAS’ provisions with the WTO legal framework does not render the whole MAS void, whereas the lack of proper notification is not a prerequisite for the conclusion and/or the entry into force of a MAS.
Against this background, which suggests permissible derogations from the covered agreements via the conclusion of MAS, points of criticism on the legitimacy of MAS as a means of dispute settlement started seeming rational. The main points of criticism, elaborated in academic writings pertinent to the matter, highlight the potential oppression of financially weaker States through MAS, the uncertain enforcement of even binding MAS and the latter’s doubtful lawfulness. The analysis of the third Section above contradicted the said criticisms and underlined that sovereign States do not need paternalism over their MAS-related moves, as well as that the enforcement of MAS can actually be ensured by the WTO fora. Most of all, the paper suggested an interpretation of the DSU that acknowledges WTO panels’/DSB’s jurisdiction to assess the compatibility of MAS with the covered agreements, before their entry into force. As through this interpretation, the lawfulness of MAS is also achieved and the last point of criticism is also contradicted, the present paper is led to the conclusion that MAS constitute a legitimate means of dispute settlement, capable of effectively assisting the WTO Members, which are willing to seek an amicable end to disputes pending before the Appellate Body or disputes that would be brought before it, during these uncertain times of the ongoing crisis.


* PhD Candidate at Ruhr University of Bochum; Research Associate at the Institute for International Law of Peace and Armed Conflict; Contact information: sissykatsoni@gmail.com. 本文原载《仲裁与法律》第146期。
 1 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization) [hereinafter DSU].
 2 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 65, 69 (2014).
 3 PETER VAN DEN BOSSCHE & DENISE PREVOST, ESSENTIALS OF WTO LAW 262-263 (2016).
 4 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 65 (2014); RESOLVING TRADE DISPUTES BETWEEN WTO MEMBERS, https://www.wto.org/english/thewto_e/20y_e/dispute_brochure20y_e.pdf, 2 (last visited July 26, 2020).
 5 See for example: Notification of a Mutually Agreed Solution, European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WTO Doc. WT/DS293/41 (March 23, 2010).
 6 Aditya Rathore & Ashutosh Bajpai, The WTO Appellate Body Crisis: How We Got Here and What Lies Ahead?, Jurist, Apr 14, 2020, https://www.jurist.org/commentary/2020/04/rathore-bajpai-wto-appellate-body-crisis/, https://voxeu.org/article/wto-dispute-settlement-and-appellate-body-crisis.
 7 Geraldo Vidiga, Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis, 20 JWIT 862, 883 (2019); Joost Pauwelyn, WTO Dispute Settlement Post 2019: What to Expect? 22 J. Int. Econ. Law 297, 305 (2019); JENS LEHNE, CRISIS AT THE WTO: IS THE BLOCKING OF APPOINTMENTS TO THE WTO APPELLATE BODY BY THE UNITED STATES LEGALLY JUSTIFIED 92 (2019).
 8 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 79 (2014).
 9 Id. at 66.
 10 General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194 [hereinafter GATT].
 11 Judith Goldstein & Lisa L. Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int’l Organization 603, 604–605 (2000).
 12 JOHN HOWARD JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 109–110 (2nd ed. 1997).
 13 Joost Pauwelyn, The Transformation of World Trade, 104 Michigan L. Rev. 1, 14 (2005).
 14 World Trade Organization, Understanding of November 28 1979 Regarding Notification, Consultation, Dispute Settlement and Surveillance, WTO Doc L/4907, 26 BISD 210 (1979).
 15 Robert E. Hudec, GATT Dispute Settlement after the Tokyo Round: An Unfinished Business, 13 Cornell Int’l L. J. 145, 186-187 (1980).
 16 Id. at 186; World Trade Organization, Understanding of November 28 1979 Regarding Notification, Consultation, Dispute Settlement and Surveillance, WTO Doc L/4907, 26 BISD 210 (1979), Annex Art. 41.
 17 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 80 (2014).
 18 Robert E. Hudec, GATT Dispute Settlement after the Tokyo Round: An Unfinished Business, 13 Cornell Int’l L. J. 159-163 (1980).
 19 Id. at 177,185-188.
 20 World Trade Organization, Ministerial Decision of 12 April 1989 on Improvements to the GATT Dispute Settlement Rules and Procedures, WTO Doc L/6489, 36 GATT BISD 61 (1989).
 21 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 81 (2014).
 22 Id.
 23 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 12.7.
 24 Id. at Art. 12.7, Id. at Art. 15; Armin Steinbach, The DSU Interim Review–Need for Its Elimination or Extension to the Appellate Body Stage, 12 J. Int’l Econ. L. 417, 417–434 (2009 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 66 (2014).
 25 A HANDBOOK ON THE WTO DISPUTE SETTLEMENT SYSTEM 170 (Legal Affairs Division and Rules Division of the WTO Secretariat and the Appellate Body Secretariat eds, 2nd ed. 2017).
 26 Request for Consultations, Colombia – Customs Measures on Importation of Certain Goods from Panama, WTO Doc WT/DS348/1 G/L/782 G/VAL/D/8  (July 25, 2006).
 27 Notification of Mutually Agreed Solution, United States – Reviews of Countervailing Duty on Softwood Lumber from Canada (US–Softwood Lumber), WTO Doc. WT/DS311/2 (Nov. 16, 2006).
 28 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 343, 346 (2011).
 29 A HANDBOOK ON THE WTO DISPUTE SETTLEMENT SYSTEM 170 (Legal Affairs Division and Rules Division of the WTO Secretariat and the Appellate Body Secretariat eds, 2nd ed. 2017).
 30 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 81 (2014).
 31 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, WTO Doc. WT/DS27/AB/RW2/ECU (adopted Dec. 11, 2008), para. 222.
 32 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 72 (2014).
 33 Joint Communication from Brazil and the United States, United States–Subsidies on Upland Cotton, WTO Doc. WT/DS267/45 (Aug. 31, 2010); 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, WTO Doc. WT/L/784 (Dec. 15, 2009).
 34 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 86 (2014).
 35 ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 12-13 (2nd ed. 2007).
 36 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.
 37 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 347-348 (2011).
 38 Notification of Mutually Agreed Solution, European Communities–Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/58 (July 2, 2001).
 39 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU by Ecuador, WTO Doc. WT/DS27/RW2/ECU, (adopted April 7 2008), para. 7.107; 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, WTO Doc. WT/DS27/AB/RW2/ECU-WT/DS27/AB/RW/USA paras. 214-219, (adopted Nov. 26, 2008).
 40 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 348 (2011).
 41 Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/RW2/ECU - WT/DS27/AB/RW/USA, paras. 217-220 (adopted Nov. 26, 2008).
 42 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 347-348 (2011).
 43 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Art. 21.5 of the DSU by Ecuador, WTO Doc WT/DS27/RW2/ECU, para. 7.102 (adopted Oct. 7, 2008).
 44 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 3.5.
 45 Id. at Art. 3.6.
 46 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 352 (2011).
 47 Notification of Mutually Agreed Solution between the European Communities and the United States and Ecuador, WTO Doc. WT/DS27/58 (July 2, 2001).
 48 Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/RW2/ECU - WT/DS27/AB/RW/USA, para. 222 (adopted Nov. 26, 2008).
 49 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 353 (2011).
 50 Id.
 51 Id.
 52 Id. at 348.
 53 Panel Report, European Economic Community – Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, WTO Doc. BISD 42S/17, para. 582 (adopted Oct. 30, 1995).
 54 MAS, India – Measures Affecting the Automotive Sector, WTO Doc WT/DS96/8 (Nov. 25, 1997).
 55 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 348 (2011).
 56 Panel Report, India – Measures Affecting the Automotive Sector, WTO Doc. WT/DS146/R - WT/DS175/R (adopted Dec. 21, 2001), para. 7.115. India’s appeal against this report was subsequently withdrawn.
 57 Notification of Mutually Agreed Solution, European Communities — Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/58 (July 2, 2001), para. G; Understanding on Bananas between Ecuador and the European Communities, European Communities — Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/60, para. G (July 9, 2001).
 58 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 349 (2011).
 59 Id.
 60 Johan Lindeque & Steven McGuire, The United States and Trade Disputes in the World Trade Organization: Hegemony Constrained or Confirmed?, 47 Management Int’l Rev 725, 729, 734–735 (2007); Daya Shanker, Argentina–US Mutually Agreed Solution, Economic Crisis in Argentina and Failure of the WTO Dispute Settlement System, 44 Idea: J. of L. & Technology 565, 571 566 (2004); Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 75 (2014).
 61 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 372 (2011).
 62 JAMES R. CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 384, 447 (8th ed. 2012).
 63 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 349 (2011). 
 64 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 88 (2014).
 65 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 21.5, 22
 66 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 359-360 (2011).
 67 Id. at 358.
 68 Panel Report, India — Measures Affecting the Automotive Sector, WTO Doc. WT/DS146/R
WT/DS175/R (adopted Dec. 21, 2001), paras. 7.114-7.115; Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Art. 21.5 of the DSU by Ecuador, WTO Doc WT/DS27/RW2/ECU, paras. 7.85–7.96 (adopted Oct. 7, 2008).
 69 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 354 (2011).
 70 Id. at 355.
 71 See e.g. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 17.4.
 72 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 359 (2011).
 73 Appellate Body, Brazil – Export Financing Programme for Aircraft – Recourse by Canada to Article 21.5 of the DSU, WTO Doc WT/DS46/AB/RW (adopted Aug. 4, 2000).
 74 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 89-90 (2014).
 75 Id. at 89.
 76 Id.
 77 Appellate Body Report, Continued Existence and Application of Zeroing Methodology para. 268, WTO Doc WT/DS350/AB/R (adopted June 2, 2009).
 78 Id. at 90.
 79 North American Free Trade Agreement, Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M 289 (1993) [hereinafter NAFTA].
 80 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 90 (2014).
 81 Id. at 86.
 82 Id. at 90.
 83 John H. Jackson, Dispute Settlement and the WTO: Emerging Problems, 1 J. Int’l Econ. L. 329, at 331 (1998).
 84 Wolfgang Alschner, Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System, 13 World Trade Rev. 86 (2014).
 85 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art 3.7.
 86 Appellate Body Report,  European Communities - Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/R, paras. 136-138 (adopted Sept. 9, 1997).
 87 For an alternative approach, which suggests a reform to the amicable dispute settlement system and the establishment of a WTO Secretariat for the assistance in the monitoring and management of the enforcement of WTO rules in disputes resolved by MAS see: Di Hao, Compliance Problems Under WTO Disputes Settled by Mutually Agreed Solution 49 Geo. J. Int’l Law 887, 923-927 (2018).
 88 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 2.1.
 89 John H. Jackson, Dispute Settlement and the WTO: Emerging Problems, 1 J. Int’l Econ. L. 329, at 331 (1998).
 90 Alberto Alvarez-Jiménez, Mutually Agreed Solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration, 10 World Trade Rev. 365 (2011).
 91 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3, annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization), Art. 3.7.
 92 A.L.C. De Mestral & M. Auerbach-Ziogas, A Proposal to Introduce an Advocate General’s Position into WTO Dispute Settlement System, in LAW IN THE SERVICE OF HUMAN DIGNITY: ESSAYS IN HONOUR OF FLORENTINO FELICIANO 13 (Steve Charnovitze et. al. eds., 2005).
 93 Claus-Dieter Ehlermann, Reflections on the Appellate Body of the WTO, 6 J. Int’l Econ. L. 695, 701 (2003).