[The IPKat] [Guest post] One hundred attempts through the WTO’s Dispute Settlement Purgatory

[Eleonora Rosati]

[Guest post] One hundred attempts through the WTO’s Dispute Settlement Purgatory

Eleonora Rosati Wednesday, September 30, 2026 - Guest post, Seun Lari-Williams, trade law, WTO, WTO's Dispute Settlement

The IPKat has received and is pleased to host the following contribution by Katfriend Seun Lari-Williams (University of Antwerp), providing an update on the current status of the Appellate Body of the World Trade Organization. Here’s what Seun writes:

One hundred attempts through the WTO’s Dispute Settlement Purgatory

by Seun Lari-Williams

Even Dante in the Inferno met with 3 "Kats" ...

Dante required one hundred cantos to complete the journey of the Divine Comedy. On 25 September 2026, WTO Members reached a rather different hundred. Colombia, speaking on behalf of 130 Members, introduced for the 100th time a proposal to begin filling the vacancies on the Appellate Body, but failed again.

At the same meeting, however, Members encouraged participation in the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) and welcomed Cambodia as its newest participant. So, as at MC14, where three members joined the MPIA while dispute settlement reform remained unresolved, the 100th failure came with a new recruit to the workaround.

Nonetheless, the comparison with Dante should probably end here because what matters is not the number itself, but what has happened while Members have repeatedly tried to restore the old appellate structure, including how IP disputes are now travelling through the system.

Process pluralism in the post-Appellate Body era

When I last wrote about the WTO’s dispute settlement system [see IPKat here], I called the post-Appellate Body landscape a “tale of two dispute systems”, meaning binding appellate review for disputes capable of travelling through the MPIA, and the risk of legal limbo for those outside it. Although that binary may have captured an important line, it captures only one dimension of the picture. Nor is procedural pluralism at the WTO new. The DSU has always allowed for diverse processes including settlement, good offices, conciliation, mediation and Article 25 arbitration alongside adjudication. What is different in the post-Appellate Body period is that the appellate stage no longer offers a single reliable pathway.

As such, post-panel practice reveals at least five possible routes:

1. MPIA appeal arbitration (as in DS611);
2. Non-MPIA Article 25 appeal arbitration (as in disputes where the parties negotiate one ad hoc, e.g., when the EU and Türkiye agreed in March 2022 to Article 25 arbitration “to decide any appeal from any final report.”);
3. Adoption without appeal; or
4. An appeal into the void (as in the EU–Indonesia disputes);
5. A mutually agreed solution even after adjudication has advanced (as in DS436, where the United States withdrew its appeal and the parties terminated the dispute).

Indeed statements made at MC14 by the WTO Director-General show that the foregoing options are not merely hypothetical, as it was noted that in the last two years alone, Members had brought 22 new disputes, five panel reports had been adopted without appeal, and eight other disputes had been resolved by the parties themselves. What Director-General Ngozi Okonjo-Iweala described as a “quiet trend” of Members exploring different approaches since 2019 is therefore becoming a significant feature of WTO practice.

In dispute system design terms, this is beginning to look a lot like a multi-door system. However, in the classic multi-door courthouse, disputes are channelled towards processes suited to their characteristics. At the WTO, there is no doorkeeper per se. Some doors exist only where both parties participate in the relevant arrangement; others depend on agreement in the particular dispute; while one door, an appeal into the void, presently leads nowhere. The system is therefore multi-door in practice, but the availability of a door may turn less on the needs of the dispute than on the identity and choices of the parties.

From one perspective, this situation may be a source of resilience. The Appellate Body crisis exposed the vulnerability of a system organised around one indispensable appellate institution. Article 25 and the MPIA have supplied redundancy, procedural choice and a means of preserving binding review where the parties can use them. At the same time, however, that flexibility might create a coherence problem. Even an MPIA participant may find itself appealing into the void when its counterparty is outside the arrangement (as the EU did against Indonesia in DS618). The divide is therefore not simply between two classes of WTO Members. The route can change from dispute to dispute, even for the same Member.

Why this matters for IP

IP disputes make the consequences especially visible. Take DS611, which concerned Chinese anti-suit injunctions in SEP litigation and produced the second MPIA appeal arbitration award in July 2025. The award did more than just resolve procedure, it also interpreted substantive TRIPS obligations, aspects of which subsequently drew criticism from India and Brazil in the TRIPS Council. In other words, the alternative appellate architecture is generating interpretations of TRIPS that Members then debate as potentially consequential for the structure of the IP system.

DS632 helps bring the point to an even sharper focus. In this case, the EU challenge concerns Chinese measures relating to worldwide licensing terms for portfolios of SEPs, including the treatment of non-Chinese patents. Before the panel was composed, the EU and China agreed Article 25 procedures, expressly to give effect to the MPIA, for appeals if the Appellate Body remained unable to hear it. One may draw a parallel here. The substantive dispute asks how far one national legal system may reach into the licensing of territorially granted but globally exploited patent rights. The WTO dispute itself is travelling through an appellate structure whose route depends on the institutional relationship between the parties.

So what counts as the system now?

Consequently, the hundredth failed attempt matters, not because it shows that the Appellate Body may never return, nor because it makes Article 25 or settlement newly available, but because it makes the language of “interim” and “alternative” increasingly interesting. Nor has the reform process itself yet supplied a clear route out. Members continue to regard dispute settlement reform as a priority, but remain divided over when and how substantive work should resume; the first information session after the September DSB meeting instead revisited the system’s history, patterns of dispute resolution and earlier reform efforts.

If Members continue to use MPIA arbitration, non-MPIA Article 25 arbitration, adoption, settlement and, sometimes, appeals into the void while attempts at institutional restoration repeatedly fail, the question is no longer simply whether alternatives exist. It is whether these pathways should still be treated as temporary responses to institutional breakdown, or as part of the dispute settlement architecture that now exists in practice.

While Dante’s hundred cantos culminate in completion, the WTO’s hundredth attempt did not. Dispute settlement practice, however, has not stood still. The post-Appellate Body story is therefore no longer simply one of institutional paralysis. It is also one of adaptation: a common panel system feeding into increasingly plural post-panel pathways whose availability can depend on the parties to each dispute.

After one hundred failed attempts, perhaps the question is no longer how to escape dispute settlement purgatory, but whether Members are ready to recognise the system that has taken shape within it.

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