[Guest Post] The WTO's Tale of Two Dispute Systems
Jocelyn Bosse
[Guest Post] The WTO's Tale of Two Dispute Systems
Jocelyn Bosse Thursday, April 02, 2026 - dispute settlement agreement, international trade law, WTO
The IPKat has received and is pleased to host the following guest contribution by Katfriend Seun Lari-Williams (PhD researcher at the University of Antwerp) on the outcomes from the recent meeting of the World Trade Organization (WTO) members. Here’s what Seun writes:
"The WTO's 14th Ministerial Conference, which concluded in Yaoundé, Cameroon on 29 March 2026, placed WTO reform at the centre of its agenda, with dispute settlement reform reduced to a 'footnote'. Consequently, this post suggests that the trajectory of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), the temporary workaround that emerged in 2020, tells us more about the future of WTO dispute settlement than the conference itself did.
Image generated with Copilot.
The original deal
WTO’s Appellate Body has been non-functional since 2019 due to United States opposition to new appointments. The original system rested on the idea of compulsory jurisdiction in exchange for universal application. Meaning, members could not opt out when sued, but they also benefited from knowing that everyone else was bound by the same rules. The MPIA rests on the opposite logic: Participation is voluntary, and only those who join are bound.
The workaround, and how it works… for its members
The MPIA, created in April 2020 under Article 25 of the DSU, has proven that a functioning dispute system, with both a panel stage and genuine appellate review, is possible even without the United States.
For IP practitioners, the clearest evidence is DS611, China, Enforcement of Intellectual Property Rights, previously covered by the IPKat from a territoriality perspective. In July 2025, the WTO circulated the second-ever MPIA arbitration award in that case. The EU had challenged Chinese anti-suit injunctions in standard essential patent litigation as a breach of TRIPS. The panel found in China's favour, but the MPIA arbitrators reversed that finding, holding that the relevant TRIPS provisions imply a duty not to frustrate the functioning of IP protection systems in other members' territories. A second EU-China TRIPS dispute, building on similar questions of extraterritorial implementation, is already on appeal through the same channel.
The limitations of the MPIA
The arrangement's reach, however, has its limits. Several significant WTO members have not joined. The MPIA operates on strictly reciprocal terms: both disputing parties must be members. The MPIA is built on Article 25 of the DSU, an arbitration provision, and arbitration, like all consensual dispute resolution, cannot be imposed on a party that has not agreed to it. The original Appellate Body required no such agreement.
The United States, which initiated the Appellate Body's collapse by blocking appointments since 2017, has not joined and actively criticises the arrangement, arguing it replicates the same "judicial overreach" it rejected in the original Appellate Body. US representative, Jamieson Greer's official statement did not refer to restoring the WTO dispute settlement system and instead emphasized bilateral and plurilateral arrangements.
India has also stayed out. Disputes involving these members remain, in the now-standard formulation, "appealed into the void". India's position deserves particular attention. It argues that a club of the willing undermines the organisation’s consensus logic and that if the MPIA works well enough for its members, pressure on the US will quietly evaporate. Indonesia made the same calculation explicit when it declined an EU invitation and instead appealed into the non-functioning Appellate Body.
The MPIA's own founding document reinforces this concern. It envisages “that the MPIA will remain in effect only until the Appellate Body is again fully functional." The draft workplan circulated ahead of MC14 offered little more than a commitment that consultations would continue after the conference under the auspices of the Dispute Settlement Body. In fact, at the ministerial session on dispute settlement on 28 March, the DSB Chair confirmed that members "supported the resumption of work after MC14 once the time is right and members are ready."
The EU's position?
The EU was among the principal designers of the MPIA and remains its most active user in IP disputes. At the same time, it arrived at Yaoundé as a vocal champion of universal reform. Its submission to the General Council, circulated on 19 January 2026, opens by invoking "a critical and, in fact, an existential juncture" and reaffirms that "a reformed WTO would need to be underpinned by a fully and well-functioning dispute settlement system accessible to all Members."
Reading the operative work programme alongside that declaration, however, shows a different institutional emphasis. The EU's proposed Work Programme contains three substantive tracks: Fairness, Flexibility, and Additional topics. Dispute settlement reform does not appear as a standalone track. It is addressed only in a footnote (see footnote 5), which reads: "Discussions on dispute settlement reform should resume when progress is made on WTO reform and when the conditions are right."
The EU's Council conclusions adopted on the opening day of MC14 went further, stating that the EU "stands ready to pick up this work and build on the progress already made, whenever the conditions are ripe," while in the same breath declaring the MPIA "more important than ever as a stop-gap solution." Peter Van den Bossche, a former Appellate Body chair, writing in December 2025, reached the same conclusion: it is "not expected that, as long as US President Trump is in office, any such ‘meaningful progress’” on appellate review can be made.
The paradox of a successful stopgap
At this ministerial, three new members joined the MPIA (Barbados, Moldova, and Liechtenstein), bringing the total to 61. As such, even though the MPIA was designed as a stopgap, it may be on its way to becoming permanent the more buy-in it gets and the more effectively it works. Read alongside the EU's submission and the MC14 outcomes, the dispute settlement system increasingly resembles a two-track structure: binding appellate review for 61 members, and legal limbo for the rest. For TRIPS specifically, enforcement of IP obligations now depends on whether disputing parties share membership in a voluntary arbitration arrangement created in 2020.
From a system design perspective, a dispute settlement framework that delivers different levels of enforcement to different members may be said to have a legitimacy problem. In any event, it is a far, far better thing for the parties to a dispute to have MPIA membership than to be relying on the ghost of the Appellate Body."
DO YOU WANT TO REUSE THE IPKAT CONTENT? PLEASE REFER TO OUR 'POLICIES' SECTION. IF YOU HAVE ANY QUERIES OR REQUESTS FOR PERMISSION, PLEASE GET IN TOUCH WITH THE IPKAT TEAM.
https://ipkitten.blogspot.com/2026/04/guest-post-wtos-tale-of-two-dispute.html