WTO 분쟁해결체제의 중재 절차 활용에 관한 연구 - 튀르키예*-의약품 사건(DS583) 상소 중재 사례 고찰 -

This Article focuses on the arbitration procedures under Article 25 of the DSU for alternatives to the mainstream dispute settlement mechanism such as the panel proceedings. The arbitration mechanism under Article 25 of the DSU is an ‘expeditious’ alternative mechanism that can facilitate the solution of certain disputes that concern issues that are clearly defined by both parties. Until now, however, Members of the WTO have been more focused on the mainstream dispute settlement procedures than the alternative one. Recently, voices have begun to be wary of excessive judicialization of the WTO, and as the function of the Appellate Body has been suspended, arbitration within the WTO has drawn attention again as an alternative dispute resolution tool. Although there are some limitations in analysis due to lack of cases of arbitration through Article 25 in the WTO system, “procedural flexibility” of the arbitration will be a great advantage for the parties involved in disputes. However, it can be pointed out that some private autonomy of the parties, which is the very characteristic of arbitration, is limited in the WTO legal framework in terms of selection of arbitrators, challenging against arbitrators, and implementation procedures and so on. Even so, if the substance that is used in the staple international arbitration rule are embodied within the WTO system and cases are accumulated, arbitration under Article 25 is likely to become an alternative means of dispute resolution through panel/Appellate Body. To this end, in-depth research on the relationship between the DSU's regulations and other arbitration rules, and how those rules should be introduced in the WTO system must be followed in a careful manner. Recently, it is encouraging that an appeal arbitration based on Article 25, including Multi-Party Interim Appeal Arbitration Arrangement (MPIA), is gaining a new momentum. The “Türkiye-pharmaceuticals case”, the first case in which the arbitration under Article 25 was used in the appeal trial, has great implications in terms of the utilization and improvement of the arbitration within the WTO. Although it has been raised as a temporary measure while the function of the WTO Appellate Body has been suspended, it is a very meaningful attempt to pave the way for reform of the WTO appeal system between Members. As the value of using arbitration under Article 25 is expected to vary widely in resolving disputes between Members, we look forward to witnessing as many arbitration cases as possible to be accumulated in the near future.