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I wish to raise
with Members a matter of serious concern that threatens to undermine the WTO's Dispute
Settlement Understanding, a matter that I hope Members will discuss in the DSU review
later this year. In this regard, I refer to my earlier statement on this issue at the
General Council meeting of 19 February 1998.The problem is one of premature
disclosure of dispute settlement panel reports. To date, almost all interim reports have
been leaked, sometimes within hours, usually within a matter of a few days.
This causes
two fundamental problems:
First, it
threatens the credibility and image of the World Trade Organization as an institution. The
leaks are often selective and may present a distorted view of the WTO and its dispute
settlement system. They are often used by individuals and groups, and reproduced by the
media, as a basis for painting the WTO as the enemy of developing countries, consumers and
the environment and as a promoter of protectionism. While these charges could easily be
rebutted, they are made under circumstances where I and the Secretariat cannot respond
without endangering our neutrality. By threatening the credibility and image of the WTO,
these leaks impose significant political costs to the institution, for example, in its
relations with NGOs. While leaks may be viewed by some as providing desirable
transparency, the WTO still suffers as an institution, because the leaks are made on a
selective basis and contrary to the rules.
The second
problem is that these leaks undermine the dispute settlement system. They stress the
conclusions of the interim panel report, by their nature preliminary and tentative,
instead of the final, definitive result of the panel or Appellate Body decision. The
creation of these first mis-impressions by selective leaks is highly undesirable because
the mis-impressions are unlikely to be correctable later. Moreover, leaks reduce the
likelihood of a mutually agreeable solution, which is the preferred result of the DSU and
which is the basic reason for revealing the preliminary panel result to the parties in the
first place.
There are
several suggestions one or more of which Members may wish to consider to deal with this
problem. One approach would be to minimize the elapsed time between the issuance of the
interim report and the circulation of the final panel report to all Members. To do this,
Members must devote more resources to the WTO, especially for translation, and must also
accept that the so-called descriptive parts of panel reports have become far too long and
should be greatly shortened.
A second
possibility would be to circulate the final panel report to Members as soon as it is
available in a working language, it being understood that the official date of circulation
for DSU purposes would be the date on which the report is available to Members in all
three languages. This would have an added, due process benefit. When reports are available
to parties to a dispute long before they are available to other WTO Members, those parties
may have an unfair advantage if they are involved in disputes where similar issues are
presented.
I do not
intend to make specific proposals in this regard. There are other possible solutions and
issues to be considered.
However, I
urge Members to consider this issue of improving transparency pragmatically and
expeditiously. Although attention has been drawn to this problem on several occasions by
Members in meetings of the DSB, the leaks have continued. Therefore, the issue is how to
deal with this issue in a manner that minimizes the damage to the WTO as an institution
and to the integrity of the dispute settlement system. |
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