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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING Understanding on Rules and Procedures Governing the Settlement of Disputes |
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> Article 1 |
Article 4: Consultations 1. Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members.
2. Each Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.(3)
(footnote original) 3 Where the provisions of any other covered agreement concerning measures taken by regional or local governments or authorities within the territory of a Member contain provisions different from the provisions of this paragraph, the provisions of such other covered agreement shall prevail.
3. If a request for consultations is made pursuant to a covered agreement, the Member to which the request is made shall, unless otherwise mutually agreed, reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the Member does not respond within 10 days after the date of receipt of the request, or does not enter into consultations within a period of no more than 30 days, or a period otherwise mutually agreed, after the date of receipt of the request, then the Member that requested the holding of consultations may proceed directly to request the establishment of a panel.
4. All such requests for consultations shall be notified to the DSB and the relevant Councils and Committees by the Member which requests consultations. Any request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint.
5. In the course of consultations in accordance with the provisions of a covered agreement, before resorting to further action under this Understanding, Members should attempt to obtain satisfactory adjustment of the matter.
6. Consultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings.
7. If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute.
8. In cases of urgency, including those which concern perishable goods, Members shall enter into consultations within a period of no more than 10 days after the date of receipt of the request. If the consultations have failed to settle the dispute within a period of 20 days after the date of receipt of the request, the complaining party may request the establishment of a panel.
9. In cases of urgency, including those which concern perishable goods, the parties to the dispute, panels and the Appellate Body shall make every effort to accelerate the proceedings to the greatest extent possible.
10. During consultations Members should give special attention to the particular problems and interests of developing country Members.
11. Whenever a Member other than the consulting Members considers that it has a substantial trade interest in consultations being held pursuant to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements(4), such Member may notify the consulting Members and the DSB, within 10 days after the date of the circulation of the request for consultations under said Article, of its desire to be joined in the consultations. Such Member shall be joined in the consultations, provided that the Member to which the request for consultations was addressed agrees that the claim of substantial interest is well-founded. In that event they shall so inform the DSB. If the request to be joined in the consultations is not accepted, the applicant Member shall be free to request consultations under paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or the corresponding provisions in other covered agreements.
(footnote original) 4 The corresponding consultation provisions in the covered agreements are listed hereunder:
Agreement on Agriculture, Article 19; Agreement on the Application of Sanitary and Phytosanitary Measures, paragraph 1 of Article 11; Agreement on Textiles and Clothing, paragraph 4 of Article 8; Agreement on Technical Barriers to Trade, paragraph 1 of Article 14; Agreement on Trade-Related Investment Measures, Article 8; Agreement on Implementation of Article VI of GATT 1994, paragraph 2 of Article 17; Agreement on Implementation of Article VII of GATT 1994, paragraph 2 of Article 19; Agreement on Preshipment Inspection, Article 7; Agreement on Rules of Origin, Article 7; Agreement on Import Licensing Procedures, Article 6; Agreement on Subsidies and Countervailing Measures, Article 30; Agreement on Safeguards, Article 14; Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 64.1; and any corresponding consultation provisions in Plurilateral Trade Agreements as determined by the competent bodies of each Agreement and as notified to the DSB.
(a) Importance of consultations 87. The Panel on Brazil - Desiccated Coconut considered the importance of consultations in the dispute settlement process and indicated that the Members' duty to consult is absolute and cannot be subject to the prior imposition of any terms and conditions by a Member: "The Philippine's request concerns a matter which this Panel views with the utmost seriousness. Compliance with the fundamental obligation of WTO Members to enter into consultations where a request is made under the DSU is vital to the operation of the dispute settlement system. Article 4.2 of the DSU provides that 'Each Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former'. Moreover, pursuant to Article 4.6 of the DSU, consultations are 'without prejudice to the rights of any Member in any further proceedings'. In our view, these provisions make clear that Members' duty to consult is absolute, and is not susceptible to the prior imposition of any terms and conditions by a Member."(117) (b) Disclosure of information during consultations 88. In India - Patents (US), the United States argued that if India had disclosed, during consultations, the existence of certain administrative instructions, the United States would have included in its request for establishment of a Panel a claim under Article 63 of the TRIPS Agreement. With respect to disclosure of information during consultations, the Appellate Body noted that: "All parties engaged in dispute settlement under the DSU must be fully forthcoming from the very beginning both as to the claims involved in a dispute and as to the facts relating to those claims. Claims must be stated clearly. Facts must be disclosed freely. This must be so in consultations as well as in the more formal setting of panel proceedings. In fact, the demands of due process that are implicit in the DSU make this especially necessary during consultations. For the claims that are made and the facts that are established during consultations do much to shape the substance and the scope of subsequent panel proceedings. If, in the aftermath of consultations, any party believes that all the pertinent facts relating to a claim are, for any reason, not before the panel, then that party should ask the panel in that case to engage in additional fact-finding."(118) 89. In EC - Bananas III, the Panel indicated that the function of the panels as regards consultations is only to ascertain whether consultations, when required, were held: "Consultations are ... a matter reserved for the parties. The DSB is not involved; no panel is involved; and the consultations are held in the absence of the Secretariat. While a mutually agreed solution is to be preferred, in some cases it is not possible for parties to agree upon one. In those cases, it is our view that the function of a panel is only to ascertain that the consultations, if required, were in fact held."(119) 90. In Korea - Alcoholic Beverages, Korea argued before the Panel that the complaining parties violated Articles 3.3, 3.7 and 4.5 of the DSU by not engaging in consultations in good faith to reach a mutually agreed solution. Korea maintained that there had been no meaningful exchange of facts because the complainants treated the consultations as one-sided question and answer sessions. Korea asserted that such an approach frustrated any reasonable chance for a settlement and considered the non-observance of specific provisions of the DSU as a "violation of the tenets of the WTO dispute settlement system". The Panel, in reference to the Panel on EC - Bananas III (see paragraph 89 above) confirmed that the panel does not have a mandate to investigate the adequacy of the consultation process that took place between the parties: "In our view, the WTO jurisprudence so far has not recognized any concept of 'adequacy' of consultations. The only requirement under the DSU is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. What takes place in those consultations is not the concern of a panel. The point was put clearly by the Panel in Bananas III, ... ... We do not wish to imply that we consider consultations unimportant. Quite the contrary, consultations are a critical and integral part of the DSU. But, we have no mandate to investigate the adequacy of the consultation process that took place between the parties and we decline to do so in the present case."(120) 91. The Panel on Turkey - Textiles confirmed this approach and expressly referred to the panel reports in EC - Bananas III and Korea - Alcoholic Beverages referenced in paragraphs 89-90 above: "[W]e note that in EC - Bananas III the panel concluded that the private nature of the bilateral consultations means that panels are normally not in a position to evaluate how the consultations process functions, but could only determine whether consultations, if required, did in fact take place.(121) In this case, the parties never consulted, as Turkey declined to do so without the presence of the European Communities. ... We concur with [the finding of the Panel on Korea - Alcoholic Beverages]. We note also that our terms of reference (our mandate) are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel.(122) Consultations are a crucial and integral part of the DSU and are intended to facilitate a mutually satisfactory settlement of the dispute, consistent with Article 3.7 of the DSU. However, the only function we have as a panel in relation to Turkey's procedural concerns is to ascertain whether consultations were properly requested, in terms of the DSU, that the complainant was ready to consult with the defendant and that the 60 day period has lapsed before the establishment of a panel was requested by the complainant. We consider that India complied with these procedural requirements and therefore we find it necessary to reject Turkey's claim."(123) (d) Result of the consultations 92. In EC - Bananas III, the Panel dismissed the European Communities argument that consultations must produce an adequate explanation of a complainant's case: "As to the EC argument that consultations must lead to an adequate explanation of the Complainants' case, we cannot agree. Consultations are the first step in the dispute settlement process. While one function of the consultations may be to clarify what the case is about, there is nothing in the DSU that provides that a complainant cannot request a panel unless its case is adequately explained in the consultations. The fulfilment of such a requirement would be difficult, if not impossible, for a complainant to demonstrate if a respondent chose to claim a lack of understanding of the case, a result which would undermine the automatic nature of panel establishment under the DSU. The only prerequisite for requesting a panel is that the consultations have "fail[ed] to settle a dispute within 60 days of receipt of the request for consultations ...".(124) Ultimately, the function of providing notice to a respondent of a complainant's claims and arguments is served by the request for establishment of a panel and by the complainant's submissions to that panel."(125) (e) Challenging a request for consultations 93. For the requirement of good faith when challenging procedural deficiencies, see paragraph 84 above. 94. With respect to challenging measures not listed on the request for consultations, see paragraphs 96-100 below. (a) Notification of requests for consultations 95. At its meeting on 19 July 1995, the DSB, with regard to the notification requirement contained in Article 4:4 of the DSU, agreed that delegations would send one single text of their notifications to the Secretariat (Council Division), simply specifying in that text, the other relevant Councils or Committees to which they wished the notification to be addressed. The Secretariat would then distribute it to the specified relevant bodies.(126) (b) Absence or addition of "claims" and/or "measures" in the request for consultations 96. The Panel on Brazil - Aircraft considered Brazil's objections to the Panel's consideration of certain measures included in the panel request which were based on the fact that they were enacted or implemented after the last consultations between the parties and, as a result, could not have been the subject of consultations. The Panel indicated that it was not governed by prior consultations: "We recall that our terms of reference are based upon Canada's request for establishment of a panel, and not upon Canada's request for consultations. These terms of reference were established by the DSB pursuant to Article 7.1 of the DSU and establish the parameters for our work.(127) Nothing in the text of the DSU or Article 4 of the SCM Agreement provides that the scope of a panel's work is governed by the scope of prior consultations. Nor do we consider that we should seek to somehow imply such a requirement into the WTO Agreement. One purpose of consultations, as set forth in Article 4.3 of the SCM Agreement, is to 'clarify the facts of the situation',(128) and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel. Thus, to limit the scope of the panel proceedings to the identical matter with respect to which consultations were held could undermine the effectiveness of the panel process."(129) 97. This view was confirmed by the Appellate Body in Brazil - Aircraft which indicated that it "[did] not believe, ..., that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel."(130) 98. The Panel on EC - Bed Linen considered that the absence in the request for establishment of a panel of a subject discussed during consultations simply indicated that a Member did not wish to pursue the matter further: "In the absence of any reference in the request for establishment to the treaty Article alleged to have been violated, the question of possible prejudice as a result of failure to state a claim with sufficient clarity simply does not arise. Moreover, we are of the view that the argument that there was no prejudice to the European Communities because Article 6 of the AD Agreement was mentioned in the request for consultations, and may even have been discussed during the consultations is, in this case, irrelevant. Consultations are part of the process of clarifying the matter in dispute between the parties. It is perfectly understandable, and indeed desirable, that issues discussed during consultations do not subsequently become claims in dispute. Thus, the absence of a subject that was discussed in the consultations from the request from establishment indicates that the complaining Member does not intend to pursue that matter further. Whether inadvertent or not, as a result of the omission of Article 6 from the request for establishment the defending Member, the European Communities, and third countries had no notice that India intended to pursue claims under Article 6 of the AD Agreement in this case, and were entitled to rely on the conclusion that it would not do so. Consequently, India would be estopped in any event from raising such claims."(131) 99. The Panel on Canada - Aircraft indicated (when considering Article 4.2 of the SCM Agreement) that the matter consulted on and the matter identified in the panel request will not necessarily be identical: "In our view, a panel's terms of reference would only fail to be determinative of a panel's jurisdiction if, in light of Article 4.1 - 4.4 of the SCM Agreement applied together with(132) Article 4.2 - 4.7 of the DSU, the complaining party's request for establishment were found to cover a 'dispute' that had not been the subject of a request for consultations. Article 4.4 of the SCM Agreement permits a Member to refer a 'matter' to the DSB if 'no mutually agreed solution' is reached during consultations. In our view, this provision complements Article 4.7 of the DSU, which allows a Member to refer a 'matter' to the DSB if 'consultations fail to settle a dispute'. Read together, these provisions prevent a Member from requesting the establishment of a panel with regard to a 'dispute' on which no consultations were requested. In our view, this approach seeks to preserve due process while also recognising that the 'matter' on which consultations are requested will not necessarily be identical to the 'matter' identified in the request for establishment of a panel. The two 'matters' may not be identical because, as noted by the Appellate Body in India - Patents, 'the claims that are made and the facts that are established during consultations do much to shape the substance and the scope of subsequent panel proceedings'.(133)"(134) 100. See extract from the Panel report on Canada - Aircraft contained in Article 4.4 of the SCM Agreement discussion in the Chapter on the SCM Agreement, Section V.B.4. (c) Effect of the extension of the duration of identified measures after consultations 101. The Panel on Chile - Price Band System addressed the issue of whether or not the extension of the duration of identified measures after consultations affected compliance with Article 4.4 of the DSU. Chile argued that none of the safeguard measures challenged by Argentina in the dispute fell within the Panel's jurisdiction. According to Chile, the provisional and definitive safeguard measures concerned were no longer in effect on the date of Argentina's request for establishment of the panel. The Panel responded (on an issue not subsequently appealed) as follows: "Chile raises two different objections regarding the Panel's jurisdiction with respect to the definitive safeguard measures and the extension of their duration: first, the definitive safeguard measures had 'expired before the request for establishment was made; second, the 'extension measures' were not formally included in the request for consultations. We cannot accept either of those objections, for one and the same reason. Both of Chile's objections are based on the proposition that the extension of the period of application results in a measure distinct from the definitive safeguard measure. We disagree with this proposition. In our view, Article 7 of the Agreement on Safeguards makes it clear that what is at issue is not an extension 'of the safeguard measure', but, rather, an extension 'of the period of application of the safeguard measure' or of 'the duration of the safeguard measure'. Article 7 is entitled 'Duration and Review of Safeguard Measures'. Article 7.1 provides ...:
This language is sufficiently clear for us as to conclude that the 'extensions' are not distinct measures, but merely continuations in time of the definitive safeguard measures. As a result, we consider that the definitive safeguard measures were not terminated before the request for establishment, but, rather, that their duration was simply extended at that time. Thus, we need not further consider Chile's argument that we lack the authority to make findings in respect of the definitive measures on the grounds that they have expired.(135) For the same reason, we also consider the fact that the extension was not mentioned in the request for consultations irrelevant for the determination of our jurisdiction: pursuant to Article 4.4 of the DSU, Argentina had to, and did, identify the definitive safeguard measures in its request for consultations. The fact that the duration of the identified measures was extended by Chile after the request for consultations cannot affect Argentina's compliance with Article 4.4 of the DSU.(136)
We note, moreover, that the 'extension' did not in any way amend the content of the safeguard measures and that there were, in fact, exchanges between Argentina and Chile during the period of consultations regarding the 'extension'. Chile must therefore have been fully informed about Argentina's intention to challenge the safeguard measures, as extended in time. Thus, even if the 'extension' were to be considered a separate measure, quod non, Chile's due process rights would not have been impinged upon.(137)"(138) (d) Relationship between request for consultations and request for the establishment of a panel 102. See paragraphs 96-99 above and the excerpt from the report of the Appellate Body referenced in paragraph 111 below. (a) "consultations shall be confidential" (i) Information acquired during consultations In the same proceedings 103. In Korea - Alcoholic Beverages, Korea argued before the Panel that the complainants breached the confidentiality requirement of Article 4.6 of the DSU by making reference, in their submissions, to information supplied by Korea during consultations. The Panel, in a finding not reviewed by the Appellate Body, held that while confidentiality in consultations between parties to a dispute was "essential", it also found that "parties do not thereby breach any confidentiality by disclosing in those proceedings information acquired during the consultations": "We note that Article 4.6 of the DSU requires confidentiality in the consultations between parties to a dispute. This is essential if the parties are to be free to engage in meaningful consultations. However, it is our view that this confidentiality extends only as far as requiring the parties to the consultations not to disclose any information obtained in the consultations to any parties that were not involved in those consultations. We are mindful of the fact that the panel proceedings between the parties remain confidential, and parties do not thereby breach any confidentiality by disclosing in those proceedings information acquired during the consultations. Indeed, in our view, the very essence of consultations is to enable the parties gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel. It would seriously hamper the dispute settlement process if the information acquired during consultations could not subsequently be used by any party in the ensuing proceedings. We find therefore, that there has been no breach of confidentiality by the complainants in this case in respect of information that they became aware of during the consultations with Korea on this matter."(139) 104. The Panel on EC - Bed Linen also referred to the finding of the Panel on Korea - Alcoholic Beverages referenced in paragraph 103 above. In that case, India presented transcripts of the consultation sessions held with the European Communities, so as to demonstrate the "bad faith" of the European Communities during consultations. Although the Panel concluded that the material submitted by India was not related to any specific legal claim and, as a result, was not relevant to the case, the Panel decided that it would not a priori exclude this evidence. Inter alia, the Panel recalled the findings of the Panel on Korea - Alcoholic Beverages that information obtained in consultations may be presented during subsequent panel proceedings.(140) Information obtained in different proceedings 105. In Australia - Automotive Leather II, Australia, the defending party, demanded that information which the United States, the complaining party, had obtained during consultations preceding a previous panel requested by the United States (a panel which had been established, but never composed and, as a result, never became active) be declared inadmissible in the second proceeding. The Panel, further to referring to the findings of the Panel on Korea - Alcoholic Beverages(see paragraph 103 above) considered as follows: "Given that, in this case, the parties and the dispute are the same, no panel was actually composed or considered the dispute in the first-requested proceeding, and there are no third parties involved in either proceeding who might have learned information in the course of consultations, we cannot see any reason to exclude the United States Exhibit 2 from our consideration, merely because it was developed in the course of the consultations held pursuant to the first request.(141) Australia has failed to specify what other, if any, facts might have been derived by the United States from the earlier consultations, and so there is no basis for us to exclude any such facts."(142) Offers of settlement made during consultations 106. In US - Underwear, Costa Rica had submitted to the Panel certain information relating to settlement offers made by the United States during the consultations. The Panel decided not to base its findings on such information. See paragraph 105 above. (ii) Relevance of third party participation in confidentiality of information from consultations 107. The Panel on Mexico - Corn Syrup considered, inter alia, the effect of third party participation when referring to consultations and concluded that "the requirement to maintain the confidentiality of consultations is not violated by the inclusion of information obtained during consultations in the written submission of a party provided to a third party in the subsequent panel proceeding even if that third party did not participate in the consultations": "[I]t would seriously hamper the dispute settlement process if a party could not use information obtained in the consultations in subsequent panel proceedings merely because a third party which did not participate in the consultations chooses to participate in the panel proceedings.(143) As Mexico points out, third party participation in the panel proceedings cannot be vetoed by the parties to the proceeding. In our view, it would be anomalous if the decision of a Member to participate in a panel proceeding as a third party when it did not, or could not, participate as a third party in the underlying consultations had the effect of limiting the evidence that could be relied upon in the panel proceeding by precluding the introduction of information obtained during the consultations. Third parties are subject to the same requirement to maintain the confidentiality of panel proceedings as are parties. We therefore conclude that the requirement to maintain the confidentiality of consultations is not violated by the inclusion of information obtained during consultations in the written submission of a party provided to a third party in the subsequent panel proceeding even if that third party did not participate in the consultations.(144) (b) "consultations shall be ... without prejudice to the rights of any Member" 108. In US - Underwear, Costa Rica had submitted to the Panel certain information relating to settlement offers made by the United States during the consultations. The Panel considered that "the wording of Article 4.6 of the DSU makes it clear that offers made in the context of consultations are, in case a mutually agreed solution is not reached, of no legal consequence to the later stages of dispute settlement, as far as the rights of the parties to the dispute are concerned." Accordingly, the Panel decided to disregard such information.(145) 109. In Canada - Patent Term, the United States submitted a request for expedited consideration of the dispute under Article 4.9 of the DSU on the grounds that the premature expiration of patents during the dispute settlement procedure caused irreparable harm to the patent owners. It referred to the alleged simplicity of the issues in dispute, the absence of third parties and other circumstances. The Panel indicated that due to other demands on its members' time, it could not accelerate the timetable prior to the first substantive meeting; however the Panel stated that it undertook to make every effort to issue its report as soon as possible after the second substantive meeting.(146) 110. The Appellate Body in EC - Bananas III touched on Article 4.11 in its finding that no "legal interest" is required for a Member to bring a case under the DSU. See paragraph 123 below.
111. In response to Brazil's argument that a panel request must include only measures that were either identified in the request for consultations or raised subsequently during the consultations, the Appellate Body in Brazil - Aircraft stated: "We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel. As stated by the Panel, '[o]ne purpose of consultations, as set forth in Article 4.3 of the SCM Agreement, is to 'clarify the facts of the situation', and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel.'"(147)
112. The Panel on US - Wool Shirts and Blouses discussed the role of panels under the DSU and the role of the TMB under the ATC. With respect to consultations, the Panel stated: "We note also that, according to Article 8.10 of the ATC, when the TMB process has been completed, a Member which remains unsatisfied with the TMB recommendations can request the establishment of a panel without having to request consultations under Article 4 of the DSU. This is to say that the TMB process can replace the consultation phase in the dispute settlement process under the DSU and is distinct from the formal adjudication process by panels."(148) 2. Article 17 of the Anti-Dumping Agreement 113. See the excerpts from the reports of the panels and Appellate Body referenced in the Chapter on the Anti-Dumping Agreement, Section XVII.B. 3. Article 4.2 of the SCM Agreement 114. As regards the difference between Article 4.4 of the DSU and Article 4.2 of the SCM Agreement, see the excerpt from the Report of the Appellate Body in US - FSC referenced at Section IV.B.1(a) of the Chapter dealing with the SCM Agreement.
V. Article 5 back to top Article 5: Good Offices, Conciliation and Mediation 1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree.
2. Proceedings involving good offices, conciliation and mediation, and in particular positions taken by the parties to the dispute during these proceedings, shall be confidential, and without prejudice to the rights of either party in any further proceedings under these procedures.
3. Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begin at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are terminated, a complaining party may then proceed with a request for the establishment of a panel.
4. When good offices, conciliation or mediation are entered into within 60 days after the date of receipt of a request for consultations, the complaining party must allow a period of 60 days after the date of receipt of the request for consultations before requesting the establishment of a panel. The complaining party may request the establishment of a panel during the 60-day period if the parties to the dispute jointly consider that the good offices, conciliation or mediation process has failed to settle the dispute.
5. If the parties to a dispute agree, procedures for good offices, conciliation or mediation may continue while the panel process proceeds.
6. The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute.
1. WTO Director-General's offer of assistance 115. On 13 July 2001, the WTO Director-General(149) addressed a communication to the Members expressing his views that "Members should be afforded every opportunity to settle their disputes through negotiations whenever possible". In this communication, the WTO Director-General noted that Article 5 of the DSU, which provides for the use of good offices, conciliation and mediation, has not been used and reminded Members that he was ready and willing to assist them as is envisaged under the terms of Article 5.6.(150) 116. With respect to a mediation outside the DSU but following procedures similar to those described in this communication, see paragraphs 117-118 below. 117. On 10 October 2002, the WTO Director-General(151) issued a communication informing the Members that on 4 September 2002, the Philippines, Thailand and the European Communities had jointly requested mediation by himself or by a mediator appointed by him with their agreement. The purpose of the mediation was "to examine the extent to which the legitimate interests of the Philippines and Thailand are being unduly impaired as a result of the implementation by the European Communities of the preferential tariff treatment for canned tuna originating in ACP states. In the event that the mediator concludes that undue impairment has in fact occurred, the mediator could consider means by which this situation may be addressed."(152) 118. Although the requesting Members considered that the matter at issue was not a "dispute" within the terms of the DSU, they agreed that the mediator could be guided by procedures similar to those envisaged for mediation under Article 5 of the DSU, as described in a communication by the Director-General on Article 5 of the DSU (see paragraph 115 above).(153)
Footnotes: 117. Panel Report on Brazil
- Desiccated Coconut, para. 287. back to text |
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