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Procedure for consultations
The
respondent (i.e. the Member to whom the request for consultations is addressed),
is obliged to accord sympathetic consideration to, and afford adequate opportunity
for, consultations (Article
4.2 of the DSU). Consultations typically take place in Geneva and are confidential (Article
4.6 of the DSU), which also means that the (WTO) Secretariat is not involved.
The fact that they take place behind closed doors also means that their content
remains undisclosed to any panel subsequently assigned the matter.
Unless otherwise agreed, the respondent must reply
to the request within ten days and must enter into consultations in good faith
within a period of no more than 30 days after the date of receipt of the request
for consultations. If the respondent fails to meet any of these deadlines,
the complainant may immediately proceed to the adjudicative stage of dispute
settlement and request the establishment of a panel (Article
4.3 of
the DSU). If the respondent engages in consultations, the complainant can proceed
to the request for establishment of a panel at the earliest 60 days after the
date of receipt of the request for consultations, provided that no satisfactory
solution has emerged from the consultations. However, the consultation stage
can also be concluded earlier if the parties jointly consider that consultations
have failed to settle the dispute (Article 4.7 of
the DSU). In practice, parties to a dispute often allow themselves significantly
more time than the minimum of 60 days.
In cases of urgency, including those that concern perishable goods, Members must enter into consultations within a period of no more than ten days after the date of receipt of the request. If the consultations fail 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 (Article 4.8 of the
DSU).
Third parties in consultations
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A WTO Member that is neither the complainant nor the respondent may be interested in the matters the parties to a dispute are discussing in their consultations. There are various reasons for such an interest: for example, that other Member may have a trade interest and so feels similarly aggrieved by the challenged measure; it may, on the contrary, benefit from that measure; or it may be concerned about the challenge because it maintains a measure similar to that of the respondent. The Member in question may also have an interest in being present at discussions on any mutually agreeable solution because such a solution may affect its interests.
Such other Member may request to join consultations
if it has a substantial trade interest in the matter being discussed and if
consultations were requested pursuant to Article
XXII:1 of GATT1994, Article
XXII:1 of GATS or
the corresponding provisions of the other covered agreements. The request must
be addressed to the consulting Members and the DSB within
ten days after the date of the circulation of the original request for consultations.1 The
responding Member must also agree that the claim of substantial trade interest
is well founded. If the respondent disagrees, there is no recourse through
which the interested Member can impose its presence at the consultations, no
matter how legitimate the invoked substantial trade interest may be. However,
the interested Member can always request consultations directly with the respondent
(Article
4.11 of the DSU), which would open a new, separate dispute settlement proceeding.
Notes:
1. Requests to be joined
in consultations are in almost all cases submitted to the DSB.
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