DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 3
WTO Bodies involved in the dispute settlement process
Under the DSU, the “players” in a dispute settlement process are subject to certain rules designed to ensure due process and unbiased decisions. Persons called to participate in the dispute settlement process as panelists, Appellate Body members or arbitrators must carry out their tasks in an impartial and independent manner. There must not be any ex parte communications (the panel is not entitled to communicate with individual parties except in the presence of the other party or parties) between the parties and the panel or Appellate Body members concerning matters under their consideration (Article 18.1 of the DSU).
More specifically, the DSB has adopted Rules of Conduct for the DSU1, which aim at guaranteeing the integrity, impartiality and confidentiality of the dispute settlement system. These Rules of Conduct are applicable to all “covered persons” which include panel members, Appellate Body members, experts assisting panels, arbitrators, members of the Textile Monitoring Body, and (WTO) Secretariat and Appellate Body Secretariat staff.
Under the Rules of Conduct, “covered persons” are required to be independent and impartial, to avoid direct or indirect conflicts of interest, and to respect the confidentiality of dispute settlement proceedings. In particular, any covered person is required to disclose the existence or development of any interest, relationship or matter that he or she could reasonably be expected to know and that is likely to affect, or give rise to justifiable doubts as to that person’s independence or impartiality. Such disclosure has to include information on financial, professional and other active interests as well as considered statements of public opinion and employment or family interests.
A violation of any of these requirements by a covered person gives the parties to the dispute a right to challenge the participation of that person in the dispute settlement proceeding and to request the exclusion of that person from any further participation in the process. In the case of Secretariat staff, the challenge is addressed to the Director-General.