WTO Dispute Settlement Body — Developments in 2015

Graduate Institute Remarks
21 March 2016

INTRODUCTION

Thank you very much Joost for inviting me to participate in this event tonight and for allowing me to share this podium with the Chair of the Appellate Body. It is an honour.

It is a pleasure to be with you this evening to provide some reflections on the DSU negotiations in light of recent dispute settlement experience.

DISPUTE SETTLEMENT ACTIVITY

The year 2015 has marked a continuation of the high level of dispute settlement activity seen in previous years.

In 2015, there were 13 requests for consultations; the establishment of a panel was requested in 15 disputes; panels were composed in 11 disputes; and panel reports were circulated in 9 disputes. On the appeal side, appeals were initiated in 8 disputes, and Appellate Body reports were circulated in 11 disputes.

In addition, arbitrators issued decisions as to the reasonable period of time for compliance under Article 21.3(c) of the DSU in 3 disputes, and issued decisions in 2 disputes regarding suspension of concessions under Article 22.6 of the DSU.

I very much agree with the Director-General’s assessment, which he shared in his speech to the DSB in October last year, that this high level of activity reflects Members’ continuing confidence in the WTO dispute settlement system. At the same time, Members’ increasing reliance on WTO dispute settlement has created pressures on the capacity of the system to meet the demands being placed on it.

The present situation puts into focus the question of how Members can address new realities, complexities, and challenges in the WTO dispute settlement mechanism.

DSU NEGOTIATIONS

Among the avenues available to Members to do so is the review of the DSU conducted in the Special Session of the DSB, which I was privileged to Chair from 2006 through the Nairobi Ministerial Conference last December.

As I am sure most of you know, these negotiations are based on the Doha Ministerial mandate to agree upon “improvements and clarifications” to the DSU.

Notably, Ministers explicitly placed these negotiations outside the single undertaking, so that Members could separately conclude and implement any outcome.

While it is true that some Members may regret that we have not thus far agreed on a final outcome, the length of time during which the negotiations have taken place has been positive in some ways. Most importantly, it has allowed Members to take into account the evolution of the dispute settlement system at the same time as they seek clarifications and improvements to the DSU.

Our work has been carried out within the context of a framework of “12 issues” covering a broad range of proposals.

In reporting to Members recently¹, I presented my assessment of the state-of-play in the various areas under discussion. The document I presented to the Trade Negotiations Committee in August last year was WTO document TN/DS/27, a Report by the Chairman of the Special Session of the Dispute Settlement Body. I mention this with care because it is an interesting document to read. My aim was to allow a horizontal view across all phases of dispute settlement proceedings, and to facilitate Members’ evaluation of the overall balance of interests to be reflected in a possible outcome.

I also shared with Members possible ways to bridge the gaps on different positions that still exist on a number of issues.

Tonight, I want to go even further.

This is because I believe that the negotiations have reached a stage of maturity that should allow their successful conclusion.

I believe that all the groundwork has been done.

So what now?

Now — it is up to Members to decide how to improve the system according to their needs and expectations, without compromising the system’s proven strengths.

Yes, this is easier said than done. But the timing for this could not be better, because the system is in need of adjustment in view of present workload challenges.

The issues under discussion in the negotiations could be looked at under three general headings:

— The first of them would be technical fixes and filling in procedural gaps.

— The second group of issues is about improved access to the system for Members facing constraints in having effective recourse to dispute settlement.

— The third group concerns the balance between the role of independent adjudicators and the role of Members — both as participants in specific disputes and as a collective body in the DSB.

I will say just a few words on each of them.

The first group of issues — technical fixes and filling in procedural gaps — encompasses a wide range of issues. Some already enjoy convergence, such as codifying the enhancement of third-party rights at the panel stage; improved transparency of mutually agreed solutions; and greater protection for strictly confidential information submitted by parties.

Other issues are dealt with in practice on an ad hoc basis, but it is not certain that Members will always agree on such arrangements. In the case of the long-standing “sequencing” issue, experience has shown that unresolved issues can themselves become the subject of dispute settlement.² A multilateral resolution of this type of issue would be a genuine opportunity for efficiency gains for all involved.

There is also support for filling in procedural gaps in the “post-retaliation” context, a subject that has been subject to litigation in US/Canada Continued Suspension.³

Remand is another issue of potentially wide interest that could facilitate a more efficient resolution of disputes in situations where the Appellate Body is unable to “complete the analysis”.

There is still divergence among Members as to the best way to address such technical gaps or ambiguities that have been revealed in practice. Nevertheless, the DSU negotiations represent an opportunity to agree upon secure and predictable procedures that can improve the overall functioning of the system.

And never before has there been such a profound need to find efficiencies.

The second group of issues I wish to emphasize tonight concerns improved access to the system.

The issues in this group generally go to Members’ capacity to have effective recourse to dispute settlement. 

Discussions under this theme have taken many shapes over the years. Recently, Members have engaged in a constructive assessment of where it may be appropriate to have special and differential treatment to address constraints faced by certain Members. One example is at the consultations stage.

Proposals for direct support to developing countries in the form of a Dispute Settlement Fund, and awarding litigation costs, raised some concerns about the operation and implication of these mechanisms. More recently, there has been a positive discussion on identifying particular needs and challenges in relation to dispute settlement capacity-building to address institutional constraints.

I would also include here potential improvements to administration and surveillance where DSB rulings and recommendations have been adopted, to reinforce the already high level of compliance in WTO dispute settlement. 

The third group of issues is about the balance between the roles of independent adjudicators and the Members.

In the area of “Member control”, there is support for enabling suspension of panel and appellate proceedings upon request of the parties, in the interest of facilitating the negotiation of mutually agreed solutions.

We also explored areas in which the DSB might be able to provide procedural or other guidance to adjudicators.

Proposals that would enhance the opportunity of parties and the DSB to interact with adjudicators or to comment on panel and Appellate Body reports have also been discussed.

These discussions have been highly instructive. They not only gave rise to institutional questions about the nature of WTO adjudication. They also provoked a positive self-reflection on the part of Members as to their own role, both as parties and in their collective capacity as the DSB.

CONCLUSION

To conclude, let me offer a few specific observations about the DSU negotiations.

Have they been going on for too long? YES.

Should they continue? YES.

This might sound contradictory, but I assure you it is not. Let me explain.

The DSU negotiations have achieved a great deal. They have allowed Members to engage positively in in-depth discussions on a wide range of topics with a view to clarifying and improving the DSU.

These discussions have not been for nought. We have learned a great deal from them about the system itself. We have done so with the benefit of the system maturing at the same time.

The great care shown by Members in the way they conduct these negotiations is a reflection of the principle to “do no harm” to a well-functioning system. This system has distinguished itself in inter-state dispute settlement, and its high-quality output is an important contribution not only to the multilateral trading system but also to public international law.

At the same time, the current pressures and increased activity open a window for Members to keep talking, and especially to reflect on how agreement in the negotiations can help all Members meet current and future needs.

This is an opportunity not to be missed.

And it is also a responsibility for Members to preserve the effective functioning of the system.

The three groups of issues I have outlined a few minutes ago are complementary to each other. Technical clarity of rules and procedures promotes the efficient use of resources and the effective implementation of obligations. This increased efficiency and effectiveness improves meaningful access to the system and enhances Member participation, without impairing the capacity of impartial adjudicators to fulfil their mandate.

I firmly believe that the negotiations are ripe for decision. The negotiations should re-start sooner rather than later.  

Because Members must take advantage of the important progress that has been made to date.

I am honoured to have chaired these negotiations, and I sincerely hope that I have been able to assist Members’ efforts to find clarifications and improvements that would be in the shared interest of the entire Membership.

I wish the new Chair the best in carrying the negotiations forward.

Finally, I will leave you all with one more thought.

On the 4th of March, the multilateral trading system lost one of its greatest architects, when Ambassador Julio Lacarte passed away a few days before reaching his 98th birthday. His vast influence on the GATT and his varied contributions to the multilateral trading system are unequalled.

One of his greatest gifts to that system was the DSU, the negotiation of which he chaired some 20 years ago.

I had the privilege to participate in this work and witnessed his contribution and legacy.

Let his great legacy guide you in taking those final few steps to completing the DSU negotiations.

Do it now; do it for him; do it for the system.

Thank you.

 

Notes:

1. See TN/DS/27, Report by the Chairman of the Special Session of the Dispute Settlement Body, 6 August 2015.back to text

2. See, e.g. WT/DS481/1, Request for consultations by the European Union in Indonesia — Recourse to Article 22.2 of the DSU in the US — Clove Cigarettes Dispute. back to text

3. See DS320/321, US/Canada — Continued Suspension. back to text