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24 April 1998

Statement by the Director-General, General Council, 24 April 1998

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.