Bridges Weekly Trade News Digest • Volume 9 • Number 7 • 2nd March 2005
‘DSU Review: Members Discuss Two New Contributions
At the Dispute Settlement Body (DSB) Special (negotiating) Session meeting on 28 February, discussions focused on two new informal contributions circulated during the previous week. The first contribution by a group of seven delegations — Argentina, Brazil, Canada, India, Mexico, New Zealand and Norway — addressed the issue of enhanced third-party rights at all stages of the dispute settlement process. The second contribution, presented by the US, related to the provision of additional guidance to WTO panels and the Appellate Body concerning the nature and scope of their work, as well as rules for interpreting WTO agreements.
Similar to previous proposals on third-party rights, the first contribution sought to find the right balance between the enhancement of such rights and the preservation of the interests of main parties in a dispute. Some of these earlier submissions on third-party rights can be found in a May 2003 consolidated text prepared prior to the Cancun Ministerial Conference by former DSB Special Session Chair Ambassador Peter Balas of Hungary. The proposal was generally well received by Members; further discussions on it are expected.
The issues in the US proposal, i.e., guidance to WTO dispute settlement panels and the Appellate Body, had been previously identified, though without details, in a joint US and Chile proposal (TN/DS/W/28) (see BRIDGES Weekly, 20 December 2002, http://www.ictsd.org/weekly/02-12-20/wtoinbrief.htm). The new contribution, presented in the form of questions, invited discussions on some conceptual issues relating to the function, scope and limits of the WTO judicial decision-making process. The questions focused in particular on the exercise of ‘judicial economy’ — the prerogative of WTO adjudicators to decline to rule on a particular claim if they deem it unnecessary to do so due to other findings in the same ruling, for instance. The contribution also touched on the role of public international law in the WTO, the potential for ‘gap-filling’ by panels and the Appellate Body in cases where the text of an agreement is unclear, and the definition of "measures" under review in a dispute. Although most Members were hesitant to respond to the proposed questions, the contribution was well received.
Several Members invited the US to explain its rationale for formulating the questions, and to share its own responses to some of the questions. They also asked it to provide concrete examples of certain situations that it described in the submission. The US, however, pointed out that it had not intended to reflect any particular position on the issues raised but rather to stimulate a discussion among Members and generate some clarification on these issues.
Future work programme
DSB Special Session Chair Ambassador David Spencer of Australia noted that akin to expectations for all the negotiations on "rules"-based issues (such as trade remedies and the negotiations on regional trade agreements), Members expected significant progress in the review of the Dispute Settlement Understanding this year. He urged delegations to continue to consult amongst themselves outside the review process to garner support for issues on which they wanted to see further progress.
To further inject momentum into the review process the Chair indicated his intention to hold informal meetings on 4-5 April. Some delegations reminded the session that these negotiations were outside the "Single Undertaking" (in which all negotiations were expected to end by 1 January 2005). Another delegation requested clarification regarding the manner in which the issues would be selected for informal discussion, as well as the exact procedures and format of expected discussions. The Chair confirmed that he would select the issues based on contributions and input from Members. The Chair indicated that these informal meetings would aim to be focused, and that he would like the work of the special session to be based on drafts texts as soon as this was possible.
ICTSD reporting.