Bridges Weekly Trade News Digest • Volume 6 • Number 35 • 17th October 2002
Developing Countries Contribute Food For Thought In Dispute Settlement Negotiations
At a meeting of the special (negotiating) session of the WTO Dispute Settlement Body (DSB) on 14 October, a number of new proposals for review of the Dispute Settlement Understanding (DSU) were received from developing countries, bringing new ideas to the table (see BRIDGES Weekly, 18 September 2002). Negotiations on improvement and clarifications to the DSU, according to paragraph 30 of the Doha Declaration, are scheduled to conclude no later than May 2003.
On behalf of Cuba, Honduras, India, Indonesia, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe, India submitted two proposals, one on ‘Special and Differential Treatment for Developing Countries’ within the DSU and another covering a range of issues from amicus curiae (’friend of the court’) briefs to the term of appointment of Appellate Body Members (see TN/DS/W/19 and TN/DS/W/18, searchable at http://docsonline.wto.org). Inter alia, the second proposal states, "there is no need for making any provision for accepting amicus curiae briefs. It would, however, be necessary and useful to address this issue during the review. This could be done by clarifying the meaning of the word "seek" in Article 13 of the DSU, so as to clear the uncertainty and controversy surrounding the issue." Article 13 outlines provisions around the ‘Right to seek information’, saying inter alia that dispute settlement panels may "seek information from any relevant source".
Jamaican, LDC proposals
Jamaica also presented a proposal (TN/DS/W/21) asserting that "an independent mechanism needs to be developed to ensure that developing countries not only obtain legal advice but also obtain assistance in arguing their case before a panel at a cost which these countries can afford." On third parties, Jamaica would like third parties’ rights enhanced to ensure that they receive all written submissions, and receive the decision at the same time as parties to the dispute. Jamaica also called for technical assistance for interested Members.
The DSB also received a proposal from Zambia (TN/DS/W/17) on behalf of the least-developed country (LDC) Group, containing a number of new ideas. Zambia calls on Members to recognize that "the difficulties faced by LDCs are often more debilitating than those faced by the rest of the WTO Membership. As a result, a level of specificity is needed in addressing their concerns within the textual provisions of the DSU. Some of the key provisions conferring rights and containing other structurally fundamental provisions of the DSU need to be made LDC specific." LDCs propose a modification of DSU Article 8.10 to the effect that "in any dispute involving a developing country, there must be at least one panelist from a developing country. Therefore, the words "if a developing country Member so requests" should be struck off from Article 8.10."
With regard to panel and Appellate Body decisions, LDCs charge that they "have displayed an excessively sanitised concern with legalisms, often to the detriment of the evolution of a development-friendly jurisprudence. This stifling approach may be attributable to the requirement that every panel or Appellate Body Division should emerge with a single neat report. There is no provision for dissenting judgments in the DSU. This needs some re-thinking given the inadequacies highlighted in the DS jurisprudence." LDCs also call for recognition of collective retaliation as a remedy within the DSU.
The special session of the DSB meets next on 13-14 November.
ICTSD reporting.