DSU REVIEW: DEVELOPING COUNTRIES REJECT US PROPOSAL ON TRANSPARENCY, SUGGEST OTHER OPTIONS

At a 10-11 September special (negotiating) session of the WTO Dispute Settlement Body (DSB), the US tabled a proposal outlining its ideas on how to achieve a "more open and transparent process" by opening dispute settlement procedures to the public, providing timely access to submissions and reports, as well as formalising the handling of so- called amicus curiae [friend of the court] briefs. However, the US' submission met stiff resistance from many -- mostly developing country - - Members, who put forward demands on improved internal access to dispute settlement proceedings and more effective enforcement mechanisms for developing countries.

US proposal

Arguing that various key international dispute settlement fora such as the International Court of Justice (ICJ) were open to the public, the US proposed in its 9 August submission (TN/DS/W/13, searchable at http://docsonline.wto.org) to allow public observers in all substantive panel, Appellate Body (AB) and arbitration meetings. It said that this should only occur under certain set procedures, including the caveat that "those portions dealing with confidential information" should be excluded from this rule. In addition, the US said that all parties' submissions and statements not containing confidential information should be made public by the Secretariat, and that final panel reports should be immediately available to all Members and the general public once they had been issued to the parties to the dispute. Finally, the US suggested setting up "guideline procedures for handling amicus curiae submissions," while taking into account "procedural concerns" that have been voiced by Members, dispute settlement panels and the AB.

Reportedly, developing county Members such as Brazil, Chile, India, Indonesia, Mexico, Malaysia, the Philippines and Uruguay rejected the US proposal, which they said would undermine the inter-governmental character of the WTO. In particular, developing countries' criticisms centred on the issue of allowing unsolicited submissions by non-parties to a dispute [amicus curiae briefs], arguing that this would provide third parties with more rights in dispute settlement proceedings than Members themselves. On opening dispute settlement meetings to the public, India cautioned that this would result in "trials by media" which could result in "miscarriages of justice." For its part, Malaysia took the view that opening dispute settlement meetings to the public would go beyond the Doha mandate, while Mexico said that the US was trying to "multilateralise" an issue that should be addressed at the domestic level.

The EC, which had previously tabled a proposal along similar lines (BRIDGES Weekly, 16 April 2002), supported the US' submission, but it was reported that other European countries such as Norway and Switzerland had voiced some hesitancy regarding both opening dispute settlement meetings and formalising amicus brief submissions. Japan said that it was "still ambivalent" on certain external transparency issues, and it went on to stress -- hinting at the deep divide in the Membership on these subjects -- that it attached great importance to "what kind of realistic consensus we could achieve by May next year" when the DSU review negotiations are to be concluded [Doha Declaration paragraph 30].

Developing countries proposals

The African Group tabled a joint proposal (not derestricted) in which it said that the dispute settlement mechanism as it stood was "complicated and overly expensive" and that its enforcement rules had a developed country-bias. As a result, the Group suggested setting up a permanent fund financed by Members to enable developing countries to better engage in dispute settlement proceedings. On enforcement, African Members proposed introducing retrospective remedies providing compensation even if a measure was withdrawn prior to the establishment of a panel. Furthermore, the African Group suggested establishing rules allowing Members to retaliate collectively against a developed country Member maintaining an illegal trade measure.

India, Cuba, Malaysia and Sri Lanka tabled a proposal (not derestricted) asking for more flexibility to be provided to developing countries retaliating against a developed country in order to level out "tremendous imbalances" in trade relations between developed and developing countries. Additionally, the group of four proposed that developing countries be reimbursed for incurred legal costs in the event of a successful challenge to a developed country measure or if they fend off a case against them initiated by a developed country. For its part, Jamaica announced that it would put forward a detailed proposal on DSU review.

The next DSU special session is scheduled for 14 October.

"ICTSD reporting; "Dispute Settlement: US Proposal On Dispute Transparency Gets Cool Reception From WTO Members," WTO REPORTER, 11 September 2002; "Dispute Settlement: Developing Countries Outline Priorities For Reform Of WTO Dispute Procedure," 12 September 2002.