BEEF HORMONES DISPUTE HEARINGS TO BE OPENED TO PUBLIC

On 2 August, the two WTO panels hearing the EU's identical challenges against continued retaliatory sanctions on its exports imposed by the US and Canada in the longstanding Beef Hormones dispute announced that their proceedings would be open to the public. This development, the first of its kind in the history of WTO dispute settlement, comes in response to a joint request filed by all three countries on 13 June.

According to the announcement from the WTO (WT/DS320/8 and WT/DS321/8), panel meetings in front of which the disputants are invited to appear will be open to public observation via closed-circuit television broadcast. However, the panels' meetings with the third parties to the dispute will remain closed, as not all of them have agreed to open proceedings to the public.

Former deputy US Trade Representative Susan Esserman and University of Michigan law professor Robert Howse hailed the decision in the Financial Times, saying that it would "enhance the legitimacy of the WTO, bringing its practices more in line with today's value of good governance, transparency, and accountability."

The decision to open up the panels' proceedings was made against the backdrop of an ongoing debate on the issue of transparency in WTO dispute settlement processes. Some members of the trade community, including civil society groups and academics, have bemoaned the lack of public participation in WTO "courts" that make important decisions that can affect public interest concerns such as health and the environment.

The beef hormones dispute and the trade, environment and health debate

In recent years, several high-profile disputes have put the spotlight on the often polarised and intense debate around trade, environment and health issues, among them the Tuna-Dolphin, Asbestos and Shrimp-Turtle cases, as well as the ongoing dispute between the EU and the US on genetically modified organisms.

The Beef Hormones dispute has been one such case since 1996, when the US and Canada charged that the EU's ban on hormone-treated beef was not based on a proper scientific risk assessment, and that the scientific evidence in support of it was insufficient. WTO panels and subsequently the Appellate Body ruled in their favour in 1997 and 1998 respectively. This decision was criticised by some civil society organisations which argued that the WTO was putting trade concerns before environmental and health protection, and also undermining the states' sovereign right to determine their own environmental and health policies.

Following these decisions, a WTO panel ruled in 1999 that the US and Canada could impose trade sanctions on certain EU products because it had failed to provide the necessary scientific evidence to justify the ban.

In October 2003, the EU presented new scientific evidence in an attempt to convince the US and Canada to end their trade sanctions. By that point, the duties amounted to over USD 116.8 million and CAD 11.3 million respectively (see BRIDGES Weekly, 13 November 2003). Finally, in November 2004, the EU announced that it would challenge the continued trade sanctions at the WTO, arguing that it had complied with the 1999 ruling (see BRIDGES Weekly, 10 November 2004). It is these hearings that will now be opened to the public.

Public participation and transparency in WTO dispute settlement

Various stakeholders have tried to influence the decisions of panels and the Appellate Body in the closed dispute settlement process by submitting unsolicited legal arguments or amicus curiae briefs advocating a particular position often in support of environmental and health protection. Since 1998, the Appellate Body has taken the position that both it and regular panels have the authority and discretion to accept such legal briefs -- but no obligation to either accept or consider them.

This dimension of civil society participation in the WTO dispute settlement system has been the source of some disagreements between developed and developing countries, especially as most of these amicus curiae briefs have been submitted by Northern civil society groups (in the Shrimp-Turtle, Asbestos and biotech cases). Many developing country Members feel that the amicus process biases the system against them since people or groups in such countries may lack the resources to participate equally in this process.

Some trade observers have called for WTO Members to formalise the amicus process, such as the creation of formal rules for handling such briefs. However, nothing concrete has happened in this regard. Nonetheless, in the ongoing WTO dispute settlement review negotiations, some Members, including the US and the EU, have submitted proposals in favour of opening up the dispute settlement process to the public, as well as the establishment of guidelines for handling amicus submissions.

The issue of enhancing transparency in the dispute settlement process also found support in a recent report on the functioning of the WTO commissioned by the outgoing Director-General, Supachai Panitchpakdi. In the "Sutherland Report," which focused considerable attention on how to enhance the perceived legitimacy of the WTO, the group of experts called for the adoption of guidelines for formalising the amicus process. They did, however, note that such guidelines must address worries about the resource implications of doing so. They also recommended opening parts of panel and Appellate Body hearings to the public.

Some developing countries have been cool to the idea of opening up disputes to the public, arguing that rulings could then be subject to intense lobbying by interest groups which, once again, cannot be afforded by developing countries.

The first meeting of the Panels with the parties will take place on 12-15 September 2005.

All documents related to the beef-hormones dispute and other WTO cases mentioned above are available at http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#hormones,_meat.

The US proposal on transparency is available at http://www.ustr.gov/Document_Library/Press_Releases/2002/August/United_States_Proposes_Greater_Openness_for_WTO_Disputes.html. The EU proposal is at http://europa.eu.int/comm/trade/issues/respectrules/dispute/improving/contrib1.htm.

ICTSD reporting; "The creative evolution of world trade," FINANCIAL TIMES, 22 August 2005.