The ongoing discussions for reforming the World Trade Organization dispute settlement system appear to be Increasingly propelled by the Secretariat and co-convenors instead of member-driven negotiations on several elements of the crucial appeal/review mechanism, according to people familiar with the developments.
The proposed appeal/review mechanism could displace the binding Appellate Body and thereby turn the enforcement function into a vegetable, said people who are involved in the discussions.
In an email sent by co-convenors to technical experts on the proposed Appeal/review mechanism on Monday, seen by WTD, the co-convenors said they “will start by providing a recap on the information and background sessions of September 16, identifying the elements learnt at those sessions that might help us to build solutions to our Accessibility strand.”
“After such recap,” the co-convenors will open the floor “for views on how to use such elements to shape a solution to address the interests expressed on Accessibility.”
The co-convenors said they “will then open the floor to those Members wishing to present new ideas/proposals/solutions on Accessibility.”
According to the co-convenors, “any new ideas should take into consideration previous discussions and proponents should have already completed outreach to test support – proponents be prepared to articulate these points when they take the floor.”
Further, “to facilitate effective, solutions-oriented discussions – and noting that several complementary solutions may be required – experts will be invited to bring concrete ideas and respond to the following questions:
During technical discussions, some demandeurs expressed an interest in learning from those Members with greater experience of the WTO dispute settlement system
a. What concrete ways can Members suggest for an effective exchange of knowledge?
To demandeurs: What kind of experience and knowledge do you consider useful to hear/learn from experienced Members? How do you visualize a fruitful exchange?
To experienced Members: from all the experience you have gathered during these years, what practical knowledge you envisage would be worth sharing with demandeurs? Can you think of an exercise/forum/program where this can take place?
b. Do Members see value in a forum – be it one-off or regular – for Members to share their experience in using the DS mechanism?
2. Regarding Capacity Building, some Members have mentioned that the current offer does not take into consideration their different needs and objectives. Some of the examples we have heard are: a need for courses specifically aimed for first-time users and non-lawyers; or an objective of being able to run a dispute from start to finish with no external advisors.
To demandeurs: If you were to request a tailor-made course on DS, what specific elements/topics would you seek to be covered according to your needs and objectives? How can the capacity building programs be truly effective to you? Try to be as concrete as possible.
3. On Technical Assistance, discussions before the summer break regarding the provision of WTO services narrowed down to (I) increasing the number of experts available to assist Members, and (ii) expanding the scope of services (i.e. assistance in the preparation of the submissions).
a. What is the ideal number of experts and/or the time they should be available, and on what basis is that determined?
What services would Members like these experts to provide?
How can these desired services be reconciled with the impartiality of the WTO Secretariat
(as framed in Article 27.2 of the DSU)?”
In short, questions raised by the co-convenors are being directed primarily to “demandeurs (demanders)” and “experienced Members”, who are not being specified or clearly indicated, said a legal analyst, who asked not to be quoted. For the sake of transparency, the analyst said, co-convenors ought to have revealed the names so that the larger membership would have an inkling into the underlying interests of those being designated as “demandeurs” and “experienced Members”.
Earlier, the co-convenors issued a “WTO confidential” draft in which they dealt with several issues in the tables. The 14-page “WTO confidential” draft contained the following tables : (1) “Scope of review”; (2) “Standard of review”; (3) “Form of the mechanism”; (4) “Reducing/changing incentives to appeal”; (5) “Clarifying Members’ expectations of adjudicator”; and (6) “Access to the mechanism”.
On issues concerning access to the mechanism, the co-convenors proposed some reform ideas which appear to have failed to garner support from members.
The co-convenors said under the current practice, members enjoy “automatic access by any party which has notified the DSB (dispute settlement body) of its decision to appeal a panel report (as per Article 16.4, 17.4 of the dispute settlement understanding).”
The reform idea on access to the mechanism appears to be a break with the automatic access. It is being proposed that “access to the mechanism by agreement (bilaterally or plurilaterally) of the disputing parties on a one-off or ongoing basis.”
In sharp response to the above idea, the co-convenors noted that “the majority of Members consider that the right of appeal must be guaranteed and therefore should not be contingent on the agreement of the other party.”
According to the confidential draft, “there is broad support for the current system under which any party may seek appeal/review (compulsory jurisdiction).”
More importantly, “this is seen as essential, especially for developing countries and LDCs so as to help them to navigate power imbalances. Some Members also consider that there should be no opportunity for an opposing party to strategically block an appeal,” the two convenors noted.
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