Bridges Trade BioRes • Volume 5 • Number 15 • 2nd September 2005
BEEF HORMONES DISPUTE: WTO OPENS PROCEEDINGS TO PUBLIC
BEEF HORMONES DISPUTE: WTO OPENS PROCEEDINGS TO PUBLIC
On 2 August, the two WTO panels hearing the EU’s challenge against continued retaliatory sanctions on its exports imposed by the US and Canada respectively in the long standing 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, 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 panel’s meetings with the third parties to the dispute will remain closed as not all of them have agreed to have it open for public observation.
The decision to open up the panel’s proceedings was made against the background 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 sometimes affect public interest concerns such as health and environment. 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 values of good governance, transparency, and accountability."
Background to the Beef-Hormones dispute
The beef-hormones dispute was launched in 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 supporting scientific evidence was insufficient. A WTO panel and subsequently the Appellate Body ruled in their favour in 1997 and 1998 respectively. 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.
The rulings were 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.
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.
Transparency in the spotlight
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. In cases such as the Shrimp-Turtle dispute, the Appellate Body has taken the position that panels and the Appellate Body have the authority and discretion to accept such legal briefs, though no obligation to do so or to 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 the biotech cases). Many developing country Members are of the view 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, for example by creating formal rules for handling such briefs. However, nothing concrete has happened in this regard. Nonetheless, in the ongoing WTO dispute settlement review negotiations (DSU review), 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 resource implications. They also recommended opening certain 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 that, 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.
ICTSD reporting; "The creative evolution of world trade," FT, 22 August 2005.