WTO Ministerial Section • Volume 7 • Number 14 • 16th April 2003

DSU Reform: Members Fear Another Deadline will be Missed

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The special session of the WTO Dispute Settlement Body (DSB) met to continue its review of the Dispute Settlement Understanding (DSU) from 10 to 11 April. As the 23 May deadline for completing the DSU reform drew closer, Members were still at odds with regard to fundamental issues in the proposals, and there were serious concerns over another possible failure to meet a deadline. A failure in these negotiations, which have an express mandate to deliver an early harvest, would be a blow to the Doha round of negotiations, following a number of other missed deadlines, including in the areas of agriculture, special and differential (S&D) treatment for developing countries, and trade- related aspects of intellectual property rights (TRIPs) and access to essential medicines.Shortly before the series of meetings held over the two days, Ambassador Peter Balas (Hungary), Chair of the special session, circulated a 70-page framework document on the basis of which the subsequent discussions took place. The document, containing a number of brackets, details the respective proposals by Members, along with the Chair’s textual proposals (subject to Members’ approval). The issues still bracketed included the US proposition on opening up the panel and Appellate Body proceedings to the public (predicated on participating parties’ acceptance of such a proposal within five days of a request being submitted) to achieve greater transparency, and a proposition from Least Developed Countries (LDCs) on holding consultations in capitals of LDCs, should these countries be involved in consultations. A proposal by Canada on enhanced protection of confidential business information in panel and Appellate Body procedure is also still subject to debate.

Some Members had previously called on the Chair to come up with a core list of issues on which consensus was likely in time for the deadline, leaving other issues out. However, Members are now divided in their views of the usefulness of such a list. A number of countries, led by the EU and Canada, insist on a full, but balanced, package. According to the EU, settling for anything less would "not be helpful to the discussions". On the other hand, a large group of countries favours a core list approach, including many developing countries such Argentina, Brazil, Chile, Ecuador, Malaysia, Peru and Uruguay. At the meeting of the DSB special session, some of these countries cited examples of issues they consider core, which they feel should be agreed upon in a timely fashion. According to New Zealand, housekeeping proposals "such as clarifying procedures for withdrawing consultation requests and terminating inactive panels and time-saving proposals such allowing panels to be established at first request" should be considered as part of the core issues on which consensus is obtainable before the deadline.

Sources indicate that some delegations criticised the Chair for the lack of consensus and the "unwieldy" text of the framework document circulated to Members. Chile, noting that the Chair’s text maintained "all the proposals" indicated that the Chair should provide "more leadership" given the short time left for the completion of the review exercise. In his defence, Chair Balas said it was Members’ task to narrow down their differences and eliminate proposals from consideration.

Given the relative contentiousness of many of the issues, the Chair will continue to hold a series of informal meetings over the next two or so weeks until the next meeting, slotted for 5 May. Sources indicated that many Members are hoping that Chair Balas will submit a narrowed-down document at the next meeting, based on the series of informal consultations. Some delegations, such as New Zealand, have suggested that Members should not to feel entirely constrained by the May deadline, and that discussions should continue beyond that date on the more divisive issues such the US proposals on transparency. The EU representative has indeed suggested that Members could use the Ministerial in Cancun to "agree on the greatest possible number of outstanding issues and define a mandate for further negotiations" should there be no meaningful conclusion by May.

ICTSD reporting; "DSB Reform Talks Stall as Deadline Looms," WTO REPORTER, 14 April 2003