The "DSU Review in Practice"

As negotiations on the DSU Review are stalled, practical solutions have been found to some of the problems in what could be called a "DSU reform in practice". It includes practical actions both by Members and by the adjudicating bodies to further develop the system and to come to terms with the problems in its application, as the following examples show.

Firstly, the sequencing problem has been overcome by the conclusion of bilateral agreements between the Members during the implementation stage.

These agreements allow Members to .overcome the gaps and contradictions in the DSU text in a practical way. Whereas, there has not yet been a consensus to adapt the DSU text to this evolving practice, Members have adapted to the practice of bilateral agreements and do no longer appear to consider the sequencing issue as a pressing concern.

Secondly, a partial solution could be found to the differences of opinion with regard to external transparency: In two recent cases,'02 the panels opened to the public their proceedings with the main parties to the dispute, as the latter had jointly requested. At the same time, the proceedings with third parties remained closed, as not all third parties had agreed to such an opening of the process.

Thirdly, with regard to amicus curiae briefs, the Appellate Body has de facfo developed a very pragmatic approach, despite initially strong opposition from mostly dE3'veloping countries. O n the one hand, the Appellate Body displays

cx

general openness towards the acceptance of amicus curiae briefs. On the other

hand,

iB does not appear to accord decisive weight i o these submissions in its

W O AND

DISPUTE RESOLUTlON

decisions

-

at least not explicitly. This approach gives adjudicating bodies a maximum of flexibility while it respects the concerns of Members who are against such briefs.

Fourthly, on a related matter, the Appellate Body has found a response to the concerns of many Members who held that the acceptance of amicus curiae briefs gave

NGOs

an edge over Members, as the latter had to cope with restrictive requirements on third country participation. It relaxed these requirements by adopting new working procedures in late

2002

which give third parties the possibility of attending oral hearings even

if

they had not made a written submission prior to the hearing, as the old rule had required.'03 Similarly, the Appellate Body only recently adopted new working procedures requiring more precision in notices of appeal. It thus catered for a long standing concern of some Members who had called for increased precision of notices of appeal but were unable to reach such a modification through the DSU review negotiations.'04

As a final example, the establishment of an Advisory Centre on World Trade Law (ACWL) has remedied some of the resource constraints that developing countries face in the, more sophisticated legal settings of the new dispute settlement system. This international organisation, which is independent from the

W O ,

provides legal training, support and advice on

WTO

Law and dispute settlement procedures to developing countries, in particular LDCs. ACWL services are available against payment of modest fees for legal services varying with the share of world trade and

GNP

per capita of user governments.lo5 The Centre thus serves to a certain degree as a substitute for other institutions such as, for instance, a special fund for developing countries

-

a proposal that has been brought into the DSU review negotiations by developing countries.

As these examples show, Members and adjudicating bodies manage to adapt the dispute settlement system to changing circumstances without changing one single provision of the

BSU.

Dispute settlement pracfice has thus brought some amount of DSU reform, without facing the problems of political renegotiations of the DSU text In other terms, the system seems to build once more on its historic strength, which

is

to evolve with C! certain

degree of flexibility a n d

in

a pragmatic

spirit. We

should

not

be

surprised

ifi

as in the past, these elements of evolving practice were to

be

codified into a new or modified text a"s later date,

WTO Dispute Settlement: General Appreciation and the 6?oIe of India 1

83

Conclusions

The first eleven years of dispute settlement practice under the DSU have confirmed the usefulness of the system: Except for a recent slowdown (which cannot be property interpreted yet), the mechanism has been used actively, and the perception by both practitioners and academic observers has generally been positive.

Nevertheless, the intense use of the mechanism has also revealed certain problems in its practical application. Guided by their own experiences and interests, Members have sought to improve the mechanism through several rounds of DSU review negotiations since late

1997.

So far, all these attempts have been unsuccessful. While negotiations are currently continuing, there is no clear deadline and, subsequently, there is a presumption that the impetus for the conclusion of the negotiations may not be sufficient to lead to a conclusion in the near future.. In the meantime, Members and adiudicating bodies have managed to resolve some of the practical issues through a further development of dispute settlement practice without amending the DSU text.

As far as lndia is concerned, she has made active use of the system. Most of her litigation took place with major trade partners such as the United States and the European Union. The sectoral pattern of India's dispute activity follows her trade structure and her trade policy profile: As a complainant, she focussed her efforts on challenging foreign trade restrictions in the textile sector and on foreign anti-dumping practices. As a defendant, lndia had to face complaints against her quantitative restrictions, her patent policies, and more recently, her anti-dumping practices. In tune with her active use of the system, lndia also engaged actively from early on in the DSU review discussions. As could be expected, India's negotiating positions mainly ,reflect her interests as a developing country,

Regarding the general outlook for the DSU, the maior challenge for the system is not so much whether the multitude of technical questions in the

DSU

review negotiations can be resolved through an agreement but, rather, how well suited the

DSU

is to overcome the more fundamental concern

-

notably that there is an kinsustainable imbalance between political

a n d iudicial

decision- making in

the

W O .

This

holds in particular after the suspension sine die of the

{VTO

,AND

DISPUTE RESOLCTHON

Dokltn

RoIJ;~:,~ 3f

inuiiilatercl

trade

negotiations: In tile current coniexi of blocked psliiicai negotiations, pressures !Q resolve poiiiiculiy delicate issues through use of

the

dispute sevkerrten-i- mechar2ism might increase even further.

None of the ;WO generic options that are being discussed to remedy the situation -- weaken'ng adjudication or strengthening political decision-making

- lioids

great prorrlise

if

considered in isolation. Weakening adjudication is not an anractive option as t%\ervmbers

would

have to forego the achievements which the new

DSU

has brought For a rules-based international trading system. It would also be at

odds

with globcliisution

a n d

its increasing reliance on internaiional transactions in economic

life.

Aikrnatively, improving political decision-making is an exfrernely difiicuit task and could resuli in imporkarat bAembers being driven out of the system,

if

the sacred consensus principle were to be replaced by sorne form of majority voting. Sovereignty concerns similar io those that are currently voiced against allegedly overreaching dispute settlement would ultimately be raised against undesired outcomes of voting procedures as they would eventually force results upon countries

which

the latter cannot or do not want to accept.

For the time being, onty incremental steps by a variety of actors therefore seem to be feasible and desirable t~ remedy khe situation:

* ^All

Members should assume .their systemic responsibili~ by exercising restraint in bringing pofitically diFFicult eases to adjudication.

(P Adiudicating bodies

should

continue their current approach to dispute

settlement,

based on iudiciat restraint and

the

avoidance of "sweeping slaterrrents".

*

Selective multilateral political elements could be built into the dispute senlement procedure without alkring the basic architecture of the DSU (e.g., by irilowing the

DSB

to

decide by

consensus not to adopt specific findings or the basic rationare behind a finding

in

a report.)

o dternbers should explore alkernative poiitical decision-making mech~lrntsms

rnore actively,

indeed, the W O

Cammuniv has become aware of the prob1ei-n as the report t3y

the

""Consultative Group" croiind PETER S U T E ~ E W ~ \ N C ) to

the

Director General showed. Tkie reportlbsas a clear focus

213 ii?sti!u:ior?~l Issues! including tail decision-making.""

Whereas

such

a gradual and eclectic appraack~ m a y not satisfy the more ambitious observers who

VJC?U!CI

favour clear reforms in either direction

-

i.e., towards more adjudication

and

rule-orientation or back to po~er-orieniaiion and diplomacy - this ecieeiicisi-i appears at !east as a feasible option. And,

if

judged in the light of past experience viiil;

the

gradual evoiutiorl of the system, it also appears to

be

the most promising approach: The current DSU is the fruit o i five decades of gradual develi>pmeni, which has no+ been free of setbacks. There is no reason to assume why this gradualism should not

be

adequate for the future as

well. if

Members and adiudicating bodies continue is assume their systemic responsibility, the

DSU

should continue to remain an aMractive forum for dispute se.l?fement.

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