We all know how difficult it is to change or update the now more than 20 years old WTO treaty. What is true for substantive rules is also true for procedural, dispute settlement provisions. DSU reform requires consensus of all (162) WTO members. The formal DSU review process started almost 20 years ago. It is not going anywhere.
As Canada put it at yesterday’s DSB meeting, the WTO treaty “has limited the opportunity for the rules and procedures to evolve organically in response to experience, the changing nature of disputes, and the changing expectations of Members”.
Instead of WTO-wide DSU reform, we have witnessed case specific updates (on e.g. third party rights, appointment of experts, confidential information, preliminary rulings) including case specific (and inter se) deviations from explicit DSU provisions, for example, so as to open AB hearings to the public, sequence proceedings or extend deadlines.
These legal updates and innovations underscore that inter se deviations from the WTO treaty are possible and tolerated (subject to bilateral agreement, and as long as they do not affect third party rights), something that has not (yet) gained acceptance when it comes to substantive updates or innovations (see the recent AB Report on Peru – Agricultural Products which seems willing to tolerate inter se waiver of the procedural right to a WTO panel, but to close the door to substantive updates or inter se deviations from the WTO treaty).
At the same time, these ad hoc updates of the DSU are not predictably followed in all cases, lead to strategic posturing in specific disputes (there is always one party in a specific dispute that benefits from an innovation more than the other), and increase complexity for participants other than the 15 or so “frequent users”.
Yesterday, Canada proposed “an informal framework for the development of procedural innovation that can take place both outside the bilateral context of specific disputes, and outside the multilateral context of discussions of changes to the DSU that would be binding on all Members”.
This framework would allow for a sub-set of WTO members to commit (in varying degrees) to certain experimentation or innovations ex ante. WTO members not yet ready to opt-in would not be affected. Innovations that work could then be formally codified (for all or a sub-set of WTO members); those that do not work can be abandoned. The mechanism would also facilitate the exchange of good practices and bilateral agreements so as to enhance transparency and benefit WTO members not frequently involved in DSU disputes.
As someone who is concerned about keeping the WTO relevant and up to date, even where formal WTO amendments cannot be agreed upon, but always subject to the agreement of those members involved and with the fullest respect for WTO members not willing to change (third party rights), I think this is a great and very creative idea worth examining. It also reminds me of the “informal international lawmaking” that we witness in so many other international organizations, including in standard-setting bodies: new practices emerge bottom-up, where they work, they get organically adopted; where they fail, they almost automatically get put aside. It is reminiscent also of how the related field of international investment law emerged and continues to evolve, currently incorporating plenty of reforms.
Canada's DSB statement and documents relevant to this proposal are available here and with the Canadian Mission to the WTO, email: [email protected]
