Geneva-based reporter Ravi Kanth has another piece about the ongoing WTO dispute settlement reform discussions, offering some detail on three specific proposals:
-- review/sunset clause
-- ADR
-- streamlining the panel process
On review and sunset, Kanth says the following:
The UK introduced the proposal with the interests here pivoting around maintaining the integrity of the system, so the system does not shift from its original purpose.
Apparently, it includes two sets of proposals: (1) a mechanism to review the DSS (dispute settlement system) including reforms in order to monitor it on a systemic basis; and (2) it calls for adjudicative provisions to come to an end by “X” number of years.
Reviews are always useful, so I have no objections there.
With regard to sunset, however, I have some concerns. Kanth notes that under this provision "the adjudicative provisions of the dispute settlement mechanism would sunset after 'X' years unless members agree by consensus to extend."
I objected to this kind of sunset provision in the USMCA, and I don't think it's a good idea to have a sunset provision in WTO DS either. Requiring consensus in order for the status quo to continue gives a lot of power to governments to create mischief through the ability they would have to shut things down. The mischief-making governments could be the current sunset supporters, the UK and the U.S., but could also be anyone else. For that reason, I think this sort of institutional design is fundamentally flawed.
Kanth notes that this provision was "proposed by the United Kingdom" and "strongly supported by the US." But he also points to strong objections from a lot of other governments, so it's hard to see it going anywhere in its current form.
In terms of the reasons for such a provision, it was said to be for "the ability to undertake a meaningful check on the system." It is true that it's difficult for governments to come up with alternative approaches that provide a check on the system. But it's worth noting that if they feel so strongly that the system has gone in a bad direction, they can always stop participating: They can stop filing complaints, and they can choose not to show up at proceedings where they are the ones complained against (and retaliate against any WTO-authorized retaliation imposed on them). That approach would be less problematic than blocking the use of the system by everyone else. If someone wanted to formalize a "stop participating" approach, they could draft a provision stating that individual Members could officially "opt out" of the system, or specific parts of the system (such as the Appellate Body), after X number of years.
On ADR, Kanth explains that "the facilitator has clubbed two proposals under the headline of 'definition of rules, procedures, and guidelines for ADRs' and 'rules for specific uses of ADRs.'" I don't have much to say about the use of ADR. It doesn't seem like an option governments have been very interested in using in the past, but I'm not sure why that is. If governments want to make more use of it in the future, that would probably be good. My only concern is the lack of transparency that seems inherent in these processes, but if it can help resolve disputes, it may be worth it.
Finally, on streamlining the panel process, Kanth mentions the following possibilities:
(1) the panel establishment at the first DSB meeting; (2) page/word limits for written submissions and time limits for meeting with the panel; (3) a single meeting with the panel; (4) advance written questions in advance of meetings; (5) adherence to time-frames; and (6) power for the panel to invite parties to focus on certain claims or exclude certain claims.
I'm all for this sort of streamlining, and made some similar suggestions here.
