Transparency and Public Participation in WTO Dispute Settlement

Clinic: Graduate Institute, Spring 2009

Beneficiary: Center for International Environmental Law

Executive Summary

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In order to offer a comprehensive analysis of transparency and public participation in the WTO dispute settlement system, this memorandum first considers the first participatory practice throughout the various steps of the dispute settlement process. Secondly, the current state of the DSU negotiations is analyzed along with positions and arguments of relevant WTO members. Finally, several recommendations for the next steps in the negotiations are [resented, including suggested language for possible amendments to the current text of the DSU.

The analysis of current practice reveals that the WTO dispute settlement system already allows for a substantial degree of transparency and public participation. Requests for consultations, panel establishment or appeal and final reports are published promptly on the WTO website. Many hearings of panes and the Appellate Body are open to the public and NGOs have the possibility to submit amicus curiae briefs. The mostly informal efforts of the adjudicating bodies and WTO Secretariat though extensive DSU interpretation and transparency measures, respectively, this have already led to some DSU review in practice.

More formal changes of the DSU towards transparency and participation would require the political will of WTO Members to reach consensus on an amendment of the DSU in the on-going review under the Doha mandate. The current state of the negotiations indicates that WTO Members are generally in favor of open hearings and public submissions but also try to include a prohibition of amicus curiae submissions into the DSU. Any recommendation for DSU review therefore has to consider whether it is really necessary to amend the DSU or whether the current practice of DSU bodies is sufficient to create avenues for transparency and participation. While an amendment of the DSU has certainly more legitimacy as it includes all WTO Members and not only those that frequently use the dispute settlement system, a continuing DSU review in practice is more realistic - and in some instances even more desirable - in light of the lengthy and difficult negotiation process.

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