Members of the World Trade Organisation consider as a fundamental cornerstone the WTO Dispute Settlement Understanding (DSU), which governs its dispute settlement system. They have undertaken three times to review, improve, clarify and amend the DSU. The latest review started in 2018, with the ongoing consideration of proposals to take into account the concerns which led the US to block the appointment of members of the WTO Appellate Body. In this context, this paper explores what are the chances that the DSU will end up being reviewed, improved, clarified and amended.
Members of the World Trade Organisation consider as a fundamental cornerstone the WTO Dispute Settlement Understanding (DSU), which governs the functions of the WTO Panels, the Appellate Body and the Dispute Settlement Body. These three components together comprise the WTO dispute settlement system.
Three times now Members have undertaken to review, improve, clarify and amend the DSU. The first time WTO Members agreed to review the DSU was in 1994 when they decided to undertake its full review. That review was not completed by the set deadline of 1998. The second time was in 2001 at the Doha Ministerial Conference where Members agreed to enter into negotiations on improvements and clarifications of the DSU. The third time was in 2018 after the US blocked the appointment of members of the WTO Appellate Body citing a number of reasons and concerns.
The negotiations for improving and clarifying the DSU that began in 2001 after the failure of the initial review, and are still ongoing, have been grouped into twelve thematic categories comprising: third party rights; panel composition; remand; mutually agreed solutions; strictly confidential information; sequencing; post- retaliation; transparency and amicus curiae briefs; timeframes; flexibility and member control; developing country interests, including special and differential treatment; and effective compliance. From initial conceptual discussions, the issues are now captured in draft legal text on the basis of which Members are continuing their work. In some areas the contours of possible agreement are set, needing little or no further work on the text, while the text is still evolving in other areas.
Agreement is being shaped around issues that conform to the agreed principles such as that the improvements and clarification should benefit the entire Membership and the system, should be realistic, should be necessary and achievable, and should do no harm to the operation of the dispute settlement system.
In 2018 Members began considering proposals (under a track separate from the ongoing DSU negotiations) to amend the DSU to take into account concerns raised by the US. Regardless of the merits or otherwise of the US concerns and of the proposals, the resolution of that matter lies in the hands of the US, which can continue to block the appointments of Appellate Body members if the proposed solutions do not meet its expectations.
With three attempts now, what are the chances that the DSU will end up being reviewed, improved, clarified and amended? The legal text which is the basis of the ongoing negotiations defines the shape of possible agreement. As WTO negotiations go, the text should be considered as representing progress since many subjects of negotiation never go beyond the conceptual stage. However, only time will tell when the process could be completed