To ensure that developing country interests are not sidelined in the on-going discussions on reforming the WTO’s dispute settlement system, India, Egypt and South Africa have submitted a joint communication underlining the need to recognise that developing countries, including LDCs, face challenges, such as capacity constraints, resource limitations and limited access to legal expertise.

“At the heart of the outcome on dispute settlement reform is the need to restore the functioning of the Appellate Body as an integral part of the two-tiered multilateral dispute settlement system,” per the joint communication titled ‘Reflections on the reform of the WTO Dispute Settlement System’ introduced by India at the Dispute Settlement Body meeting on November 27.

The US, which has blocked the appointment of new judges to the WTO’s Appellate Body for almost three years due to its unhappiness with “judicial activism” at the WTO and concerns over its sovereignty, refused to relent on the matter at the latest DSB meeting, per a Geneva-based trade official.

A common concern

Guatemala, speaking on behalf of 130 members, introduced for the 69th time the group’s proposal to start the selection processes for filling vacancies on the Appellate Body, reflecting the common concern of almost four-fifth of the WTO membership. The WTO’s dispute settlement mechanism is in the midst of a crisis as in the absence of a functioning Appellate Body disputes are remaining unresolved.

The US repeated that it does not support re-starting of appointment of Appellate Body members.  It said it would support the experimentation of members in finding alternative means to resolve their disputes, such as the increased adoption of panel reports, including through agreements to adopt that have been reached prior to circulation of a panel’s report; arrangements between specific members to permit review of a report; and intensified discussions to find solutions to disputes, the official said.

While the current informal discussions are a continuation of the US-initiated and led informal delegate level discussions, the reform process and the changes it brings about, should not make the dispute settlement system more onerous, in practice, for developing countries including LDCs, the joint communication from India, Egypt and South Africa noted.

Evolving discussions

“The themes being discussed at present under the ‘informal discussions’ were not intended to be a comprehensive listing of concerns of the whole membership. They were a prioritisation, for further discussion, of some of the interests that had been raised during the US-led process. For instance, Special and Differential Treatment, which had been raised as an interest by several countries was not listed as a theme for further discussion,” it stated.

The discussion process on reforms should enable all delegations to have their concerns addressed as the discussions evolve, the submission said. “They should remain rooted in consensus-based decision making, and be facilitated by multilaterally mandated chairs or co-chairs as is the current practice in the WTO. The methods of work should facilitate the participation of developing countries including LDCs, and delegations with limited resources,” it added.