Facilitator briefs members on start of formal dispute settlement reform work

"Since we last met, work has commenced among experts, facilitated by the six co-convenors," Ambassador Dwarka-Canabady told a Heads of Delegation meeting, the second convened since the formal dispute settlement reform process was launched earlier this year.

The facilitator said that meetings held over recent weeks with the co-convenors to coordinate work "have been quite productive, not least because the co-convenors have a very clear picture in their own heads of how they want to move forward."

"During these discussions, the one element I have underscored for all convenors is the importance of ensuring that the process remains open, inclusive and transparent."  She also underscored the ministerial instruction from the WTO's 13th Ministerial Conference (MC13) to accelerate discussions if members are to achieve their collective objective of having a well-functioning dispute settlement system by 2024.

At their 12th Ministerial Conference (MC12) in June 2022, WTO members acknowledged the challenges and concerns with respect to the dispute settlement system, including those related to the Appellate Body, and agreed to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all members by 2024. That commitment was reaffirmed by members at MC13 earlier this year. 

Ambassador Dwarka-Canabady was appointed as facilitator in April, thus signalling the formalization of the dispute settlement reform process.  Monthly Heads of Delegation meetings are being convened to hear updates on the technical work to be carried out by experts and to allow members to share views on how to take the work forward.

At the first Heads of Delegation meeting on 30 May, she informed members that the following co-convenors were appointed to assist in the process:  Mr. Joel Richards (Saint Vincent and the Grenadines) and Ms. Jessica Dickerson (Australia) for appeal/review; Mr. David Stranger-Jones (United Kingdom) and Ms. Claudia Diaz Paulino (Mexico) for accessibility; and Mr. Fırat Yeltekin (Türkiye) and Mr. Stacy-Paul Healy (Canada) for any other issues to be considered at the later stage.

The facilitator noted that, when she presented the work plan on the dispute reform process, members supported the idea that experts start their work with the issues of appeal/review and accessibility. Once discussions mature on appeal/review and accessibility, members could then look at the shape of the entire package and other issues as well.

Reporting for the co-convenors on procedural matters, Claudia Diaz Paulino said a work plan was finalized for the technical discussions through end of July which took account of specific concerns raised by some members regarding the clash of some technical meetings with other WTO meetings.  Requests and questions from members regarding remote access for the meetings in Geneva, documentation, interpretation, and recapping the previous discussions for technical level delegates were or are currently in the process of being addressed, she noted.

"The co-convenors recognize that how we run the process is integral to the very nature of the outcome," Ms Diaz Paulino said. "In order to achieve substantive results, the co-conveners consider it critical to ensure that the processes and the methods of our work respond favourably to the needs of members so as to build and maintain trust and preserve an atmosphere of transparency and inclusivity, which are essential to the conduct of the work going forward."

Reporting for the co-convenors on the substantive issues of appeal/review and accessibility, Mr. Richards said that, for the purpose of structuring the discussions, the co-convenors have broken down the topics into the following sub-topics:

For appeal/review:

• Access to the mechanism;
• Clarifying members’ expectations of adjudicators;
• Form of the mechanism;
• Reducing/changing incentives to appeal;
• Scope of review; and
• Standard of review

For accessibility:

• Meaning of accessibility to demandeurs;
• Costs and administrative burdens (including a funding mechanism);
• Technical assistance and capacity building;
• Existing internal and external support mechanisms; and
• Expedited procedures and alternative dispute resolution

On the appeal/review discussions, the co-convenors held the first technical meeting on 19 June, which focused on the sub-topics of scope of review and standard of review, Mr. Richards said. Members were invited to express their views in the form of interests or concerns and to ask questions. Members were also given the opportunity to raise any new ideas or suggestions with respect to the relevant sub-topics.

On accessibility, Mr. Richards said the first technical session on the issue will be held on 21 June.  The meeting will be devoted to a brief recap on the work carried out under the informal process, hear from proponents their interests and proposals, and try to identify with them areas in which there is already some convergence.  If time permits, a discussion will begin on the sub-topic of costs and administrative burdens (including funding mechanism), with discussions continuing on 4 July on the other sub-topics.

Ambassador Dwarka-Canabady concluded by commending the six co-convenors for ensuring that the work starts on a good footing. She noted that by mid-July at least two meetings on each issue would take place along with a set of consultations between 24 June and 1 July.

The next Heads of Delegation meeting on dispute settlement reform will take place on 18 July.