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TWN
Info Service on WTO and Trade Issues (Oct24/24) Geneva, 29 Oct (D. Ravi Kanth) — The United States on 28 October stated unambiguously that Washington will not settle for a reformed dispute settlement system (DSS) if it does not address the US’ “interests” in the ongoing discussions on DSS reform at the World Trade Organization, said people familiar with the discussions. In a rather emphatic statement made at a meeting of the WTO’s Dispute Settlement Body (DSB) on 28 October, the US appears to have punctured the members’ hopes of restoring a two-tier DSS by the end of this year, said people familiar with the discussions. Stressing that it wants to be clear, the US said that it will not settle for a reformed system that does not address its interests, said people who took part in the meeting. In this regard, for the 80th time, the US blocked a joint request made by Colombia on behalf of 130 members to start the selection process for expeditiously filling the seven vacancies at the Appellate Body (AB), said people familiar with the discussions. Elaborating on its decision to block the AB selection process, the US said emphatically that Washington “is not working towards a restoration of the Appellate Body as it was.” The US said that the dispute settlement system, including the AB, is broken, adding that it is irreparable, said people familiar with the discussions. Moreover, the US also warned that calls for the restoration of the Appellate Body will undermine members’ collective efforts for reform of the DSS, said people familiar with the discussions. In response to the US statement, more than a dozen countries intervened to drive home the message that the mandates of the WTO’s 12th and 13th ministerial conferences on DSS reform should be complied with, said people familiar with the discussions. In paragraph 4 of the MC12 Outcome Document (WT/MIN(22)/24), trade ministers acknowledged “the challenges and concerns with respect to the dispute settlement system including those related to the Appellate Body, recognize the importance and urgency of addressing those challenges and concerns, and commit to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all Members by 2024.” The WTO’s 13th ministerial conference mandate states: * “Recalling our commitment made at our Twelfth Session to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all Members by 2024, we take note of the works done thus far. * We recognize the progress made through this work as a valuable contribution to fulfilling our commitment. We welcome all submissions from Members that help advance our work. * We instruct officials to accelerate discussions in an inclusive and transparent manner, build on the progress already made, and work on unresolved issues, including issues regarding appeal/review and accessibility to achieve the objective by 2024 as we set forth at MC12.” At the DSB meeting, several members highlighted the progress being made in the ongoing formal discussions on the reform of the dispute settlement system. Brazil, however, is understood to have said that time is running out and that members are just one meeting away from the final General Council meeting of the year, which could be held sometime around 16-17 December, said people familiar with the discussions. Amid the apparent uncertainty in reaching any decision on the restoration of a fully functioning DSS, the so- called “Friends of the System” group – Canada, Australia, Switzerland, New Zealand, Hong Kong (China), Japan, Norway and Singapore – as well as China and the European Union urged members to join the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) that was established by the EU and notified to the WTO, said people who asked not to be quoted. At the DSB meeting, the US, the EU, Canada, the United Kingdom, Australia, Switzerland, Norway, New Zealand, Korea, and Singapore among others again condemned Russia for its alleged invasion of Ukraine, said people familiar with the discussions. DSS REFORM MEETING Meanwhile, the co-convenors overseeing the discussions on the appeal/review mechanism are holding a meeting on 1 November where they intend to “outline their draft plan regarding the drafting process” and to invite feedback from experts, according to an email sent to members last week. In the email, seen by the SUNS, the co-convenors said “further to the discussion at the Appeal/Review meeting held on 21 October, the revised agenda for the meeting on 1 November is as follows: 1. Clarifying adjudicators’ role with respect to reviewing claims made under DSU Article 11 regarding the panel’s objective assessment of the facts of the case: * Review of updated Appeal/Review tables regarding this reform idea. * Identification of next steps. 2. Limiting the claims that would be reviewable on appeal/review to those that would have a material impact on the respondent’s implementation obligations (or “MII”): * Review of updated Appeal/Review tables regarding this reform idea (to be circulated by Friday, 25 October). * Continuing substantive discussion of interests, concerns and questions from experts with respect to this reform idea. * Identification of next steps. 3. Making changes to the interim review stage of the panel process such that it provides a more meaningful opportunity for the panel to correct factual or legal errors. * Continuing substantive discussion of interests and concerns with respect to this reform idea, including by way of experts answering the questions submitted by Members in advance of the 18 October workshop (these are re- attached for reference). * Identification of next steps. 4. Clarifying Members’ expectations of adjudicators: The co-convenors refer to the requests from some Members for data relating to the timeframes achieved by the Appellate Body. In response to this request, the Secretariat has prepared the attached document regarding appeals that exceeded 90 days. The co-convenors also refer experts to: * Part II (Process) and Annex I (Timetable for Appeals) of the Working Procedures for Appellate Review (WT/AB/WP/6); and * Title II, Chapter III (Streamlining the Panel Process) and Title II, Chapter IV (Conciseness and Time-Frame Adherence) of the Informal Consolidated Text. Experts will be invited to respond to the following questions: * Regarding “Adherence to timeframes”, what should be the maximum allowable period for the appeal/review stage? Should any flexibility be permitted and, if so, on what basis? (e.g. due to complexity, with the parties’ consent, at the adjudicators’ discretion etc) How can Members ensure that future adjudicators respect the timeframes set by Members? * Regarding “Clarifying adjudicators’ role in streamlining appeal/review” and noting the parts of the Working Procedures and the Informal Consolidated Text referred to above, do you have specific ideas or suggestions regarding how to streamline the appeal/review process? For example, should the standard procedures/process for appeal/review be changed and, if so, how? How can such reforms be designed so that they do not make it harder for capacity-constrained Members to access appeal/review?” In conclusion, it appears that attempts are being made to allegedly advance reform ideas that seem to be directed at making the DSS more complex and difficult to use by members, said people familiar with the discussions. +
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