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TWN
Info Service on WTO and Trade Issues (Oct24/04) Geneva, 8 Oct (D. Ravi Kanth) — The co-convenors overseeing the discussions on the appeal/review mechanism under the ambit of the reform of the World Trade Organization’s dispute settlement system seem to be confounding the issues in an apparent attempt to severely weaken the existing “standing body”, as experts congregate in Geneva for a technical meeting on 8 October, said people familiar with the development. In their latest convening notice, seen by the SUNS, the two co-convenors – Mr Joel Richards of Saint Vincent and the Grenadines and Ms Jessica Dickerson of Australia – said: “Consistent with the interest-based nature of the discussions, experts are asked to respond to the questions by reference to their interests or concerns.” On the issue of “Clarifying Members’ expectations of adjudicators,” the co-convenors said that they “will provide a summary of the previous discussions on this sub-topic and invite views on taking the work forward.” In addition, the co-convenors asked the experts to respond to the following question: “Regarding reform idea 2 (clarify that previous reports are not binding on adjudicators) under the element “Adjudicators’ output (decisions or reports)”, another reform idea (not yet reflected in the Appeal/Review Tables) is that the DSB would adopt only the conclusions and recommendations section of the panel’s report (as modified, if applicable, during appeal/review). What are your views on this potential reform idea?” On “Access to and form of the mechanism”, which were dealt with separately until now, the co-convenors asked the experts to respond to the following questions: * “Regarding the element “Nature of the body” under the sub-topic “Form of the mechanism”, it has been suggested that the standing body could be replaced with a pool or roster of ad hoc adjudicators. What are your views on this potential reform idea? * Regarding the element “Adjudicators’ ability to make their own working procedures” under the sub-topic “Form of the mechanism”, it has been suggested that Members could agree that working procedures cover only the procedural aspects of the appeal/review process. Further, the working procedures could be developed in consultation with the Dispute Settlement Body, which would enable Members to express their views on the procedures.” The co-convenors asked the technical experts for their views on issues concerning a role for the Accountability Mechanism in the Informal Consolidated Text in reviewing how these reforms operated in practice as well on several other issues. “CONFOUNDING THE ISSUES” The above questions seem to suggest that attempts are allegedly underway to “confound the issues” in preparing a severely weakened “take-it-or-leave-it” text, said people familiar with the development. Such a weakened appeal/review mechanism would not only strike a blow to the existing two-tier dispute settlement mechanism but also deliver an appeal/review mechanism that suits the interests of one major industrialized country, said people familiar with the discussions. As previously reported in the SUNS, a majority of members want the Appellate Body, the highest adjudicating body for resolving global trade disputes, to remain in place to ensure predictability and accountability for the egregious trade measures imposed by the powerful members. In contrast to the questions raised for the upcoming meeting on 8 October, at the last meeting, on the “Form of the mechanism” in the “confidential” document issued on 27 September, the co-convenors said that “there are nine elements in the appeal/review tables, several of them with no specific reform ideas.” They said that the sub-topic on the form of the mechanism “focuses on how the structure and functioning of the appeal/review process should be organized.” According to the co-convenors, “in the discussions, Members debated the merits of different models for adjudicating disputes, with a particular focus on whether to maintain a standing body or explore alternatives like ad hoc adjudicators.” “The objective”, according to the co-convenors, “is to find a structure that supports fairness, consistency, and legitimacy in the WTO’s dispute settlement process.” “Under the current system,” the co-convenors argued in their last confidential report, “the Appellate Body is a standing body composed of seven members, appointed by the Dispute Settlement Body (DSB). These members serve four-year terms, which may be renewed once (as per DSU or Dispute Settlement Understanding Articles 17.1 and 17.2).” Further, “for the majority of Members, with respect to the nature of the body, a standing body is more consistent with their interest to ensure fairness, coherence, predictability and security,” the co-convenors noted. Without indicating the names or the number of countries, the co-convenors said: “However, it was acknowledged that correctness of decisions was also critical and that reforms should not lead to an outcome where incorrect decisions are perpetuated in pursuit of other objectives such as coherence and predictability.” The co-convenors said, “there was also support by several Members for an increase in the number of standing body adjudicators.” It is common knowledge that one major industrialized country does not want a standing body of adjudicators. “However, less support was expressed for ad hoc adjudicators, adding additional adjudicators at the interim review stage and review of the panel’s conclusions by a committee of WTO Members,” the co-convenors said. “Due to the binary nature of the discussions on the nature of the body, it was suggested that experts should focus more on the other elements under the sub-topic “Form of the Mechanism” outside of the element nature of the body,” the co-convenors maintained in their last confidential note. However, in the latest notice sent to the members, the co-convenors clubbed together accessibility and the form of the mechanism to “confound the issues” all over again, said experts. In short, there are serious doubts over the questions that are being framed on the form of the appeal/review mechanism, which appear to mislead the members, said people familiar with the development. +
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