In the past, concerns about “access” to the WTO dispute settlement mechanism have been addressed, at least in part, by establishing an international organization – the Advisory Centre for WTO Law – to provide advisory and litigation services to developing and less developed countries. This has resulted in greater participation of developing countries in WTO dispute settlement, but access concerns persist. This is because access is inextricably linked to the structures of formal dispute resolution and endemic governance, institutional, and capacity challenges facing less developed and developing countries.
More important, “access” to WTO dispute resolution should not necessarily involve more litigation by more Members through formal dispute settlement mechanism. This paper encourages Members to operationalize third-party non-adversarial approaches to the resolution of matters of trade concern.
Conciliation and mediation, already provided for in Article 5 of the DSU, feature prominently in current thinking on international commercial dispute resolution.
The ICSID mediation framework entered into force on 1 July 2022; the WIPO, the ICC, and the Singapore arbitration centre have recently elaborated or strengthened their mediation frameworks. Conciliation and mediation have been part of the WTO dispute settlement framework since its inception; they have rarely been used. Indeed, there are, as yet, no rules, no structures, no transparency in the choice or qualification of mediators, and no agreed principles on which conciliation or mediation would take place. Given the consensus rule, this situation is unlikely to change within the WTO. As well, for the Article 5 mechanism to be engaged, a Member must already frame a matter of trade concern in a context of a formal dispute by making a request for Consultations. This would inhibit bilateral recourse to conciliation and mediation, which are by definition voluntary.
The White Paper on Conciliation and Mediation proposes a new, independent facility outside the WTO that would serve an important function in enhancing access to less developed and developing countries to the full range of dispute resolution options within the framework of the WTO. Such a facility would also permit other Member, including the current active users of the WTO dispute settlement mechanism, to seek to resolve at least some of their matters of trade concern through third party non-adversarial mechanisms. Indeed, a record number of Matters of Trade Concern before the Council for Trade in Goods, and hundreds of outstanding Specific Trade Concerns before other committees, have been raised by both developing and developed countries. These are trade and commercial disputes that are not resolved through diplomacy or WTO committees; Members have determined not to bring them to a formal dispute. A conciliation and mediation mechanism that can be invoked outside the context of a formal dispute would help Members resolve those concerns, and reduce both tensions and pressure on the formal WTO dispute resolution framework.
It would do so by:
- devising model rules for use by Members seeking conciliation and mediation without the need for consensus by all Members for multilateral rules or negotiations for ad hoc ones;
- unlike the current system of panel selection, prior vetting and training of mediators and conciliators, and publishing their names and credentials for use by Members; and
- developing conciliation and mediation principles to ensure collaborative win-win solutions rather than adversarial winner-loser outcomes.
You may find responses to some of your questions here.