At MC12, Ministers committed “to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all Members by 2024.”
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, in fact, 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.
One way to address “access” and inclusiveness of procedures is to reconceptualize those procedures root and branch. “Access” to WTO dispute resolution should not necessarily involve more litigation by more Members through the formal dispute settlement mechanism. Rather, to enhance access, Members should consider operationalizing non-adversarial approaches to the resolution of matters of trade concern that could be effective in addressing a significant subset of concrete commercial and trade problems within shorter timelines than formal litigation.
Conciliation and mediation feature prominently in current thinking on international commercial dispute resolution. Indeed, the ICSID mediation framework entered into force on 1 July 2022; the WIPO, the ICC, and the Singapore International Arbitration Centre have recently elaborated or strengthened their mediation frameworks.
Within the WTO, conciliation and mediation have been part of the WTO dispute settlement framework since its inception, in the form of Article 5 of the DSU. They have rarely been used; Article 5 has never been invoked.
This is in part because 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. 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 could well inhibit bilateral recourse to conciliation and mediation, which are by definition voluntary and generally considered to be non-adversarial.
Earlier versions of this discussion paper proposed an independent facility outside the WTO that would enhance access to less developed and developing countries to the full range of dispute resolution options within the framework of the WTO. This was a pragmatic and not a principled position. (That is, the point was not to be outside the system; rather, it was considered that consensus would be difficult to arrive at within the WTO on the range of proposed reforms.)
Discussions with delegates, experts, the Secretariat, and Member officials suggest that a path forward may well be possible within the WTO. This will require both imagination and institutional flexibility. The time has come to test Member resolve in this respect.
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 and that Members have not yet determined to bring to a formal dispute. A specialized conciliation and mediation facility 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.
The White Paper on Conciliation and Mediation proposes a new facility within 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.
It would do so, within the framework of the WTO, by:
– developing and defining the modalities and principles governing conciliation and mediation, derived from Member and international practice, to ensure collaborative win-win solutions through non-adversarial procedures;
– devising model modular rules for use by Members seeking conciliation and mediation without the need for ad hoc negotiations, as has been the rule for past mediation efforts, or multilateral consensus; and
– employing innovative means for prior vetting and training of mediators and conciliators, and publishing their names and credentials for use by Members.
You may find responses to some of your questions here.