|
IV. Proposals on Institutional Weakness
1. Transparency
Article 18.2 of the DSU states that submissions of the parties to panels or Appellate Body proceedings are confidential, but that they can make their submissions public.[60] Further, in practice the panel and Appellate Body reports (and all other WTO documents relating to specific disputes) are published on the WTO website immediately after distribution to the member governments. These measures try to make a balance between the confidence and the transparency of the dispute settlement. However, there still have been complaints, particularly by non-governmental organizations (NGOs), that the proceedings of the dispute settlement system lack transparency. NGOs wish to get more information sooner so they can participate effectively in the defence of the courses for which they stand. In addition, they want to heighten public awareness to increase the legitimacy of the system.[61] Important WTO Members, such as the United States and the European Communities, support such ideas. To accomplish these goals, they suggested that secrecy restrictions in parties’ submissions should be removed as soon as possible, or at least from the non-confidential parts thereof. Moreover, they suggested that a strict deadline for the public summary of confidential submissions should be applied. At the same time, they suggested the conversion to open hearing in order to increase the public’s trust in the system and take away any unfounded suspicious of involvement in a cover-up or a conspiracy that a non-transparent process fosters. However, many other WTO Members have serious reservations about greater transparency and open hearing. They fear that the changes would harm the intergovernmental character of the WTO, and would diminish the control of the parties over the dispute settlement process. In their point of view, they still regard the dispute settlement as an arbitral system, despite the fact that the dispute settlement has become highly judicial.[62]
2. Developing Countries and Dispute Settlement System
Developing countries in the GATT have gradually received special rules and more and more favourable treatment since the Tokyo Round.[63] Under the DSU, these special treatment for developing countries exists in a number of respects: · the possibility of a speedier process (Art.3.12);
· special consideration in consultations (Arts.4.10, 12.10) and in the panel process (Arts.8.10, 12.10, 12.11);
· particular consideration to matters affecting the interests of developing countries in the surveillance stage (Arts.21.2, 21.7, 21.8);
· special provisions for least-developed countries (Art.24);
· legal assistance from the Secretariat (Art. 27.2).
However, to effectively participate in the dispute settlement system, developing countries are still eager to get more assistance in both substantive WTO law and in the procedural aspects of the dispute settlement mechanism. Firstly, technical assistant by the WTO Secretariat is believed more limited in scope. The minimum request seems to be an increase of the consultant staffs provided for in Article 27.2 of the DSU. Secondly, it is suggested that a Permanent Defense Counsel should be established to assist developing countries whenever cases are brought against them. Many countries have suggested that WTO budget surpluses should be used to create a reserve fund to finance this Counsel.[64] Thirdly, a group of developed and developing countries have announced in Seattle the establishment of an Advisory Centre for WTO Law, to assist developing countries in their participation in WTO dispute settlement by organizing seminars, arranging internships for officials from developing country Members, and advising developing countries on the merits of particular proceedings.[65] Finally, developing countries face the problem of enforcing the findings of the adopted reports because they have not sufficient economic power. The threat of retaliation from the developing countries to the accused countries, especially developed countries, is not usually effective. Under the situation, monetary remedies are suggested as well joint and collective retaliation.[66]
|
