Facilitator urges members to be practical, flexible as dispute reform talks intensify

"We need to be practical in approach. We should see under each part of the mandate what the potential outcome could be and where we are, and work on finalizing a text where convergence exists," Ambassador Dwarka-Canabady said. 

With only 16 working days left until the final General Council meeting of 2024, she urged members to "remember that we are focused on restoring functionality (of the dispute settlement system) and not creating a new system with more onerous obligations."

At their 12th Ministerial Conference (MC12) in June 2022, WTO members agreed to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all members by 2024. That commitment was reaffirmed by members at MC13 earlier this year. 

Ambassador Dwarka-Canabady was appointed by members as facilitator for the dispute settlement reform talks in April. Six co-convenors were subsequently appointed to assist her in the process.

The facilitator noted that, since the last Heads of Delegation meeting on dispute settlement reform on 11 October, experts "have been meeting basically non-stop on a daily basis" with work progressing in all three areas under discussion: appeal/review, accessibility, and "works done thus far."

She noted that a progress report has been circulated to members, which identifies the concepts discussed under the three areas; members' observations; and the status of these discussions, namely whether the concepts and the text resulting from the discussions are more or less stabilized or whether more work needs to be done. The report will be revised to reflect progress between now and the December General Council meeting.

Ambassador Dwarka-Canabady underscored that the objective of the progress report is not to have an "early harvest" agreement on elements ripe for decision but to demonstrate the progress achieved thus far and outline the contours of what could be an agreeable solution on dispute settlement reform.

Reporting for the co-convenors on the discussion related to the issues of appeal/review and accessibility, Mr Joel Richards (Saint Vincent and the Grenadines) said work has entered a more intensive phase. Since the last HODs meeting, substantive progress has been made on some sub-topics, with drafting of text commencing on elements with regard to scope of review, reducing/changing incentives to appeal, and clarifying members’ expectations of adjudicators. At the same time, he noted, members remain far apart on the sub-topics of access to the appeal/review mechanism, form of the mechanism, and standard of review.

Reporting on discussions related to the accessibility pillar, Mr David Stranger-Jones (United Kingdom) said significant progress has been made since the last HODs meeting. A so-called "zero draft" text has been produced on the sub-topics of capacity building and technical assistance, and a workshop took place to discuss one member's two papers regarding a proposed dispute settlement fund model (covering the costs of training and capacity building, legal assistance and advice, and litigation costs assistance) and a litigation cost reimbursement model.

Reporting for the co-convenors on "works done this far," Mr Stacy-Paul Healy (Canada) said that three days of informal consultations have taken place with members to hear their views on how to take the work forward. Information sessions have been organized on a variety of topics outlined in the consolidated text circulated last February under the informal process of dispute settlement reform discussions, with further technical meetings planned in December on the remaining proposals and unresolved issues.

More than 20 members then took the floor, some speaking on behalf of groups of members, to comment on the interventions by the facilitator and co-convenors. Many noted that the work had gained momentum and were pleased that considerable progress had been made since the October HODs meeting. Some members noted the importance of using the remaining weeks productively, locking in the progress made by the end of the year, and considering how best to continue discussions.

In concluding observations, General Council Chair Ambassador Petter Ølberg urged members to carry on with their work and see how far they can get until the December General Council meeting, at which time they can assess what can be done at that meeting and afterwards.