The facilitator overseeing informal discussions on reforming the World Trade Organization’s dispute settlement system says there are “highly sensitive issues for which Members still hold different conceptual views about how to tackle them,” said people familiar with the discussions.
To overcome the continued paralysis in the two-tier dispute settlement system, trade ministers at the 12th ministerial meeting last year mandated their respective representatives at the WTO to “commit to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all Members by 2024.”
Unsurprisingly, many members at last week’s General Council meeting echoed their concerns about the paralyzed dispute settlement system and demanded the restoration of the two-tier dispute settlement system.
Mr. Molina has gone about the process in an informal mode and on an expeditious footing, by trying to narrow down differences on several issues, said another member who preferred not to be quoted.
The facilitator has issued confidential reports at different stages during the last five months, with the latest being the one he circulated on July 8. It is not clear yet whether he has issued another report as everything about the process remains somewhat mysterious, the member said.
At the July 28 Dispute Settlement Body meeting, Mr. Molina facilitator issued a one-page report.
The report, seen by WTD, says “As in previous occasions, I would like to note that I am making this statement in my personal capacity and under my own responsibility, as the convenor of the informal process on dispute settlement reform.”
He says that since his last report on May 30, “delegates, experts on dispute settlement, have continued to actively participate in the intense programe of meetings.”
“We have had substance-based and highly technical discussions with a view to finding practical solutions to the concerns and interests identified by Members,” he said.
He goes on: “We have reached an understanding on 80 percent of the issues under consideration, which are now ripe to move to the drafting process. Let me be clear, this did not happen overnight.
This is the result of five months of tireless and constructive engagement by all delegates, who through conversations and mutual understanding have explored ways to reconcile the different interests and concerns identified during this process. This process belongs to everyone and delegates participating in the informal process should be recognized and commended for their efforts and dedication.”
Further, “during the last five months, delegates have had plenty of opportunities to express their ideas, interests, and concerns; and to make as many observations as they deemed appropriate.”
“We have proceeded with flexibility and, when necessary, we have returned to review our understandings to ensure that we have taken into account everybody’s interests and concerns,” he maintained.
“In my assessment,” according to the facilitator, “half of the issues in the remaining 20 percent are close to reaching the level of maturity needed for the drafting process. The other half of that 20 percent refers to the highly sensitive issues for which Members still hold different conceptual views about how to tackle them.”
He suggested that “after the summer break, I will continue consulting with delegates with a view to reaching a common understanding of potential solutions to these issues by the end of September.”
Mr. Molina remains upbeat and confident, saying “I am convinced that despite of our conceptual differences, we can find a solution at the technical level that can reconcile our interests and concerns.”
“It is time to unlock our full creative potential,” the facilitator said, adding “I am confident that we will succeed in this undertaking.”
According to the facilitator, “in addition to the conversations on the remaining issues, the drafting process will start right after the summer break. The texts will be drafted by delegates through a process that I will organize and facilitate.”
Next Phase
In the next phase of the informal process, the facilitator asserted, “the same principles will
continue to apply, namely, a process that is multilateral, because all Members will be invited to participate; transparent, because everyone will have access to all documents and information; and inclusive, because it will continue to facilitate the participation of small delegations and take into account the interests and concerns of all Members.”
He plans to circulate a tentative calendar of meetings, adding that “this calendar of meetings seeks to avoid, as much as possible, clashes with other important meetings.”
The Guatemalan deputy-trade envoy acknowledged that “In this regard, I am trying to prevent scheduling conflicts with meetings that have been identified by some small delegations as also important to them, such as those of the fisheries negotiations, the TNC, the General Council, WTO reform retreats, the Senior Officials and the DSB.”
The facilitator said he anticipates “a very intense process,” suggesting that “Time is of the essence and circumstances oblige. Members have identified the reform of the dispute settlement system as the top priority and an expected outcome of the 13th Ministerial Conference.”
He maintained that “Before being considered by the Ministerial Conference, any outcome of this informal process should be introduced to a WTO body, most likely the DSB.”
“Considering that Members should have enough time to analyze the outcome of the informal process, that gives us only 3 to 4 months to conclude our work as part of the informal process,” he said.
Acknowledging that “we are in the final stretch and there is still a lot of work to do,” the facilitator emphasizes that “To strike the right balance between the intensity needed to achieve the objective of delivering by the Ministerial Conference; and the need to ensure meaningful participation of all, particularly, of small delegations, I will continue to take every possible measure to ensure that all delegates have plenty of opportunities to participate, express their views and see those reflected in the final outcome.”
Despite the facilitator’s reassuring words about the process, doubts continue to persist on the
informal process and how a text is likely to be cobbled informally. There are also alleged fears that a text agreed informally could be foisted on members at an appropriate stage as a take-it-or-leave-it text, said a former trade negotiator, who is well versed in the negotiating pyrotechnics of the earlier ministerial conferences, including the MC12, at which several African members said they were excluded from the green room processes.
Several well-resourced members in the informal discussions like the United States, the European Union, China, Japan, Canada, Norway, Australia, New Zealand, India and a few other countries know the conceptual issues mentioned by the facilitator, Marco Molina of Guatemala, in his report to members last week. But a large majority of members with limited or no negotiating resources are kept in the dark, say several members who preferred not to be quoted.
The facilitator, who is being praised by the United States and other industrialized as well as some developing countries, seems to be adopting a approach that could further reinforce serious doubts as to whom he is working for, said a regular participant, who preferred not to be quoted.
The facilitator’s one-page report appears to be ambiguous and unhelpful for those countries which are unable to participate, particularly from Africa, in the informal discussions as they are forced to spread their negotiating resources thin in other areas of work that are simultaneously taking place at the WTO, said several participants who preferred not to be quoted.
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