13 Mar 2018

Trade Lecture on WTO dispute settlement held in Geneva

The second lecture in the Trade Lecture Sessions at the WTO series – on the subject of ‘The Future of WTO Dispute Settlement’ – took place on Friday 9 March at the World Trade Organization in Geneva.

The event was co-organised by the World Trade Institute and the Israeli Mission to the WTO and attended by around 100 people.

Rodolfo Rivas, Senior Counsellor Legal and Economic Affairs at the Mission of Israel, chaired the lecture session, which consisted of short presentations by various speakers followed by a round of questions.

Former WTI Managing Director Professor Thomas Cottier and current Deputy Managing Director Professor Manfred Elsig represented the WTI. The other speakers were Celso de Tarso Pereira, Minister-Counsellor, Permanent Mission of Brazil to the WTO; Koji Saito, Counsellor, Permanent Mission of Japan to International Organisations in Geneva; and Professor Gabrielle Marceau, Senior Counsellor, Legal Affairs Division WTO.

The topic was timely, given the crisis in the seven-member WTO Appellate Body (AB). The United States has blocked appointments of new judges to fill vacancies at a time when the body is handling more cases than ever. 

Uncharted waters

Speaking first, Celso de Tarso Pereira summed up the situation when he said the dispute settlement body was “in uncharted waters” and facing “one of its worst crises and crossroads ever”.

Several speakers looked back at the creation of the dispute settlement understanding (DSU) as a “miracle” and spoke of the need to preserve it, while being open to the idea of reform.

Koji Saito urged the WTO members to act to restore institutional balance.

Gabrielle Marceau suggested a “restart” was needed. In times of crisis solutions might be found. “Members need to go back to the basics and look at the importance of concession and remember GATT/WTO is about concession and negotiation,” she said.

Thomas Cottier remarked that more than 70% of dispute cases go on to the Appellate Body after being considered by the courts, known as panels. A serious discussion was needed about the relationship between the AB and the panels, he said. “Do the panels do the administrative work, preparing cases, or do they decide disputes on their own with the option to appeal.”

“The legitimacy of the system comes from the panels. We need to get back to a point where 20-25% of disputes are appealed, not 70%.”

Manfred Elsig spoke about how the AB elections had become more politicized since 2000-2001. He said the current US administration was not interested in a negotiated solution.

“Geneva needs a coalition of friends of the rule-based system,” he said. “A clear message needs to be given that selection procedures need to be restarted as soon as possible.”

The first Trade Lecture was held at the WTO in March 2017 and was on the subject ‘Bilateral and Plurilateral Agreements: Supporting or Challenging the WTO?’