September 20, 2005
This week, for the first time in the history of the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade (GATT), panel proceedings in a dispute were open to the public. CIEL has long advocated this, and we congratulate the parties to the dispute, the panel, and the WTO secretariat for successfully taking this step.
On the 12th – 15th of September 2005, a dispute settlement panel’s hearing with the parties (the European Commission, the United States and Canada) were open to public observation via closed-circuit television broadcast. The three disputing parties in the two cases, US – Continued Suspension of Obligations in the EC – Hormones Dispute and Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, had filed a joint request for open hearings, which the members of the dispute settlement panel granted. The panel’s meetings with third parties to the dispute remained closed, however, because not all third parties had agreed to open those meetings to public observation. The third parties to these cases are Australia, Brazil, China, Chinese Taipei, India, Mexico, New Zealand, and Norway. (The US and Canada are also third parties to the other’s respective case.)
It is unclear which Members wished to keep the meeting closed.
Some Background on the Dispute
The issue of this first open hearing is the follow-up to a decision by the WTO dispute settlement body in the late 1990s – which determined that the EC’s ban on meat and meat products from cattle treated with hormones for growth promotion purposes was inconsistent with the WTO Sanitary and Phytosanitary (SPS) Agreement. Consequently, the United States requested authorization to suspend concessions. The request was granted and in 1999 the Dispute Settlement Body (DSB) authorized the United States to suspend concessions to the EC in the amount of $116.8 million.
In 2003, the EC notified the DSB that the measure found in violation was now removed and an amended measure adopted. However, the United States and Canada continued to suspend concessions. As a consequence, the EC initiated proceedings against the United States and Canada to examine their continued suspension of concessions after the measure found inconsistent with WTO rules had been removed.
Why Transparency is Needed
This case focuses on the question, among others, of whether WTO rules permit Members to ban the import of beef from cattle treated with certain growth hormones. Because this issue directly relates to the health of citizens, the case clearly demonstrates the importance of making the WTO processes more transparent.
The opening of hearings is thus an important step in the right direction. However, as this case makes clear, open hearings are only possible if all parties in the dispute, as well as the panel, agree. Open processes thus have not been formalized in the WTO. Given the impact of many decisions on the health and lives of consumers and the environment, as well as the importance of other issues considered in WTO disputes, it is essential that WTO dispute settlement processes become more transparent and open. While transparency does not solve the problems relating to the disciplines themselves, it can improve the quality of the DSB’s decisions and enhance public understanding of both the problems and the benefits inherent in the multilateral trading system.
In discussing possible amendments to ‘the dispute settlement understanding’ (which lays down the rules for the functioning of the dispute settlement process), CIEL and other NGOs, experts, and some countries, including the US, have called for WTO Members to formalize open proceedings and to establish guidelines for handling amicus submissions. This discussion unfortunately has made little progress because some Members are opposed to making hearings more transparent. Hopefully, this first experimental open hearing will contribute to a more informed discussion of possible institutional changes to the system.
About the Process Applied in this Case and Suggestions for Improvement
In CIEL’s judgment, the process used to allow public viewing of the panel this week worked quite well. The proceedings were shown in ‘real time’ via closed-circuit television in a room separate from that in which the actual proceedings were being held. This is the same approach that has been used successfully by the International Centre for the Settlement of Investment Disputes, in Washington, DC, with respect to investment disputes (e.g., under the North American Free Trade Agreement). This approach has virtue of allowing non-party viewers to witness the proceedings without in any way interfering with the proceedings themselves.
Individuals wishing to watch the proceedings in the separate room were given the opportunity to register in advance and were granted access on a ‘first come-first served’ basis. The registration process as a whole seemed to function smoothly, although some individuals who had registered did not receive a confirmation and were thus uncertain whether or not they would be admitted. Also, those who were admitted received the confirmation only the week before. In the future, it might be useful for the WTO to advise all applicants (electronically, by fax or by mail, whichever seems most likely to reach the applicant expeditiously) of whether their applications had been received and whether they would be admitted. This should be done early enough to allow individuals to plan ahead.
Among the public in attendance were several individuals from outside the WTO, including representatives from intergovernmental and non-governmental organizations, representatives from the private sector, students, professors, media, and other interested individuals. Interestingly, however, the greatest number of individuals present seemed to be from the country missions, and in some cases were WTO staff (all groups were recognizable by their badges). This clearly illustrates the interest of a wide range of people, for a wide range of reasons, and thus the value of opening WTO hearings.
As mentioned above, only a limited number of people can view the proceedings on closed circuit television. Moreover, it is unlikely that individuals from outside Geneva, especially from developing countries, would have the resources necessary to travel to Geneva to watch the proceedings (except, perhaps, those from industry). This makes the process imbalanced. To remedy these difficulties, we suggest that proceedings be webcast in the future — thus making the process more democratic and also more efficient.
For more information, please contact Marcos Orellana.