Increased transparency in WTO dispute settlement achieved
July 30, 2008
The first-ever public viewing of World Trade Organization (WTO) Appellate Body procedures took place via closed circuit broadcasting in Geneva on 28 and 29 July. The hearings were made public at the request of the parties to the dispute (EC, Canada, US). Some members participating in the case as third parties (including China and Brazil) were opposed to opening the hearings. This had the awkward consequence that the public hearing was cut whenever China or Brazil intervened, as they had not given their permission for an open audience.
The hearing was hailed by the parties as a welcome and important evolution for increased transparency in WTO dispute settlement. It is unfortunate that Brazil, who has been very transparent in previous proceedings, was opposed to an open hearing in this case.
CIEL has consistently advocated for transparency and accountability as essential elements of international dispute settlement. CIEL has also proposed to open WTO hearings via webcast, in order to eliminate the administrative and security difficulties associated with a separate public observation room, as well as to allow the press and the public outside Geneva to witness the hearings.
Background to the case
The dispute at issue at the Appellate Body hearing raises important procedural questions and will have significant impacts on the rights and the ability of members to protect human health. At issue is an earlier dispute which culminated in the 1998 Appellate Body decision, which determined that the EC’s ban on meat and meat products from cattle treated with growth hormones was inconsistent with WTO rules. The EC had applied the ban arguing that hormone-treated meat was carcinogenic. The Appellate Body found at the time that the EC had not complied with the WTO’s requirements relating to scientific proof and risk assessment. Based on that decision, the US and Canada have been applying retaliatory tariffs on products from the EC in the amount of millions of US dollars.
In 2003, the EC notified the WTO that the measure found in violation was now removed and an amended measure adopted based on new scientific studies and risk assessments, showing carcinogenicity of meat treated with certain hormones. However, the United States and Canada continued to retaliate. As a consequence, the EC initiated proceedings against the United States and Canada to examine their continued retaliatory measures. Earlier this year, a WTO Panel ruled that the United States and Canada had violated certain procedural obligations, but also ruled that the 2003 EC measure still did not meet the scientific requirements under the WTO, rejecting the EC claim that its illegal measure had been “removed.” This panel decision has been appealed leading to the Appellate process and to the oral hearing that took place over the past two days.
The Appellate Body members ask hard questions to the parties
At the oral hearing, the parties spent a day discussing the obligations under the WTO’s dispute settlement rules. These rules are unclear as to the duties of the post-retaliation phase in a trade dispute. In particular, the parties were questioned on who needs to act in order to terminate authorized retaliatory trade measures, once a party claims to have come into compliance.
The second day focused on the question of whether the EC ban on meat treated with growth hormones for health purposes is WTO-consistent. The EC raised concerns regarding the panel’s expert selection and the need for experts to be independent and impartial. They also stressed the need for WTO Members to retain the ability to set standards that are higher than unsatisfactory international standards, and defended the right of WTO Members to adopt measures that protect human health, even in presence of a scientific controversy. In that context, the EC criticized the panel for having become “the jury on the genuine and legitimate scientific controversy on the matter”.
For more information, please contact:
- Marcos Orellana, +1 202 742 5847, morellana@ciel.org