September 10, 2002

Intervention of the United States on its Proposal on Transparency in Dispute Settlement Proceedings

Dan Brinza
Assistant U.S. Trade Representative for Monitoring and Enforcement

· Mr. Chairman, the United States appreciates this opportunity to discuss its submission on greater transparency in dispute settlement proceedings. It is clear that all Members have an interest in improving and strengthening the operation of the dispute settlement system. One key improvement would be to make that system transparent.

· As Members are aware, the United States has long advocated providing greater transparency in the WTO dispute settlement system.

· Mr. Chairman, experience has shown that DSB recommendations and rulings can affect large sectors of civil society. At the same time, increased membership in the WTO has also meant that more governments and their citizens have an interest in those recommendations and rulings. Yet civil society and non-party Members have been unable even to observe the arguments or proceedings resulting in those recommendations and rulings.

· Greater transparency, as is typical in other intergovernmental international tribunals, can improve public confidence in the fairness of the WTO dispute settlement system. This can in turn improve the operation of the system, as greater public confidence can translate into greater support for implementation of DSB recommendations and rulings.

· At the same time, non-party WTO Members would also benefit from being able to observe the arguments and proceedings of WTO disputes.

· Our proposal would address these concerns by allowing the public to observe all substantive panel, Appellate Body and arbitration meetings with the parties, making submissions and statements public, and providing for final reports to be made available to WTO Members and the public once they are issued to the parties. It also provides that Members should consider proposing guideline procedures for amicus curiae submissions. We have also been clear in our proposal that the system would continue to safeguard confidential information.

· We appreciate that some Members may have concerns with some of these proposals. We look forward to working with delegations to address these concerns. While we are sure that delegations will not hesitate today to bring additional issues to our attention, we would like to comment now on some concerns we have heard in the past.

· First, we do not believe that greater external transparency changes or is in any way incompatible with the government-to-government nature of the WTO. Allowing the
between governments, and that only Members are parties, only Members have the right to make submissions and statements, and only Members have rights and obligations under the WTO Agreement. Transparency is about greater understanding of the process by civil society; it is not about making the proceedings non-governmental.

· With respect to public hearings, we are aware that there would be a number of logistical issues that would need to be addressed, and we look forward to working with delegations on developing the relevant details.

· With respect to treating submissions and statements as public, except for those portions containing confidential information, we are pleased to note that a growing number of Members are choosing to take this step on the)r own. These submissions and statements are ultimately made public in the reports, and we see no reason why they cannot be treated as public from the outset.

· Likewise, final panel reports should be public once they are issued to the parties. Current rules affirmatively encourage misunderstanding, as the public is subjected to speculation and leaks. Members and the public must sometimes wait months until translation is complete to see a report already available to the parties. On the other hand, we do not in any way diminish the importance of ensuring that reports are available in all three official languages, nor do we diminish the importance of ensuring that adequate time is provided after circulation for Members to assess the reports and exercise their rights accordingly. For this reason, we propose that reports continue to attain official status only upon circulation of the translated reports, and that current DSU time frames, such as those for adoption and appeal, continue to run from the date of official circulation.

· Finally, with respect to amicus submissions, we note that Members have expressed concerns over greater predictability in how these submissions are handled, and also in minimizing the burden on all parties by ensuring that parties know in a timely manner when, and to what degree, a panel or the Appellate Body is interested in exploring an issue in such a submission. Guidelines could be useful in addressing these concerns. At the same time, we note the very real difference between Members and those who seek to provide an amicus submission. Members who reserve their third party rights have a right to participate; a potential amicus must first be accepted by the panel or Appellate Body.

· Mr. Chairman, we look forward to discussing our proposal on transparency today and in future sessions. We also look forward to working with other delegations on other means by which we can improve the operation of the DSU.