Geneva, 18 Sep (Chakravarthi Raghavan) -- A small group of negotiators from key countries appear to have reached an informal understanding on revisions and changes to the WTO's Disptue Settlement Understanding that may help to curb one aspect of US unilateralism.
This relates to the sequential tangles in the DSU on implementation of rulings, and the two provisions there: one in Art. 21.5 of the DSU that enables a party to seek a ruling from a reconvened panel about compliance by a party of the ruling against it, and another provision, in rule 22.6 that enables a party that has won a ruling to get automatic authorization from the Dispute Settlement Body, for withdrawal of concessions from another party on ground of failure to implement.
This issue of conflict came to a head early this year in disputes involving the US and EC and Ecuador and EC over the banana rulings, and the US and EC over the beef hormone ruling.
The DSU is up for a mandated review by the end of 1999. But the DSU rules can be changed only be consensus, even apart from the general requirement that WTO should follow GATT practice of decisions by consensus, qualifying it though by the provision for a vote, and for a vote by the General Council to provide
authoritative interpretations.
According to one of the trade delegations involved in the DSU review talks, it has now been agreed that:
twenty days before the expiry of the reasonable period of time granted to a party to implement a ruling, the party concerned should report to the DSB on its implementation;ten days before the expiry of the period, the other party could seek a DSB meeting over this, and the DSB would meet, one day after the expiry of the reasonable period.at that meeting, if the party against whom a ruling has been given claims it has put in place measures to implement the ruling, the DSB should refer the issue to a "compliance panel" -- the original dispute panel that gave the ruling, or the appellate body bench that dealt with the ruling and/or modified it.The current 90-day limit for the ruling by the compliance would apply.
While most of the countries.
if there is no dispute on either side that the party against whom the ruling has been given is unable to or unwilling to implement, and this is set out in the statement to be made before the expiry of the reasonable period, the other side can seek authorization, and if necessary, the amount of authorization would go to arbitrators, and the withdrawal of concessions process -- seeking authorization, getting sanction andputting them in place would apply.One trade observer said that one needs to wait for the fine print to make a judgement. But at best this would deal with one aspect of US unilateralist assertions -- that it could decide for itself whether another party has complied with a ruling, and on that basis seek automatic authorization for trade sanctions. It will not deal with some of the substantive defects in the DSU, including the usurpation of authority by panels and appellate bodies who are prohibited from creating new rights and obligations, but are doing it through socalled treaty
interpretation process -- even though the right of interpretation is vested solely in the General Council, and using previous panel rulings as precedents, even though the WTO has no provision for a res judicata or court of record powers.
Unless these are tackled, the substantive asymmetries and inequities of the WTO system will be compounded by the DSU and the build up against the WTO system will gather strength.