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9 Harv. Negot. L. Rev. 331
Harvard Negotiation Law Review
Spring 2004
Article
DEVELOPING COUNTRIES AND THE WTO: THE NEED FOR MORE MEDIATION IN THE DSU
Hansel T. Phamd1
Copyright (c) 2004 Harvard Negotiation Law Review; Hansel T. Pham
I.
II.
III.
IV.
Introduction
The Growing Dilemma of Developing Countries
A. The Battle in Seattle
B. The Doha Development Round
C. Making WTO Dispute Settlement Work for Developing Countries
A History of Developing Countries and the DSU
A. Developing Country Experience Under GATT Dispute Settlement (1947-1994)
B. The Ongoing Debate Between Negotiation and Adjudication
C. Developing Country Experience with the WTO DSU (1994-2003)
1. The New DSU Process
2. Theoretical Benefits to Developing Countries from the DSU
3. Special Provisions in the DSU for Developing Countries
4. Empirical Evidence of the DSU’s Impact on Developing Countries
D. Remaining Developing Country Complaints about WTO Dispute Settlement
1. Enforcement
2. Lack of Financial and Legal Resources
3. Special Consideration of Development and Equity
E. Summary
Reforming the DSU: The Need for More Mediation
A. Proposed Reforms to the DSU by Developing Countries
1. Enforcement
2. Lack of Resources
3. Lack of Special Attention to Equity and Development
4. Strengthening Consultations and Mediations
B. Why More Mediation Would be a Particularly Good Reform
1. Mediation vs. Panel/Appellate Body Litigation
2. Mediation vs. Consultations
C. Summary
Making Mediation Work for Developing Countries
A. The Rules on Mediation in Article 5 of the DSU
B. Historical Background of Mediation in the GATT and WTO
C. Potential Barriers to Mediation
D. Proposed Reforms to Increase the Use of Mediation in the DSU
1. Make Mediation More than Advisory Opinions
2. Develop and Fund Mediation Training Programs
3. Encourage the Use of Other Mediators in Addition to the Director-General
4. Allow for “Reverse Loop-backs”
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5. Consider Making Mediation Default (or “Mandatory”) in Limited Situations
Conclusion
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*333 Introduction
“No other issue is as important as addressing the plight of the poor nations.”
-- Former Director-General of the WTO, Mike Moore, upon taking office in 1999. 1
With the acceleration of globalization, income inequality among nations has become an increasingly important issue for
international trade institutions. The General Agreement on Tariffs and Trade (“GATT”) was created in 1947 as a multilateral
instrument governing international trade and embodying numerous negotiations on the reduction of barriers to trade. Almost
half of the twenty-three original charter Members of the GATT were developing countries, 2 but the original GATT
“contained no explicit provisions regarding developing countries.”3 For the most part, developing countries “did not perceive
the GATT as a friendly or fruitful institution.”4 As a result, they tended to adopt “a ‘passive’ or ‘defensive’ attitude” towards
the GATT, and many even failed to maintain official representation at the GATT headquarters in Geneva. 5
Currently, the special concerns of developing countries represent some of the most important issues and challenges faced by
the GATT’s successor, the World Trade Organization (“WTO”). Out of the present 146 Members of the WTO,
approximately 100 are developing countries6 and thirty of those are least-developed countries.7 *334 Moreover, beginning
with the Uruguay Round multilateral trade negotiations from 1986 to 1994, developing countries have become much more
active in the WTO, not simply by more fully participating in WTO negotiations, but also by “advancing, on an individual or
group basis, a positive agenda of their own.”8
The growing importance of developing countries to international trade regimes has not gone unnoticed. There is already
substantial literature examining the linkages between developing countries and various WTO issues such as trade barriers,
market access, agriculture, labor, intellectual property rights, technology transfers, and the environment. However, there has
been relatively less research examining the experience of developing countries with the GATT/WTO dispute settlement
mechanism. The purpose of this paper is to present prescriptive measures for potentially improving the WTO Dispute
Settlement Understanding (“DSU”) from the perspective of developing countries by applying alternative dispute resolution
(“ADR”) theories and concepts to international trade law. In particular, this paper proposes that mediation should play a more
prominent role in the WTO dispute settlement process and discusses how to make mediation more effective and widely used.
Part I introduces some of the present problems facing developing countries in the international trade regime and explains why
it is so urgent for the WTO to address the concerns of its developing country Members. Part II provides an account of the
developing country experience with the GATT and WTO dispute settlement systems. Part III argues that the increased use of
mediation would help to resolve many of the problems developing countries have with the WTO DSU. Part IV offers some
initial explorations into how to make mediation more effective in the WTO setting.
I. The Growing Dilemma of Developing Countries
A. The Battle in Seattle
From November 29 to December 4, 1999, the WTO convened its Third Ministerial Meeting in Seattle hoping to announce the
inauguration of a “Millennium Round” of multilateral trade negotiations. Instead, the WTO was greeted by tens of thousands
of protestors who converged on the streets of Seattle to rally against the proceedings. Disagreement with the purpose and
policies of the WTO has existed *335 since its inception in 1994, but the Seattle riots were the most visible and memorable
manifestation of popular discontent. The list of WTO detractors in Seattle included anarchists, environmental groups and
other non-governmental organizations, labor unions, and even some well-established U.S. industries like steel and
electronics. Their combined activities blocked traffic, caused delays, impeded access to venues, and brought enormous media
pressure on the WTO and its delegates. More seriously, the conflict quickly escalated such that rioters caused more than $2.5
million in damage from vandalism and looting while the police responded with batons, pepper spray and rubber bullets. 9
Compared to the street theater outside, the drama within the WTO may have been as, if not more, tense and divisive. For
example, there were serious substantive differences between the United States, European Union, Japan and Canada over
agricultural subsidies and exemptions for cultural industries. 10 However, perhaps the most decisive strike against the success
of the Seattle Ministerial arose out of the continuing dissatisfaction with the WTO by many of its developing country
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Members.11 In the face of the intense public and media scrutiny focused on the Seattle Ministerial, representatives of
developing countries continually and pointedly “voiced the sense that their concerns and participation were being
marginalized, and that those already holding an unequal share of the world’s natural and social resources continue to receive
an unequal share of the gains from trade.”12
Developing countries had both serious procedural and substantive complaints with the WTO. Procedurally, developing
countries increasingly felt that the WTO was “a developed nations’ club” that was effectively controlled by the European
Union, the United States, Japan, and the rest of the Organization for Economic Cooperation and Development (“OECD”).13
For instance, it was in Seattle where complaints by developing countries reached their highest pitch about being left out of
the “green room” process, in which a select group of *336 countries informally met to decide WTO policies without the
presence of full representation.14
Substantively, the developing countries had learned a great deal from their experiences during the previous seven rounds of
WTO trade talks. For the most part, developing countries were passive or marginal participants in those discussions, often by
choice. It was only in the Uruguay Round that developing countries were truly active in the negotiating process. 15 In spite of
their efforts, there was still a consensus that the Uruguay Round agreements generally favored developed nations and were
being implemented in an asymmetric fashion to the detriment of developing countries. 16 For example, developed countries
were pressuring developing countries to target domestic protectionism and abide by Uruguay Round agreements on
intellectual property rights and investment measures, even while the developed countries were not honoring their own
commitments to phase out trade barriers in agriculture and textiles. 17
Developing countries openly displayed their dissatisfaction with the WTO in Seattle. In response to the procedural
complaints by developing countries about being excluded from the “green room,” U.S. Ambassador Charlene Barshefsky
created working groups to give developing countries a higher degree of participation and input than they had in the previous
Singapore Ministerial. The developing countries issued a series of communiqués deeming this attempt at appeasement
inadequate and objected to Ambassador Barshefsky’s reservation of the right to use “a ‘more exclusive process to achieve a
final outcome’ in the event the working groups were unable to reach consensus.”18 The fact that developing countries insisted
on substantial participation and were willing to stall progress until then marked “a sea change from earlier periods.”19
To avoid a repeat of the substantive mistakes of the Uruguay Round agreements, developing countries were also unusually
proactive in their preparation for the Seattle Ministerial. In fact, developing country Members submitted over half of the more
than 200 specific formal proposals for the Ministerial agenda--a significantly *337 higher ratio than in past meetings.20
According to present WTO Director-General, Dr. Supachai Panitchpakdi:
For the first time in years, or for the first time, I would say, in the history of GATT and the WTO, the developing countries
had the chance to make preparation for themselves, and I think this was underestimated in Seattle. Because developing
countries as a group came up with definite agenda, definite programs, definite requests, definite demands, I would say that if
half of those demands had been met, it could have created good will, and that would have been a momentum for the fine
success in Seattle.21
Rather, their clarified agenda demonstrated that developing country interests ran counter to the objectives of many major
developed countries. Instead of backing down, the developing countries effectively blocked the start of the Millennium trade
round.
Because of dissent both external and internal, the WTO was forced to cancel its opening ceremonies and eventually the
Ministerial talks collapsed entirely. The inability of the Seattle Ministerial to start the Millennium Round was unprecedented
in the history of the postwar global trading system. 22 Never before had trade ministers convened for trade talks and then
failed to commence trade discussions.23 The failure in Seattle demonstrated the disappointment and disenchantment of many
of its Members with the WTO system. It was also a huge blow to the legitimacy of the WTO and called into question its
continued viability. Further, developed and developing countries alike learned that, given proper preparation and solidarity,
developing countries now had the ability to flex their collective power to “block any further consensus action in the WTO at
any level, signaling a major change in the manner in which the GATT and now the WTO have operated for over fifty
years.”24 In response, the WTO has attempted to be more active in “improving the quality of developing nations’
participation,”25 especially since the Seattle Ministerial. Perhaps nowhere has this been more obvious than in the Doha
Development Round.
*338 B. The Doha Development Round
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With the memory of the events of Seattle still fresh in their minds, the Members of the WTO reassembled on November 14,
2001 for a Fourth Ministerial Conference in Doha, Qatar. This time, the Members were able to agree to launch a new round
of multinational talks, called the “Doha Round.” While it is difficult to predict the final outcome of the negotiations, there is
considerable evidence that the Doha Round was responding directly to many of the concerns raised by developing countries
in Seattle.26 Indeed, the Doha Round was dubbed the “Doha Development Round” or the “Doha Development Agenda,”27
and the WTO Director-General, Mike Moore, proclaimed his belief that “the meeting at Doha will be remembered as a
turning-point in the history of the WTO and the trading system and in relations between developed and developing countries
within that system.”28
This now seems optimistic, but much of the language emanating from the Doha Ministerial did seem to support Moore’s
claim. For example, the second paragraph of the Doha Ministerial Declaration reads:
We recognize the need for all our peoples to benefit from the increased opportunities and welfare gains that the multilateral
trading system generates. The majority of WTO members are developing countries. We seek to place their needs and interests
at the heart of the Work Programme adopted in this Declaration. 29
Similarly, the very next paragraph states: “We recognize the particular vulnerability of the least-developed countries and the
special structural difficulties they face in the global economy. We are committed to addressing the marginalization of
least-developed countries in international trade and to improving their effective participation in the multilateral trading
system.”30
*339 In addition to these general principles, the Doha Declaration contained a number of concessions to developing
countries, such as rollbacks of developing country obligations negotiated during the Uruguay Round, while some obligations
were extinguished altogether.31 Moreover, new interpretations and clarifications on rules and obligations were promulgated
that were more in favor of developing countries.32
The specific language in other parts of the Doha Declaration left no doubt that the issue of developing countries was very
much on the minds of the WTO and its constituent Members. In addition to the prominent discussion of developing countries
in the Declaration preamble, the Doha Declaration explicitly mentions the concerns of developing country and special and
differential treatment with respect to agriculture (P 13), services (P 15), market access for non-agricultural products (P 16),
investment (P 21), competition policy (PP 24-25), government procurement (P 26), trade facilitation (P 27), rules (P 28),
environment (P 33), debt and finance (P 36), and technical cooperation and capacity building (P 38). 33 In fact, mention of
developing countries is so pervasive throughout the Doha Declaration and Work Programme, it almost appears as though the
WTO was overcompensating for its previous passiveness.
C. Making WTO Dispute Settlement Work for Developing Countries
It seems that the Doha Declaration’s mission was to infuse developing country concerns into virtually every facet of WTO
activity. However, one aspect of the Declaration where mention of developing countries is conspicuously absent is in its
section on dispute settlement. Paragraph 30 of the Doha Ministerial Declaration reads in its entirety:
We agree to negotiations on improvements and clarifications of the Dispute Settlement Understanding. The negotiations
should be based on the work done thus far as well as any additional proposals by [M]embers, and aim to agree on
improvements and clarifications not later than May 2003, at which time we will take steps to ensure that the results enter into
force as soon as possible thereafter.34
*340 The absence of language favoring developing countries in this paragraph on dispute settlement is a striking contrast to
the other paragraphs in the Declaration where such language is ubiquitous. However, this exclusion is not entirely surprising
given that dispute settlement is supposed to be a neutral, objective and fair process of strict legal interpretation, where
favoritism, even for the weak, should be discouraged.
This paper questions that omission and challenges the conventional notion that the DSU is not an appropriate forum for
addressing developing country concerns. The Doha Declaration’s explicit references to developing countries represents a
laudable, but incomplete, push to more evenly balance the Uruguay Round negotiation results. 35 In spite of its eloquent
words and altruistic actions, it must not be forgotten that the Declaration is merely hortatory and ultimately non-binding on
its Members. As such, there is still significant skepticism that the Declaration will be actualized in such a way as to improve
the condition of developing countries.36 More seriously, some developing countries still charge that the Doha Agenda has not
gone far enough.37
Perhaps nowhere was this sentiment more evident than at the WTO Ministerial Conference in Cancun. As in Seattle,
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thousands of protestors representing anti-globalization efforts, environmental groups, animal rights activists, labor unions,
and agricultural workers disrupted the September 2003 trade talks. 38 This time, through heightened security precautions by
the Mexican police and calls for non-violence from the protestors, the external chaos that struck Seattle was largely
avoided.39
However, the internal debate among the WTO delegates may have been even more contentious in Cancun. The Cancun
Ministerial witnessed the emergence of new negotiating blocs, such as the Group of 22 (“G-22”), comprised entirely of
developing countries and led by *341 Brazil, China, and India,40 and the informal alliance between dozens of least-developed
countries in Africa, the Caribbean, and the Pacific Rim. 41 In spite of the progress made in Doha, the Cancun Ministerial talks
collapsed due to disputes between developed and developing countries over agricultural subsidies and the purported
“Singapore” issues of investment, competition policy, government procurement, and trade facilitation. 42 After Seattle and
Cancun, the WTO is now on the defensive--needing to find a way to win back its developing country Members and to regain
its legitimacy as a pre-eminent international institution.
This article seeks to provide an additional or alternative proposal for the WTO to consider in implementing its Doha Agenda.
In particular, this article argues for more liberal and flexible rules to promote the use of mediation in disputes involving
developing and least-developed countries. DSU reform is not a panacea for all the developing country issues that the WTO
faces, but it is an important and necessary step.
II. A History of Developing Countries and the DSU
During the Seattle Ministerial and afterwards, developing countries have been particularly vocal about some of their
dissatisfactions with the WTO, including problems with market access, agriculture, textiles, intellectual property,
technological transfers, the environment and dispute settlement. Although it is not the only or arguably even the most
currently contentious problem, this article chooses to focus solely on the experience and frustrations of developing countries
with the WTO’s system of dispute settlement, as governed by the DSU. Compared to the other possible sources of
dissatisfaction, the problems of developing countries with the DSU has received less attention from international trade
scholars, developed countries, and perhaps even the WTO.
Of course, underlying the argument that the DSU should be reformed to more fully capture the interests of developing
countries is the implicit assumption that the DSU needs to be reformed at all. In order to support this assumption, this chapter
tracks the experiences *342 of developing countries under both the GATT and WTO dispute settlement systems. It examines
the ways developing countries were benefited or disadvantaged by these systems vis-à-vis developed countries, and
concludes by noting some present day developing country complaints about the DSU.
A. Developing Country Experience Under GATT Dispute Settlement (1947-1994)
When the GATT was established in 1947, the founding Member nations conceived of it as a legalistic institution, with
correspondingly legal methods for resolving trade disputes. 43 For various reasons, the GATT increasingly shifted away from
this emphasis on rule of law in dispute settlement and began to look more towards negotiation as a means of dispute
settlement.
Initially, it seemed as though developing countries might be disproportionately victimized under the GATT dispute
settlement system. In fact, four of the five legal complaints first filed with the GATT were developed countries bringing suits
against developing countries.44 The fifth case involved a dispute between two developing countries, Pakistan and India. 45
However, after those five, the pace of complaints against developing countries slowed dramatically as GATT legal discipline
towards developing countries declined.46 From 1950 to 1956, there were only eight cases of developed countries bringing
complaints against developing countries, and from 1957 to 1969, there were none at all.47 Overall, developing countries were
complainants in only 12.5% and respondents in approximately 15% of all GATT disputes between 1947 and 1986.48
This is not to suggest that developing countries did not still have serious concerns about the GATT dispute settlement system
during that time. In 1961, Uruguay filed a legal complaint against fifteen developed countries--virtually every developed
country Member in the GATT at that time.49 Uruguay’s complaint charged that market *343 restrictions in those 15 countries
seriously reduced its exports amounting to a legal nullification or impairment of negotiated benefits. 50 A GATT panel was
appointed which proceeded to examine each of the 576 developed country measures about which Uruguay was complaining.
However, partly because of the “considerable [political] trepidation”51 of being a developing country bringing a complaint
against so many developed countries, Uruguay would only claim nullification of benefits and would not go so far as to
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actually claim that any of the 576 measures were illegal.52 Since so many measures were not openly contested by Uruguay,
the panel issued what was essentially a default finding in favor of the developed countries in all but the most patently illegal
measures.53
The Uruguay case had at least three important ramifications. First, the case served as something of a “showpiece
litigation--an effort to dramatize a larger problem by framing it as a lawsuit.”54 In that sense, the complaint was designed to
serve as a microcosm of the larger issue of the GATT’s “ineffectiveness in protecting the legal rights of developing
countries.”55 The sheer number of 576 separate and individual allegedly offending measures publicized the immense
obstacles that developing countries still faced in trying to obtain market access to developed country markets. The panel did
require that patently illegal measures be removed. However, Uruguay claimed that while many of those measures were
indeed removed, just as many new barriers arose in their place.56
Second, the Uruguay complaint illustrated the political dilemma developing countries faced in bringing suits against
developed countries, as Uruguay assiduously refused to make any explicit charge of illegality in order to avoid more
seriously offending the developed country respondents. As a result, many developing countries would later back proposals to
provide “public prosecutors” in certain international trade disputes so that the developing country would not *344 have to
fear potential hostilities from bringing a complaint or zealously prosecuting a complaint against a developed country.57
Third, at least one trade scholar has suggested that as a result of the Uruguay litigation and the publicity it generated, “GATT
switched theological positions to an ‘anti-legalistic’ or pragmatic approach to dispute resolution. Legal actions were
condemned as ‘legalistic’ and ‘unfriendly.’ By 1963, the adjudicatory system fell into complete disuse, and negotiation-style
diplomacy had become the ideal.”58
At precisely this same period, developing countries began finding solidarity with one another in their mutual dissatisfaction
with the GATT. Even though almost half of the GATT Members were developing countries, many still felt that the GATT
was not adequately responsive to the special economic circumstances and trade needs of developing countries. 59 This in turn
contributed to the formation of a rival institution to the GATT, when in 1964 developing countries succeeded in establishing
a new global institution, the United Nations Conference on Trade and Development (“UNCTAD”). Throughout the 1960’s
and 1970’s, developing countries tended to replace the GATT with UNCTAD as the primary institution through which to
promote their trade interests, and their participation and involvement in GATT waned correspondingly. 60 Thus, there is a
degree to which developing country unhappiness with GATT dispute settlement in conjunction with the Uruguay case almost
led to the de-legitimization, if not the demise, of the GATT in the 1960’s and 1970’s.
B. The Ongoing Debate Between Negotiation and Adjudication
Meanwhile, this movement between negotiation-based and adjudication-based forms of dispute resolution was fostering an
intense philosophical debate. For the GATT and the WTO, negotiation-based dispute resolution refers to diplomatic means of
dispute settlement and is characterized by:
*345 the flexibility of the procedures, the control over the dispute by the parties, their freedom to accept or reject a proposed
settlement, the possibility of avoiding ‘winner-loser-situations’ with their repercussions on the prestige of the parties, the only
limited influence of legal considerations, and the often larger influence of the current political processes in, and relative
political weight of, each party. 61
As such, diplomatic solutions to trade disputes were favored by those who valued flexibility, who believed in the inherently
political nature of trade arrangements, and who emphasized “the need for safety valves if the commitment to the system by
individual Member States was not to be undermined by dispute outcomes they (or their domestic constituencies) considered
to be illegitimate.”62
On the other hand, adjudication-based dispute settlement systems typically strive for legalistic, impartial, and objective
procedures for adjudication; more precise definitions of obligations; and more effective means of implementation.63 Such
systems are best used by parties who:
want to obtain rule-oriented, binding decisions in conformity with their mutually agreed long-term obligations and interests
(as defined in multilaterally agreed legal rules of a permanent nature) and prefer to avoid the various risks involved in
‘diplomatic’ means of dispute settlement (such as dependence on the consent and good will of the defendant, bilateral ad hoc
solutions possibly reflecting the relative power of the parties rather than the merits of their case . . . .) 64
Just about every contemporary commentator on the GATT and WTO has expressed a preference for adjudication over
negotiation to settle trade disputes.65 For example, Freidl Weiss argued that a rule-oriented approach would promote
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consistency, predictability, and certainty, while diplomatic solutions were often puzzling, fragmented, flawed, full of
loopholes, and difficult to understand, respect and obey. 66 Similarly, Ernst-Ulrich Petersmann extolled the virtues of a *346
rule-oriented approach to dispute settlement as allowing for a reduction in transaction costs, promoting undistorted
competition, de-politicizing economic activities, and committing governments to more transparent, non-discriminatory, and
proportionate trade policy instruments.67 Regardless of their respective theoretical merits, recent history has shown that the
rule-oriented approach has dominated for the past ten years.
C. Developing Country Experience with the WTO DSU (1994-2003)
1. The New DSU Process
As of 1980, GATT’s dispute settlement procedures were gradually becoming based on “the authority of legal obligation.”68
These earlier efforts to increase the legal aspects of dispute settlement culminated in 1994 with the adoption of the DSU as
part of the metamorphosis of the GATT into the WTO. Broadly speaking, the DSU created a single integrated dispute
settlement system, greatly strengthened its judicial nature from its previous diplomatic days, and solidified its status as an
objective, mandatory, rule-oriented system.69 The complete WTO dispute settlement process now consists of informal
consultations between the parties, followed by an adjudicated decision by a panel of independent experts, and finally an
opportunity for appeal of the panel decision by the Appellate Body.
The DSU differed fundamentally from GATT dispute resolution in a number of ways. As opposed to much of the more fluid
diplomatic forms of GATT dispute settlement, the DSU prescribed a more rigid and systematic procedure for handling trade
disputes, and established “stricter time limits, automatic establishment of panels, automatic adoption of panel reports,
appellate review, limits on unilateral action, automatic authorization for suspension of concessions, and separate treatment of
non-violation complaints.”70 In addition, while the GATT formerly required consensus among its Members before officially
adopting panel reports, effectively allowing *347 the losing party to vote against and unilaterally block adoption of any
adverse opinions, the DSU put forth a much stiffer “negative consensus” requirement whereby all parties must unilaterally
agree not to adopt the panel report.71
2. Theoretical Benefits to Developing Countries from the DSU
The majority of current scholarship hails the formation of the DSU as a huge achievement for developing countries.
Conventional wisdom dictates that while the diplomatic methods of GATT were easier and less expensive for developing
countries than the DSU litigation process, the strengthening of the dispute settlement mechanism improved the situation of
developing countries by better insulating them against the pressures of power politics. 72 Developing countries will almost
always find themselves at a political bargaining disadvantage relative to developed countries because they often rely on
developed countries for aid, military assistance, or technological transfers. A developing country also has a less important
impact on a developed country’s economy than vice versa, since bilateral trade is more likely to be a greater percentage of the
developing country’s gross domestic product (“GDP”) than of the developed country’s GDP. A neutral adversarial dispute
settlement system helps limit the scope of the debate to the legal merits, and thus offers increased judicial protection to a
developing country against more powerful developed countries. 73
3. Special Provisions in the DSU for Developing Countries
Moreover, the DSU carried over earlier provisions of the GATT that explicitly protected and favored developing countries in
the dispute settlement process. For instance, under Article 3.12, if a developing country Member brings the complaint, it has
the option of invoking the provisions of the GATT Decision of 5 April 1966 as a *348 partial alternative to the DSU.74 This
entitles the developing country complainant to the good offices of the Director-General and a shortened panel procedure. In
addition, if the dispute is between a developing country and a developed country, the panel shall include one panelist from a
developing country at the request of the developing country. 75
Article 12.10 allows developing countries to extend the time limits for consultations and requires that the panel accord the
developing country sufficient time to prepare and present its argumentation. Under Article 12.11, the panel shall also
explicitly indicate how it took into consideration any and all relevant WTO provisions on differential and more-favorable
treatment for developing countries from covered agreements that were raised in the course of the dispute settlement
procedures. Once the process has moved beyond the panel stage, Article 21.2 states that particular attention should be paid to
matters affecting the interests of developing countries in the implementation of any rulings or recommendations. Under
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Articles 21.7 and 21.8, the Dispute Settlement Body (“DSB”) shall consider whether further action should be taken in cases
involving developing countries, and shall take into account not only the trade issues involved, but also the potential impact on
the developing country’s economy.
Even more preferential treatment is given to the least-developed countries. Article 24.1 reiterates that, like with other
developing countries, particular consideration shall be given to the special situation of least-developed countries, and further
requires that other WTO Members exercise “due restraint”76 in raising matters against a least-developed country.
Furthermore, the WTO Secretariat has pledged in Article 27.2 to assist in the provision of legal advice and technical
assistance to developing countries. Upon request, the Secretariat will make available to a developing country a qualified legal
expert to assist the developing country. However, the legal expert is only allowed to assist the developing country in such a
way as not to compromise the continued impartiality of the Secretariat. In Article 27.3, it is noted that the Secretariat shall
conduct special training sessions on WTO *349 dispute settlement procedures for interested developing country Members.
Finally, there are a number of other provisions in the DSU (notably Articles 4 and 5) that give special treatment to developing
countries during the consultation stage and requests for good offices, conciliation or mediation. These provisions will be
discussed in much greater detail in Parts III and IV, infra.
At least nominally, these specific developing country provisions seem quite favorable. While all of these provisions had
previously been part of the GATT before the DSU, by strengthening the dispute settlement rules, the DSU arguably has given
them more force. On the other hand, many of these statements are worded merely as guidelines or suggestions, rather than
obligations. This is illustrated by the fact that many of the obligations on developed countries are phrased in terms of
“should” instead of “shall,” thus making them recommended rather than mandatory.
4. Empirical Evidence of the DSU’s Impact on Developing Countries
So far, there is significant statistical and anecdotal data suggesting that developing country use of dispute settlement
procedures has increased dramatically since the adoption of the DSU in 1995 and almost every year thereafter. In fact, in the
second case ever before the DSU, two developing countries, Venezuela and Brazil, were successful in their complaint against
the U.S. in United States--Standards for Reformulated and Conventional Gasoline. 77 As of April 2003, there have been 287
disputes brought before the DSU since the inception of the WTO,78 of which approximately 101 were brought (separately or
jointly) by developing countries. Between January 2002 and April 2003 alone, twenty-four of forty-six cases before the DSU
were brought by developing countries.79 While interpretation of statistics about the success of developing countries in the
DSU is subject to an almost infinite number of confounding factors, it is still at least clear that developing countries are using
dispute settlement mechanisms under the WTO more than they were under the GATT. *350 This seems to validate the theory
that the DSU has had a positive impact on developing countries.
D. Remaining Developing Country Complaints about WTO Dispute Settlement
While it may very well be that the strengthened DSU has actually and significantly improved the dispute settlement process
for developing countries, developing countries still face a number of serious unresolved problems with the WTO DSU. In
September 2002, a group of African Member nations wrote that “[m]uch has been made of the [DSU] as a resounding
success” based “on statistics attesting the relatively large number of disputes so far referred to and finalized by the panels and
the Appellate Body.”80 However, the DSU’s true success is “not just about expedition or speed, it is also about real justice to
all members,” and its “success should be equally determined on the basis of the extent to which findings and
recommendations fully reflect and promote the [WTO’s stated] development objectives.”81 Much progress has been made on
this point, but there is still even more that the WTO should do to address the following developing country-specific
complaints.82
Three common complaints from developing countries involve: (1) a residual reluctance to initiate disputes against a
developed country;83 (2) the issue of third-party participation;84 and (3) the issue of *351 amicus curiae briefs.85 Many
developing countries or developing *352 country-supporters feel quite strongly about these three complaints. In some sense
though, these three complaints could be considered relatively minor or technical. For instance, the apprehension of bringing
cases against a developed country for fear of retaliation has already been reduced greatly. The complaints about third parties
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and amicus briefs are largely ancillary procedural issues. Though developing countries have valid arguments in all of these
areas, there are equally weighty countervailing considerations on the other side. In a sense, the way one feels about this type
of complaint might simply depend on what side one is on rather than any objective notions of fairness or sensitivity to the
unique problems of developing countries.
In contrast, the final three developing country complaints about the DSU are more fundamental and systemic. They strike at
the core of the inherent disadvantages faced by developing countries, and often there is less of a counterargument against
these complaints. Furthermore, after having interviewed a fair number of developing country WTO delegates in Geneva,
these following three concerns were those most consistently mentioned and most heavily emphasized as major and
fundamental problems with the DSU. These last three fundamental concerns are: (1) the asymmetric ability of developing
countries to enforce DSU panel decisions; (2) the disparate distribution of financial and legal resources between developing
and developed countries; and (3) the tendency of panels to be over-focused on the strict letter of the law.
1. Enforcement
One fundamental complaint by developing countries is the difficulty of enforcing dispute settlement decisions, especially in
cases involving both developing and developed countries. Even after an Appellate Body ruling that a defending party’s trade
measure violates its WTO obligations, the WTO cannot force the offending party to remove the measure or even pass an
injunction to stop the measure from functioning. Rather, the DSU primarily enforces its decisions by allowing the
complaining party to erect retaliatory trade barriers against the offending party until the offending party complies with the
ruling. Enforcement through retaliation has been criticized since retaliation exacerbates the problem by reducing gains *353
from trade for both parties and can even be ultimately counterproductive for the victorious party. 86 According to basic
economic theory, an “eye for an eye” enforcement regime “does not restore the [trade] balance lost, nor does it encourage
compliance, but rather tends to inflict greater injury on the complaining party.”87
The centrality of retaliation to the WTO’s enforcement scheme is somewhat one-sided in that developing countries are the
most disadvantaged by reliance on retaliation. Due to their smaller size and fragile economies, developing countries will be
even more adversely affected by those cases where retaliation is self-defeating.88 Developing country retaliatory
countermeasures against a developed country will also tend to have a relatively smaller impact than developed country
retaliatory countermeasures against a developing country. Developing countries often claim that their economies “are small
and therefore measures restricting their exports even if imposed for short periods will cause them serious injury,”89 whereas
the size and diversity of a developed country’s economy makes it much better able to cope with relatively insignificant
retaliation by a developing country. In the Bananas case, a U.S. trade measure was found to violate WTO obligations.90
However, the U.S. easily absorbed the impact of Ecuador’s retaliation while the U.S. “took a further 30 months to comply
with the ruling after the expiry of the reasonable period of 15 months *354 established by the DSB and easily withstood 27
months of retaliatory measures.”91
Finally, DSU enforcement provides only prospective remedies. This creates an incentive to violate WTO obligations since an
offending Member only has to stop violating after it is caught, and “an illegal measure will have been maintained ‘for free’
throughout the dispute settlement proceedings at least.”92 Again, developing countries are more vulnerable to suffering
serious harm in this time period than developed countries.
2. Lack of Financial and Legal Resources
A second fundamental complaint is that many developing countries do not have the financial resources or the legal expertise
to operate as effectively as developed countries.93 Several developing country delegations have complained about their
inability to bear the high costs of WTO litigation.94 Moreover, most developing countries lack the requisite expertise in both
substantive WTO law and in DSU procedure to advocate a claim effectively before a panel or appellate *355 body.95 In a
trade dispute against better-trained experts from developed countries, “the lack of experience frequently cannot be
overcome.”96 Developing countries also typically lack the ability to gather the extensive information and documentation that
must be gathered to support their legal arguments.97 Furthermore, developing countries will suffer more as the process
becomes more delayed and drawn out. Therefore, even with the movement to an adjudicatory-based system and its emphasis
on impartial and unbiased dispute settlement, because of the difference in resources between developed and developing
countries, there is still a widespread sentiment that “the ‘fight’ is not fair.”98
The two potential palliatives to this problem of uneven resources-- using outside legal counsel and requesting technical
assistance from the WTO Secretariat--also bring a host of additional disadvantages. First, the problem with hiring outside
counsel is that it can be very expensive. While this takes care of the legal expertise problem, it does not resolve the financial
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resources issue for developing countries.
Second, under Article 27(2) of the DSU, developing countries may request technical assistance from the WTO, at which
point the WTO Secretariat will provide the developing country with assistance *356 from a qualified legal consultant. While
this could alleviate the legal expertise deficiency, and would cost the developing country nothing, there are other problems
with this solution. For example, this offer of assistance has sometimes proven to be “inadequate”99 since there have been an
insufficient number of WTO technical consultants to assist developing countries. 100 The WTO Secretariat has historically
had trouble filling these technical service positions, and has frequently had to rely on contracting out former staffers of the
Legal Division.101 In 1999, the WTO’s Legal Division had six attorneys, only two of whom could serve as legal consultants
for developing countries.102
Moreover, the few Secretariat experts that are available to assist developing countries are limited in their efforts by Article
27(2)’s requirement that their assistance may not compromise the neutrality of the Secretariat. In many cases, this
impartiality requirement significantly reduces the expert’s latitude in helping developing countries with strategic legal
issues.103 Many developing countries, such as Jamaica and the group of least-developed countries, have complained about
the nature of this assistance and report that:
while in most instances the ‘expert‘ was sincere and sought to provide useful advice, he did not provide the wide-ranging,
in-depth assistance that the countries felt they needed. In short, he was not ‘their lawyer.’ Rather, he merely provided
technical assistance on a narrow range of issues, frequently doing no more than critiquing possible arguments or defenses and
providing basic advice about the course of WTO dispute proceedings. 104
Thus, rather than fulfilling the more encompassing role of a “public defender” for developing countries, the experts are only
intended and allowed to serve as short-term, narrow-range technical advisors.105
However, the formation of the WTO Advisory Law Centre (“ALC”) has greatly alleviated the problems presented by
developing Members’ lack of financial and legal resources. First formally announced at the Seattle Ministerial and beginning
operations in July *357 2001, the ALC’s purpose is to assist developing countries in the preparation and presentation of their
trade cases in WTO disputes.106 The ALC operates independently from the WTO Secretariat, so that it can work in a more
extensive and strategic way with developing countries while still safeguarding the neutrality of the Secretariat. In this way,
the ALC acts more like the requested “public defender” for developing countries. Moreover, since the ALC is heavily
subsidized by a group of developed countries, fees for developing country Members are usually minimal and are primarily in
place to discourage frivolous suits.107 In fact, the ALC only charges a fraction of the actual cost to help represent a
developing country all the way through the appeals stage. 108
While developing countries have praised the efforts and intentions of the ALC, they note that it “should not be considered a
panacea for all institutional and human capacity constraints of developing countries.”109 According to one developing
country representative, the membership fee that the ALC charges for access to its services may still be too much for some
least-developed countries that have more pressing matters requiring their meager finances. 110 While the lawyers at the ALC
are praised for their experience and competence, there still are not enough of them to cover all of the developing country
cases.111 Also, there may be conflicts of interest in cases involving opposing developing countries.
Finally, none of the solutions of assistance from a WTO Secretariat consultant, from outside legal counsel, or from the ALC
attorneys address one of the most important goals of a developing country: to develop and train its own cadre of lawyers to a
level of expertise and self-sufficiency to be able to represent itself in DSU proceedings. 112 Pursuant to Article 27(3)’s
requirement that the WTO Secretariat provide special training sessions for developing countries on DSU procedures, the
WTO Training Institute has initiated a number of training sessions on the dispute settlement mechanism. 113 Also, the *358
ALC not only represents developing countries in DSU proceedings, but also holds seminars and training sessions on DSU
topics for developing country Members.114 However, according to the former Legal Advisor to the USTR mission in Geneva,
while WTO Training Division courses for developing country government officials “are well attended and considered to be
very useful . . . the 100 or so people trained every year are but a small fraction of what would be necessary for all developing
countries to have the necessary corps of experts.”115
3. Special Consideration of Development and Equity
The third fundamental problem for developing countries is that the DSU process may be too legalistic and over-focused on
the strict letter of the law. One high-ranking delegate from a developing country stated that her country is generally satisfied
with the DSU and remains committed to the WTO and its legal obligations.116 However, she felt both her country and the
WTO would benefit from looking at disputes from a more global perspective and on a more individualized basis that could
take into account the specific problems that developing countries face as they try to comply with the array of obligations they
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committed to in the Uruguay Round.117 There have been situations where she knew her country was not fully in compliance.
However, her country had made its best effort and was continuing to make progress in that regard. An overly legalistic
dispute settlement system “only looks at whether you complied or not. There is no room for ‘Yes, I didn’t comply, but here’s
why I couldn’t.”’118 In addition, there may be cases where strict adherence to WTO obligations would go against economic
development principles and policies. Accordingly, Ambassador Ramirez Boettner of Paraguay has emphasized the need for
the DSU to incorporate principles of equity (ex aqueo et bono) that would promote increased fairness as determined on a
case-by-case basis instead of simply having sweeping legal rules that would be enforced in spite of extenuating
circumstances.119 Similarly, the African Group has remarked even more *359 forcefully that the “core development and
equity concerns of African Members have not been taken into account in assessing the operation and the need for
improvement of the [DSU]”120 and therefore, in its legal operations, “the [DSU] should not abstract itself from development
fundamentals.”121
While it is worded differently, the basic premise behind all of these notions of equity and development has already been
institutionally approved by and introduced into the WTO Membership. After all, the DSU specifically asks for “special
attention to the particular problems and interests of developing country Members” in consultations,122 panel reports,123 and
in the surveillance of implementation of recommendations and rulings. 124 The problem is that, in spite of these special and
differential DSU provisions specifically favoring developing countries, very few of these clauses have ever been effectuated
by a WTO panel or appellate body.125
In European Communities: Antidumping Duties on Imports of Cotton-Type Bed Linen, India repeatedly asked the European
Communities (“EC”) to take into account its special situation as a developing country and provided detailed arguments
demonstrating the “importance of the bed linen and textile industries to India’s economy.”126 However, India claimed that
the EC refused to explore constructive remedies in violation of a provision mandating that “special regard must be given to
the special situation of developing country Members when considering the application of anti-dumping measures.”127 As a
third-party in the dispute, the U.S. argued that this provision “does not require any particular substantive outcome or any
specific accommodations to be made on the basis of developing country status,” and that it “does not impose anything other
than a procedural obligation to ‘explore’ possibilities of constructive remedies.”128 The panel ultimately agreed that this
provision:
*360 imposes no obligation to actually provide or accept any constructive remedy that may be identified and/or offered. It
does, however, impose an obligation to actively consider, with an open mind, the possibility of such a remedy prior to
imposition of an anti-dumping measure that would affect the essential interests of a developing country. 129
Thus, even when the developing country does attempt to receive “special attention,” the request is often ignored or given
little weight.
E. Summary
Throughout the evolution of the GATT to the WTO, the dispute settlement process became increasingly rule-oriented. This
was hailed as a huge achievement for developing countries because they would now be more protected from political
pressures, because the DSU had arguably strengthened the various provisions specially favoring developing countries and
because developing countries have been initiating disputes at an unprecedented level. Still, there are numerous unresolved
issues with the DSU from a developing country’s perspective, especially the three fundamental complaints regarding
enforcement, deficiency of legal resources, and lack of considerations of development and equity.
III. Reforming the DSU: The Need for More Mediation
In general, most WTO Members, the developing countries included, are satisfied with the DSU overall and are not seeking a
complete overhaul of the system.130 On the other hand, Ecuador (the *361 primary victim in the Bananas case) issued a
communication reminding the DSB that “[i]t is true to say that, in general terms, the dispute settlement mechanism operates
satisfactorily,” however, “[t]he fact that the mechanism functions does not inevitably lead to the conclusion that the DSU is
sacred and virtually perfect, and therefore does not need to be modified.”131 Given the strength and validity of the
fundamental problems facing developing countries, it is clear that the system still suffers from a number of major flaws. Not
coincidentally, the Doha Declaration has specifically requested proposals from Member countries to help clarify and improve
provisions of the DSU in the hopes of enacting an agreed set of changes.
The goal of Part III is to present and evaluate a number of proposals that have been made to improve the workings of the
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DSU for developing countries in particular and to focus on one proposal specifically: increasing the use and effectiveness of
mediation in the DSU process. Increasing the use of mediation is a particularly rewarding source of reform since it is not
opposed by developed countries, is relatively costless, and gets to the core of some of developing countries’ deepest
concerns.
A. Proposed Reforms to the DSU by Developing Countries
During the comment stage for the DSU, numerous developing countries sent in proposals for DSU changes. Not surprisingly,
the proposals to improve the DSU for developing countries closely correspond to the traditional complaints that developing
countries have about the DSU. For instance, numerous developing countries submitted proposals calling for the liberalization
of third-party rules132 *362 and for restrictions on amicus curiae briefs.133 Meanwhile, some of the most powerful proposals
by developing countries dealt directly with the three fundamental problems.
1. Enforcement
There are at least two strains of developing country proposals that directly relate to the fundamental problems developing
countries face with trying to enforce DSU decisions. First, instead of having to rely on retaliation through suspension of
concessions as the primary method of enforcing panel and appellate body decisions, many developing countries have
proposed including monetary compensation as a potential remedy. The economic theory underlying this proposal is that since
illegal developed country trade restrictions can cause “serious harm to the fragile economies of developing countries and that
*363 this harm would be multiplied by its retarding effect on the development process,” developing countries should “be
entitled to collect retroactive damages in the form of money awards” instead of the insufficient “forward-looking” remedy of
retaliation.134
Thus, several groups of developing countries have proposed that in the event a panel finds a developed country measure to be
in violation of WTO obligations, monetary compensation to developing countries should be “continually paid pending and
until the withdrawal of” the offending measures.135 The amount of the monetary compensation “should be equal to the loss
or injury suffered and directly arising from the offending measure”136 and should be withdrawn only after the nonconforming
measure is removed.137 However, even though the EC has even given some support to this notion, 138 trade scholars believe
that this reform will not come about in the near future due to staunch opposition from developed countries. 139
A second alternative remedy that has been proposed is to allow multiple countries to collectively retaliate when at least one
developing country wins a case against a developed country. 140 Because the threat of retaliation by a single developing
country is not a very effective punishment or deterrent to a developed country, the African Group has proposed that “all
WTO Members shall be authorized to collectively suspend concessions to a developed Member that adopts measures in
breach of WTO obligations against a developing Member.”141 Only such a broad-based measure could “provide genuine
leverage to induce compliance, a move beneficial to all WTO [M]embers, and not just ‘compensation’ to the one or few that
brought the case.”142 Again, such a proposal is very unlikely to succeed since *364 industrial countries have historically
“strongly resisted this proposal.”143
2. Lack of Resources
Even after the formation of the ALC, developing countries nevertheless report that “the cost of litigation before the WTO
panels and the appellate body is prohibitively high.”144 In order to reduce the burden of the costs of WTO litigation and to
“enable developing countries with a strong case to pursue disputes or proceedings against a developed country,” a number of
countries have proposed that as a matter of special and differential treatment, “in disputes involving developed and
developing country Members, especially where the dispute was initiated by the developed country, the developed country
should pay the costs of the developing country if the latter is successful in dispute before a panel.”145
A separate line of comments requested more training and funding for developing countries in order to address the problem of
unequal legal and financial resources. Kenya proposed a dispute settlement fund to be financed from the WTO budget that
would facilitate the effective utilization of the DSU by developing countries. 146 The African Group requested assistance in
the form of: “a pool of experts and lawyers in the preparation and conduct of cases, the payment of fees and expenses
entailed, [and a detailed] compilation by the WTO Secretariat of all applicable [panel and Appellate Body case] law.”147
Finally, the Least-Developed-Country Group (“LDC Group”) pressed for changes of Article 27.2’s promise of legal
assistance to developing countries such that the legal experts could be freed from the requirement of impartiality and “be
allowed to assume the full role of ‘counsel’ as properly understood.”148
*365 3. Lack of Special Attention to Equity and Development
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There were a large number of developing country proposals that reflected their conviction that the WTO dispute settlement
process inadequately considers the special problems of developing countries by devoting insufficient attention to their “core
development and equity concerns.”149 First, there were many calls to bolster the effectiveness of the current special and
differential provisions in the DSU proclaiming that Members merely “should” favor developing countries in certain areas by
substituting in a more obligatory “shall” requirement.150 Developing countries were particularly keen on enhancing and
enforcing the DSU’s built-in equity requirement that Members give “special attention” to the particular problems of interests
of developing country Members:151 (1) in the decision of whether to bring a case against a developing country Member;152
(2) during the consultation stage;153 and (3) in the implementation of panel or Appellate Body rulings. 154
4. Strengthening Consultations and Mediations
There was also a host of developing country submissions that called for augmenting the DSU consultation and mediation
processes. To improve the consultation stage, Jamaica pushed Members to honor their commitment to “strengthen the
consultation stage” as embodied in Article 4.1.155 Finally, a diverse group of developing countries156 (and even the EC157)
reiterated the importance of encouraging recourse to good offices, conciliation, and mediation as a way to resolve disputes in
a mutually satisfactory manner and at the earliest possible stage. In fact, Paraguay, 158 Haiti,159 Jordan,160 and *366 the LDC
Group161 all proposed making mediation mandatory in disputes involving developing or least-developed countries.
B. Why More Mediation Would be a Particularly Good Reform
While many of the proposals advanced by developing countries on how to reform the DSU have merit, this paper focuses on
the last proposed reform: the potential benefits of increased use of mediation in the DSU. Mediation is emphasized because it
directly deals with all three of the fundamental complaints and problems that developing countries have about the DSU. More
pragmatically, mediation does not raise nearly the political opposition that some other proposals raise, like collective
retaliation or monetary compensation. Finally, mediation deserves special attention because it provides a much-needed
intermediate step between the two extremes of the diplomatic consultations stage and the adjudicatory panel stage.
In arguing that increased mediation would benefit the workings of the DSU generally and developing countries specifically, it
is first important to define mediation and related concepts as they are used in international trade law and the WTO.
In ‘good offices,’ a third-party (in this case the WTO Director-General) provides a means by which the disputing parties may
communicate with each other. In conciliation, an impartial third party undertakes an independent investigation and suggests a
solution to the dispute. In mediation, an impartial third party acts to bring about a resolution of the dispute. The purpose of
these three mechanisms is to ‘assist Members to settle a dispute.’162
*367 Similar to how mediation is defined by distinguishing it from good offices and conciliation, the argument for increased
mediation in the DSU proceeds by contrasting mediation to the two existing primary avenues for settling WTO trade
disputes: panel litigation and consultations. If mediation was unequivocally inferior to or made superfluous by the panel
litigation process or the consultation stage, it would not be useful or needed.
1. Mediation vs. Panel/Appellate Body Litigation
For the most part, it is agreed that the movement from the GATT negotiation-based to the WTO adjudication-based dispute
settlement system provided some significant benefits for developing countries in terms of being less vulnerable to political
power plays. As mentioned above, most international trade scholars strongly support this move and openly consider the DSU
to be the “crown-jewel” of the new WTO. Though scholars strongly favor this trend toward legalism, the reintroduction of
some ADR procedures would be a beneficial addition to the DSU.
Over the past three decades, ADR techniques have increasingly been recognized as providing a preferable alternative to more
adversarial litigation at both the national and the international level. Much in the same way that the benefits of ADR have
spread into other disciplines, international trade scholars are also increasingly coming to see the pertinence of ADR in their
own field. In the words of a prominent international trade scholar who strongly supported the movement to a more legalistic
DSU:
The various ADR methods (such as mediation, neutral expert appraisal, mini-trial) differ from adjudicatory procedures by the
agreed intervention of a third-party which helps the parties to settle their dispute in a more flexible, expeditious, confidential
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and less costly manner . . . . The voluntary, non-binding and informal character of ADR proceedings ensures control by the
parties over their dispute and focuses on elaborating “win-win” solutions that save time and costs and strengthen personal and
business relationships among the parties to the dispute.163
As mentioned in Part II, Section D, the three fundamental developing country complaints against the DSU were that: (1)
developing countries had trouble enforcing panel decisions; (2) developing countries had insufficient resources to operate in
the DSU effectively; and (3) panels were seen as inflexible in their rigid focus on the strict letter *368 of the law. Notably,
the very benefits that ADR processes like mediation provide precisely counteract the fundamental complaints that developing
countries still have about the DSU.
First, since a negotiated or mediated decision must be mutually acceptable to both parties, it is much more likely that the
agreement will be enforced voluntarily, thereby circumventing the difficulties that developing countries face in trying to
enforce panel decisions using retaliatory counter-measures. The parties “may [also] desire mediation because a mediator can
be used to monitor, verify and guarantee any eventual agreement.”164 Second, for the more cost-conscious developing
countries, mediation would provide a relief by avoiding the high costs of panel and even perhaps appellate litigation.
Third, developing countries have stressed their desire that WTO dispute settlement expand its vision beyond the strict letter
of the law. In the ADR literature, there are many examples of how the adversarial nature of litigation in some countries like
the U.S. contributes to a “zero-sum” mentality that inhibits the development of potentially creative and value-adding
solutions. According to Professor Joseph Weiler, in contrast to earlier GATT diplomatic solutions, now “[l]egal disputes [in
the WTO] which go to adjudication are not settled; they are won and lost. The headlines talk of ‘victory’ and ‘defeat.”’165 It
has also been charged that because the new DSU promotes the rule of law and the “rule of lawyers” with career ambitions
and desires for job satisfaction, sometimes the very fact that a country could clearly win a case “becomes in the hands of all
too many lawyers an almost automatic trigger to ‘we should bring the case.”’166
Once a dispute reaches the panel stage, there are inherent influences for both parties and panels to become locked in
positional stances. Once a dispute has reached the panel, the parties rarely suspend or terminate the panel proceedings
because they could come to a mutually satisfactory solution prior to submission of the panel’s decision. 167 Professor Weiler
argues that by the time two parties *369 enter into litigation, the WTO dispute settlement process often regresses from its
dispassionate and objective ideal into a battle of rhetoric and the desire to win--both “inimical to compromise.”168 As a
result, there are “less than a handful of cases in the history of the WTO where a compromise was found and a dispute settled
once a Panel started its work.”169
For its part, the panel tends to strictly limit its analysis to “an objective assessment of the facts of the case in the applicability
of and in conformity with the relevant” rules and agreements.170 A panel’s focus is often on fashioning a legally correct and
appeal-proof decision.171 To be fair, this is all that is asked of the panel, and some would argue, this is all that the panel
should do. However, this narrow focus would make it very difficult, if not impossible, for panels to encourage creative
solutions to trade disputes, and sure enough, “initiatives for conciliation of the dispute have hardly ever been taken by panel
members” themselves.172
This micro-focus on the letter of the law by the panel may hurt both disputing parties. A developing country defendant may
know that it is in violation of a WTO law, but for some reason, there is simply no way for the developing country to fully
implement the WTO law yet. Still, the developing country will get dragged through an expensive panel process only to be
told what it already knew--it is doing something illegal. Engaging in negotiation or mediation would help because rather than
focusing only on the fact that the developing country is in violation, the developed country complainant could attempt to find
a way to help the developing country defendant actually comply such that both sides satisfy their interests. 173 In short,
compared to the adjudicatory-style DSU panel litigation, added use of mediation could benefit developing countries by
giving them a more effective forum for looking at other value-creating opportunities and by giving them an opportunity to
look for solutions “based not only on existing law but also on considerations of equity (ex aequo et bono).”174
*370 2. Mediation vs. Consultations
To some extent bilateral negotiation shares all of the advantages that mediation has over panel litigation. In recognition of
this fact and those advantages, in the movement from GATT to the WTO DSU, a vestige of the old diplomatic method of
resolving trade disputes survived in a number of DSU provisions promoting ADR, such as the requirement of a pre-panel
consultation stage. However, the fact that the DSU process requires parties to engage in consultations (or essentially
negotiations) before being allowed to move on to the panel stage does not mean that there is no longer a meaningful role for
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mediation. Mediation brings unique value to the DSU process either in addition to or instead of the existing consultation
stage.
The WTO’s aspiration that trade disputes be settled in a negotiated, mutually satisfactory manner is encapsulated in Article
3.7 of the DSU, which states that “[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute.
A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be
preferred.”175 Therefore, all WTO Members are required to enter into consultations with the opposing Member as the first
step in the dispute settlement process. The complaining Member’s consultation request must be in writing, contain the
reasons for the request, and indicate the legal basis for the complaint. 176 Generally speaking,177 the complaining Member
may only request the establishment of a panel if: (1) the other Member does not respond within 10 days after the receipt of
the request for consultations;178 (2) the other Member does not enter into consultations within 30 days of the request or
consultations;179 (3) the consultations fail to settle the dispute within 60 days after receipt of the request; 180 or (4) both
Members agree that the consultations have failed to settle the dispute.181 In addition, all Members must enter into
consultations “in good faith,”182 and consultations are to be confidential and “without prejudice to the rights of any Member
in any *371 further proceeding.”183 Finally, under Article 4.10, “during consultations Members should give special attention
to the particular problems and interests of developing country Members.”184
Because consultations are confidential, there is no public record of the details of the consultations, no manner of guaranteeing
that the consultations were undertaken in good faith, and no method of evaluating whether or how much the consultation
stage actually contributed to settling the dispute. As such, while there are diverse opinions regarding the success and utility of
consultations, the prevailing attitude seems to be that consultations are generally not very effective. In fact, a majority of
commentators and the bulk of anecdotal evidence tend to be explicit in discounting the effectiveness of the consultation stage
in resolving WTO disputes. To begin with, numerous consultations have been widely described as merely “pro forma” by
many commentators, representatives of trade delegations,185 and even some WTO officials.186 Anecdotal descriptions of
actual consultations indicate that many consultations take place in a tiny room of the WTO building in Geneva and only last
two to three hours.187
In their report in European Communities--Regime for Importation, Sale and Distribution of Bananas, one WTO panel stated
that since neither the DSB nor the Secretariat could be present at any consultation, the panel was “not in a position to
evaluate the consultation process in order to determine if it functioned in a particular way.”188 Therefore “the function of a
panel” was not to ensure that the Members participated in the consultations in good faith and attempted to reach a negotiated
decision, but “only to ascertain that consultations, if required, were in fact held or, at least, requested.”189 Without any *372
monitoring or enforcement mechanism, the effectiveness of consultations relies entirely on the willingness of parties to enter
consultations in good faith, “[p]ractice shows, however, that not all WTO Members appear to attach the same importance to
this commitment.”190 Since the DSU imposes very few obligations on the consultation process, many countries “abuse the
flexibility inherent in the system to avoid real consultations” which effectively “reduces the consultation phase to a mere
formality” or simply “a cooling-off period.”191
There may also be other, less cynical justifications for why the consultation stage might not be more meaningful. One
rational reason for a Member’s minimal participation in the consultation stage is the fear of revealing damaging information
or strategies that will later be used against them at the panel stage. Also, according to one attorney at the ALC, disputing
WTO Members have often discussed the trade issue in dispute even before a request for consultations is made in the hopes of
averting the process entirely. 192 Thus, by the time a petitioning government has “made the decision to invoke the dispute
settlement mechanism, the feeling is ‘get me to the panel’ as quickly as possible” and consultations, “even when undertaken
in good faith, are more reasonably viewed as a ‘way station’ on the road to a panel than as a final stopping point.”193
Mandating a period of time specifically reserved for consultations is just a superfluous procedural hurdle in these instances.
On the contrary, there are a few statistical arguments that consultations may be effective, but they tend to be more cautious
and qualified in their support. For example, a number of trade scholars have cited statistics that about one-half of the matters
brought to consultation were “resolved, settled at that stage, or abandoned.”194 Based on these “encouraging” numbers, they
argue that efforts to facilitate pre-panel settlements in the consultation stage are “enjoying considerable success.”195
However, other commentators have been more circumspect, arguing that any conclusion from the statistics *373 that “the
consultation phase works well and contributes to the settlement of disputes . . . seems too sweeping a claim.”196 Since there is
no record of the reasons why cases do not graduate from the consultation stage to the panel stage, without further research,
any “positive impression of the performance of the [consultation stage in settling disputes] is incomplete at best.”197 Finally,
an empirical analysis by Wethington shows that after accounting for certain factors, such as the double counting of cases and
the timing of the settlement, the consultation process “facilitated settlement without requiring the panel process” in far less
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than half of the cases.198
In short, some of the critical concerns of developing countries regarding the DSU could be mitigated with stronger ADR
procedures, yet the primary and only required form of ADR, the consultation stage, is often little more than a formality. The
presence of a third-party mediator could provide at least two improvements over the consultation stage. First, a third-party
mediator could be a positive force in seeing that the consultation stage operates as originally envisioned by the DSU. Article
4 of the DSU mandates that disputing Members “shall enter into consultations in good faith”199 and “should attempt to obtain
satisfactory adjustment of the matter”200 during the consultation stage. In addition, Article 4.10 states, “[d]uring consultations
Members should give special attention to the particular problems and interests of developing country Members.”201
However, the good faith requirement is often ignored and the requested special and differential treatment for developing
countries in consultations is almost never given. While there is currently no assurance that any country will follow those
guidelines on the consultation stage, it would be even more difficult for a developing country to engage a developed country
in meaningful pre-panel negotiation in situations where only the developing country has a strong desire to settle. According
to one senior trade representative, simply the added presence of a third-party mediator would help the situation by making it
more difficult for certain parties to openly flout the good faith requirement and by making it more embarrassing for a
developed country to appear to be unwilling to negotiate with a developing *374 country.202 Another commentator has also
supported this “monitoring” role for a neutral third person or party in the consultations to verify whether the relevant DSU
obligations were actually fulfilled.203
Second, one of the often-cited disadvantages about the old GATT diplomatic style of international trade dispute settlement
was that developing countries were vulnerable to power politics, and this could be said to be equally true in the new DSU
consultation stage. For instance,
In the United States, most domestic constituents examining the utility of the consultation phase in the WTO process do not
view the phase as a stand-alone mechanism for dispute resolution. Entering the consultation phase is seen merely as part of a
broader strategy to ratchet up political pressure in order to resolve the problem with a panel decision, or outside of the WTO
context if necessary.204
A mediator could help control against this tendency. Developing countries could attain more equal footing in the consultation
stage if a third-party with authority was the one who metaphorically “answers the switchboard.”205
C. Summary
The ambassador of one developing country, an experienced WTO negotiator, stated his belief that “ninety percent of disputes
can be resolved by mediation.”206 It is unclear whether this estimate is accurate or not, but this sentiment supports the
proposition that there is an important role for mediation within the current dispute settlement system of the WTO. One
foundational idea of ADR is Professor Frank Sander’s notion of “fitting the forum to the fuss,” or adapting the type of dispute
settlement procedure used to best suit the particular conflict at hand. 207 Thus, there are some cases that can be settled
satisfactorily in consultations, and there are some cases that need to be litigated, in order to formally protect fundamental
rights or in an effort to set precedents, for example. However, there are a significant number of cases, particularly those
involving developing countries, *375 which would benefit greatly from the increased prevalence and power of mediation,
such as where panel litigation is too costly and rigid and where the consultation stage is too weak or disadvantageous to
developing countries with unequal bargaining power. Borrowing terminology from Ury et al.’s book, Getting Disputes
Resolved, the current DSU system already has a “power-based” procedure (consultations) and a “rights-based” procedure
(panels) for settling disputes.208 This Part advocates supplementing this choice by including an “interests-based” procedure
in the form of mediation, in order to decrease the costs of dispute resolution and increase the likelihood of a mutually
satisfactory outcome.
IV. Making Mediation Work for Developing Countries
Up to this point, this paper has argued that more mediation would help offset the fundamental problems of enforcement, lack
of resources, and lack of consideration of equity that developing countries face in the WTO DSU. At first glance, arguing for
the increased use of mediation may seem unremarkable since it is a rather uncontroversial assertion. As will be discussed in
greater detail below, the DSU already contains provisions for mediation in Article 5. While they may not spend much time
discussing mediation and may not link mediation as a possible solution to the three fundamental problems of developing
countries, the few commentators that do mention mediation all favor it. 209 Moreover, in the WTO, the Director-General has
urged increased use of mediation,210 numerous developing countries have called for more mediation, and no developed
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country has gone on record to discourage mediation.
*376 The puzzling fact remains that mediation has almost never been used in either a GATT or WTO dispute. 211 As of April
2003, there had only been one recorded instance of mediation--in the Thailand/Philippines/E.U. canned tuna dispute of 2002.
Pursuant to the 2000 Cotonou Partnership Agreement, certain African, Caribbean, and Pacific (“ACP”) countries were
allowed to export canned tuna shipments to the E.U. free of tariffs. 212 In May 2002, Thailand and the Philippines, two of the
world’s top canned tuna exporters, instituted proceedings before the DSB demanding that the E.U. cut or eliminate the 24%
tariff imposed on their products.213 After three unsuccessful rounds of consultations, the parties asked that WTO
Director-General Supachai step in to help resolve the dispute on September 4, 2002.214 After months of additional
discussions, the parties agreed on a solution whereby the E.U. reduced its tariff on Philippine and Thai canned tuna exports
by 50%.215
In spite of the seeming consensus about the benefits of mediation to the DSU process, in actuality, mediation is almost never
employed as a form of dispute settlement in the WTO. Thus, while Part III was dedicated to the question of why there should
be more mediation, this present Part will make some initial explorations into how to make mediation more effective and
widely used in the DSU. In doing so, this Part will look at issues of what kind of mediation style should be employed, who
should mediate, and when should the parties mediate. Finally, it should be mentioned that this Part will focus primarily on
those changes that are politically pragmatic and that realistically *377 could be adopted. While there are an infinite number
of ways to encourage more mediation in theory, the focus here is on those proposals that are the most feasible and that
generate the least negative side effects.
A. The Rules on Mediation in Article 5 of the DSU
Article 5 of the DSU contains most of the relevant provisions pertaining to good offices, conciliation, and mediation for
WTO Members. According to Article 5.1, mediation is to be undertaken “voluntarily” and “if the parties to the dispute so
agree.”216 Under Article 5.3, mediation can “be requested at any time by any party to a dispute” and also may begin or be
terminated at any time.217 If the request for good offices, conciliation or mediation is timely, parties can only request the
establishment of a panel: (1) “[sixty] days after the date of receipt of a request for consultations;”218 (2) after the procedures
for good offices, conciliation, or mediation are terminated;219 or (3) when the parties jointly agree “that the good offices,
conciliation or mediation process has failed to settle the dispute.”220 Alternatively, good offices, conciliation or mediation
may continue even during the panel process if the parties agree. 221
Without necessarily ruling out other possible mediators, Article 5.6 specifically states that the “Director-General may, acting
in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a
dispute.”222 While the DSU does not preclude other mediators, most discussion of mediation in the WTO assumes that the
Director-General or his representative would be the mediator. In a July 2001 official memorandum, the Director-General
enumerated a list of prospective regulations that would apply if the Director-General was asked to provide good offices,
conciliation, or mediation:
1. The Director-General shall meet with the parties within five days.
2. If all parties to the dispute agree, the Director-General shall proceed forward with an offer of good offices, conciliation
and/or mediation.
*378 3. The Director-General shall then arrange further meetings with the parties as appropriate.
4. The process shall be terminated upon the request of any party to the dispute, except in a circumstance where there are two
or more complainants and at least one complainant and the respondent wish to continue in the process. In such situations, the
Director-General shall continue his efforts with respect to the remaining parties.
5. Ex parte communications are permitted.
6. Communications shall be confidential.
7. There should be no third-party participation unless otherwise agreed to.223
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None of these guidelines have been officially incorporated or enforced by the DSU agreement. Rather, they are simply meant
to be illustrative and indicative of the self-imposed rules that the Director-General would use in the event of an Article 5
request.
B. Historical Background of Mediation in the GATT and WTO
While a number of international economic organizations have formal mediation, conciliation, and good offices dispute
resolution procedures, these methods have not “proven to be very popular among users.”224 Similarly, by all accounts and by
any measure, the provisions for good offices, conciliation, and mediation have almost never been used 225 throughout the
collective histories of the GATT226 and WTO.
*379 The rare and scattered instances of third-party assistance in resolving trade disputes were primarily requests for good
offices where the Director-General ended up providing the parties with advisory opinions. 227 In 1982, this procedure was
used briefly and unsuccessfully in a U.S.-EC dispute concerning EC tariff treatment of citrus products. In 1987-1988, Japan
and the EC called on the good offices of the Director-General to assist in the resolution of their dispute over Japanese copper
pricing and trading practices. At the end of the process, the Director-General developed and distributed to the parties a report
that included a short factual finding and an advisory opinion. 228 The Director-General was again asked to provide good
offices to Canada and the EC in 1988, whereupon he gave the parties an advisory opinion about an Article XXIV question
involving tariff concessions between Portugal and Canada.229 Until late 2001, these three cases were the only recorded
examples of disputes that asked for good offices, conciliation, or mediation and there had never been a request for mediation.
C. Potential Barriers to Mediation
The underutilization of Article 5 provisions in GATT/WTO dispute settlement is particularly surprising given that these
procedures have been strongly encouraged and supported by the Director-General and that a number of developing countries
have explicitly called for more good offices, conciliation, and mediation. There are at least eight potential obstacles or
objections to mediation that might explain this incongruity:
1. There is a fear that increased use of Director-General mediations would only aggravate the strain on scarce WTO
Secretariat resources.
2. The mediation process might be criticized for not being sufficiently transparent and for harkening back to the old days of
secretive, back-room GATT diplomacy.
3. Given the history of good offices, conciliation and mediation, countries may be conflating requesting mediation with
receiving advisory opinions.
4. Due to a lack of precedents, there is significant uncertainty about what mediation would actually involve and entail.
*380 5. It could be that professional Geneva diplomats working in their country’s respective WTO delegation may not
believe that mediation or additional ADR is necessary.
6. Developing countries have expressed some concern about having the Director-General of the WTO be the mediator at
all.230 Due to self-selection bias, virtually everyone who decides to work at the WTO will be pro-free trade, and this is
probably more pronounced in the higher ranks.
7. Many parties, especially those from developed countries, might consider mediation to be a superfluous procedural hurdle.
For some of the same reasons that parties make the consultations stage a mere formality, these parties might view mediations
as a waste of time or a developing country tactic for delay.
8. Developing countries may fear that asking for mediation will look like an escalation or intensification of hostilities. Similar
to how developing countries may hesitate to bring complaints against developed countries, they may be more reluctant to ask
for the help of a third-party.
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D. Proposed Reforms to Increase the Use of Mediation in the DSU
The WTO can or should do nothing about a few of these barriers. For instance, it is true that increasing the use of mediation
will tax the resources of the Secretariat and the Director-General.231 However, this may still be a worthwhile trade-off to
increase the opportunities for negotiated settlement and this could be compensated for by a corresponding decrease in the
Secretariat’s duties for cases at the panel stage. Also, while it is conceded that mediation would be a fairly non-transparent
method of resolving disputes, any requirements to make it more public could have a chilling effect on the willingness of
parties to talk openly and share information.
Outside of these two barriers, there are steps that the WTO could and perhaps should take to counter the other six obstacles.
The following five proposed reforms to the DSU further explore and attempt to address these barriers that might prevent or
discourage developing countries from using mediation more frequently.
*381 1. Make Mediation More than Advisory Opinions
To date, almost every request for good offices, conciliation, or mediation has resulted in the promulgation of an advisory
opinion by the Director-General or his personal representative. While such advisory opinions do provide some value to
developing countries by potentially allowing them to save resources, they do not completely address the developing country’s
fundamental interests. For instance, such a legalistic approach to good offices or mediation would not advance a developing
country’s desires to introduce more equitable and creative problem-solving methods of resolving international trade disputes.
Professor Leonard Riskin deals with this issue in his famous grid on mediators’ orientations, strategies and techniques.232
Very broadly speaking, Riskin’s two-by-two grid categorizes mediation styles along two dimensions: evaluative versus
facilitative and narrow versus broad. Evaluative mediators tend to want to judge the strengths and weaknesses of the parties
and to predict the likely outcome of litigation, whereas the principal mission of facilitative mediators “is to clarify and to
enhance communication between parties in order to help them decide what to do.”233 Meanwhile, a narrow viewpoint would
limit the focus of the mediation to the specific issues in dispute, and a broad viewpoint would allow the inclusion of other
factors, even those of secondary significance to the dispute.
Following this framework, the Director-General’s office has historically taken an evaluative-narrow approach to requests for
good offices, conciliation, or mediation, as demonstrated by the frequent resort to advisory opinions. Instead, more training
and encouragement should be given to have mediations be broader and possibly more facilitative in disputes involving a
developing country. “[M]oving from narrow to broad definitions” of mediation could alter the “view of the conflict . . . from
that of a problem to be eliminated to that of an opportunity for improvement” by allowing the mediator to take into account
the special equity concerns of developing countries.234 Becoming more facilitative would be an acknowledgement that
perhaps “the parties can develop better solutions than any the mediator might create” and would allow the parties more room
for *382 the creative problem-solving that is particularly necessary in cases involving developing countries.235
2. Develop and Fund Mediation Training Programs
As a corollary to the first proposal, the WTO should seek not only to determine what mediations are not (i.e., not merely
advisory opinions), but also the WTO should affirmatively clarify what an actual mediation will involve and entail.
According to one author writing in May 2001, “[d]eveloping country representatives fully admit that good offices and
mediation are worthwhile means in the abstract . . . . However, as an attorney at the Brazilian Mission remarked, ‘Who will
be first?”’236 Given the lack of mediation precedents to examine and because mediations are confidential, there is very little
empirical or anecdotal evidence as to how they would operate. In addition, since mediations rarely occur in any other
international economic context, WTO delegations are often not even able to draw on their non-WTO experiences to inform
themselves as to how an Article 5 mediation might look. As such, one of the barriers to the increased use of Article 5 is that
there is still significant uncertainty surrounding the entire process. In addition, according to one of the most pre-eminent
international trade scholars in the U.S., many WTO delegates often downplay the need for mediation. 237 As diplomats, they
believe that they are themselves sufficiently skilled and experienced in ADR processes, and so a mediator would be
unnecessary.238
Given these factors, the WTO could encourage greater use of mediation by providing formal mediation training sessions to
its Members. Being a mediator or a party to mediation requires different skills than those necessary for simply participating
in bilateral or multilateral negotiations. The WTO and the ALC have been holding numerous training and technical assistance
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programs on the DSU, but as of yet, little or no programs specifically focused on conducting or participating in Article 5
processes.
*383 3. Encourage the Use of Other Mediators in Addition to the Director-General
While the DSU does not actually require it, it has become almost an ingrained and unquestioned assumption that the
Director-General would be the mediator in any Article 5 proceeding. Some benefits of having the Director-General mediate
disputes are that the Director-General will be very knowledgeable and will have expertise about the WTO and WTO law.
Because the Director-General is an authority figure, he could potentially serve as a “mediator with muscle.”239 Moreover, the
DSU already specifically endorses the Director-General to perform such tasks, giving him an additional layer of legitimacy.
Finally, to the extent it is applicable, there is already a successful parallel precedent of the U.N. Secretary-General mediating
international disputes.
On the other hand, at least some developing countries have quietly questioned how neutral a mediator the Director-General
would be.240 One author recently recorded this admission by a WTO Secretariat employee: “Is there a Secretariat view? Do
we have a bias of some sort? Of course. It is a pro-free trade bias. What do you think made so many of us come work for the
WTO?”241 Many developing country Members are also well aware of this phenomenon. That same author reported that a
member of the Indian National Mission countered a Director-General circular reminding WTO Members that he was always
available to mediate by saying, “Yes, [the Director-General] did send around this thing saying I am available. But, let me tell
you, the Secretariat is biased. It is a free-trade orientation that they have. They are not neutral.”242 Developing countries
consider this pro-free trade predisposition to be a drawback because it might unfairly outweigh countervailing considerations
of fairness and equity or distract from the WTO’s commitment to promoting development.
*384 Furthermore, almost any Director-General would also have a greater personal and professional interest in preserving
and enhancing the WTO than in looking out for the interests of developing countries or even resolving the dispute at issue. A
delegate from one developing country confided that many developing countries do not necessarily require that a potential
mediator be an expert in WTO law.243 After all, it has been previously argued that mediation might appeal to developing
countries because it offers the opportunity to be less legalistic and more equitable. A mediator who was not necessarily
affiliated with the WTO and not an expert on WTO law would be less invested in preserving and defending the WTO and
could be more wiling to look at other equitable and socioeconomic factors in resolving trade disputes. In other words,
developing countries would prefer a mediator “who is there to help Members find solutions to the [trade] problem at hand,
not solve problems for the WTO.”244
As such, developing countries might be more inclined to use mediation if it was clearer that someone other than the
Director-General or another WTO employee could also serve as the mediator. One alternative suggestion is that in cases
involving developing countries, the developing country could request a mediator from international development
organizations, like UNCTAD or the United Nations Development Programme (“UNDP”). Such a mediator would likely have
expertise in development issues and could then be especially valuable in brainstorming equitable solutions. Because of the
institutional affiliation, the mediator would also have greater legitimacy and “muscle” than another outside mediator.
There are a number of responses to anticipated charges by developed countries that such a mediator would naturally be biased
in favor of developing countries. First, there has been considerable academic literature on international mediation that
“indicates that biased mediators can succeed regardless of their biases and perhaps even because of them, and can act in an
evenhanded manner with some degree of success.”245 Second, there is no reason to assume that a UNCTAD or a UNDP
mediator would be more biased than the WTO Director-General.
*385 4. Allow for “Reverse Loop-backs”
In Getting Disputes Resolved, the authors offer advice on how to design efficient and effective dispute settlement systems. In
doing so, they provide the inspiration for one potential solution to the charge that mediation (added to the already mandatory
consultation stage) would simply be an additional and superfluous procedural hurdle that increases delays and prolongs the
dispute settlement process.246 In particular, Ury et al. advocate instituting “loop-back procedures,” which encourage
disputants to move from more costly dispute settlement mechanisms, like power-based contests (consultations) and
rights-based contests (panel litigation) to often more favorable and preferable interest-based systems (i.e., mediation).247
While the authors write only of loop-backs, the case for expanding and improving mediation use might also benefit from
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“reverse loop-backs,” where disputants could move from mediation back out to consultations or panel litigation, and which is
less concerned with moving from more costly to less costly dispute systems than saving any accumulated agreements or
acknowledgements that were made in a mediation. More concretely, parties might especially consider mediation to be a
useless procedural hurdle if any progress that was made were forfeited if the whole mediation failed. For instance, mediation
might help resolve two out of five disputed issues, but all five issues might be litigated before a panel if the other three issues
cannot be resolved by mediation. In another example, the consultations stage might actually have been able to resolve a
particular dispute, but the parties were not able to agree on a given procedural rule that could have been worked out with the
presence of a mediator. In the former case, a reverse loop-back procedure could resemble a mediator-assisted set of factual
findings or stipulations that would no longer need to be addressed at the panel litigation stage, saving time and resources. In
the latter example, a reverse loop-back procedure would allow parties to return to consultations once the mediator was no
longer needed.
5. Consider Making Mediation Default (or “Mandatory”) in Limited Situations
The final proposed reform of making mediation a default or automatic process in certain restricted situations may also be the
most controversial. International trade scholars and practitioners would *386 probably oppose this notion because, in
conjunction with the mandatory consultations stage, this would arguably just create another procedural hurdle that results in
delays and increased costs. Conversely, many ADR scholars dislike the idea of mandatory mediation at all, since the
foundation of mediation is built on, and many of its claimed benefits are derived from, the fact that mediation is a voluntary
process. However, since limited “mandatory” mediation has begun to garner explicit support from a number of developing
countries, it is now at least worth considering.248
One of the impediments to greater use of mediation is that small developing countries may be reluctant to ask for mediation
in cases where they are opposing larger developed nations for fear that they are escalating tensions and risking their
relationship by calling in a third-party mediator. Notably, Article 3.10 of the DSU states, “It is understood that requests for
conciliation and the use of the dispute settlement procedures should not be intended or considered as contentious acts.” Thus,
the DSU demonstrates that it implicitly recognizes and acknowledges this concern when it feels the need to explicitly try and
quell it. Adding to this difficulty is the fact that Article 5.3 allows any party to the dispute to terminate a mediation at any
time. If a developed country was not inclined to mediate a dispute, perhaps because it considered mediation to be a
superfluous procedural hurdle, then the existing DSU rules would provide a substantial disincentive to asking for mediations.
A developing country might rationally decide it is not worth escalating the conflict with the developed country by requesting
mediation if the developed country could perfunctorily terminate the mediation soon afterwards.
One specific proposal would be that in the limited instances of trade disputes involving at least one developed and one
developing country, parties would automatically enter into mediation after the conclusion of the consultation stage and prior
to the formation of a panel unless the developing country opts out. If the consultations fail or were not conducted in good
faith, this would provide another opportunity for the parties to reach a mutually agreed upon settlement while enjoying the
added benefits that third-party mediation can contribute over and above the consultation stage. Even in the many cases where
consultations do resolve the conflict, a third-party could conduct what Howard Raiffa terms a “post-settlement settlement,”
where experts examine the deal to determine whether there was any *387 “value left on the table” and whether there are
ways to restructure the agreement in a way beneficial to all parties. 249
Because the developing country Member would be allowed to opt out, this proposed mediation process would not be
“mandatory” in the traditional sense. As the developing country will usually be the party to want mediation the most, if the
developing country believed mediation to be unhelpful or unnecessary, it could simply decide to forego mediation and return
to the standard DSU process. This proposal does not require mediation, it simply makes it the default so as to shift the
incentives to make mediation more favorable than less.
This idea has garnered some support from Member countries as well as from the text of the DSU itself. As mentioned
previously, in Part III.A.4, a number of countries--Paraguay, Haiti, Jordan, and the Least-Developed Country Group--have
already submitted official proposals to change the DSU to make mediations mandatory. Furthermore, Article 24.2 already
contains limited provisions for mandatory mediation when it states:
In dispute settlement cases involving a least-developed country Member, where a satisfactory solution has not been found in
the course of consultations the Director-General or the Chairman of the DSB shall, upon request by a least-developed country
Member offer their good offices, conciliation and mediation with a view to assisting the parties to settle the dispute, before a
request for a panel is made.250
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Thus, a least-developed country already can unilaterally request good offices, conciliation, or mediation. This proposal
essentially would extend this privilege to all developing countries, not just least-developed countries.
One weakness of this proposal is that it would increase the number of procedural steps and therefore elongate the dispute
settlement process. This could be ameliorated by an even more radical and potentially problematic proposal whereby, in cases
involving at least one developed and one developing country, the current consultation stage would be replaced by mediation
unless the developing country opts out. Under this default rule, there would be no additional delay associated with mediation
because it would simply substitute for the consultation stage. Given the significant proof that the consultation *388 stage is
often a mere formality, substituting mediation for consultation would gain the benefits of mediation without sacrificing much
practical benefit.
Conclusion
Those familiar with the seminal negotiation primer, Getting to Yes, may recognize that the structure and organization of this
paper has largely been patterned as a “Circle Chart” analysis, with each Part corresponding to its numerical Circle Chart
Quadrant.251 Part I presented the Quadrant I real-world symptoms of the problem of developing country dissatisfaction with
the WTO as demonstrated by the failure of the Seattle Ministerial. Moreover, the strikingly ubiquitous mention of developing
country concerns in the Doha Declaration confirmed that the WTO Membership has acknowledged the extent and gravity of
the crisis. Of all the possible complaints with the WTO, this paper focuses on the problems of developing countries with the
DSU because of the relative neglect this topic has received.
The Quadrant II theoretical diagnosis was based on the historical experience of developing countries with dispute resolution
under the GATT and WTO, as described in Part II. Specifically, the movement from a diplomatic model of dispute resolution
to a more adjudicatory model benefited developing countries in significant ways, but it also produced a host of new
problems. Among the various problems that developing countries face, three were seen as fundamental: the inherent
difficulties of enforcement through retaliation, the problem of unequal financial and legal resources, and the general lack of
equity in the DSU.
Similarly, Part III attempted to provide Quadrant III theoretical solutions and strategies to the problems uncovered in Part II.
Part III surveyed dozens of developing country proposals on how to reform the DSU. While each developing country
complaint had a corresponding and logical solution, there was one particular proposal that could simultaneously address all
three fundamental problems with relatively little systemic cost to the DSU - the increased use of mediation. More
particularly, the increased use of mediation would alleviate the problems with enforcement since agreements would be
voluntary and more likely to be self-enforced. Also, mediation would almost always require less money and resources and
would provide more opportunities to look beyond the strict letter of the law than *389 litigation. Moreover, it was shown that
the potential benefits of mediation are distinct from and not usurped by the consultation stage, which often is pro forma since
countries can enter consultations in bad faith with impunity.
Finally, Part IV offered some initial explorations into Quadrant IV real-world tactics and action ideas to encourage the use of
mediation. The theory of mediation receives almost universal lip service, especially from developing countries that have even
requested mandatory mediation in certain circumstances. In spite of this, mediation is almost never used to resolve
international trade disputes in actuality. Eight potential barriers were mentioned to explain why mediation is not more
frequently used, and five proposals were made to make mediation a real and effective method of resolving developing
country disputes.
In conclusion, this paper focuses on mediation because it is effective and it represents moderate, uncontroversial, and
politically feasible reform. Other developing country proposals, such as collective retaliation or punitive damages, would
certainly do much to help the developing country situation; however, they impose heavy costs on the appearance of fairness
within the DSU and are strongly opposed by many Members. There are still various counterarguments to increasing the
frequency of mediation. For instance, it could create additional procedural hurdles and lengthen the DSU process, and it
might further strain the already limited resources of the Director-General and Secretariat. Also, there could be fears that
encouraging mediation would be paramount to a step backwards to the old GATT diplomatic ethos when so much effort has
been put toward strengthening and legalizing the DSU, the “crown jewel” of the WTO.
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In spite of these concerns, the benefits from mediation discussed throughout this article outweigh such costs. It must be
remembered that the overriding purpose of the WTO is not to design the most rapid mechanism of producing precise legal
answers to trade disputes. Rather, the mission of the WTO is to work towards the economic development of all Members
through the reduction of trade barriers. Free trade is benefited by the full inclusion of more countries to contribute to the mix
of trade products and comparative advantages, and the WTO is further legitimized by the full participation of a greater
number of its Members. Given that more mediation would be such a positive step for the efforts of developing countries in
resolving trade disputes and increasing their general satisfaction with the WTO, it is well worth the extra effort.
Footnotes
d1
Harvard Law School, J.D., 2003; Harvard University, B.A., 1998. The research and writing of this article were supported by a
Law and Negotiation Research Fellowship from the Hewlett Foundation and the Harvard Negotiation Research Project. Special
thanks to my adviser Robert Bordone, Professor Robert Mnookin, and my Hewlett Fellow colleagues for their suggestions on
earlier drafts. This paper could not have been written without the generosity and hospitality of Mark Nguyen, Daniel Crosby,
David Hartridge, Ambassador Ramirez Boettner of Paraguay, Leo Palma of the ALC, Elizabeth Tuerk of CIEL, Victor Mosoti of
the ICTSD, and representatives from several developing country delegations. Their comments and criticisms helped shape my
ideas during my time in Geneva. I thank Professor Roger Fisher and Dr. Daniel Shapiro for being formative figures in my ADR
education as well as the late Professor Robert Hudec for sharing his mastery of international trade law. Finally, I would also like
to thank Thu Nguyen for her editing expertise and my parents for their constant support.
1
Press Release, World Trade Organization, Moore Calls for Greater Efforts to Assist Poor Countries (Sept. 1, 1999).
2
See Constantine Michalopoulos, The Role of Special and Differential Treatment for Developing Countries in GATT and the
World Trade Organization, World Bank Policy Research Working Paper No. WPS 2388, July 31, 2000, at 2 [hereinafter
Michalopoulos, Special and Differential Treatment] (The eleven developing countries were: Brazil, Burma, Ceylon, Chile, China,
Cuba, India, Lebanon, Pakistan, Rhodesia and Syria.).
3
Id.
4
Diana Tussie & Miguel F. Lengyel, Developing Countries: Turning Participation into Influence, in Development, Trade, and the
WTO: A Handbook 485, 485-86 (Bernard Hoekman et al. eds., 2002).
5
Id.
6
See
World
Trade
Organization,
Trading
into
the
Future:
Introduction
to
the
WTO,
at
http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev0_e.htm (last visited Apr. 16, 2003). The WTO does not have a formal
test or standard for whether a country should be considered “developing” or not. See World Trade Organization, Who are the
Developing Countries in the WTO?, at http:// www.wto.org/english/tratop_e/devel_e/d1who_e.htm (last visited Apr. 16, 2003).
7
Unlike with developing countries, there is an official United Nations list of forty-nine Least-Developed Countries, thirty of which
are currently Members of the WTO. Only countries on this U.N. list are classified as Least-Developed Countries in the WTO. See
World Trade Organization, Least Developed Countries, at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm (last
visited Apr. 16, 2003).
8
Tussie & Lengyel, supra note 4.
9
See The WTO Legacy, Seattle Post-Intelligencer, at http:// seattlepi.nwsource.com/wto/ (last visited Apr. 16, 2003).
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10
See Jeffrey J. Schott, The WTO After Seattle, in The WTO After Seattle 3, 7 (Jeffrey J. Schott ed., 2000).
11
See Tussie & Lengyel, supra note 4, at 490-91.
12
Frank J. Garcia, Trade and Inequality: Economic Justice and the Developing World, 21 Mich. J. Int’l L. 975, 976-77 (2000).
13
James L. Kenworthy, The Unraveling of the Seattle Conference and the Future of the WTO, 5 Geo. Pub. Pol’y Rev. 103, 105
(2000).
14
Jeffrey L. Dunoff, The WTO in Transition: Of Constituents, Competence and Coherence, 33 Geo. Wash. Int’l L. Rev. 979, 981
(2001).
15
H.E. Dr. Supachai Panitchpakdi, Keynote Address: The Evolving Multilateral Trade System in the New Millennium, 33 Geo.
Wash. Int’l L. Rev. 419, 429 (2001).
16
See Dunoff, supra note 14.
17
Schott, supra note 10, at 5-6.
18
Dunoff, supra note 14, at 982.
19
Id. at 983.
20
Jayashree Watal, Developing Countries’ Interests in a “Development Round,” in The WTO After Seattle 71, 72-73 (Jeffrey J.
Schott ed., 2000).
21
Supachai, supra note 15.
22
Schott, supra note 10, at 5.
23
Id.
24
David A. Gantz, Failed Efforts to Initiate the “Millennium Round” in Seattle: Lessons for Future Global Trade Negotiations, 17
Ariz. J. Int’l & Comp. L. 349, 351 (2000).
25
Dunoff, supra note 14, at 983.
26
See, e.g., Peter M. Gerhart, Slow Transformations: The WTO as a Distributive Organization, 17 Am. U. Int’l L. Rev. 1045 (2002)
(arguing that the Doha Round may mark the WTO’s transformation from an organization concerned about the creation of wealth
to an organization concerned also about the fair distribution of wealth).
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27
Inaamul Haque, Doha Development Agenda: Recapturing the Momentum of Multilateralism and Developing Countries, 17 Am.
U. Int’l L. Rev. 1097, 1098 (2002).
28
Id. at 1100.
29
World Trade Organization, Doha Ministerial Declaration, Nov. 20, 2001, WT/MIN(01)/DEC/1, at P 2, available at
http://www.wto.org/english/thewto_ e/minist_e/min01_e/mindecl_e.htm (last visited Apr. 16, 2003) [hereinafter Doha Ministerial
Declaration].
30
Id. P 3.
31
Gerhart, supra note 26, at 1074.
32
Id.
33
See Doha Ministerial Declaration, supra note 29.
34
Id. P 30.
35
Id.
36
See, e.g., Kamal Malhotra, Doha: Is it Really a Development Round?, 1 Trade, Env’t, and Dev. Series (May 2002), at http://
www.ceip.org/files/Publications/TED_1.asp?from=pubauthor (last visited Apr. 16, 2003).
37
See, e.g., Haque, supra note 27, at 1121-22 (“After their experience in the Uruguay Round and the Seattle fiasco, developing
countries have been skeptical and even cynical about the outcome at Doha. Some, in their private evaluations, even regarded
Doha to be a failure although this assessment seems both incorrect and unfair.”).
38
Hugh Dellios, Anti-WTO Protests Erupt on First Day of Meetings in Cancun, Mexico, Chi. Trib., Sept. 11, 2003, News, at 3.
39
Jim Carlton, Protests May Be Toned Down at WTO’s Meeting in Cancun, Wall St. J., Sept. 9, 2003, at A10.
40
Diego Cevallos, WTO-Cancun: Future Uncertain After Collapse of Talks, Inter Press Serv., Sept. 14, 2003.
41
Steven Chase, WTO Talks Bog Down Over Subsidies, The Globe and Mail (Toronto, Can.), Sept. 13, 2003, at B8.
42
R.C. Longworth, Cancun Collapse; The Day that the 3rd World Bucked the WTO, Chi. Trib., Sept. 28, 2003, Perspectives, at 1.
43
Beverly M. Carl, Trade and the Developing World in the 21st Century 87 (2001).
44
See Robert E. Hudec, Developing Countries in the GATT Legal System 25 (1987) [hereinafter Hudec, Developing Countries in
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the GATT Legal System].
45
See id. at 34.
46
See id. at 27-30.
47
See id. at 30.
48
Michael J. Trebilcock & Robert Howse, The Regulation of International Trade 373 (2d ed. 2001).
49
See Hudec, Developing Countries in the GATT Legal System, supra note 44, at 46-47.
50
See Carl, supra note 43.
51
Hudec, Developing Countries in the GATT Legal System, supra note 44, at 78.
52
See id. at 48.
53
See id. at 48-49.
54
Id. at 47.
55
See Hudec, Developing Countries in the GATT Legal System, supra note 44, at 47.
56
See id. at 49.
57
Interview with Robert E. Hudec, Professor, The Fletcher School, Medford, Mass. (Nov. 15, 2002).
58
Id. (Professor Hudec also believes that around this time, a major reason for the shift towards diplomacy and away from dispute
settlement was that the U.S. and E.U. were having trouble complying with the Treaty of Rome.); see also Carl, supra note 43.
59
See Constantine Michalopoulos, Developing Countries’ Participation in the World Trade Organization, World Bank Policy
Research Working Paper No. WPS 1906, Mar. 1998, at 2 [hereinafter Michalopoulos, Developing Countries’ Participation].
60
See id.
61
Ernst-Ulrich Petersmann, The GATT/WTO Dispute Settlement System: International Law, International Organizations and
Dispute Settlement 69 (1997).
62
Trebilcock & Howse, supra note 48, at 54.
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63
See Carl, supra note 43, at 86-87.
64
Petersmann, supra note 61.
65
But see Claude E. Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization, 2 Chi. J. Int’l L.
403 (2001) (arguing that the DSU should return to its diplomatic roots in certain circumstances).
66
Freidl Weiss, Improving WTO Procedural Law: Problems and Lessons from the Practice of Other International Courts and
Tribunals, in Improving WTO Dispute Settlement Procedures: Issues and Lessons from the Practice of Other International Courts
and Tribunals 17, 22-23 (Freidl Weiss ed., 2000).
67
Petersmann, supra note 61, at 67.
68
Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, PSIO Occasional Paper:
WTO Series No. 11, June 8, 1998, at 9 [hereinafter Hudec, Overview].
69
See Weiss, supra note 66, at 23.
70
Zsolt K. Bessko, Going Bananas over EEC Preferences?: A Look at the Banana Trade War and the WTO’s Understanding on
Rules and Procedures Governing the Settlement of Disputes, 28 Case W. Res. J. Int’l L. 265, 288 (1996). For more on how the
DSU was different and more legalistic than GATT dispute settlement, see also Trebilcock & Howse, supra note 48, at 51-53;
Petersmann, supra note 61, at 177.
71
Daniel C.K. Chow, A New Era of Legalism for Dispute Settlement Under the WTO, 16 Ohio St. J. on Disp. Resol. 447, 452-54
(2001) (book review).
72
See, e.g., Constantine Michalopoulos, Developing Countries in the WTO 34 (2001) [hereinafter Michalopoulos, Developing
Countries in the WTO]; Schott, supra note 10, at 15; Thaddeus McBride, Rejuvenating the WTO: Why the U.S. Must Assist the
Developing Countries in Trade Disputes, 11 Int’l Legal Persp. 65, 81 (1999); T.N. Srinivasan, Developing Countries and the
Multilateral Trading System: From the GATT to the Uruguay Round and the Future 56 (1998).
73
See Michalopoulos, Developing Countries in the WTO, supra note 72.
74
Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing
the World Trade Organization [hereinafter WTO Agreement], Annex 2, Legal Instruments--Results of the Uruguay Round vol.
31, 33 I.L.M. 1226 (1994) [hereinafter DSU].
75
DSU art. 8.10.
76
DSU art. 24.1.
77
WTO Panel Report on United States--Standards for Reformulated and Conventional Gasoline, WT/DS2/R (Jan. 19, 1996), 35
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I.L.M. 274.
78
See
World
Trade
Organization,
List
of
Panel,
Appeal
and
http://www.wto.org/english/tratop_e/dispu_e/distabase_e.htm (last visited Apr. 12, 2003).
79
See World Trade Organization, Disputes, Chronologically, at http:// www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm
(last visited Apr. 12, 2003).
80
Proposal by the African Group, Negotiations on the Dispute Settlement Understanding, TN/DS/W/15, at 2 (Sept. 25, 2002)
[hereinafter African Group Proposal].
81
Id.
82
See Kim Van der Bordght, The Review of the WTO Understanding on Dispute Settlement: Some Reflections on the Current
Debate, 14 Am. U. Int’l L. Rev. 1223, 1226 (1999) (“However, to conclude that there is a general satisfaction among all WTO
Members that the dispute settlement is working well and is fair for all WTO Members would be a mistake. While developed
countries can take an active part in the dispute settlement process, the majority of WTO Members are developing countries that in
many cases have neither the financial means nor the expertise to effectively protect their rights under the covered agreements.”).
83
Similar to the GATT Uruguay case, developing countries and their supporters often claim that “the existence of disparate
economic power may deter some [developing countries] from bringing complaints against major trading nations.” Srinivasan,
supra note 72, at 57. In spite of the move from negotiation-based dispute settlement to adjudication-based dispute-settlement, it
still requires significant “political will” and “political courage” for a developing country to bring a case “because the power of
developed countries to dissuade developing countries from requesting WTO consultations remains great.” C. Christopher Parlin,
WTO Dispute Settlement: Are Sufficient Resources Being Devoted to Enable the System to Function Effectively?, 32 Int’l Law.
863, 868 (1998) [hereinafter Parlin, WTO Dispute Settlement]. This makes sense since developing countries are often much more
dependent on developed countries for economic, military, and technological aid such that the need for friendly relations often
easily outweighs the cost of a trade dispute. Thus, a developing country is more vulnerable to retaliation in other non-trade-related
areas. While this phenomenon will likely never be completely eradicated, the adoption of the DSU does appear to have mitigated
the effect somewhat. After all, the number of complaints brought by developing countries against developed countries has
increased dramatically, and there have yet to be any reported instances of a developed country retaliating against a developing
country for bringing or winning such a complaint.
84
The requirement for joining a trade dispute as a third-party is also an area of concern for developing countries. Currently, the
consultation, panel and appellate stages are confidential and closed off except to the parties and only those third parties that can
demonstrate a “substantial trade interest” in the dispute. See DSU art. 4.11. Many developing countries view this “substantial
trade interest” test as a potentially unfair test because a developed country with a large and diversified economy, like the U.S.,
could potentially be a third-party in almost every dispute. In contrast, developing countries may have a “substantial interest” in
the matter, but might still be denied third-party status because its relevant trade volumes are too small. See Communication from
Jamaica, Contribution by Jamaica to the Doha Mandated Review of the Dispute Settlement Understanding (“DSU”),
TN/DS/W/21, at 2 (Oct. 10, 2002) [hereinafter Jamaica Proposal]. Moreover, other developing countries have argued that
liberalizing third-party rules would benefit developing countries in “gaining legal expertise in procedural, substantive, systemic,
or other issues; gaining insight into the workings of the WTO; and protecting long-term development interests and prospects that
any findings and recommendations could adversely affect” and “would be a concrete contribution towards capacity building for
developing lawyers and government officials in this regard.” African Group Proposal, supra note 80, at 4.
85
A number of developing countries have sharply criticized the Appellate Body ruling in the US--Import Prohibition of Certain
Shrimp and Shrimp Products that accepted into the record a number of amicus curiae briefs from non-Member organizations. As a
matter of WTO law, developing countries noted that the framers of the DSU purposefully had decided not to allow such briefs and
that the Appellate Body exceeded its authority by broadly interpreting DSU Article 13 (which allows panels “to seek information
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
Arbitration
Rulings,
at
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and technical advice from any individual or body it deems appropriate”) to permit unsolicited amicus submissions. See Proposals
on DSU by Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe, Negotiations on the Dispute
Settlement Understanding, TN/DS/W/18, at 2 (Oct. 7, 2002). As a matter of policy, developing countries argue that the WTO
Membership is comprised solely of national governments and allowing amicus briefs would give undue rights to private entities
that would otherwise have no standing. See Communication from India, India’s Questions to the European Communities and Its
Member States on Their Proposal Relating to Improvements of the DSU, TN/DS/W/5, at 5 (May 7, 2002). Moreover, developing
countries fear that this would unfairly advantage developed countries since they will be much more likely to “have well developed
social resources such as think tanks, academic institutions and non-governmental agencies [that] are likely to be called upon for
information and technical advice.” Communication from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu,
Contribution by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu to the Doha Mandated Review of the
Dispute Settlement Understanding (“DSU”), TN/DS/W/25, at 2 (Nov. 27, 2002) [hereinafter Taiwan Proposal #25]. But see
Communication from the European Communities, The European Communities’ Replies to India’s Questions, TN/DS/W/7, at 7
(May 30, 2002) [hereinafter European Communities’ Replies] (“While it is true that some entities with the capacities to make
amicus curiae submissions may at present exist more in developed countries than in developing ones, this does not mean that such
entities will always take positions in favour of the interests of developed ones. Indeed, recent experience shows the opposite: on
various issues (e.g.: access to medicines), non-governmental organizations in developed countries have frequently taken positions
radically different from those adopted by their governments.”).
86
See, e.g., Robert E. Hudec, The Adequacy of WTO Dispute Settlement Remedies, in Development, Trade, and the WTO: A
Handbook 81, 84 (Bernard Hoekman et al. eds., 2002) [hereinafter Hudec, The Adequacy of WTO Dispute Settlement Remedies]
(“In the light of past experience, the WTO’s greater emphasis on retaliation as an enforcement tool would appear to be somewhat
misguided .... Threats of retaliation can be useful, but they can also become counterproductive if used too forcefully or too
often.”).
87
Communication from Ecuador, Contribution of Ecuador to the Improvement of the Dispute Settlement Understanding of the
WTO, TN/DS/W/9, at 3 (July 8, 2002) [hereinafter Ecuador Proposal].
88
Communication from the European Communities, Contribution of the European Communities and Its Members States to the
Improvement of the WTO Dispute Settlement Understanding, TN/DS/W/1, at 4 (Mar. 13, 2002) [hereinafter European
Community Proposal] (“It is logical that trade compensation should always be preferred to suspension of concessions or other
obligations, which is only a last-resort instrument: the authorization to suspend concessions runs against a basic principle of the
WTO .... Therefore, the use of suspension of trade concessions involves a cost not only for the defending party, but also for the
economy of the complaining Member. As shown by past experience, this is especially the case when that complaining Member is
a developing country.”).
89
African Group Proposal, supra note 80, at 2.
90
WTO Panel Report on European Communities-Regime for Importation, Sale and Distribution of Bananas, WT/DS27/R/ECU
(May 22, 1997).
91
Ecuador Proposal, supra note 87, at 2.
92
Proposal by Mexico, Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding, TN/DS/W/23, at
3 (Nov. 4, 2002) [hereinafter Mexico Proposal].
93
See Parlin, WTO Dispute Settlement, supra note 83 (“The scope of activity by developing countries as complainants shows a
great interest in the system and a desire to ensure satisfaction of their rights. Yet, evidence (admittedly anecdotal and drawn
largely from the experience of developing countries as respondents) suggests that they are not devoting sufficient resources to
make the system work effectively for them. They are not devoting sufficient resources because those resources do not exist.”); see
also Valentina Delich, Developing Countries and the WTO Dispute Settlement System, in Development, Trade, and the WTO 71,
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79 (Bernard Hoekman et al. eds., 2002) (“Although the DSU is not biased against any party in a dispute, developing countries are
less well equipped to participate in the process: they have fewer people with the appropriate training, they are less experienced,
and they can bring fewer financial resources to bear.”).
94
African Group Proposal, supra note 80, at 1 (“The DS is complicated and overly expensive.”); Communication from Paraguay,
Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding, TN/DS/W/16, at 1 (Sept. 25, 2002)
[hereinafter Paraguay Proposal] (“Another factor to be taken into account is the very high cost involved in a dispute settlement
procedure, which developing and least-developed country Members are often unable to assume. This makes it even more
necessary to promote measures or the prompt and amicable resolution of disputes.”); Proposal by the LDC Group, Negotiations
on the Dispute Settlement Understanding, TN/DS/W/17, at 1 (Sept. 19, 2002) [hereinafter KDC Proposal] (“It should be
remembered that one of the greatest difficulties that LDCs have to cope with in their participation in the multilateral trading
system is an extreme human resource constraint. LDCs are often under-represented or not represented in Geneva.”); Proposals on
DSU by Cuba, Honduras, India, Indonesia, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe, Negotiations on the Dispute
Settlement Understanding, TN/DS/W/19, at 2 (Oct. 9, 2002) [hereinafter Cuba et al. Proposal #19] (“Our experience over the past
seven years of the dispute settlement process has been that the cost of litigation before the WTO panels and the Appellate Body is
prohibitively high.”).
95
See Van der Bordght, supra note 82, at 1230-31.
96
Parlin, WTO Dispute Settlement, supra note 83.
97
See Carl, supra note 43, at 88; see also Michalopoulos, Developing Countries in the WTO, supra note 72, at 170 (“Active
developing country participation in the DSM would give them the opportunity to address trade issues of concern to them, but so
far this opportunity has been used only by a few countries. The main reason for this is probably that most developing countries
lacked the resources and institutional capacity to pursue complaints, so this is part of the larger question of the developing
countries’ institutional capacity to design and implement trade policy.”); Srinivasan, supra note 72, at 102 (noting that
“realistically speaking, the administrative and information-gathering capabilities of many developing countries are likely to prove
inadequate even with the assistance of the WTO secretariat to present a strong case before the DSB”).
98
Parlin, WTO Dispute Settlement, supra note 83. See also Delich, supra note 93, at 79 (‘The Dispute Settlement Understanding
brought about a positive and beneficial change for developing countries. Weaker states have a better chance to defend their
interests in a rule-oriented [system] than in a power-oriented system. However, since the DSU provisions relating to enforcement
of S&D language in WTO agreements are ineffective, developing countries do not enjoy a ‘neutral’ playing field. Although the
DSU is not biased against any party in a dispute, developing countries are less well equipped to participate in the process: they
have fewer people with the appropriate training, they are less experienced, and they can bring fewer financial resources to bear.”).
99
Jamaica Proposal, supra note 84, at 2.
100 See Delich, supra note 93, at 75; see also Van der Bordght, supra note 82, at 1231 (“The minimum request seems to be an
augmentation of the staff provided for in Article 27.2 of the DSU, currently consisting of two part-time consultants.”).
101 Parlin, WTO Dispute Settlement, supra note 83, at 869.
102 See McBride, supra note 72, at 98.
103 See Delich, supra note 93, at 75.
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104 Parlin, WTO Dispute Settlement, supra note 83, at 869.
105 Id.
106 Id. at 75.
107 See McBride, supra note 72, at 92.
108 Interview with Leo Palma, Advisory Law Centre, in Geneva, Switz. (Oct. 28, 2002).
109 African Group Proposal, supra note 80.
110 Jamaica Proposal, supra note 84.
111 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
112 Id.
113 Press Release, World Trade Organization, Training on Dispute Settlement for Government Officials (Oct. 11, 2002).
114 Advisory Centre on WTO Law, Foreword to Establishing the Advisory Centre on WTO Law (Sept. 25, 2002).
115 Parlin, WTO Dispute Settlement, supra note 83, at 869.
116 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
117 Id.
118 Id.
119 Interview with Ramirez Boettner, Ambassador, Paraguay, in Geneva, Switz. (Oct. 30, 2002).
120 African Group Proposal, supra note 80.
121 Id. at 1.
122 DSU art. 4.10.
123 DSU art. 12.11.
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124 DSU art. 21.2.
125 Article 21.7-8 requires the DSB to take into consideration the circumstances of developing countries and to evaluate whether
further appropriate action could be taken in cases involving them. One author has suggested that the reason why this provision has
never been utilized is that developing countries lack the financial and technical resources to effectively seek its implementation.
See Delich, supra note 93, at 74.
126 Delich, supra note 93, at 73-74.
127 Id. at 74.
128 Id.
129 Id.
130 See, e.g., Van der Bordght, supra note 82, at 1225 (“If there is one point of agreement among the WTO Members who have
utilized the dispute settlement procedure, it is their general satisfaction with the system, which they do not hesitate to express in
their submissions for the review. They praise its role in strengthening the credibility and predictability of the multilateral trading
system, the impartial and objective manner in which disputes are settled, and the positive and satisfactory solutions found. As a
consequence, the proposals stress that there is no need for a major overhaul of the system. Instead, they address inadequacies and
technical issues, clarifying provisions, fine-tuning, and enhancing the efficacy of the system.”); Communication from Thailand,
Proposal to Review Article 17.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes,
TN/DS/W/2, at 1 (Mar. 20, 2002); Communication from the Philippines and Thailand, Proposal to Review Article 22.7 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes, TN/DS/W/3, at 1 (Mar. 21, 2002); Mexico
Proposal, supra note 92, at 1 (“Mexico believes that the current DSU represents a highly significant step forward in the settlement
of trade disputes, particularly in comparison with the rules applied in the GATT days.”). But see Ecuador Proposal, supra note 87,
at 1 (“The experience of the banana dispute confronted the Members of the WTO with a number of unprecedented situations that
drew attention to serious shortcomings in the DSU and disclosed system flaws in the dispute settlement mechanism that put its
credibility at risk.”); African Group Proposal, supra note 80, at 1 (“African Members, many of them being least-developed
country Members, have not been active participants in the WTO dispute settlement system. This diminutive participation is not
because they have never had occasion to want to enforce their rights, or the obligations of other Members, but due to structural
difficulties of the DS.”); Communication from China, Improving the Special and Differential Provisions in the Dispute Settlement
Understanding, TN/DS/W/29, at 1 (Jan. 22, 2003) [hereinafter China Proposal] (“China holds that there is still room for
improvement with regard to the S&D provisions in the DSU applicable to developing-country Members.”).
131 Ecuador Proposal, supra note 87, at 6.
132 There were many separate and distinct proposals by developing countries asking for greater liberalization of third-party rules. See,
e.g., Communication from Kenya, Text for the African Group Proposals on Dispute Settlement Understanding Negotiations,
TN/DS/W/42, at 2 (Jan. 24, 2003) [hereinafter the Kenya Proposal]; Taiwan Proposal #25, supra note 85; Communication from
the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Contribution by the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu to the Doha Mandated Review of the Dispute Settlement Understanding (“DSU”),
TN/DS/W/36, at 1-4 (Jan. 22, 2003). Jamaica recommended changing the DSU to require only a “substantial interest” test instead
of a “substantial trade interest” test. Jamaica Proposal, supra note 84, at 2. Meanwhile, the African Group pushed forward the
more far-reaching idea that “developing-country Members should not be required to demonstrate [any] trade or economic interest
in the case as a precondition for admission as third parties; and that developing-country Members may always be admitted as third
parties at whatever stage the case may be.” African Group Proposal, supra note 80, at 4. Costa Rica wanted to grant third parties
the right to join in consultations and to receive any information “submitted to the panel or the Appellate Body, both by the parties
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to the dispute and by other third parties.” Communication from Costa Rica, Proposal by Costa Rica--Third-party Rights,
TN/DS/W/12, at 1 (July 24, 2002).
133 The European Communities’ comment proposed allowing amicus briefs in all cases where it would “not lead to a delay in the
proceeding, nor create substantial additional burdens for the developing Members.” European Community Proposal, supra note
88, at 7. The EC further pointed out that perhaps developing countries fears are misguided that most amicus briefs would come
from non-governmental organizations based in developed countries and opposed to many developing country positions. In fact,
the EC claimed that “recent experience shows the opposite: on various issues (e.g. access to medicines), non-governmental
organizations in developed countries have frequently taken positions radically different from those adopted by their
governments.” European Communities’ Replies, supra note 85, at 7. Still, many developing countries wanted a flat prohibition on
such submissions. See African Group Proposal, supra note 80, at 5; Proposals on DSU by Cuba, Honduras, India, Malaysia,
Pakistan, Sri Lanka, Tanzania and Zimbabwe, Negotiations on the Dispute Settlement Understanding, TN/DS/W/18, at 1-2 (Oct.
7, 2002); Taiwan Proposal #25, supra note 85, at 2. India even took the unusual step of filing a comment directly addressed to the
EC that consisted only of a series of questions attacking the EC position. See Communication from India, India’s Questions to the
European Communities and Its Member States on their Proposal Relating to Improvements of the DSU, TN/DS/W/5, at 5 (May 7,
2002).
134 Hudec, The Adequacy of WTO Dispute Settlement Remedies, supra note 86, at 84.
135 African Group Proposal, supra note 80, at 3. See also Ecuador Proposal, supra note 87, at 3-4; China Proposal, supra note 130, at
2; Kenya Proposal, supra note 132, at 3.
136 LDC Proposal, supra note 94, at 4.
137 Jamaica Proposal, supra note 84, at 4.
138 European Community Proposal, supra note 88, at 2.
139 See Hudec, The Adequacy of WTO Dispute Settlement Remedies, supra note 86, at 85-86.
140 Kenya Proposal, supra note 132, at 3; Communication from Haiti, Text for LDC Proposal on Dispute Settlement Understanding
Negotiations, TN/DS/W/37, at 3 (Jan. 22, 2003) [hereinafter the Haiti Proposal]; LDC Proposal, supra note 94, at 4; African
Group Proposal, supra note 80, at 3.
141 African Group Proposal, supra note 80, at 3.
142 Delich, supra note 93, at 78.
143 Hudec, The Adequacy of WTO Dispute Settlement Remedies, supra note 86, at 86-87.
144 Cuba et al. Proposal #19, supra note 94.
145 Jamaica Proposal, supra note 84, at 3. See also Cuba et al. Proposal #19, supra note 94; China Proposal, supra note 130, at 2;
Communication from India on behalf of Cuba, Dominican Republic, Egypt, Honduras, Jamaica and Malaysia, Dispute Settlement
Understanding Proposals: Legal Text, TN/DS/W/47, at 2 (Feb. 11, 2003).
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146 Kenya Proposal, supra note 132, at 5.
147 African Group Proposal, supra note 80, at 4.
148 LDC Proposal, supra note 94, at 5.
149 African Group Proposal, supra note 80.
150 Cuba et al. Proposal #19, supra note 94, at 3, 5; Haiti Proposal, supra note 140, at 1; Ecuador Proposal, supra note 87, at 4.
151 China Proposal, supra note 130, at 2; Kenya Proposal, supra note 132.
152 LDC Proposal, supra note 94, at 4.
153 Id. at 1.
154 Id. at 3; Jamaica Proposal, supra note 84, at 3.
155 Jamaica Proposal, supra note 84, at 1.
156 Haiti Proposal, supra note 140, at 4; LDC Proposal, supra note 94, at 4; Jamaica Proposal, supra note 84, at 1; Paraguay Proposal,
supra note 94, at 2.
157 European Community Proposal, supra note 88.
158 Paraguay Proposal, supra note 94, at 2 (“In disputes involving developing country Members, and at the request of any of the
parties, such procedures shall be mandatory .... Good offices, conciliation or mediation may be requested at any time by any party
to a dispute. They may begin at any time and be terminated at any time. On no account may such procedures exceed a maximum
period of 90 days. Once procedures for good offices, conciliation or mediation are terminated, a complaining party may then
proceed with a request for the establishment of a panel. If the parties to a dispute agree, and if one of the parties is a developing
country Member, procedures for good offices, conciliation or mediation shall continue while the panel process proceeds ....”).
159 Haiti Proposal, supra note 140, at 4. (“A developed country Member shall not commence a request for the establishment of the
panel before fully using the good offices, conciliation and mediation before the Director-General or the Chairman of the DSB.”).
160 Communication from Jordan, Jordan’s Contribution Towards the Improvement and Clarification of the WTO Dispute Settlement
Understanding, TN/DS/W/43, at 2 (Jan. 28, 2003) (“Jordan suggests that recourse to conciliation and mediation should be made
mandatory in cases where a developing or a least developed country Member is concerned and should be subject to agreed upon
terms of reference and specific time-frames.”).
161 LDC Proposal, supra note 94, at 4 (“Article 24.2 should therefore be amended by removing ‘upon request by a least developed
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country member‘ to make it incumbent on the complaining party to seek the ‘good offices‘ of the Director General.”).
162 C. Christopher Parlin, Operations of Consultations, Deterrence, and Mediation, 31 Law & Pol’y Int’l Bus. 565, 567 (2000)
[hereinafter Parlin, Operations of Consultations, Deterrence, and Mediation].
163 Weiss, supra note 66, at 28 (emphasis added).
164 Jacob Bercovitch, The Structure and Diversity of Mediation in International Relations, in Mediation in International Relations:
Multiple Approaches to Conflict Management 1, 9 (Jacob Bercovitch & Jeffrey Z. Rubin eds., 1992).
165 J.H.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of the WTO
Dispute Settlement 7 (2000), at http://www.jeanmonnetprogram.org/papers/00/000901.rtf (last visited Apr. 16, 2003).
166 Id.
167 See Freidl Weiss, Introduction to Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other
International Courts and Tribunals, at 2 (Friedl Weiss ed., 2000) [hereinafter Weiss, Introduction].
168 Weiler, supra note 165.
169 Id. (citations omitted).
170 Weiss, Introduction, supra note 167.
171 Weiler, supra note 165, at 8.
172 Weiss, Introduction, supra note 167.
173 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
174 Petersmann, supra note 61, at 68.
175 DSU art. 3.7.
176 DSU art. 4.4.
177 The following timeline for the consultations process may be accelerated in cases of urgency, such as those pertaining to perishable
goods. DSU art. 4.8 and 4.9.
178 DSU art. 4.3.
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179 Id.
180 DSU art. 4.7.
181 Id.
182 DSU art. 4.3.
183 DSU art. 4.6.
184 DSU art. 4.10.
185 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
186 William J. Dobson, Dealing with the Dragon: The Challenge of Chinese Membership for the World Trade Organization 35 (2002)
(unpublished L.L.M. dissertation, Harvard Law School) (on file with author) (“WTO trade officials in the body’s Secretariat
admit that the consultations phase is often viewed as a pro forma step to a party’s request for a panel and the beginning of
litigation. And once members’ move to request a panel, it is extremely rare for the dispute to be solved by settlement.”).
187 See, e.g., Mark Clough, The WTO Dispute Settlement System--A Practitioner’s Perspective, 24 Fordham Int’l L.J. 252, 254
(2000); Gary N. Horlick & Glenn R. Butterton, A Problem of Process in WTO Jurisprudence: Identifying Disputed Issues in
Panels and Consultations, 31 Law & Pol’y Int’l Bus. 573, 580 (2000).
188 WTO Panel Report on European Communities--Regime for Importation, Sale and Distribution of Bananas, supra note 90, at 7.19.
189 Id.
190 Van der Bordght, supra note 82, at 1233.
191 Id. at 1233-34.
192 Interview with Leo Palma, supra note 108.
193 Olin L. Wethington, Commentary on the Consultation Mechanism Under the WTO Dispute Settlement Understanding During Its
First Five Years, 31 Law & Pol’y Int’l Bus. 583, 588 (2000).
194 William J. Davey, The World Trade Organization’s Dispute Settlement System, 42 S. Tex. L. Rev. 1199, 1200 (2001). See also
Horlick & Butterton, supra note 187, at 581-82.
195 Horlick & Butterton, supra note 187, at 582.
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196 Weiss, supra note 66, at 69.
197 Id.
198 Wethington, supra note 193, at 585 (“Therefore, the Article 4 consultation process has facilitated settlement without requiring the
panel process in less than 4.7% of the disputes brought to the WTO.”).
199 DSU art. 4.3.
200 DSU art. 4.5.
201 DSU art. 4.10.
202 Interview with Ramirez Boettner, supra note 119.
203 Weiss, supra note 66, at 70-73.
204 Wethington, supra note 193.
205 Marc L. Busch & Eric Reinhardt, Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes, 24 Fordham
Int’l L.J. 158, 172 (2000).
206 Interview with Ramirez Boettner, supra note 119.
207 See, e.g., Frank E.A. Sander & Stephen Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR
Procedure, 10 Negot. J. 49 (1994).
208 See William L. Ury et al., Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict 3-19 (1993).
209 For a business person’s perspective, see Clough, supra note 187, at 273 (“Conciliation, good-offices, and mediation should also be
more fully explored by WTO Members.”). See also Luis Miguel Diaz & Nancy A. Oretskin, Mediation as a Space for Conflict
Solution in International Commercial Business, 624 PLI/Lit 985, 999 (2000); Barfield, supra note 65, at 411 (“The goal of the
first and second recommendations is to partially move the WTO dispute settlement system back in the direction of the original
‘diplomatic’ model for dispute settlement, and away from the judicial model introduced by the new DSU of the Uruguay Round.
With that aim in mind, the first recommendation is that the Director General or a special standing committee of the DSB be
empowered to step in and direct that the contending WTO Member states settle their differences through bilateral negotiations,
through mediation or by agreeing to arbitration by an outside party.”).
210 See Communication from the Director-General, Article 5 of the Dispute Settlement Understanding, WT/DSB/25, at 1 (July 17,
2001) [hereinafter Director-General] (“I am of the view that Members should be afforded every opportunity to settle their disputes
through negotiations whenever possible. Article 5 of the DSU provides for the use of good offices, conciliation and mediation, but
this Article has not been used since the inception of the WTO. In light of that, I would like to call Members attention to the fact
that I am ready and willing to assist them as is contemplated in Article 5.6. It is time to make this provision operational.”). See
also id. at 3 (“The Director-General is of the view that Members should attempt to settle disputes as often as possible without
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resort to panel and Appellate Body procedures. In this regard, he wishes Members to be aware of his willingness to actively
support attempts to settle their disputes through use of good offices, conciliation and mediation.”).
211 See Daniel Pruzin, Moore Urges WTO Members to Consider Mediation Options in Dispute Settlement, 18 Int’l Trade Rep. 27,
July 5, 2001, at 1031; Jason Gutierrez, Philippines Claims Victory Over Europe Using WTO Mediation in Tuna Tariff Dispute,
20 Int’l Trade Rep. 24, June 12, 2003, at 1015 [hereinafter, Gutierrez, Philippines Claims Victory].
212 The
Cotonou
Agreement,
June
23,
2000,
http://europa.eu.int/comm/development/body/cotonou/index_en.htm.
E.U.
-
A.C.P.,
available
at
213 See Jason Gutierrez, Philippines, Thailand, EU Agree to Take Tuna Tariff Dispute to WTO, 19 Int’l Trade Rep. 19, May 9, 2002,
at 843.
214 See Daniel Pruzin, Yerxa to Mediate EU, Thailand, Philippines Canned Tuna Dispute, 19 Int’l Trade Rep. 42, Oct. 24, 2002, at
1836.
215 See id.
216 DSU art. 5.1.
217 DSU art. 5.3.
218 DSU art. 5.4.
219 DSU art. 5.3.
220 DSU art. 5.4.
221 DSU art. 5.5.
222 DSU art. 5.6.
223 Director-General, supra note 210, at 3-5.
224 Francisco Orrego Vicuña, Dispute Resolution Mechanisms in the International Arena: The Roles of Arbitration and Mediation,
Disp. Resol. J. May-Jul. 2002 at 64.
225 Director-General, supra note 210, at 2 (“The predecessor procedures under the GATT were only rarely used.”). See also Parlin,
Operations of Consultations, Deterrence, and Mediation, supra note 162, at 566; Weiss, supra note 66, at 28; Id. at 33; Dobson,
supra note 186, at 67.
226 Paragraph 8 of the 1979 Understanding on Dispute Settlement was the predecessor and GATT equivalent of the present day WTO
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DSU Article 5. Paragraph 8 stated as follows:
If a dispute is not resolved through consultations the contracting parties concerned may request an appropriate body or individual
to use their good offices with a view to the conciliation of the outstanding differences between the parties. If the dispute is one in
which a less-developed contracting party has brought a complaint against a developed contracting party, the less developed
contracting party may request the good offices of the Director-General who, in carrying out his tasks, may consult with the
Chairman of the CONTRACTING PARTIES and the Chairman of the Council.
Understanding on Notification, Consultation, Dispute Settlement and Surveillance, L/4907, at P 8 (Nov. 28, 1979).
227 Weiss, supra note 66, at 33.
228 Director-General, supra note 210, at 3.
229 Id.
230 Dobson, supra note 186, at 67 (“Developing countries, on the other hand, are wary of these procedures because of their suspicion
of the intentions and motives of the Secretariat, which would play a large role in the process.”).
231 Terence P. Stewart & Mara M. Burr, The WTO Panel Process: An Evaluation of the First Three Years, 32 Int’l Law. 709, 711
(1998).
232 Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot.
L. Rev. 7, 24-38 (1996).
233 Id. at 23-24.
234 Id. at 23.
235 Id. at 24.
236 Dobson, supra note 186, at 40.
237 Interview with Robert E. Hudec, supra note 57.
238 Id.
239 Kjell Skjelsbaek & Gunnar Fermann, The UN Secretary-General and the Mediation of International Disputes, in Resolving
International Conflicts: The Theory and Practice of Mediation 75, 77 (Jacob Bercovitch ed., 1996) (“The status of the mediator is
also important: in general, the higher its status the more likely it is to succeed. A high-status mediator has more authority and its
efforts are less easily rejected by parties skeptical about mediation. The status of an individual is a combination of the status of the
agency he or she represents, his or her office or position in that agency, and his or her personal reputation.”).
240 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
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241 Dobson, supra note 186, at 38-39.
242 Id. at 40.
243 Interview with Anonymous Developing Country Delegate in Geneva, Switz. (Oct. 31, 2002).
244 Id.
245 Peter J. Carnevale & Sharon Arad, Bias and Impartiality in International Mediation, in Resolving International Conflicts: The
Theory and Practice of Mediation 39, 49 (Jacob Bercovitch ed., 1996).
246 Ury et al., supra note 208.
247 Id. at 52-56.
248 See supra Part III.A.4.
249 Howard Raiffa, Post-Settlement Settlements, 1 Negot. J. 9 (1985).
250 DSU art. 24.2.
251 Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In 66-69 (2d ed. 1991).
End of Document
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