Wednesday, June 20, 2012

Comparing Transparency in the WTO Dispute Settlement Mechanism Vis-A-Vis Other Dispute Settlement Mechanisms.

Below is abstract of the article: “Transparency And Public Participation In The WTO: A Report Card On WTO Transparency Mechanisms” written by Gabrielle Marceau, Mikella Hurley . It has been published in the latest issue of "Trade, Law and Development" and the full text is available here. The article presents and compares transparency and public participation practices in the WTO dispute settlement mechanism with other dispute settlement mechanisms, particularly arbitration mechanisms such as NAFTA and ICSID.

In contemporary society where transparency has become a widely shared and recognized value, international organizations are increasingly being called upon to open their internal decision-making processes to greater public participation and scrutiny. The World Trade Organization [WTO], and its predecessor, the GATT, like many other institutions in the field of international economic law, have commonly been perceived as lacking sufficient transparency. However, since its inception in 1994, the WTO has systematically worked to increase public access to information, both in the context of rulemaking and dispute settlement, and has set an early example for other institutions. This article reviews the WTO’s efforts in this area, including recent developments on issues such as open hearings and amicus curiae briefs. Comparisons are drawn with other fora, particularly regional trade agreements and investor-State dispute settlement mechanisms. This transparency “report card” finds that, on the whole, the WTO’s track record compares favourably with that of other similar institutions. Nonetheless, some suggest that further work is warranted, particularly in the context of dispute settlement. The article concludes recalling practical suggestions that could help make the WTO even more transparent, and further increase the public’s trust in its mission.

1 comment:

  1. Transparency is a key element of any international legal or non-legal system which determines its legitimacy in the international order. It is also an important democratic norm which shapes the transparency of any legal or non-legal system. At a time when the WTO still faces various criticisms which attack its legitimacy as an apolitical organization, the WTO's transparency practices in the WTO DSS are worth mentioning. Truly, the WTO DSS's legitimacy receives a boost when it is determined to be so open.

    This brings me to transparency practices in international arbitration. Investment arbitration fora such as the ICSID have clearly evolved and become more transparent than earlier (given the open hearings, the admission of amicus briefs, inter-alia), thus contributing to its legitimacy. However, the issue of public participation in international commercial arbitration involving states where public policy is under scrutiny needs to be highlighted. Investment arbitration is clearly more transparent than it ever was, but more needs to be done, especially in other aspects such as mutual settlement of disputes (where the WTO is more transparent).


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