WORLD TRADE
ORGANIZATIONTN/DS/W/13
22 August 2002
(02-4538)
Dispute Settlement Body
Special SessionOriginal:  English
CONTRIBUTION OF THE UNITED STATES TO THE IMPROVEMENT OF
THE DISPUTE SETTLEMENT UNDERSTANDING OF THE WTO
RELATED TO TRANSPARENCY
Communication from the United States
The following communication, dated 9 August 2002, has been received from the Permanent
Mission of the United States.
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I. INTRODUCTION
The Uruguay Round of multilateral trade negotiations was able to achieve agreement on a
wide range of new disciplines designed to reduce barriers to trade while recognizing the legitimate
needs of Members to pursue policy objectives.  Those new disciplines reached areas of government
action additional to those areas that had traditionall y been the subject of trade disciplines.  Members
also agreed on a new dispute settlement system in order to help resolve problems arising from the
application of these World Trade Organization ("WTO") disciplines.
Experience under the WTO dispute settlement system since 1995 has demonstrated that the
recommendations and rulings of the Dispute Settlement Body can affect large sectors of civil society.
At the same time, increased membership in the WT O has also meant that more governments and their
citizens have an interest in those recommendations and rulings.  Yet civil society and Members not
party to a dispute have been unable even to observe the arguments or proceedings that result in these
recommendations and rulings.
Other international dispute settlement fora and tribunals are open to the public, such as the
International Court of Justice1, the International Tribunal for the Law of the Sea2, the International
Criminal Tribunal for the former Yugoslavia3, the International Criminal Tribunal for Rwanda4, the
European Court of Human Rights5, and the African Court on Human and Peoples' Rights.6  Those fora
deal with issues that are intergovernmental in nature  and are at least as sensitive as those involved in
WTO disputes.  For example, these fora have addressed boundary disputes, use of force, nuclear
weapons, human rights violations, and genocide.
                                                     
1 Article 59, Rules of Court.
2 Article 74, Rules of the Tribunal.
3 Rule 78, Rules of Procedure and Evidence.
4 Rule 78, Rules of Procedure and Evidence.
5 Rule 33, Chapter 1, Title II, Rules of Court.
6 Article 10, on the Establishment of an African Court of Human and Peoples' Rights, Protocol to the
African Charter on Human and Peoples' Rights.TN/DS/W/13
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There is no reason why the WTO should be different in this respect.  The public has a
legitimate interest in the proceedings.  WTO trade disputes, like other intergovernmental disputes,
could benefit from being more transparent to the public.  Indeed, implementation of the DSB
recommendations and rulings may be facilitated if those being asked to assist in the task of
implementation, such as the constituencies of le gislators, have confidence that the recommendations
and rulings are the result of a fair and adequate process.
At the same time, non-party WTO Members would benefit from being able to observe the
arguments and proceedings of WTO disputes.7  This would assist Members, including developing
countries, in understanding the issues involved as well as gaining greater familiarity and experience
with dispute settlement.  Being better informed about disputes generally could aid Members in
deciding whether to assert third party rights in a particular dispute.
A more open and transparent process would be a significant improvement to the DSU, in
keeping with the commitment by Ministers "to promote a better public understanding of the WTO",
and "to making the WTO's operations more transparent, including through more effective and prompt
dissemination of information".8  Such a more open and transparent process could be achieved by
providing an opportunity to observe the arguments and evidence submitted in proceedings as well as
observing those proceedings, subject to appropriate safeguards such as for confidential information
and security.  In addition, the final results of those proceedings should be made available to the public
as soon as possible.  The following proposals are intended to help achieve such a more open and
transparent process.  In no case are these proposals designed to afford Members fewer or more limitedrights than those available to civil society.
II. OPEN MEETINGS
The DSU should provide that the public may observe all substantive panel, Appellate Body
and arbitration
9 meetings with the parties except those portions dealing with confidential information
(such as business confidential information or law enforcement methods).  The DSU could provide a
basic set of procedures for this purpose with some flexibility for the relevant body to refine these in
light of the particular circumstances of a specific proceeding.  For example, the procedures could
provide a number of options for allowing the public to observe the meetings, such as broadcasting
meetings to special viewing facilities.
III. TIMELY ACCESS TO SUBMISSIONS
The DSU should provide that parties' submissions  and written versions of oral statements in
panel, Appellate Body, or arbitration proceedi ngs are public, except those portions dealing with
confidential information.
To help facilitate public access to these documents, the Secretariat should maintain them in a
central location that would be responsible for making these documents available to the public.
IV. TIMELY ACCESS TO FINAL REPORTS
The WTO should make a final panel report available to WTO Members and the public once it
is issued to the parties, although only circulation would trigger the relevant DSU deadlines.
                                                     
7 We note that other Members have expressed an interest in this.
8 Paragraph 10 of the Doha Ministerial Declaration.
9 This would include arbitration under Articles 21.3(c), 22.6 and 25 of the DSU.TN/DS/W/13
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V. AMICUS CURIAE  SUBMISSIONS
In light of the experience to date with amicus curiae  submissions to panels and the Appellate
Body, Members may wish to consider whether it would be helpful to propose guideline procedures for
handling amicus curiae  submissions to address those procedural concerns that have been raised by
Members, panels and the Appellate Body.
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