JOB/DSB/8  
 
12 February 2024  
(24-1232) Page: 1/6 
  Original: English  
 
 
DISPUTE SETTLEMENT REFORM:  
REFLECTIONS ON SUBSTANTIVE ISSUES  
JOINT COMMUNICATION FROM BANGLADESH, EGYPT,  
INDIA, INDONESIA AND SOUTH AFRICA  
The following communication, dated 12 February2024 , is being circulated at the request of the 
delegations of Bangladesh, Egypt,  India, Indonesia and South Africa . 
 
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1.  The Members submitting this communication recall communications by the African Group 
(JOB/DSB/5 ), Indonesia ( JOB/DSB/6 ), and India, S outh Africa and Egypt ( JOB/DSB/7 ), on the 
centrality of the WTO dispute settlement system in ensuring security and predictability of the 
multilateral trading system and expressing concerns regarding the status of dispute settlement 
reforms.  
2.  While affirming our support to the common efforts in producing a positive outcome from the work 
of DS reform, we are concerned by the manner in which the ongoing discussions are proposing 
far-reaching changes that would fundamentally alter the nature of the dispute settlement  system of 
the WTO, as envisaged by the Marrakesh Agreement. These changes undermine interests that we, 
as developing countries, including LDCs, have identified as essential in a reformed WTO dispute 
settlement system.  
3.  We note that concerns and reservation s that have been raised by us in the course of the ongoing 
discussions have not been recorded. The consolidated draft text that is now taking shape presents 
a misleading view and suggests that there is convergence on the majority of the issues in the text.  
We highlight some areas of concern in this communication. We also note that these concerns are 
indicative, and do not preclude us from raising further concerns and reservations as and when 
necessary.  
4.  In summary,  the Members submitting this communication b elieve that the substantive 
discussions that have been taking place raise the following concerns:  
● The central interest that motivated Members to engage in this informal exercise 
i.e., the restoration of the Appellate Body, has not been addressed.  
● Instead of addressing this core issue of concern, the discussion has moved in 
directions which will undermine the fundamental nature of the rules -based, two -tier 
WTO dispute settlement system with a standing appeal mechanism, and binding 
decisions.  
● Change s are being proposed that alter the existing balance between competing 
interests, which span across varied areas like legal systems, levels of development 
and development objectives, and power differentials. For instance, the cumulative 
impact of changes i n streamlining and composition of panels would make the process 
more onerous for developing countries, including LDCs.  JOB/DSB/8  
 
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 ● Some aspects substantially restrict the rights currently available to the Members 
under the Understanding on rules and procedures governi ng the settlement of 
disputes (DSU). For instance, the reduction of the reasonable period of time (RPT) 
for compliance to 6 months in certain instances.  
● Some of the proposed changes cannot be contemplated without a DSU amendment. 
Such changes are being pre sented as a practice that Members agree to follow, even 
when these are inconsistent or contrary to the DSU, for instance, constraining the 
right to a second hearing for the establishment of a panel.  
● There are topics where the procedures being proposed woul d amount to a complete 
inversion of the default positions in the DSU, such as on confidentiality.   
● Proposed changes are not focused on the essential reforms that are required for the 
restoration of a fully functional system. Changes are being proposed in s everal DSU 
provisions which may not require such modification, and where the existing 
provisions can adequately address Members " interests, such as, in the participation 
of third -party citizens as panellists.   
● Changes that will have a far -reaching impact on the practice of the dispute resolution 
system are being proposed without rigorous, evidence -based analysis in the specific 
context of the WTO dispute settlement system, such as "advisory working group ".  
● Concepts, terminologies, and practices that are n ovel to the dispute settlement 
system are being introduced without adequate clarity and precision, which may lead 
to further interpretive confusion and increased litigation in the future. Extreme 
caution should be exercised to ensure that concepts that nee d much greater 
reflection and deliberation are not introduced in undue haste.  
THOUGHTS ON OUR INTERESTS IN A REFORMED DISPUTE SETTLEMENT SYSTEM  
Primacy of the two -tier system  
5.  A two -tier and binding dispute settlement process with a standing appeal mechanis m is a critical 
element for enhancing trust in WTO "s dispute settlement mechanism, in ensuring proper application 
of covered agreements, and safeguarding objectivity and fairness of adjudicated outcomes.  
6.  We note that there have been some informal discussio ns on the appellate review mechanism, 
which touch on issues of leave to appeal and standard of review. This discussion is being conducted 
in isolation from the issue of the restoration of the Appellate Body and the permanence of the 
underlying appellate st ructure. Considering the support expressed by a large number of Members to 
immediately start the selection processes for filling vacancies on the Appellate Body1, we believe 
that the central focus of the reform efforts should be aimed at prioritizing the restoration of the 
Appellate Body. The discussion on the intricacies of the review standards should be considered once 
there is consensus on the structure of the two -tier system, with the Appellate Body at the core.  
7.  We also note that the focus in the info rmal discussions is on narrowing the possibility of appeal 
to "exceptional circumstances " by introducing new concepts and terms such as "real prospect of 
success " or "materially significant impact ". There are efforts to conflate the panel and appellate 
stages by expanding the remit of the interim panel review. These are novel ideas that require greater 
examination, and should be backed by evidence.  
Implications of changes in panel process  
8.  We acknowledge the need to streamline panel proceedings in order to e nhance effectiveness and 
efficiency in dispute resolution. However, Members had also noted the need to evaluate the changes 
in the panel processes in their entirety to ensure that it does not become more onerous for 
developing countries, including LDCs. Th ey noted that flexibility in panel processes is of particular 
importance to developing countries, including LDCs, and thus, the changes proposed could be 
indicative, rather than mandatory.  
 
1 WT/DSB/W/609/Rev.26 . JOB/DSB/8  
 
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 9.  In the draft text, the sections on Streamlining the Panel Process  and Conciseness and Time -frame 
Adherence  propose changes such as the introduction of word and time limits; and changing the time 
frames of panel processes. These detailed and layered changes substantially modify the nature of 
the panel process and adversely  impact the ability of developing countries including LDCs to access 
the dispute resolution system. For instance:  
● The panel is being given the authority to categorize cases into standard, complex, 
and extraordinarily complex. This determination brings subs tantial changes and 
unnecessary subjectivity into the processes applicable to the dispute.  
● Parties would have to make arguments at the organizational meeting, which would 
have a substantive impact on the dispute such as on the complexity, confidentiality, 
number of hearings, etc., thus adding a substantial dimension to the organizational 
meetings.  
● In addition, panel establishment at the first relevant DSB meeting would effectively 
reduce the time available, particularly for the responding p arty. The expedited time 
frames constrain the flexibility of Members to explore potential amicable solutions 
to resolve their disputes.  
● The proposed changes are mandatory, and no attempt has been made to 
accommodate the diversity of national circumstances.  
10.  When seen holistically, these changes will make the dispute settlement process more onerous, 
complex, and difficult in actual practice for Members.  
Diversity and inclusiveness  
11.  Any reform in the dispute settlement system must accommodate a wide range of pe rspectives 
and ensure that the system benefits all Members, regardless of their economic size or development 
status. This is essential to uphold the fundamental principles of fairness, inclusivity, and equity in 
international trade.  
12.  The changes proposed in  the section on Panel Composition  should be examined to ensure 
balance between "the independence of the members, a sufficiently diverse background and a wide 
spectrum of experience ", as specified in Article 8.2 of the DSU. Proposed changes, such as 
qualifications of individuals nominated to the indicative list, and the nomination of non -citizens to 
the indicative list upset this delicate balance.  
13.  Several concerns raised by developin g countries including LDCs have not been addressed. For 
instance:  
● Mandating diversity to ensure that the potential list of panellists is "broadly 
representative " of the membership of the WTO including of different geographical 
areas, levels of development,  and legal systems.  
● Flexibility in the objective qualification criteria to enable capacity constrained 
Members to make nominations to the potential list of panellists.  
14.  The granular details of qualifications that are now being proposed does not accommodate  
diversity of governmental, legal, and academic practices in various jurisdictions. Changes that 
emphasize on certain aspects of panel selection such as narrowly defined technical expertise, without 
commensurate measures to account for diversity, will exac erbate the concentration of eligible 
panellists from certain geographical areas and legal systems.  
Ensuring a balance between transparency and confidentiality  
15.  While recognizing that transparency is important in a Member -driven organization, especially 
for greater capacity building, Members had raised concerns about the asymmetrical ability of 
external stakeholders, particularly commercial interests, to influence or pressure the dispute 
proceedings. Members underscored that measures must be in place to prot ect confidential 
information.  JOB/DSB/8  
 
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 16.  The approach taken by the section on Transparency which deals with Transparency Measures 
vis-à-vis WTO Members and Transparency Measures vis -à-vis the General Public raises grave 
concerns. For instance:  
● The default position o n transparency and confidentiality as envisaged in Article 18 
of the DSU has been completely inverted, to mandate publication of all submissions, 
and the observation of hearings (either in real -time or recordings) by all WTO 
Members and by the general publ ic. 
● The process envisaged for protecting confidential information does not sufficiently 
meet the gravity of the concerns raised.   
● The changes would create a marked disparity in the conduct of the dispute resolution 
proceedings when compared to other WTO bodies such as the General Council or the 
Committees.  
Security and predictability of the dispute settlement system  
17.  Members have an interest in ensuring that the dispute settlement system of the WTO remains 
the central element in providing security and predictability to the multilateral trading system, as 
envisaged under Article 3.2 of the DSU. This is particularly important for develo ping countries 
including LDCs who benefit from having stability, constancy and predictability related to both, the 
permanence of the underlying structure and procedures, and the application of rules.  
18.  The section on "Guidelines for adjudicators " covers topi cs like treaty interpretation, focus on 
what is necessary to resolve the dispute, and the precedential value of past reports. These provisions 
re-examine the interaction of WTO interpretations with customary international law, modify the 
manner in which a panel functions to make an objective assessment of the dispute under Article 11 
of the DSU, and constrains the autonomy of disputing parties to fully explore all facets of their 
dispute.  
19.  We note that the interpretative authority of the adjudicative bodies of the WTO is based on 
customary rules of interpretation of public of international law, which have been set out in 
Articles  31-33 of the Vienna Convention on the Law of Treaties, and on the further elaboration of 
these principles through the evolving juri sprudence. The DSU is also the result of the careful 
consideration of, and improvement upon the pre -WTO GATT system of dispute resolution. We should 
be careful not to undermine these underlying concepts for the sake of incremental changes.     
Member Contr ol 
20.  It is critical that the Member -driven nature of the WTO is not diluted or rendered ineffective 
through the reform of the dispute settlement system. There are several changes proposed that would 
undermine this interest.  
21.  The WTO Secretariat and the DSB C hair have been given the authority to review the nominations 
of the Member countries to the indicative list; to recommend changes to the nominating Member; 
and share that information, upon request, with other Members.  
22.  The authority given to the panellists  to determine the nature of the case (standard, complex, 
extraordinarily complex), and, to invite parties to limit their claims shifts the locus of control over 
the panel process away from the disputing parties to the panellists.  
Special and differential treatment (S&DT)  
23.  The dispute settlement mechanism must demonstrate adherence to the S&DT provisions 
recognized in the Marrakesh Agreement and built into the DSU not only in form but also in practice. 
The MC12 Outcome Document reaffirmed that the provisions  of S&DT are an integral part of the 
WTO and its agreements, and must be made precise, effective, and operational.  
24.  To this end, in addition to strengthening the existing S&DT provisions in the DSU, additional 
S&DT elements should be incorporated across the  agreement, including provisions relating to JOB/DSB/8  
 
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 accessibility and capacity -building needs that inter alia address high litigation costs. However, the 
informal discussion has not addressed this issue in any manner.  
Ensuring effective compliance  
25.  We note that th e section on Compliance introduces changes which would substantially shorten 
the reasonable period of time (RPT) to comply. This does not take into account the different legal 
and political systems of Members or provide sufficient S&DT for developing count ries, including LDCs. 
They also introduce an element of mandatory Alternate Dispute Resolution (ADR) into the process, 
since refusal to engage in ADR would result in an RPT of 6 months.  
26.  The expedited timelines are particularly worrisome since, historically , the ask of developing 
countries, including LDCs, has been for a minimum RPT of 15 months. Any reform of compliance 
must ensure additional flexibility for developing countries including LDCs to enable them to enforce 
decisions of the adjudicative bodies a gainst developed Members.  
An effective Alternative Dispute Resolution system  
27.  Members have an interest in a strong ADR system, based on standardised rules and procedures. 
This is particularly important keeping in mind that power differentials and capacity differentials exist 
between parties in litigative actions. Members have emphasized the need to maintain the voluntary 
nature of ADR as currently envisaged in the DSU. The development of guidelines should not add 
obligations, or increase complexity of the p rocess.  
28.  However, the proposed section on ADR and Arbitration  introduces numerous guidelines, 
requirements, and additional processes, which will curtail the flexibility that is a core characteristic 
of such processes, therefore dis -incentivizing developing countries including LDCs from taking 
recourse to ADR. The impact of the introduction of such a multiplicity of provisions has to be 
examined in greater depth. For instance, the proposed addition of a "conciliator or mediator 
assistance during consultations " complicates the litigative and ADR streams under Articles 4 and 5 
of the DSU. The proposed inclusion of political consultation in ADR during the compliance stage will 
make the process more complex and unpredictable for the countries with smaller economie s. 
Enhancing Accessibility through Technical Assistance and Capacity Building  
29.  To facilitate the effective utilization of the dispute settlement system by all Members, 
particularly developing countries and LDCs, we strongly encourage the enhanced implementa tion of 
capacity building and technical assistance in the area of dispute settlement. A sufficient 
understanding of the system among Members will be beneficial in promoting enhanced utilization of 
dispute settlement system by Members to safeguard their tra de interests.  
30.  We note that while the current draft text reflects a high degree of ambition to make changes in 
various areas, the Section on Accessibility with respect to technical assistance, capacity building and 
legal advice is modest and restrained. A reformed dispute settlement system should open an avenue 
to expand scope of assistance for developing countries, including LDCs, to include o ther future 
organizations. The specific mention of individual non -WTO bodies such as ACWL may have the effect 
of further constraining development of multiple providers and constraining the options of countries 
with limited resources.  
Nature of Secretariat support  
31.  Members have an interest in having a system that facilitates and supports the legal proceedings 
within the WTO, and provides comprehensive assistance to WTO Members, particularly those with 
limited resources. At the same time, in providing such sup port, impartiality and independence should 
be upheld.  
32.  While recognizing the role of the Secretariat in creating an enabling environment for the 
panellists to issue their decisions based on their respective understanding to the matter of the 
dispute, attemp ting to strictly delineate the nature of such assistance may have an impact that is 
opposite to the desired effect.  JOB/DSB/8  
 
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 THE WAY FORWARD  
33.  We reiterate the call for the immediate initiation of formal discussions on dispute settlement 
reform, in fulfilment of the ministerial mandate under MC 12. We further state that sustainable 
reform can only be carried out in the context of the operation of  the dispute settlement system in 
its entirety. The reforms must be conceptualised and implemented as a comprehensive package, 
and not in isolated and piecemeal sections.  
34.  We continue to stand ready to engage in discussions to fulfil the Ministerial mandat e of MC12 
provided interests and concerns mentioned above are fully addressed.  
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