JOB/DSB/7  
 
24 November 2023  
(23-7956) Page: 1/3 
  Original: English  
 
 
REFLECTIONS ON THE REFORM OF THE WTO DISPUTE SETTLEMENT SYSTEM  
JOINT COMMUNICATION FROM EGYPT, INDIA AND SOUTH AFRICA  
The following communication, dated 24 November 2023, is being circulated at the request of the 
delegations of Egypt, India and South Africa.  
 
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1.  The members submitting this communication reiterate our commitment  to working towards 
reform of the dispute settlement system with the view to having a fully and well -functioning two -tier 
dispute settlement  system accessible to all Members, with the Appellate Body at its core.  
2.  WTO Members have been cognizant of the need to review the dispute settlement system since 
the inception of the organization. Pursuant to the ministerial mandates at Marrakesh and durin g the 
Doha Round, there have been several rounds of discussions on this aspect. Developing countries 
have been active participants in the reform process and have submitted detailed proposals on various 
issues, including third party rights, litigation costs , compliance, cross -retaliation, technical and 
financial assistance, accessibility and capacity building.  
3.  In this context, we reiterate the following fundamental elements that shape our engagement in 
the reform process:  
• The foundational principles of the  dispute settlement system as embodied in the Marrakesh 
Agreement represent a fine balance of the interests and concerns of the members of the 
WTO. This balance relates not only to the dispute settlement pillar itself, but to the 
preservation of an integra ted, equitable, durable, and effective rule -based multilateral 
system.  
• Reform of the WTO dispute settlement system is central to providing security, stability and 
predictability to this system. Such reform should be seen as an opportunity for creating a 
more inclusive and equitable trading environment.  
• Developing countries ha ve long -standing interests in reforming the dispute settlement 
system and addressing the structural defects that negatively affect the ability of many of 
them to resort to the dispute settlement system in order to safeguard their rights under the 
WTO rules .  
• A reformed dispute settlement system should recognize that developing countries including 
LDCs face challenges, such as capacity constraints, resource limitations, and limited access 
to legal expertise. As such, it should incorporate mechanisms that fac ilitate their effective 
participation in dispute settlement proceedings, and help to overcome their administrative, 
technical, and financial constraints.  
• The reform process and the changes it brings about, should not make the dispute settlement 
system more  onerous, in practice, for developing countries including LDCs.  
• Dispute settlement reform should be addressed in a holistic manner. Reforms should be 
conceptualized and implemented as a comprehensive and balanced package, and address 
the concerns and interests of all Members, in particular developing countries and LDCs .  JOB/DSB/7  
 
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  • At the heart of the outcome on dispute settlement reform is the need to restore the 
functioning of the Appellate Body as an integral part of the two -tiered multilateral dispute 
settlement system.  
4.  Members submitting this communication note the work unde rtaken in the 'informal discussions ' 
on dispute settlement reforms over the last 18 months. Our understanding is that the outcomes of 
the current 'informal discussions ' have to be considered and evaluated in the context of its initiation 
and evolution, whi ch is as follows:  
• The current informal discussions are a continuation of the US initiated and led informal 
delegate level discussions, which started in April 2022. The informal process, which is now 
being voluntarily convened by a delegate, is based on the  discussions during the US -led 
process.  
• The themes being discussed at present under the 'informal discussions ' were not intended 
to be a comprehensive listing of concerns of the whole membership. They were a 
prioritization, for further discussion, of some of the interests that had been raised during the 
US-led process. For instance, Special and Differential Treatment, which had been raised as 
an interest by several countries was not listed as a theme for further discussion.   
• These 'informal discussions ' are meant to contribute to multilateral discussions on dispute 
settlement reforms as mandated under paragraphs 3 and 4 of the MC12 Ministerial 
Declaration, rather than to substitute for such discussions.  
• Our delegates have been participating in these 'inform al discussions ' based on the 
understanding that such participation is without prejudice to our position the mandates of 
paragraphs 3 and 4 of the MC12 outcome document require a multilateral discussion under 
a WTO body.  
5.  It is crucial to acknowledge the ch allenges faced by developing countries, particularly LDCs, in 
actively participating in the ongoing informal process. The format and pace of the discussions have 
made it challenging for most developing countries including LDCs to effectively participate, c onsult 
with capitals to thoroughly prepare and present their views and suggestions, submit comprehensive 
proposals, and review progress. For instance : 
• Informal meetings are organized in multiple configurations, including working groups and 
small group meet ings. These informal meetings are often convened in parallel with or 
overlapping with formal WTO meetings and negotiations, for instance, the General Council, 
and the Fish Week.  
• The informal and fragmented nature of the process, with its multiple meetings  and lack of 
record -keeping, creates information asymmetry, particularly for capacity constrained 
delegations. This places excessive reliance on the reporting by a volunteer convenor.   
• The discussion and drafting processes favour the participation of resou rce-rich delegations, 
who are able to follow the process through sustained in -person participation in Geneva. The 
informal discussions do not allow for the virtual participation of capital -based officials. This 
hinders the involvement of developing countri es including LDCs, and privileges the 
participation of delegations that have a dedicated legal delegate in Geneva, or are able to 
send capital -based representatives to Geneva.  
• The drafting process deviates substantially from the accepted practice at the WTO. The 
process hampers the ability of delegations that cannot actively participate in the process, 
from following the evolution of and contributing to the formulation of the co nsolidated zero 
text. For instance, members cannot submit their own textual submissions on any aspect that 
is of importance to them. The allocation of topics and responsibilities in the drafting groups 
is done by the volunteer convenor. The composition of the drafting groups has not been 
made public. The inputs received by the drafting groups from commentators and peer 
reviewers was initially not shared with all delegates. This resulted in differential access of 
delegations to the evolving text and discussi ons.  JOB/DSB/7  
 
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  • These concerns have been raised by developing countries including LDCs in various fora, 
including through the submissions of the African Group ( WT/GC/W/892) and Indonesia 
(JOB/DSB/6). Proposed changes that would enable the effective participation of developing 
countries including LDCs such as virtual meetings, written submissions, circulation of inputs, 
etc., have not been allowed.  Interpretation and translation were not available for the 
majority of the duration of the process.  
6.  These process issues have led to the absence from the discussions of many of the historical asks 
of the developing countries and LDCs. Given this context, the systemic and precedential implications 
of how this 'informal process ' interacts with the formal multilateral process m ust be carefully 
considered.  
7.  Going forward, the full, effective and equal participation of the WTO membership has to be 
ensured through an inclusive, equitable and transparent process. A multilateral, member -driven and 
inclusive discussion under WTO formal  bodies, preferably under the guidance of the Chair of the 
Dispute Settlement Body is a pre -requisite to meeting the mandates of paragraphs 3 and 4 of the 
MC12 Ministerial Declaration.  
8.  The process should enable all delegations to have their concerns addre ssed as the discussions 
evolve. They should remain rooted in consensus -based decision making, and be facilitated by 
multilaterally mandated chairs or co -chairs as is the current practice in the WTO. The methods of 
work should facilitate the participation o f developing countries including LDCs, and delegations with 
limited resources.  In particular : 
• All delegations and capitals must have sufficient time and opportunity to reflect on the 
implications of the outcomes of these 'informal discussions '.  
• Members sh ould be able to address their interests including through introduction of new 
proposals.  
• Members should be able to raise issues of concern including through submitting inputs and 
amendments to any outcome of the informal process.  
9.  Members submitting this communication, consider the following to be indispensable to the 
outcome of any reform of the dispute settlement system:  
• Restoration of the proper functioning of the Appellate Body at the earliest, with needed 
clarifications and guidance from the WTO Membe rship to enable more effective functioning 
of the two -tier system.  
• Meaningfully addressing issues concerning accessibility of developing countries and LDCs, 
including but not limited to issues pertaining to third party rights, compliance and retaliation, 
along with technical and financial assistance, litigation costs and capacity building.  
• Ensuring precise, effective and operational special and differential treatment across the 
entire spectrum of the dispute settlement understanding and related rules and pr ocess.  
• Adapting the WTO dispute settlement system to accommodate the diversity of legal systems, 
levels of development, and power differentials.  
10.  This communication is without prejudice to further submissions by Members presenting this 
communication on issues covered under this submission and other substantive issues of concern in 
reforming the WTO dispute settlement.  
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