TN/DS/28  
 
4 December 2015  
(15-6442)  Page: 1/3  
Dispute Settlement Body Special Session    
 
SPECIAL SESSION OF THE DISPUTE SETTLEMENT BODY 
REPORT BY THE CHAIRMAN, AMBASSADOR RONALD SABORÍO SOTO  
1.1.  This report is presented under my own re sponsibility and reflects my understanding and 
assessment of the current state-of-play and possible way forward in the negotiations.  
1.2.  As reflected in my report of August 20151, the work in the DSU negotiations has advanced 
significantly over the past two years. Ov er this period, building on earlier work2, participants 
engaged in an in-depth consideration of all areas under negotiation at the conceptual level, with 
the goal of building convergence around approaches  that would have the broadest possible base of 
support.3  
1.3.  This "horizontal process" led to the presenta tion of potential elements of solutions in respect 
of all areas under negotiation. In areas where co mpeting approaches previously existed, the main 
focus has been on seeking convergence around a single approach. In other areas, participants sought to explore flexibilities on the means to address each other's needs, and to develop on that 
basis elements of solutions that could command gr eater convergence. In this phase of the work, 
the focus on concepts and a horizontal perspective allowed flexibilities to be tested across, and not just within, each area under discussion, making it easier to identify potential linkages and start 
exploring overall balances. 
1.4.  As a result of this work, in combination with earlier text-based work, convergence of principle 
has been achieved in certain areas and is already reflected in mature draft legal text. In a number 
of other areas, significant progress has been made in clarifying the elements that could form the 
basis of further text-based work. In some areas, further work at the conceptual level would be 
needed to clarify the basis on which convergence might be found.
4   
1.5.  In light of this state-of-play, recent discussions addressed the possibility of reaching 
agreement on a limited number of mature areas to capitalize on the progress made to date, 
without prejudice to continuing to seek further progress in areas where full convergence is not yet apparent. While participants were supportive of the goal of achieving agreement where possible - 
and implementing resulting  improvements - as early as possible, concerns remained that any 
agreed outcomes should reflect a suitable balance of interests and should not prejudice the opportunity for an ambitious outcome in line with the effort that has been invested in this negotiation over the years. A number of participants therefore saw merit in continuing to seek 
agreement on a set of outcomes as me aningful and ambitious as possible.  
1.6.   Although it has therefore not been possible to reach agreement on specific outcomes in time 
for the Nairobi Ministerial Conference, participants remain strongly committed to continuing to 
work towards agreement on improvements and cl arifications of the DSU, as mandated by 
Ministers.
5 Participants recognize the systemic importan ce of this negotiation, the value of the 
                                               
1 See Report by the Chairman, TN/DS/27. 
2 See Report by the Chairman, TN/DS/25. 
3 See Reports by the Chairman, TN/DS/25 and TN/DS/26.  
4 For a detailed assessment of the state-of-play and possible avenues for furthe r work in various areas, 
see Report of the Chairman, TN/DS/27, Section 3. 
5 It is understood that, in accordance with paragr aph 47 of the Doha Ministerial Declaration, this 
negotiation is not to be treated as part of th e Single Undertaking of the DDA negotiations.  TN/DS/28 
 
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  work accomplished to date, and its potential to lead to practical and meaningful outcomes for the 
benefit of all Members. 
1.7.  As dispute settlement activity increases6, the urgency and relevance of this work is ever 
more evident.  The intensity of dispute settlemen t activity is a testament to Members' trust and 
reliance in the system. However, as reflected in recent discussions in the DSB and in the Director-
General's recent statement to the DSB, it has also given rise to new challenges that require Members' attention.
7 This negotiation and the work conducted to date in this framework provide 
an important avenue for Members to address such  challenges and improve the overall efficiency 
and effectiveness of the dispute settlement syst em, in the shared interests of the entire 
Membership.   
1.8.  There should be flexibility and pragma tism going forward as to how this might be 
accomplished.  It has been suggested for exampl e that certain solutions could be pursued by 
adopting guidelines, testing the application of certain practices and improvements or developing certain approaches on a flexible basis. Incremental improvements in certain areas may also 
present a path to finding solutions that take  into account the concerns expressed by all 
participants and an opportunity to build on existing experience.  
1.9.  Over the years, including the many years of  this negotiation, use of the system has evolved 
in ways that have generated new approaches to meet new realities. Some of the proposals under 
consideration would in effect confirm or consolidate some of these approaches.
8 Others would 
provide durable solutions to procedural issues th at have not been resolved, or have been only 
partially resolved, through the use of the system to date.9 In some other areas, solutions 
developed through specific disputes may not reflec t an agreed position of the entire Membership.10  
1.10.  Finding more permanent multilateral solutions to such issues – including where relevant by 
recording or confirming existing practice – could contribute to a more efficient use of resources for 
all actors involved in WTO dispute settlement. This would also have the benefit of greater 
inclusiveness for Members who are not frequent users of the system and who have different constraints in benefitting from practices developed on an ad hoc  basis. 
1.11.  An incremental approach may also enable Members to find the right balance in addressing 
long-standing areas of uncertainty while adapting to the continuing evolution of the system. Reflecting on avenues for incremental progress should, however, not come at the expense of the opportunity to make meaningful and ambitious im provements as necessary, or of the need to 
address the needs of all participants. 
1.12.  It is the responsibility of Members to determine how to address current and future 
challenges of WTO dispute settlement, while capi talizing on its proven strengths. WTO dispute 
settlement is an important systemic element of the multilateral trading system, and all Members 
                                               
6 See WT/TPR/OV/18, 17 November 2015, para. 3.159: "2015 has witnessed the highest level of dispute 
settlement activity since the inception of the WTO. (…) Several ongoing disputes involve an exceptionally large number of complex issues. While this shows that the Memb ership has great confidence in the system, it also 
means that, with current staffing levels, the dispute se ttlement system is having trouble coping with the 
workload. There have been delays at the panel stage as a result. Another trend that continued in 2015 was the participation of both developed and de veloping countries in the WTO dispute settlement system: almost all of 
the 5 Appellate Body reports and 7 panel reports circulated  over this period involved at least one developing 
country Member as a party, either as the complainant or the respondent." 
7 See Statement by the Director-General regarding dispute settlement activities, 28 October 2015, 
at WT/DSB/M/369, to be circulated. See also Statement by the Director-General  regarding dispute settlement 
activities, 26 September 2014, WT/DSB/M/350, item 1.  
8 For example, the granting of additi onal third party rights in panel proceedings or the opening to public 
observation of panel and appellate pr oceedings, which are under considerat ion in the negotiations, have, to 
date, been done on an ad hoc  basis.  
9 This is the case for instance in  respect of sequen cing or remand. 
10 This is the case for instance in respect of unsolicited amicus briefs  or post-retaliation. TN/DS/28 
 
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  are the stakeholders of this process. As such, they  will be the beneficiaries of its results. It is 
therefore important, and all the more timely in li ght of present challenges, that Members continue 
to devote the effort necessary to bring about im provements and clarifications to the DSU, as 
mandated by Ministers.11 
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11 See in particular Ministerial Declaration adopted on 18 December 2005, WT/MIN(05)/DEC, para. 34: 
"We take note of the progress made in the Dispute Se ttlement Understanding negotiations as reflected in the 
report by the Chairman of the Special Session of th e Dispute Settlement Body to the Trade Negotiations 
Committee (TNC) and direct the Special Session to co ntinue to work towards a rapid conclusion of the 
negotiations."