In order to offer a comprehensive analysis of transparency and public participation in the WTO dispute settlement system, this memorandum first considers the current participatory practice throughout the various steps of the dispute settlement process. Secondly, the current state of the DSU negotiations is analyzed along with positions and arguments of relevant WTO Members. Finally, several recommendations for the next steps in the negotiations are presented, including suggested language for possible amendments to the current text of the DSU.
The analysis of current practice reveals that the WTO dispute settlement system already allows for an important measure of transparency and public participation. Requests for consultations, panel establishment or appeal and final reports are published promptly on the WTO website. A number of hearings of panels and the Appellate Body are open to the public and NGOs have the possibility to submit amicus curiae briefs. The mostly informal efforts of the adjudicating bodies and WTO Secretariat through extensive DSU interpretation and transparency measures, respectively, thus have already led to some DSU review in practice.
More formal changes of the DSU towards transparency and participation would require the political will of WTO Members to reach consensus on an amendment of the DSU in the ongoing review under the Doha mandate. The current state of the negotiations indicates that WTO Members are generally in favor of open hearings and public submissions but also try to include a prohibition of amicus curiae submissions into the DSU. Any recommendation for DSU review therefore has to consider whether it is necessary to amend the DSU or whether the current practice of WTO bodies is sufficient to create avenues for transparency and participation. While an amendment of the DSU has certainly more legitimacy as it includes all WTO Members and not only those that frequently use the dispute settlement system, a continuing DSU review in practice might be more realistic in light of the lengthy and difficult negotiation process.