|
Holding at least two meetings and requirement of written evidence are common recommendations in proposals. Article 4.4 of the DSU requires that the request is in writing and gives reasons including identification of the legal basis of the complaint. An indication of the legal basis would no longer suffice.[30] The complainant’s case should be stated adequately and unambiguously. The European Communities go even further by proposing that any legal claim in the request for the establishment of a panel should be included in the consultations, or rose during the consultations, confirmed in writing, and followed by new consultations unless the defending party agrees otherwise.[31] These proposals set the trend for the formalization of the procedure whereby the efforts of the parties have to be evidenced in writing.
Additional proposals suggest that some written documents, such as written questions and answers, and the introduction of agreed written records of the consultations, should be used. These documents should give a subsequent panel the possibility of investigating in a preliminary phase whether there has been an attempt to obtain a satisfactorily acceptable resolution of the dispute in good faith. The following sanctions are proposed if a party’s written submissions are found lacking: extra consultations for claims that have not been the subject of previous consultations; if a party refuses to reply to a written question, the other party could be given direct access to a panel; if an answer is found to be inadequate, the panel can request further information.[32] All these measures are aimed at strengthening the role of the consultations and forcing the parties to go through the consultative phase. But one point needs to be pointed out that most of the WTO Members still remain the opinion that the consultation process should keep as informal as possible even they agree that the consultative process should be more regulated.[33]
In relation to fact-finding, some proposals regarded it as the second function of DSU consultation besides the first function, mutually satisfactory solution. Under the principle of good faith, consultations will result in a clarification of the legal claims involved in a dispute and the facts relating to those claims. The claims that are made and the facts that are established during consultations are very important in shaping the substance and the scope of the case during the subsequent panel proceeding.[34] Strengthening the role of fact-finding in the consultation phase might contribute to increase the effectiveness of the consultation phase.
2. Panels
2.1 Appointment
The present method of composition of panels, characterized by a case-by-case selection, has caused some criticisms. Under the DSU, the Secretariat can make suggestions, but it is the parties that have to agree on the identity of the panellists.[35] The actual procedure appears very clumsy because the parties’ views diverge greatly as to what makes a good panellist. Parties always make inquiries the Secretariat about the personality, the quality, the nationality, and the views of the candidates before they make a decision.[36] In practice, WTO Members distinguish two types of panellists on the base of their background. The first type of panellists are government officials, while the second type are practitioners or academics. WTO Members prefer one or the other in different situation.[37] Similarly, nationality issue is another big hurdle faced by the parties to decide a panellist. According to Article 8.3 of DSU, nationals of parties or third parties shall not serve on a panel concerned with that dispute.[38] In addition, DSU has adopted a very extensive interpretation of the nationality concept. Where customs unions or common markets are parties to a dispute, nationals of all member countries of the customs union or common markets are excluded from becoming panellists.[39] This extensive nationality concept causes a big barrier in selecting the most qualified panellists because it often leaves rather few possibilities for the parties to select panellists from a very limited list, especially in multiparty complaints.[40] As a often result, if the parties cannot agree on the identity of all the panellists within the time frame, then the Director-General will nominate the members of the panel. But the nomination still must be done after the consultation with the parties to the dispute.[41] All this takes time and prevents the parties from paying more attention on the preparation of their case.
|
