NGOs and the WTO Dispute Settlement Mechanism

The participation of civil society in the WTO dispute settlement system is without doubt important not only for specialized experts in WTO law and practice, but also for experts of international law in general. In fact, the participation of civil society in the WTO Dispute Settlement mechanism reveals a general problem affecting all dispute settlement systems. This problem focuses on the need to balance confidentiality and transparency of official documents and procedures. The DSU contains no rules regarding the participation of NGOs and of civil society in general. However, Panels and the Appellate Body have examined the topic in detail, adopting different and sometimes contradictory solutions. In particular, the AB jurisprudence influences both WTO practice and the evolution of the principles regulating international judicial procedures. In the specialized area of international trade, this evolution leads to the affirmation of the need to adopt clear formulas on the participation of civil society in WTO dispute settlement procedures. This opens up three possibilities: first, the revision of the WTO Dispute Settlement Understanding; secondly, the modification of the Appellate Body’s Working Procedures by the Appellate Body itself; thirdly, leaving things as they are, namely, to leave the Panels and the Appellate Body the discretion to find a jurisprudential solution to the issue on a case by case basis. In practice, if the States are late in coming to a solution acceptable to all members, the adoption of ad hoc rules on the basis of the Working Procedures will be the only alternative.