Shortening the WTO dispute settlement process would be of great value. At the same time, there were reasons for the delays in the process that led to the long time frames. Thus, any changes could be politically contentious. What follows are suggestions for a number of areas where time frame reductions might be possible.
At the start of the process, the time frame set aside for consultations is something carried over from the more diplomatic approach during the General Agreement on Tariffs and Trade (GATT) era. Of course, governments are always free to consult in advance of litigation. However, it may be desirable to allow governments the option of going straight to a panel request, as there are many disputes where formal consultations are unlikely to produce a resolution. In disputes where this option is taken, notice of perhaps 30 days could be required before the filing of a panel request. This notice could include the same information that is currently included in a request for consultations.
Next, before a panel is established, there are two related events that can slow the process down. First, establishment must take place at a DSB meeting. Second, at the first DSB meeting where establishment has been requested, the responding party can block establishment. The process could be streamlined by removing the ability to block the first panel request or even by allowing every panel request to lead directly to the appointment of panelists without a formal establishment step at the DSB. (Of course, DSB meetings could still provide a forum to talk about the disputes at this stage.)
With regard to panel composition, the time frames for party agreement on composition and composition by the director‐general are fairly short, but each one could be reduced by a few days. In many disputes, it takes the parties a long time to agree on panelists. Sometimes this reflects a hesitancy on the part of the complainant to move ahead with the process, but usually it is a consequence of the difficulty of securing agreement by the parties on who the panelists ought to be. The parties should be encouraged to speed up this process.
Turning to the litigation stage in dispute settlement proceedings, there is only so much shortening that can occur. Litigation requires the presentation of arguments and evidence, which means written submissions and hearings. But there are some areas where change is possible. For example, instead of always having two panel meetings, one panel meeting could be the norm, and a second meeting could be held on an exceptional basis (as is the case in Article 21.5 compliance proceedings); panel meetings could be held over secure video calls rather than in person in Geneva; or there could be page limits for parties’ written submissions.
A more systemic way to improve the efficiency of the panel process would be to rely on a standing body of panelists rather than continuing to draw panelists on an ad hoc basis in each dispute largely from the diplomatic community or broader trade‐law community. Currently, most panelists have full‐time jobs, and they have to fit in their panel work around their other work. It would be helpful if at least the panel chairs were full‐time adjudicators. Establishing a standing body of panel chairs would continue to allow other panelists to be chosen from among the many other people in the world who meet the qualifications in DSU Article 8.1, thus making available a broad choice of expertise in disputes that are increasingly very highly specialized.11
Shifting back to the litigation itself, one easy way to cut time from the process would be to remove the interim review stage. This stage largely consists of pointing out typos and grammatical errors, relitigating arguments that parties lost, and occasionally convincing the panel to slightly revise or, on rare occasions, reverse its conclusion. So long as there is an appeals process, this step does not add much to the resolution of disputes.
The process could also be shortened by permitting the circulation of the panel report once it is issued to the parties in the language in which the proceeding was conducted, which would allow for the immediate filing of an appeal. Circulation in the other official WTO languages after translation has been completed would take place later.
In addition to the litigation process, there is also the problem of the length of the reasonable period of time granted for implementation pursuant to DSU Article 21.3. This provision states: “If it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time in which to do so.” Yet the word “immediately” in Article 21.3 has sometimes been overlooked.
If the parties to a dispute cannot agree on a reasonable period of time for implementation, then the reasonable period of time is determined through arbitration under Article 21.3(c) of the DSU. This provision states: “In such arbitration, a guideline for the arbitrator should be that the reasonable period of time to implement panel or Appellate Body recommendations should not exceed 15 months from the date of adoption of a panel or Appellate Body report. However, that time may be shorter or longer, depending upon the particular circumstances.”
In a long series of Article 21.3 arbitrations, arbitrators have frequently referred to “particular circumstances” that justify a longer period for implementation. On average, the length of time granted for implementation in these arbitrations has been 11 and a half months.12 In our view, generally, a period of 6 months to one year should be long enough to navigate the domestic political processes that are needed to implement WTO rulings and recommendations.