At the most recent meeting of the World Trade Organization’s (“WTO”) Dispute Settlement Body (“DSB”), which took place on July 22, 2019, the United States pressed Members to improve the transparency of the WTO’s dispute settlement system, asserting that the system’s current lack of transparency is simply “unacceptable.” Currently, proceedings within the DSB are conducted in confidential settings with the public often having little to no access to the documents filed in the proceedings.

At the meeting, the United States re-asserted its long-standing position that the dispute settlement system can be improved through the increased use of public hearings and the disclosure of submissions to the public. By “{k}eep{ing} WTO dispute settlement closed and secret,” the United States stated, “Members deny other Members, the public, and the WTO itself of significant benefits.” The United States noted that the rules outlined in the WTO’s Dispute Settlement Understanding (“DSU”) do not prevent transparency in the dispute settlement process. For example, the United States stated, the DSU does not preclude open meetings or prevent the public release of party submissions by Members.

Although a number of Members (including Canada, the European Union and Australia) have taken the same approach to transparency as the United States, the United States pointed out that other Members have “actively obstructed efforts by others to provide greater transparency.” The United States cited China, India, Indonesia, Korea, Mexico, Russia, Turkey, and Vietnam as Members engaged in these types of efforts.

For its part, China argued that confidentiality remains an important component of the dispute settlement process. "Confidentiality plays such a critical role for the efficiency and effectiveness of the substantive meetings," China told the DSB. "Public appearance may inevitably dilute the focus of adjudicators from the substance to the optics of how arguments or presentations might appear to outsiders."

Other WTO Members emphasize that transparency is less important than the difficult issues now facing the Appellate Body (“AB”). In December of this year, the terms of two of the remaining three AB members will expire, leaving it unable to hear any new appeals. As previously reported, the United States continues to believe that the WTO’s Appellate Body has failed to remain within the bounds of its review authority under the WTO Agreements. Accordingly, the United States has consistently blocked new appointments to the AB and rejected proposals to reform the dispute settlement system, stating that the proposals fail to address the issues arising out of the current system.

Some WTO Members are taking steps to deal with the issue. For example, the European Union and Canada recently announced an agreement to resolve disputes between the two countries that will be based on existing WTO rules. At this point, questions continue to arise with respect to the WTO’s dispute settlement system, which means that the matter will continue to require discussions among Members.