WTO 争端解决机制：改革方案（II〕
The WTO Dispute Settlement System: Proposals for Reform (II)
吴戈
【摘要】WTO Dispute Settlement System and Proposals for Reform
【关键词】WTO Dispute Settlement
【全文】
The WTO Dispute Settlement System: Proposals for Reform（Ⅱ）
Author: Wu Ge
III. Proposals on Dispute Settlement Procedure
1. Consultation
Consultation is thought as a form of negotiation in settling disputes.[23] Proposals as to consultation submitted by the WTO Members focus on discussing the function of the consultation as mutually satisfactory solution and fact-finding between parties to the dispute. But there is weakness which is referred to affect the function of consultation during the negotiation.
Under the DSU, the WTO Members prefer a negotiated “solution mutually acceptable to the parties to a dispute and consistent with the covered agreement”.[24] The mutually acceptable solution may be obtained from consultations or “further action” [25] including panel proceeding and Appellate Body proceeding. During the consultation procedure, the effectiveness of these consultations depends solely on the parties’ willingness “to engage in these procedures in good faith in an effort to resolve the dispute” as required by the general provisions section of the DSU.[26] WTO Members expressly affirmed their resolve to strengthen and improve the effectiveness of the consultation procedures in the DSU.[27] But the DSU does not provide enough provisions to guarantee the effectiveness. It is easy for any Member to abuse the flexibility inherent in the dispute settlement mechanism to avoid or delay real consultation or further action. Under the DSU, there are no express obligations on the complainant in this aspect. It is enough for the complaining party only to submit a request for consultations and possibly hold an initial meeting. The only remaining requirement to request the establishment of a panel is to wait the response of the defendant party and the expiry of the regulated period after submitting the request for consultations.[28] Such regulations easily reduce the consultation phase to a mere formality, which is really a hurdle in the way of panel proceeding when a party wants to enter the panel proceeding quickly.
The consultations section in Article 4 of the DSU just sets forth the terms and simple procedures of consultations. The obligations on the Members in the section are vague and rely heavily on good faith.[29] Any party to the dispute may easily use the consultation phase as a mere formality to avoid a treaty obligation, such as “good faith” principle and best efforts obligation. So considerable discretion is left to the parties. The adjustment proposed in a number of submissions tries to make up the weakness to make it possible to review the consultations by the panel. Increasing the obligations and thus limiting the flexibility in consultation stage are main methods mentioned in lots of proposals.
