Good offices, conciliation and mediation

· In various forms, good offices, conciliation and mediation have all featured in the GATT system and demonstrated their usefulness. While the Dispute Settlement Understanding contains more detail on these methods than previous instruments, it groups them together in a single article, which visibly highlights their interconnection.

· Good offices, conciliation and mediation are voluntary procedures and require the parties' agreement (Article 5(1) ).This immediately distinguishes them from consultation which, it will be recalled, is mandatory.

· They may, however, be requested by a state at any time and at any point in a dispute. They can also be terminated at any time and, once terminated, entitle the complaining party to request the establishment of a panel, provided the sixty-day consultation period has elapsed (Article 5(3) and (4)).

· Who performs good offices, conciliation and mediation? In theory, states can refer a trade dispute to any competent individual, group or organ. In practice, however, the choice is more limited. The only possibility which is specifically mentioned in this section is reference of a dispute to the Director-General of the WTO,who under Article 5(6) is authorised to offer good offices, conciliation or mediation, acting in an ex officio capacity.

24.Role of consultations, bon offices, conciliation and mediation for dispute settlement in GATT/WTO.

Consultations

The aim of the GATT procedures has always been to resolve disputes, whenever possible, through agreement between the parties, rather than by seeking to identify treaty violations. Accordingly, consultation has always been prominent in those procedures. Articles 22(1) and 23(1) of the GATT provide for bilateral consultations in general terms, and the new DSU, based substantially on provisions agreed in 1989, spells out the implications in some detail.

Article 4(3) contains an obligation to enter into consultations in good faith on request, and Article 4(5) reflects a preference for this method by giving consultations priority over other procedures.

An obligation to consult, like an obligation to negotiate, can be used by an unscrupulous government to postpone resort to other procedures, perhaps indefinitely, unless the precise scope of the obligation is carefully defined. To remove the possibility of abuse, and also to imbue the parties with a sense of urgency, the DSU contains strict time-limits. The state to which a request for consultations is submitted has just ten days to respond and must enter into consultationswithin thirty days of the request (Article 4(3)). Consultations must also be concluded within sixty days of the request (Article 4(7)). Even stricter deadlines apply in urgent cases (Article 4(8)) and failure to meet any of the deadlines immediately entitles the complaining party to request the establishment of a panel.

When consultations take place they are confidential and without prejudice to the rights of the states concerned (Article 4(6)). However, it is important to appreciate that the reference to confidentiality here relates to the content of the discussions, not to the fact that they are taking place or to their outcome. Articles 4(4) and 3(6) make it clear that the occurrence and outcome must both be notified to the DSB and relevant bodies. Such notification was not required before 1989, and so this was an innovation. Incorporating this requirement into the DSU has the effect of placing bilateral consultations under the control of the WTO, so helping to integrate the dispute settlement system.

The DSU contains a number of provisions concerned with disputes of a multilateral character. As regards consultation, the relevant provision is Article 4(11), which allows a third state which considers that it has 'a substantial trade interest' in any consultations to indicate a desire to join them.

The significance of consultation as a means of dealing with international trade disputes: far more disputes have been settled by consultation than by panels, this being in fact the method by which most disputes are resolved in practice. The high success rate is no doubt partly because a round of consultation may sometimes be all that is needed to reach agreement. It is worth pointing out, however, that consultation can be a continuing process, since governments often maintain a dialogue while the panel procedure or other moves are in progress. Thus, the initial obligation to try consultation by no means exhausts its possibilities, for, as the situation and the parties' perceptions change, a solution may emerge at a later stage, even if the first contacts are unsuccessful.14

Date: 2015-12-18; view: 1021