Historical background

The confidential nature of dispute settlement hearings is rooted in the historic practice of the GATT. At the time of its establishment, the GATT did not have a dispute settlement mechanism and disputes were primarily resolved via diplomatic channels. In addition, twice a year, inter-state disputes were discussed in the context of meetings of Contracting Parties, subsequently leading to the creation of working parties to resolve them⁴. According to HUDEC, these working parties were charged with the need to « negotiate a political solution acceptable to the key parties with direct interest in the matter […] »⁵. Even after the 1955 introduction of the idea that disputes should be presented to an independent panel of experts, the diplomatic nature of dispute settlement still prevailed. WEILER remarks that :

« Confidentiality is the hallmark of diplomacy […] in GATT dispute resolution there was a double level of confidentiality : once a panel was established, only a narrow range of actors, even within the GATT, were privy to the proceedings. At its conclusion, the outside world was treated to a perfunctory account […] Panel reports were for many years hard to come by in a timely fashion except for a few privileged cognoscenti. The secrecy surrounding the dispute resolution process is one of the clearest indications of its perception as diplomacy through other means »⁶.

Furthermore, most « disputes » were, for a long period of time, handled by diplomats, a fact that is closely linked with the confidential character of GATT panel proceedings. As WEILER explained :

« Although disputes might have raised broad systemic issues of relevance and consequence far beyond the immediate parties, process tended to treat them as discrete eruptions between Members requiring "settlement". This would be attempted in the

4 ALVAREZ-JIMENEZ ALBERTO, « Public Hearings at the WTO Appellate Body : The Next Step », 59 The International Comparative Law Quarterly 2010 p. 1079, 1080.

5 HUDEC ROBERT E., « The role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure », in : BAHGWATI/HIRSCH (eds), The Uruguay Round and Beyond : Essays in Honour of Arthur Dunkel, New York, 1998, p. 101, 105-106.

6 Ibid., p. 196.

pre-Panel stage but even if the overt diplomacy failed, empanelment was, indeed, a continuation of diplomacy by other means […] »⁷.

The Uruguay Round triggered a dramatic shift in the approach to dispute settlement, and the WTO transitioned from a system that was primarily diplomacy-oriented to one that was firmly rooted in rule-of-law. The creation of a standing AB was not the only major innovation ; institutional reform also came in the form of the automatic adoption of panel reports, which differed from the earlier practice of requiring consensus. But despite the change in ideology surrounding dispute settlement and increasing demands for transparency, open hearings still remain an exception in WTO dispute settlement proceedings.

The need for open hearings has not only been requested by the public, but has also occasionally been highlighted by former AB Members themselves.

James BACCHUS commented that an appellate process « is a tedious, boring, exhausting process, and if the world saw it, they would be bored. But they would also be reassured because it is also an objective, thorough and fair process in which jurists considers every argument that's made, however silly it may be, at considerable length »⁸. Mitsuo MATSUSHITA further supported the idea of allowing open hearings, arguing that : « allowing the general public to attend oral hearings would promote the transparency of the appellate process and increase the acceptance of the process by civil society by providing them with a glimpse of the process »⁹. The idea of opening panel and appellate hearings for public observation is also supported by some developed country Members of the WTO, in addition to a number of developing countries and academics.

It was not until the 2005 joint request in the US/Canada – Continued Suspension¹⁰ that the parties to the dispute succeeded in breaking new ground for public access to proceedings¹¹. Since that first request, at least ten panel meetings have been open to the public, to varying degrees¹². There were also

7 WEILER JOSEPH H. H., « The Rule of Lawyers and the Ethos of Diplomats. Reflections on the Internal and External Legitimacy of WTO Dispute Settlement », 35 Journal of World Trade 2001 p. 191, 195.

8 BACCHUS JAMES, « WTO Appellate Body Roundtable », in : HELFER/LINDSAY (eds), New world Order or A New World Disorder? Testing the Limits of International Law : Proceedings of the Ninety-Ninth Annual Meeting of the American Society of International Law, Washington, 2005, p. 182, 183.

9 MATSUSHITA MITSUO, « Some Thoughts on the Appellate Body », in : Macroy/Appleton/Plummer (eds), The World Trade Organization : Legal, Economic and Political Analysis Vol 1, New York, 2005, p. 1389, 1398.

10 Panel Report, US/Canada – Continued Suspension, WT/DS320/R and WT/DS321/R, adopted 14 November 2008.

11 Ibid., see paras. 1.6, 1.7, 6.7 – 6.11 and paras. 7.1 – 7.51 of the Canada and United States Reports.

12 At the time of writing, at least the following disputes had open panel meetings: United States – Measures Affecting Trade in Large Civil Aircraft - Second Complaint (US – Large Civil Aircraft (2^nd Complaint)), DS353 ; European Communities and its Member States – Tariff Treatment of Certain Information Technology Products (EC – IT Products), DS375, DS376, DS377 ; Australia –

two instances where panels declined to grant requests for open hearings. For example, in Brazil - Retreaded Tyres¹³, the request was not submitted by parties to the dispute, but by an NGO, the Center for International Environmental Law (CIEL) which sought the opportunity of web-casting the first substantive meeting of the panel. After taking into account the views of the parties and third parties, the panel determined that meetings would be held in closed sessions¹⁴. In US – Upland Cotton (Article 21.5 – Brazil)¹⁵ the panel also declined the request of the United States to open the portions of the hearing where the United States expressed its positions to the public¹⁶. Nevertheless, in 2008, the success of open panel meetings led to the first joint request by the parties for an open hearing of the US/Canada – Continued Suspension appeal. Since then, at least seven appellate hearings have been open to the public¹⁷, in addition to one arbitration hearing¹⁸.

Despite this progress and continued negotiations on reforming the Understanding on Rules and Procedures Governing the Settlement of Disputes, Members have still been unable to reach a consensus that oral hearings of panels and the AB should be open to public observation. This paper aims to give an overview of the current state of play of open panel, appellate and arbitration hearings, highlighting both the legal and policy-oriented arguments put forth both in favor and against this practice. In the Section III, the paper will examine the legal arguments at the heart of open panel and appellate hearings, which also apply to arbitration hearings. It will also discuss a number of policy issues that relate to the dispute settlement mechanism in its entirety. The Section IV of this paper will detail the

Measures Affecting the Importation of Apples from New Zealand (Australia – Apples), DS367 ; European Communities – Measures Affecting Trade in Large Civil Aircraft (EC and certain member States – Large Civil Aircraft), DS316 ; United States – Measures Relating to Zeroing and Sunset Reviews, Recourse to Article 21.5 of the DSU by Japan (US – Zeroing (Japan) (Article 21.5)), DS322 ; United States – Laws, Regulations and Methodology for Calculating Dumping Margins (« Zeroing »), Recourse to Article 21.5 of the DSU by the European Communities (US – Zeroing (EC) (Article 21.5 – EC)), DS294 ; United States – Continued Existence and Application of Zeroing Methodology (US – Continued Zeroing), DS350 ; European Communities – Regime for the Importation, Sale and Distribution of Bananas, Recourse to Article 21.5 by the United States (EC – Bananas III (Article 21.5 – US)), DS27 ; United States – Certain Country of Origin Labelling (COOL) Requirements (US – COOL), DS384, DS386 ; Canada – Certain Measures Affecting the Renewable Energy Generation Sector (Canada – Renewable Energy), DS412, DS426.

13 Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres (Brazil – Retreaded Tyres), WT/DS332/R, adopted 17 December 2007.

14 Ibid., para. 1.9.

15 Panel Report, United States – Subsidies on Upland Cotton, Recourse to Article 21.5 of the DSU by Brazil (US – Upland Cotton, Article 21.5 - Brazil), WT/DS267/RW, adopted 20 June 2008.

16 Ibid., see paras. 8.16-8.20.

17 Australia – Apples ; US – Zeroing (Japan) (Article 21.5) ; US – Zeroing (EC) (Article 21.5 – EC) ; US – Continued Zeroing ; EC – Bananas III (Article 21.5 – US/Ecuador II) ; US/Canada – Continued Suspension ; and US – COOL.

18 See United States – Laws, Regulations and Methods for Calculating Dumping Margins (Zeroing) (US – Zeroing (EC) (Article 22.6 – US)), WT/DS294/R, authorization to retaliate requested on 18 February 2010.

procedural and logistical responses of panels, the AB and the WTO Secretariat to requests for open hearings.

III. Arguments For and Against Open Hearings : The Current