Dispute Settlement Reform Discussion:
A Thought on the Process

Communication From Indonesia

The following communication, dated 15 September 2023, is being circulated at the request of the delegation of Indonesia.

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The following proposal is without prejudice to Indonesia's positions or views and its participation in the ongoing informal discussion.

1  Introduction

1.1.  At the outset, Indonesia shares the view of many Members who believe that the dispute settlement system, as elaborated by the Dispute Settlement Understanding (DSU), Article 3.2 in particular, is central in providing security and predictability to the multilateral trading system.

1.2.  Such belief is evident in the participation of WTO Members in the WTO Dispute Settlement System that is substantially improved as compared to the Dispute Settlement System under the GATT 1947.

1.3.  To date, more than 600 disputes have been brought by the Members to the WTO Dispute Settlement System both by developing and developed countries. This indicates that Members value and trust the system, and that while minor flaws exist, the system has worked well for Members.

1.4.  Our belief in the system has driven us to be one of the frequent users of the WTO Dispute Settlement System in recent times. In fact, our participation in the system has significantly increased since the system was introduced along with the establishment of the WTO in 1995.

2  Indonesia's thought on how the Dispute Settlement Reform discussion should be carried out

2.1.  In developing this proposal, Indonesia recalls Paragraphs 3 and 4 of the Ministerial Conference Outcome Document, that:

a._    reaffirmed the foundational principles of the WTO and set out that the work on WTO reform shall be Member‑driven, open, transparent, inclusive, and must address the interests of all Members, including development issues; and

b._    recognizes the importance and urgency of addressing the challenges and concerns with respect to the dispute settlement system including those related to the Appellate Body, and the need to conduct discussions with the view to having a fully and well‑functioning dispute settlement system accessible to all Members by 2024.

2.2.  In fulfilling the mandate, Indonesia also recognizes the importance of the informal discussions on the Dispute Settlement Reform in addressing Members' interests and matters surrounding the WTO Dispute Settlement System as well as the hard work of all participants of the discussion in the last 2 years.

2.3.  We observed, however, that many Members from developing countries and LDCs, who inherently do not have a dedicated delegate for the dispute settlement reform issue, experience difficulties in fully and effectively participating in the informal discussion due to conflicting schedule between such discussion and other formal meetings or negotiations. This situation will also create gaps in knowledge and understanding of developing and LDC Members about the progress of the discussion, and consequently prevent them from making active and valuable contribution during the whole process. Such challenges need to be seriously taken into consideration and addressed with concrete solutions.

2.4.  With that in mind, in keeping with the Minister's mandates as enshrined in Paragraphs 3 and 4 of the Outcome Document of the WTO MC12, Indonesia proposes the following thoughts with the aim of increasing the full and effective participation of developing and LDC Members throughout the process of the WTO Dispute Settlement Reform discussion:

a._    The discussions on the WTO Dispute Settlement System should be carried out by the Dispute Settlement Body and/or the General Council in an inclusive and transparent manner, and shall be open to all Members.

b._    In this regard, the functional differentiation based on the level of participation as proposed by the facilitator could serve the purpose of optimizing the flow of discussion. Nevertheless, it should be designed to foster inclusivity and, without undermining the Member's equal rights to contribute their views and for the views to be reflected in the text.

c._    The discussions/meetings, including small‑group meetings, should be based on a structural plan to avoid conflicted agenda and schedule of meetings mainly with other negotiations.

d._    Minimize the proliferation of open‑ended meetings conducted without written records and, consider distributing annotated agendas before scheduled meetings.

e._    Any time in the course of the discussions, any WTO Member may introduce new proposals, comments, or positions without prejudice to the ongoing discussion as the process is Member‑driven in nature.

f._     At the end of each meeting, the facilitator will prepare a report to document the progress of the discussion and next steps.

g._    All information, submissions, or proposals from Members should be reflected in the meeting documents and are accessible by all Members on a dedicated webpage of the WTO website if necessary.

h._    Any documents issued as a result of the discussions will be treated as confidential.

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