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Additional proposals suggest that some written documents, such as written questions and answers, and the introduction of agreed written records of the consultations, should be used. These documents should give a subsequent panel the possibility of investigating in a preliminary phase whether there has been an attempt to obtain a satisfactorily acceptable resolution of the dispute in good faith. The following sanctions are proposed if a party’s written submissions are found lacking: extra consultations for claims that have not been the subject of previous consultations; if a party refuses to reply to a written question, the other party could be given direct access to a panel; if an answer is found to be inadequate, the panel can request further information.[32] All these measures are aimed at strengthening the role of the consultations and forcing the parties to go through the consultative phase. But one point needs to be pointed out that most of the WTO Members still remain the opinion that the consultation process should keep as informal as possible even they agree that the consultative process should be more regulated.[33]
In relation to fact-finding, some proposals regarded it as the second function of DSU consultation besides the first function, mutually satisfactory solution. Under the principle of good faith, consultations will result in a clarification of the legal claims involved in a dispute and the facts relating to those claims. The claims that are made and the facts that are established during consultations are very important in shaping the substance and the scope of the case during the subsequent panel proceeding.[34] Strengthening the role of fact-finding in the consultation phase might contribute to increase the effectiveness of the consultation phase.
2. Panels
2.1 Appointment
The present method of composition of panels, characterized by a case-by-case selection, has caused some criticisms. Under the DSU, the Secretariat can make suggestions, but it is the parties that have to agree on the identity of the panellists.[35] The actual procedure appears very clumsy because the parties’ views diverge greatly as to what makes a good panellist. Parties always make inquiries the Secretariat about the personality, the quality, the nationality, and the views of the candidates before they make a decision.[36] In practice, WTO Members distinguish two types of panellists on the base of their background. The first type of panellists are government officials, while the second type are practitioners or academics. WTO Members prefer one or the other in different situation.[37] Similarly, nationality issue is another big hurdle faced by the parties to decide a panellist. According to Article 8.3 of DSU, nationals of parties or third parties shall not serve on a panel concerned with that dispute.[38] In addition, DSU has adopted a very extensive interpretation of the nationality concept. Where customs unions or common markets are parties to a dispute, nationals of all member countries of the customs union or common markets are excluded from becoming panellists.[39] This extensive nationality concept causes a big barrier in selecting the most qualified panellists because it often leaves rather few possibilities for the parties to select panellists from a very limited list, especially in multiparty complaints.[40] As a often result, if the parties cannot agree on the identity of all the panellists within the time frame, then the Director-General will nominate the members of the panel. But the nomination still must be done after the consultation with the parties to the dispute.[41] All this takes time and prevents the parties from paying more attention on the preparation of their case.
The European Community, which always meets the aforementioned issues, has proposed a standing Panel Body to resolve the panel composition question. In its proposal, a fixed roster of panellists and a rotation mechanism are suggested to exclude the parties from deciding the composition of a panel. The idea would promote to avoid the current clumsy time-consuming process in the composition of a panel on a case-by-case basis. A standing panel would enhance consistency in the interpretation of the rather complex WTO rules. It would permit coordination between the various divisions of the standing panel, along the lines of the function of the Appellate Body. Some other WTO Members besides the European Community in their proposals are also agreed with the idea. But there are also arguments against a standing panel. The arguments are that a standing panel cannot provide a broad representation of the WTO membership. In addition, the standing panellists cannot provide enough confidence and trust to the parties to the dispute. The arguments, however, are too weak to oppose the establishment of a standing panel. The well existence of the standing Appellate Body has proved that the arguments against the standing panel are hardly convincing.[42] Especially, the rotation mechanism of standing panellists can make up the weakness of the representation of the WTO membership.
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