Article: Transparency and Public Participation in the WTO: A Report Card on WTO Transparency Mechanisms, 4(1) Trade, L. & Dev. 19 (2012) [available here]
Authors: Gabrielle Marceau & Mikella Hurley
Introduction to the Article, by Prateek Bhattacharya
Transparency has become (if it was not always) the grundnorm in the functioning of any public or international office, institution or organisation. As information becomes more accessible to the global public, international organisations have to keep up by constantly removing barriers to access, and making their own systems more transparent. In light of these circumstances, this article could not have come at a more important time. In countries across the world, the people are claiming the right to transparency as part of their basic rights. It is therefore only natural, that all the countries of the world expect the same from the World Trade Organization.
This article is an exhaustive commentary on the level of transparency of the WTO’s dispute settlement system. The authors provide readers with the history of transparency under the GATT vis-à-vis as under the current WTO system. They emphasise on the role of the WTO website in ensuring public access to documents such as legal texts, panel and Appellate Body Reports at every step. They continue onwards to discuss the role of amicus curiae briefs, a subject which has been extensively debated in the past. However, rather than debating on the subject themselves, the authors have remained true to the aim of their article and have provided an interesting read on how the various Panel and AB Members proactively chose to interpret the DSU in favour of amicus briefs. This decision put the WTO far ahead of other international fora in terms of transparency, and today Panels and the AB tend to accept unsolicited amicus briefs as well. Lastly the authors have noted on how the WTO Panels and the AB (along with the parties to the dispute) have tried to make the proceedings open to public access and attendance. They do not fail to humorously note how many of such public attendees find the proceedings boring by the end of the day. At every stage of their analysis, the authors have provided useful comparisons with other fora such as NAFTA, ICSID and UNCITRAL arbitrations (among others), noting that NAFTA is the most transparent of the three.
Without going into too much detail, I will only say that Prof. Wolfe’s comment on this article is different from other comments, in that he has chosen to discuss issues of transparency which have not been discussed in this article. As a result, when placed together, the article and the reviewer’s comment on it provide a wealth of information for any person interested in the subject of transparency at the WTO dispute settlement system, and I would urge one and all to read both the article as well as the comment.