Analysis of a New Mediation Procedure under the WTO SPS Agreement

Abstract

The Dispute Settlement Understanding (DSU) of the World Trade Organization (WTO) provides a basis for the Members to settle their disputes through Alternative Dispute Resolution (ADR) involving good offices, conciliation, and mediation, in addition to the formal dispute settlement procedures. However, ADR has not been operational so far under the DSU. The SPS Committee recently adopted a new mediation procedure under Article 12.2 of the SPS Agreement to facilitate a mutually agreed solution by the consulting Members. The Member participation in the mediation procedure is voluntary, and the consulting Members may decide the confidentiality of the information delivered or communications created during the mediation. In addition, the mediation procedure does not constitute a legally binding agreement, and the consulting Members are free to decide the acceptability of the mediation result. The role of the Facilitator is to encourage and facilitate exchange between the consulting Members, suggest possible ways to resolve the concerns, and issue a written factual report on the mediation. Although it is early to assess whether the new mediation procedure under the SPS Agreement is successful, its success is certainly to increase the possibility of introduction of a mediation procedure under other agreements of the WTO.