Long-Term Relationship over Litigation: Mediation in WTO Dispute Settlement Proceedings

Abstract The Dispute Settlement Mechanism (DSM), once regarded as the jewel in the crown of the World Trade Organization (WTO), has been facing a variety of serious criticisms for its inherent limitations and problems while its appellate review function has been paralyzed. Discussions on the reform of the WTO DSM have been under way for several years now. Many key items are on the reform agenda, one of which is to introduce Alternative Dispute Resolution (ADR) proceedings to the WTO DSM. Among several options of ADR, ‘mediation’ can offer an important set of tools for the WTO and its Members to resolve disputes in a more efficient and prompt manner. If properly structured, mediation can complement the existing binding proceedings of panels and the Appellate Body. At the same time, introduction of mediation to the WTO DSM may also cause additional legal and practical problems. It may cause further delays, confidentiality traps, due process myriads, and enforcement loopholes. It is vital to introduce mediation provisions to address those critical problems. Systematized and structuralized mediation in the WTO DSM will be able to offer a viable alternative path to resolve certain complex and sensitive disputes.