WTO SPS위원회의 특별협의절차에 관한 연구

Recently on July 9th 2014 the WTO SPS Committee adopted ad referendum the voluntary mediation procedure or “ad hoc consultations” to encourage and facilitate the resolution of specific SPS issues in accordance with Article 12.2 of the SPS Agreement, which eventually became definitive on September 6th. This Committee Decision can be highly appreciated in the sense that it newly establishes yet another additional channel for WTO Members to resort to in resolving SPS concerns before referring the matter to the Dispute Settlement Body (DSB), and can effectively prevent development of any unnecessary formal legal SPS disputes between Members. Given that formal legal proceedings of WTO adjudicating bodies can be considerably time- and energy-consuming, ad hoc consultations will make a significant contribution in resolving specific trade concerns (STCs) related to SPS non-tariff barriers, and in reducing the number of fully-fledged WTO legal disputes before the DSB. For many previous years WTO Members have usually resorted to raising STCs in regulator meetings of the SPS Committee and tried to resolve the concerns multilaterally, rather than referring to bilateral ad hoc consultations or negotiations. It seems to be - at least partly - due to the fact that before this decision there was no detailed procedures established under any of the Committee decisions made nor the SPS Agreement itself. Thus the Decision is expected to increase legal predictability of Members about ad hoc consultation procedures. Further, participants to ad hoc consultation are given opportunities to hear from the “Facilitator” (usually the Chairperson of the SPS Committee) who serves as a neutral third-party mediator and presents suggestions for resolution of the matter. Moreover, for Members who feel reluctant and uncomfortable to have their SPS concerns publicly exposed in the Committee meetings with a number of third-party Members freely expressing their views, ad hoc consultations can be an attractive alternative, in which participating Members are obliged to keep all information and discussions confidential, unless otherwise agreed. In this sense the author expects that the newly adopted procedure will substantially “fill the gap” between multilateral efforts in the SPS Committee and a formal legal proceeding under the DSU. Against this background, in this paper the author first examines the SPS Committee’s previous practices in resolving STCs before the recent adoption of ad hoc consultation, then turns its attention to the Committee Decision “Procedures to Encourage and Facilitate the Resolution of Specific Sanitary or Phytosanitary Issues Among Members in Accordance with Article 12.2”(G/SPS/61). He also examines legislative and negotiating history of the same Decision, conducts an analysis on its legal structure, and discusses its implications in resolving SPS concerns in the future.