ICTSD » Developing Countries and DSU

The Challenge of Participating in WTO Dispute Settlement

interns — Tue, 05 Apr 2011 15:58:06 +0000

The WTO’s dispute settlement system has been called the ‘jewel in the crown’ of the WTO as it provides automatic, reliable and effective means of dispute resolution. But members can only take advantage of the rule of law if they can effectively pursue their rights in a complex legal regime, which largely depends on having an adequate number of experienced legal, economic and diplomatic staff and a large network of external experts and private sector representatives. Earlier research undertaken by ICTSD, has shown that, to varying degrees, developing countries lack such legal capacity, impeding their ability to participate fully in WTO dispute settlement. In particular, inadequate coordination between the government and private sector, a weak stakeholder community, and difficulty in determining the existence of undue trade barriers due to insufficiently processed information and data, constrain developing countries in their efforts of using dispute settlement.
In fifteen years of dispute settlement under the WTO, 400 cases have been initiated. Only around thirty developing countries have initiated one or more of these cases. Also, no African country has acted as a complainant and only one least developed country has ever filed a claim at the WTO. Yet a number of developing countries have made considerable progress in building domestic legal capacity over the last decades. This is reflected in the fact that currently seven out of the eleven most frequent complainants are developing countries. There are good lessons to be learnt from these examples, but the need for strengthening legal capacity in developing countries remains.
Legal capacity is not only needed in dispute settlement proceedings but it is of equal importance for the successful participation in ongoing trade negotiations, for an efficient implementation of WTO obligations and for the peaceful settlement of trade disputes. Generally speaking there is no single area or activity at the WTO for which legal capacity would not be required.
While international organizations such as the Advisory Centre on WTO Law (ACWL) provide legal advice and training courses for lawyers, there is a profound need for building greater legal capacity, particularly a strong and well informed stakeholder community, and extensive networks facilitating exchange among various domestic, regional and international actors that are key actors in the litigation process. Especially the role of private sector representatives should not be underestimated – empirical research has shown that most DSU cases are initiated, supported and partially covered by domestic companies that provide essential evidence and data gathered during their trading activities.
It is against this backdrop that ICTSD shall host this meeting bringing together experts within the field of trade negotiations and dispute settlement on the 13th of April, in a discussion at the WTO in Geneva.

22nd Geneva Week

interns — Tue, 05 Apr 2011 15:32:56 +0000

The WTO’s dispute settlement system has been called the ‘jewel in the crown’ of the WTO as it provides automatic, reliable and effective means of dispute resolution. But members can only take advantage of the rule of law if they can effectively pursue their rights in a complex legal regime, which largely depends on having an adequate number of experienced legal, economic and diplomatic staff and a large network of external experts and private sector representatives. Earlier research undertaken by ICTSD, has shown that, to varying degrees, developing countries lack such legal capacity, impeding their ability to participate fully in WTO dispute settlement. In particular, inadequate coordination between the government and private sector, a weak stakeholder community, and difficulty in determining the existence of undue trade barriers due to insufficiently processed information and data, constrain developing countries in their efforts of using dispute settlement.
In fifteen years of dispute settlement under the WTO, 400 cases have been initiated. Only around thirty developing countries have initiated one or more of these cases. Also, no African country has acted as a complainant and only one least developed country has ever filed a claim at the WTO. Yet a number of developing countries have made considerable progress in building domestic legal capacity over the last decades. This is reflected in the fact that currently seven out of the eleven most frequent complainants are developing countries. There are good lessons to be learnt from these examples, but the need for strengthening legal capacity in developing countries remains.
Legal capacity is not only needed in dispute settlement proceedings but it is of equal importance for the successful participation in ongoing trade negotiations, for an efficient implementation of WTO obligations and for the peaceful settlement of trade disputes. Generally speaking there is no single area or activity at the WTO for which legal capacity would not be required.
While international organizations such as the Advisory Centre on WTO Law (ACWL) provide legal advice and training courses for lawyers, there is a profound need for building greater legal capacity, particularly a strong and well informed stakeholder community, and extensive networks facilitating exchange among various domestic, regional and international actors that are key actors in the litigation process. Especially the role of private sector representatives should not be underestimated – empirical research has shown that most DSU cases are initiated, supported and partially covered by domestic companies that provide essential evidence and data gathered during their trading activities.
It is against this backdrop that ICTSD shall host this workshop that aims to bring together experts within the fields of trade negotiations and dispute settlement as part of the 22nd Open Geneva Week which will take place from the 2nd to the 6th of May, 2011 at the Centre William Rappard in Geneva, Switzerland.

WTO Dispute Settlement - Meeting Domestic Challenges

interns — Tue, 01 Mar 2011 16:39:27 +0000

In fifteen years of dispute settlement the WTO has seen over 400 cases, whereof forty percent have been initiated by developing countries. In fact, some developing countries have become confident users of the system and currently seven out of the eleven most frequent complainants are developing countries. The majority, however, continue to be hampered in making use of the system as they face structural and systemic challenges. In particular, the importance of ‘national legal capacity’, including the existence of structures that facilitate the coordination among public and private stakeholders is often underestimated. Against this backdrop there is a great need for generating analysis on the various country experiences to inform activities aimed at strengthening legal capacity in developing countries.

In response to this need, ICTSD has engaged in a bottom-up assessment of the strategies that individual developing countries have developed to enhance their ability to make use of WTO dispute settlement and to coordinate such activities among public and private stakeholders on a national level. The outcome is the form of nine country studies is now presented in the book Dispute Settlement at the WTO – The Developing Country Experience. Countries covered in the analysis include Brazil, Argentina, China, India, Thailand, Bangladesh, Egypt, South Africa and Kenya. The publication concludes with a comprehensive list of recommendations. For further information kindly consult our webpage at: http://ictsd.org/i/dsu/98179/.

Case studies

mwojtczuk — Tue, 14 Dec 2010 14:49:00 +0000

The following working drafts analyze the engagement of public and private actors in WTO dispute settlement and provide a comprehensive summary of recommendations that were produced by national experts during a series of regional dialogues organized by ICTSD’s International Trade Law Programme.

‘Brazil’s Response to the Judicialized WTO Regime: Strengthening the State through Diffusing Expertise’

‘Capacity Building For Dispute Settlement in the WTO: A Preliminary Note on the Case of Indonesia‘

‘Case Study on Thailand’s Experience in the WTO Dispute Settlement System’

‘Chile’s Participation in the Dispute Settlement System: Impact on Capacity Building’

‘Dispute Settlement in the WTO and the Least Developed Countries: the Case of India’s Anti-Dumping Duties on Lead Acid Battery Import from Bangladesh‘

‘Egypt’s Challenges and Future Options for Participating in the WTO Dispute Settlement System’

‘International Trade Dispute Resolution: Case Study on the Possibility of Kenya Utilizing the WTO Dispute Settlement System’

‘International Trade Dispute Resolution: Lessons From South Africa‘

‘The Political Economy of Dispute Settlement: A Case from Argentina‘

Environmental and Trade Law - Conflicts and Coherence

interns — Thu, 04 Nov 2010 15:25:46 +0000

With an ever increasing number of international agreements addressing a wide range of issues, clashes between such agreements and international courts have become more likely if not avoidable. Whether it concerns the relation of climate change mitigation and green energy subsidies, environmental labels and market access, or biodiversity conservation and the green economy – trade law and with it the WTO touches upon a myriad of areas regulated by international agreements other than the WTO.

ICTSD’s Programme on Dispute Settlement will be exploring this link during a meeting on “Environmental and Trade Law - Coherence and Conflicts” to take place on 12 November, 2010 at 12:30 at the WTO.

Professor Pieter Jan Kuijper from Amsterdam University will present a recent ICTSD study on “Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO”.

Benjamin Simmons from UNEP and Kirsten Hillman from the Canadian Mission to the WTO will respond to this presentation and the recommendations of the study with special reference to two relevant examples: Climate change litigation and experiences from the Tuna case.

AGENDA

12:30 LUNCH (provided)

13:00 WELCOMING AND INTRODUCTORY REMARKS BY ICTSD

13:15 Presentation of ICTSD Research

Pieter Jan Kuijper (Amsterdam University)
Conflicting rules and clashing courts

13:45 Discussants

Benjamin Simmons (United Nations Environment Programme)
The WTO and litigating climate change

Kirsten Hillman (Permanent Mission of Canada to the WTO)
FTA’s, the WTO and the environment: The latest Tuna case

OPEN DISCUSSION

For registration please contact ICTSD’s Dispute Settlement Programme at mwojtczuk@ictsd.ch

To access the study, please click here.

Policy Implications of Recent WTO Cases

Andrew Aziz — Tue, 24 Nov 2009 06:21:53 +0000

The International Centre for Trade and Sustainable Development (ICTSD), in collaboration with King and Spalding, is pleased to organize the first dialogue in its new series on the Policy Implications of Recent WTO Cases. This Informal Roundtable on WTO Jurisprudence and Sustainable Development will analyze and discuss three landmark cases (US-Cotton, Brazil-Tyres, and Colombia Ports of Entry) and their policy implications. It will take place on November 23rd 2009 in the World Meteorological Organisation (WMO) Room C2, from 9.15 hrs to 13.00 hrs, and will be followed by a buffet lunch.

Agenda

DSU Reform and Beyond - Enhancing Developing Countries’ Capacity to Participate in WTO DSU Proceedings

mwilke — Thu, 22 Oct 2009 06:43:07 +0000

The dialogue will address issues regarding the accessibility of the multilateral trading system for developing countries, specifically, enhancing the ability of these countries to effectively utilize the dispute settlement system in light of capacity constraints, the structure of the DSU itself and developments affecting the international trading system.

The ability of countries to advance or protect their trade interests, particularly those which significantly promote their sustainable development objectives, through a rule-based, legally binding and commercially meaningful dispute settlement system is critical to the stability and success of any international trading arrangement.

With more rigorous disciplines and a growing body of jurisprudence, the WTO dispute settlement system has however become significantly more legalistic and consequently more arduous to navigate. WTO Member countries which are keen to avail of the system to protect or advance their trade rights and objectives face the daunting challenge of grasping and keeping pace with its increased complexity. Though developing countries’ participation in trade disputes has increased considerably, their engagement remains limited.

While DSU reform remains an outstanding issue given the continuing absence of negotiating outcomes under the Doha Round, developments outside the WTO have brought even greater focus to the importance of effective and accessible dispute settlement mechanisms.

From the increasingly fragmented international trading system, to the economic crisis which spurred the recent surge in protectionist measures, on to the trade-related measures being debated as a means to achieve objectives in other international fora (such as on climate change), the DSU seems ‘fit to be tested’. Many of the issues raised in this context affect developing countries and development concerns disproportionately.

By providing space for various stakeholders to discuss different legal and extra-legal mechanisms and approaches deemed particularly relevant for the successful use of the dispute settlement system, ICTSD hopes to enable a range of different actors to integrate sound practices and solutions in advancing or protecting their trade interests through dispute settlement.

Draft Agenda

Global Networking to Increase Member-State Capacity

Andrew Aziz — Thu, 24 Sep 2009 13:39:10 +0000

The International Centre for Trade and Sustainable Development (ICTSD) and the Centre for Democratic Network Governance of Roskilde University are pleased to organize a dialogue on WTO Dispute Settlement, entitled “Global Networking to Increase Member-State Capacity”. The dialogue will take place on September 29th 2009, from 9:00 - 11:00 at the World Trade Organisation (WTO), Room D.

Background:

Whilst the DSU is intergovernmental in nature, WTO Dispute Settlement would not be possible without the involvement of a wider network of stakeholders. Private firms, legal counsel, and non-governmental organizations all provide invaluable assistance to Member-states hoping to overcome disagreement. This panel will address the role of non-state actors in WTO disputes and how they might be further used to increase the capacity of Member-states to engage in the process.

Speakers:

· Professor Gregory Shaffer (University of Minnesota Law School)
· Mr Brendan McGivern (Executive Partner of the Geneva office of Whyte & Case LLP)
· H.E. Mr Virachai Plasai (Thai Ambassador to the Hague, formerly director-general of the Department of International Economic Affairs of the Ministry of Foreign Affairs of Thailand)
· Mr Johannes Bernabe (Senior Associate, International Centre for Trade and Sustainable Development

Chair:

Dr Michael Strange (Centre for Democratic Network Governance, Roskilde University)

Trading Profiles and Developing Country Participation in the WTO Dispute Settlement System

Andrew Aziz — Thu, 18 Dec 2008 11:22:46 +0000

Why a specific group of countries dominates WTO disputes has been one recurrent question by many observers. Reasons for such an imbalance can be found in the difference in trade composition, volume of trade, income levels, aid levels, and legal capacity between active and inactive members. In order to favor the participation of weaker partners in the DSU system, the paper introduces two interesting potential scenarios, using an economic model, in which LDCs would take collective action to overcome this problem.

Does Legal Capacity Matter? Explaining Dispute Initiation and Anti-dumping Actions in the WTO

Andrew Aziz — Thu, 18 Dec 2008 11:10:04 +0000

At present, there is virtually no systematic assessment of the issues of legal capacity and there is limited empirical evidence about how it affects patterns of trade disputes and import protection. This paper explores how in the case of antidumping, the level of legal capacity affects patters of dispute initiation and underlying anti-dumping protection among WTO members.