17th December 2010

Remarks and Comments regarding the ICTSD publication ‘Dispute Settlement at the WTO – The developing Country Experience’

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Ambassador Roberto Azevêdo, Ambassador of the Permanent Representation of Brazil to the WTO

“The book’s analysis on the Brazilian experience is, from our perspective, a valuable contribution to the understanding of how, despite significant resource constraints, a developing country may make good and effective use of the WTO dispute settlement mechanism. By means of well-conducted interviews with key actors, both in the public and private sectors, the authors were able to capture and present, in an articulate and clear way, much of what contributed to turn Brazil into one of the most frequent - and successful - users of that mechanism.

A fortunate combination of unambiguous political support to multilateralism, dynamic economic operators, growing direct interests in international trade, and a resourceful institutional framework brought Brazil to the center of the various activities conducted under the umbrella of the WTO. This shift to a central role in the multilateral trading system had successful litigation as a key pillar.

Although the experience of a particular country may not be easily reproduced under the specific and distinct conditions of another country, the work at issue offers a roadmap that is worth exploring. The text is well structured, insightful, and easy to read. The Brazilian experience in the WTO dispute settlement mechanism could inspire approaches that achieve similar success in litigation as well as in negotiations. This new book by ICTSD is a commendable and timely initiative.”

Ambassador Mario Matus, Ambassador of the Permanent Representation of Chile to the WTO

“‘Dispute Settlement at the WTO - The Developing Country Experience’ provides a very useful analysis on the situation of developing countries with respect to the WTO dispute settlement mechanism. The nine country cases presented are a valuable source of lessons and approaches that were part of the challenges and efforts faced by those countries in order to make good use of the system. Even for the countries that are part of the study, the conclusions contained in the book should serve as a reference for their work in the future.

The book, correctly, highlights that the WTO dispute settlement system created opportunities and challenges for developing countries. In my view, it is relevant to remark the new scenario that it creates for them, in terms of reinforcing the rules based system that WTO enshrines. To dispose with a mechanism that grants legal tools to solve trade conflicts constitutes an important advancement for developing countries interests.

Each of the “lessons learned” from the collective experiences contained in the nine cases is pertinent in terms of enhancing the participation of developing countries in the system. I would like to focus on three of them: (i) the central role that the awareness-rising and capacity building within governments should play; (ii) the need to promote capacity in order to indentify unfair trade barriers to use the system in a more proactive way; and (iii) the participation as a third party in disputes that could be a very practical manner to acquire a better understanding of DSU procedures.

In sum, this is a highly relevant contribution for developing countries and the design of policies regarding how to deal with the opportunities and challenges posed by the WTO dispute settlement system.”

Ambassador Ronald Saborio, Ambassador of the Permanent Representation of Costa Rica to the WTO, Chair of the Special Session of the Dispute Settlement Body

“‘Dispute Settlement at the WTO - The Developing Country Experience’, combines analysis on the Dispute Settlement Understanding from the perspective of developing countries, with their actual experiences, challenges and achievements when using one of the most valuable tools that international law provides. Scholars and practitioners from nine developing countries, for the most part linked to the specific cases described, enlighten the readers on how to strengthen their own countries’ legal, human and institutional capacities towards coping with the challenges that the use of the WTO Dispute Settlement Mechanism can pose. It is not a user manual, but a set of very valuable experiences, reflections and aspirations of a diverse selection of users from developing countries with a wide variety of trade volumes, trade diversification levels and capacities.”

Diana Tussie, Director of the Department of Foreign Affairs, Latin American School of Social Sciences, Argentina

“We are witnessing an important moment for the evolution of the WTO. Whether the Doha Round concludes or is left in limbo, legalization is making big strides. The Dispute Settlement Understanding has introduced a new and fundamentally different system for the settlement of international trade disputes, and most countries have become painfully aware that it requires new and fundamentally different approaches at the domestic level: new strategies, institutions, and processes.

Argentina is a case in point. The country was an early respondent in WTO disputes and was caught largely unprepared. The chapter by Jose Perez Gabilondo, an experienced diplomat and head of the International Economic Dispute Settlement Division in the Ministry of Foreign Affairs, aptly describes the development of national capacity and gradual use of in-house lawyers. Rather modestly, Perez Gabilondo shows that Argentina’s development of in-house capacity is best explained not by internal foresight, but by Argentina’s need to react to external claims when it lacked an institutional framework to delineate clear responsibilities. It is a fascinating inside story that provides us with a nuanced understanding of the underlying reasons and factors that have led a particular developing WTO Member to act as it did. A great case study in a very welcome book.”

Ambassador Sun Zhenyu, Ambassador of the Permanent Representation of the People’s Republic of China to the WTO

“The view on the experience of China with respect to the WTO’s dispute settlement mechanism (DSM) is quite positive. First of all, the WTO’s DSM provides a platform where disputes and frictions arising from trade between China and other WTO Members can be resolved pursuant to WTO rules. Secondly, it provides an opportunity for domestic stake holders and interest groups of China to be confronted and involved in the process of WTO jurisprudence which is fundamental for understanding of the rule of law within the multilateral trading system and enhancing the capabilities of China to deploy its domestic policies in conformity with WTO consistent rules. This will also play a positive role in furthering the reform undertaken by China to build a socialist market economy based on rule of law. Thirdly, the process of WTO litigation provides opportunities for legal teams of China both from government and private sectors to enrich their experience of practicing and interpreting the relevant WTO rules.

For those reasons we give a high remark on the operation of the WTO’s DSM in general, though China may not fully agree with the conclusions and interpretations in the ruling and recommendations rendered by the panel and Appellate body of the WTO.

At the same time, we all understand that there is still room for improvement of the WTO DSM. That is why the negotiation on DSU is currently undergoing among the Members of WTO with a view to improving the rules governing DSB and making the applicable procedure more fair and efficient for the majority of WTO members.”