Addressing Issues of Legal Capacity and Compelling Compliance under the WTO Dispute Settlement Understanding

At the World Meteorological Organization (WMO) in Geneva, Switzerland

26th April 2009

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The objective of the roundtable is to initiate discussion regarding the accessibility of the multilateral trading system for developing nations, specifically, the ability of these emerging nations to effectively utilize the dispute settlement system in light of legal capacity and the structure of the DSU itself.

Two studies commissioned by ICTSD and completed with the assistance of the Geneva International Academic Network will be presented and discussed.

Andrea Bianchi and Lorenzo Gradoni will present the findings of their study ‘Developing Countries, Countermeasures and WTO law: Reinterpreting the DSU against the Background of International Law.’

Additionally, authors Marc L. Busch, Eric Reinhardt and Gregory Shaffer will contribute to the discussions by presenting their study titled ‘Does Legal Capacity Matter? Explaining Dispute Initiation and Anti-Dumping Actions in the WTO.’

BACKGROUND

It is estimated that use of the Dispute Settlement Mechanism by developing nations increased by 40% in the year 2008. In light of this general trend, observers have noted that as the multilateral trading system continues to be increasingly utilized, the extent to which emerging nations can engage as active participants will help determine the ongoing legitimacy of the WTO system and its applicability for all nations.

Undoubtedly, one of the most frequently identified complaints with the WTO Dispute Settlement Mechanism is difficulty in compelling Members to comply with adverse DSU rulings. This barrier is often felt most strongly by the developing world, which continues to cite the ineffectiveness of countermeasures in ensuring compliance as a major hurdle to effective recourse under the multilateral system. For a number of reasons ranging from trade value to dependence on foreign aid, developing nations are often unable or unwilling to meaningfully realize their rights under the WTO dispute settlement system, calling into question the overall usefulness of the system.

Even more basic, however, are the conditions leading to dispute initiation. Until now, there has been virtually no in depth analysis regarding the correlation between a nation’s legal capacity and their susceptibility to WTO violative practices. As direct evidence has emerged demonstrating that legal capacity plays a critical role in dispute initiation and anti-dumping protection, discussion of these issues is essential to providing benefit for all WTO Members.

These studies present innovative responses aimed to assist developing nations attempting to participate within the WTO framework through systematic analysis of the issues of compelling compliance and legal capacity - two issues with which developing countries are inescapably connected. It is our hope that presentation of these studies will initiate discussion and thought on these issues, both as a foundation for future reform and as a resource for those confronting present realities.

The interventions by key experts will be followed by a discussion with participants - see programme below.

Given that there is limited seating, we would highly appreciate if you could kindly confirm your intention to participate by email to Sheila Sabune (ssabune@ictsd.ch) or William Kraus (wkraus@ictsd.ch) or by fax (at 41 22 917 80 93).

We hope you will find the presentations lively and contribute with your experience and expertise during the open discussion that ensues.