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Follow-up Meeting on improving Developing Country Access to the Dispute Settlement Mechanism (DSM) of the WTO

(held in Geneva on 18 May 2000)

Introduction

The experience of developing countries with the DSM

Points for consideration

 

I. Introduction

1. The feedback from the Forum on Improving Developing Country Access to the DSM held on 25 February 2000 was that it would be helpful to have a follow-up session to discuss, in particular, the personal experience of developing countries using the DSM and technical assistance issues.

2. For the list of participants and speakers, who formed an expert panel, see the Annex.

3. These notes should be read in conjunction with the comprehensive report on the Forum, which dealt with the issues in more detail.

II. The experience of developing countries with the DSM

4. The main points made were:

i) Until relatively recently, developing countries’ officials were mostly onlookers on dispute settlement and private lawyers were the main actors.

ii) Despite costs of training and maintaining specialised personnel it is important to develop in-house expertise in the DSM in order to protect rights and meet obligations. This was particularly the case as the DSM is being used to set jurisprudence, which made it important for non-parties to disputes to follow the findings closely.

iii) The high cost of conducting the defence of a case was such that for less-advantaged countries (LACs) there was a premium on settling through consultations. However, this was sometimes difficult because complainants required the full hearing of the DSM for domestic reasons.

iv) Despite ii), as LACs develop expertise, ‘aggression’ will pay off, as a readiness to defend a position or counter-complain might deter a marginal action.

v) Private sector lawyers were useful, ideally for specialized research with the pleading being conducted by in home staff.

vi) Private sector law firms often had pro bono arrangements for the least-developed countries for initial consultations, which should be used. It was sensible to consult more than one firm at the outset and to get competitive quotes. Domestic industry sometimes assisted with the fees of private sector lawyers.

vii) Training, both formal in the detail of the agreements and the DSM procedures and by secondments was important. It was inevitable that there would be wastage – often to better paid jobs in the private sector – therefore training had to be a continuous process.

III. Points for consideration

4. Points for consideration were:

i) the WTO Secretariat might produce an ‘outline or model’ DSM submission to assist LACs considering participation for the first time, or as a training aid;

ii) rather than use private sector lawyers throughout a case, they might be commissioned to produce a ‘road map’, indicating the strengths and weaknesses and best approaches;

iii) as expertise is developed, in terms of protecting rights it would be helpful to study closely the Trade Policy Review Mechanism reports and similar documents produced by such as Japan ant the United States.

iv) the use of the authoritative interpretation provisions (outside the DSM process) should be encouraged.

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