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Overview of soft mechanisms in the WTO


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Brendan McGivern
Partner, White & Case LLP, Geneva

Materials of the workshop on Resolving agricultural trade issues through the WTO organized by FAO in collaboration with Ukraine’s Ministry of Agrarian Policy and Food of Ukraine in Kyiv on June 7, 2017.

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Overview of soft mechanisms in the WTO

  1. 1. Resolving agricultural trade issues through the WTO Presentation to the FAO Workshop Kiev, Ukraine 7 June 2017 Brendan McGivern - Partner White & Case LLP, Geneva
  2. 2. Overview of soft mechanisms in the WTO
  3. 3. Soft mechanisms: Introduction  WTO dispute settlement has been extremely successful – Binding, effective, credible system  But dispute settlement is a last resort.  What mechanisms are available to WTO Members to resolve disputes without litigation? 2
  4. 4. Soft mechanisms: Introduction  Evolution of WTO dispute settlement:  GATT: emphasis on diplomatic resolution of disputes – Gradually became more adjudicative over time.  GATT Parties could block establishment of a panel, or adoption of a panel report.  WTO: such blocking is not possible but the system still encourages diplomatic resolution of disputes 3
  5. 5. Soft mechanisms: WTO Committees  WTO Members can raise complaints before Committees: this is a well-established procedure.  Full range of committees covering trade in goods and services, as well as intellectual property.  Can be effective in applying multilateral pressure on another WTO Member. 4
  6. 6. Soft mechanisms: Trade Policy Review Mechanism  TPR mechanism provides for periodic, multilateral review of the full range of trade policies by each WTO Member.  Frequency of review depends on share of world trade. – Ukraine reviewed in 2016 – on a 6 year cycle.  Not supposed to be used to enforce obligations or impose new commitments 5
  7. 7. Soft mechanisms: Conciliation and Mediation  Article 5 of the DSU provides for goods offices, conciliation and mediation – through the Director General.  Voluntary and non-binding process.  Rarely used – but can facilitate a deal without a ruling of WTO-inconsistency. 6
  8. 8. Soft mechanisms: Mutually Agreed Solutions  DSU: Mutually Agreed Solution is “clearly to be preferred.”  Can be reached at any time.  Must be WTO-consistent (e.g., MFN).  Issues arise regarding the enforceability of mutually agreed solutions. 7
  9. 9. Soft mechanisms: Negotiations  Bilateral negotiations remain an option at all times.  Before, during, or after a dispute.  Maximizes control over the resolution of the dispute. 8
  10. 10. Questions?
  11. 11. White & Case LLP Quai du Mont-Blanc 5 1201 Geneva Switzerland T +41 22 906 98 00 F +41 22 906 98 10 In this presentation, White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.