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WTO Litigation


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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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WTO Litigation

  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. WTO Litigation
  3. 3. WTO Litigation: Key principles  Important features of the WTO dispute settlement system:  WTO Panels have compulsory jurisdiction over all WTO Members.  WTO Panel and Appellate Body decisions, once adopted, are binding. 2
  4. 4. WTO Litigation: Key principles  Major innovation of the WTO: “automaticity”. – Panels are established automatically. – Panel reports are adopted automatically. – Retaliation is authorized automatically.  Significant change from GATT dispute settlement.  Strengthens rule of law in multilateral trading system. 3
  5. 5. WTO Litigation: Key principles  State-to-state dispute settlement system. – Private companies have no standing – but are usually active behind the scenes in any dispute.  Three independent experts serving on panel.  Standing Appellate Body to review errors of law.  System has high degree of confidence among WTO Members. 4
  6. 6. WTO Litigation: Procedural steps  WTO Consultations – Intended to facilitate diplomatic discussion and resolution of the dispute – has not performed this role in practice. – Consultations within 30 days. – 60 days from Consultations to Panel Request. – Urgent consultations within 10 days – rarely used. 5
  7. 7. WTO Litigation: Procedural steps  Request for Establishment of Panel – Requires two meetings of the WTO Dispute Settlement Body – supposed to facilitate settlement but rarely does.  Panel selection – Parties agree on three members. – Or WTO Director-General will appoint. 6
  8. 8. WTO Litigation: Procedural steps  WTO Panel proceedings – Three neutral experts – often trade diplomats from non- involved countries. – Other WTO Members can join as Third Parties to provide views – usually on systemic or interpretive issues. – Panel report – facts, law, rulings: can be quite lengthy. – Time period varies but usually about 18 months. 7
  9. 9. WTO Litigation: Procedural steps  WTO Appellate Body proceedings – Standing body of seven members to review errors of law. – Most important part of the dispute settlement process. – Supposed to be 90 days but this is now slipping. 8
  10. 10. WTO Litigation: Procedural steps  DSB adoption of reports  Implementation period  Compliance panel proceedings 9
  11. 11. WTO Litigation: Procedural steps  Retaliation – Option available to seek enforcement of WTO rulings. – Can get authorization to “suspend concessions” – such as by imposing retaliatory trade sanctions on imports. – Very difficult. Retaliation can often hurt the importing country – higher import tariffs mean higher prices for consumers and businesses. – Disparity in size of economies: Antigua authorized to retaliate against the U.S. 10
  12. 12. WTO Litigation: Agricultural disputes  Wide range of disputes covering agriculture, including: – Agricultural subsidies (Canada – Milk, US – Upland Cotton, EC - Sugar) – Quotas (EC – Bananas, EC – Poultry) – Distribution networks (Korea – Beef) – “Tariffication” (Chile – Price Band, Peru – Price Band) 11
  13. 13. WTO Litigation: Conclusions – Agriculture remained outside the multilateral trading system for most of the post-war era. – WTO Agreement on Agriculture a major achievement of the Uruguay Round – but far from perfect. – Agricultural trade has led to some of the most difficult WTO disputes. 12
  14. 14. Questions?
  15. 15. 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.