Saturday, April 28, 2012

Being a panelist at the WTO

I read this interesting piece by Dr.Christian Haberli on being a panelist at the WTO. He said:
" The 10 stages in the life of a WTO panelist.

The context of the panels is a bit like an insider club; I had already been a negotiator for over 10 years when I was asked to sit in the famous Bananas case (In the same way I was later asked to chair the Committee on Agriculture). Then I did my first Sanitary and Phytosanitary (SPS) case, Japan-Apples. Next came EC-Biotech, the genetically modified organisms (GMO) case. This brought about a 1,000-page report. The ruling was un-appealed, and perhaps for this reason WTO Director-General Lamy appointed me for two more cases: a novel and substantive General Agreement on Trade and Services (GATS) case, called China-Trading Rights, and U.S.-Country of Origin Labeling (COOL), which was the first decision on whether a measure designed to ensure country of origin information acts as a trade barrier, incompatible with the TBT agreement.

Stage 1: Nomination

Panelists can be nominated by the parties, but usually the latter cannot agree on this. The Director-General can then nominate them pursuant to the Dispute Settlement Understanding upon recommendation by the Secretariat, which reveals who has the real power in the WTO.

It was the Secretariat who called me in for the Bananas case, and I was nominated because all the other candidates not from a party country had been rejected by the parties. From this, it can probably be guessed that New Zealand and Switzerland have the most panelists, as they are small, non-litigating countries with no cases.

Stage 2: The psychological stage

Once you have been nominated to a panel, there is an organizational meeting with the Secretariat and the Parties. It seems like a simple formality, but it is a de facto pre-negotiation. The impression a panelist makes at the meeting can be decisive for the case, for the authority of him as a judge, and for him being accepted as a team player.

Stage 3: Duration of the dispute settlement

The Understanding states that after the establishment of the panel, dispute settlements last six months maximum, or three months for perishable goods (without appeals). Most cases take longer than this but are still fast. The litigating parties tend to take their time, as do even the complainants in some cases. The WTO Legal Division is wary of the Appellate Body, which is why panels now produce such voluminous reports. Complications also cause delays, and nasty panel questions can take time to answer.

In spite of these considerations, the WTO generally delivers justice comparatively faster and much cheaper than other fora. Small cases now cost less than $1 million, which is not much considering the alternatives. Least developed countries can get free legal advice for their litigation in Geneva.

Stage 4: Who wants to win?

People often say that in the WTO you can either negotiate or litigate, that there is no having it both ways. I say that just about everything is by negotiation. Recourse to dispute settlement and appeals are political decisions based on an assessment of the overall national interests.

Three groups are always interested in winning: the economists, who want a global welfare increase, the importers, and the consumers; but none of these are consulted. Litigation and winning are neither academic considerations nor about being right or wrong. Dispute settlement is only about market access. In most cases, the respondent trade ministry actually wants to lose. It believes that WTO discipline is good policy and that it is good for economic growth in its country; the trade minister thus can use these cases to help push through pro-growth reform policies.

Stage 5: Two substantive meetings with the parties

Despite the fact that these meetings are confidential, there is increasing posturing, especially in open hearings. Politics are important, but often, they miss the legal point. I am sympathetic to a minister's impassioned speech about a change in policy affecting his country's economy, but I cannot take it into consideration as far as the ruling goes, since what is being decided is simply whether or not a member party is violating its obligations to the WTO.

In this kind of meeting, some questions are helpful and serve to "complete the analysis" for the Appellate Body, which cannot make a substantive review of the case. However, there are also many useless and time-consuming statements, and there might be a move to have only one such hearing in the future.

Stage 6: The many stakeholders in the bigger cases

Some other stakeholders are third parties, amici curiae, sometimes lawyers or universities, non-government organizations (NGOs), private lawyers, and concerned citizens. My favorite third parties are Japan and Australia, as they make very good systemic contributions. Sometimes a third party actually disserves the party that it was trying to help. The public boasting of the ministers can sometimes do the same thing. These missteps underline how important it is for a party to do its homework, and that it should not take these meetings and expert hearings lightly.

Stage 7: Drafting of the panel report with the rulings

This is the most important stage. After the hearings, the main job starts. The dilemma is that the panel is not supposed to make or set new rules. At the same time, it is the job of the panel to assist the dispute settlement body in finding a "positive solution." This is hard work implying difficult choices even when there is no overt negotiating happening.
In my experience, the three decisive factors in the whole of the panel's work process are professionalism, working climate, and interaction. The Secretariat does not pre-determine the rulings on the basis of WTO jurisprudence, and there is no precedent that legally binds the subsequent courts. The panelists can play a decisive role in finding which ruling the respondent will have fewer problems with for implementation. 

Stage 8: The Interim Report

The Interim Report goes to the parties, and they can make comments or save their gunpowder for the appeal, which often they do.

Stage 9: The Panel Report

There are generally not many changes between the interim report and the final report.

Stage 10: How to remain a panelist

It is highly important to show sensitivity to each case, and to formulate rulings that the losing party might be able to comply with. This is the most important difference between private and public court cases, and between panelists and the Secretariat."
This gives interesting insights into the DSM of the WTO from an experienced panelist! I found the observation in stage 4 revealing. Many a times , due to domestic pressures back home, policy makers are not able to take decisions that are seen as being against domestic interests. A WTO ruling, and its enforceability, helps them in this regard to shift the burden of compliance to a rule based system based on international obligations and international law jurisprudence.

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