Sunday, March 17, 2013

Antigua, the U.S and a rule based system of dispute settlement

The proceedings of the WTO Dispute Settlement Body in a recent meeting throws light on the Online Gambling case (DS 285). While WTO watchers are keenly awaiting Antigua's proposed moves in relation to the cross-retaliation in this case, the use of cross-retaliatory measure in the field of IP has evoked strong reactions.

Some excerpts from the meeting indicate the strong, divergent viewpoints held as well as possible outcomes:

"Dominica, speaking on behalf of Antigua and Barbuda, said that Antigua and Barbuda was disappointed at the lack of compliance by the US and its failure to identify a single measure designed to implement the DSB’s recommendations and rulings.  Furthermore, Antigua and Barbuda was concerned that, at the January 2013 DSB meeting, the US had used terms such as “theft of intellectual property” and “government-authorised piracy” in relation to the lawful and expressly authorised use of trade remedies provided for in the WTO agreements. 

In Antigua and Barbuda’s view, the use of such intemperate and dismissive language by the US was a fundamental challenge to the WTO and a reputational assault both on the DSB that had given the approval for intellectual property (IP) suspensions and on Antigua and Barbuda that had sought its right to exercise it.  Antigua and Barbuda called on members to defend the WTO’s fundamental principles and to ensure that its rulings are applied equally by all countries despite their size. 
The United States noted that Antigua and Barbuda had assured the DSB that it would notify and provide specific details about how it would implement the suspension of concessions and that Antigua and Barbuda would not encourage or allow itself to become a haven for IP piracy. With regard to the status of the dispute, the US did not agree with Antigua and Barbuda’s view that the US had been unwilling to negotiate in good faith.  The US had been following the established, multilateral WTO process for responding to the DSB’s findings and had, in 2007, begun the process of modifying its Schedule of Specific Commitments under the General Agreement on Trade in Services (GATS).  The US had offered substantial compensatory adjustments in other service areas and every member had agreed to the compensation package except Antigua and Barbuda.  The US had also sought to offer Antigua and Barbuda elements other than new services concessions.  The US remained open and ready to engage with Antigua and Barbuda to find a solution."
What will the result be n this case:

1. A negotiated, amicable settement or a compensatory package?

2. Protracted dispute settlement proceedings on what constitutes compliance and claims of compliance and non-compliance?

3. A strong cross-retaliatory move by Antigua suspending rights of US IP holders?

4. Proceedings disputing the validity of the measures undertaken to cross-retaliate?

5. No action by Antigua and letting the dispute seeing no end?

Will it also be a case where the "rule-based" nature of the dispute settlement will be established? Or will it go the way that political economy of relations often force it to? The dispute in many ways is the test of the multilateral institutions rule based dispute settlement system - in terms of its efficacy, remedies and compliance.

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