After Australia and New Zealand, UK proposes to introduce tobacco plain packaging

After Australia and New Zealand, reports that tobacco plain packaging would be implemented in U.K is doing the rounds bringing stocks of major tobacco companies down. The Guardian reported the move recently here. The plain packaging may come into effect later this year in the U.K.

"Ministers are to introduce plain packaging for cigarettes along the Australian model with legislation this year, after becoming convinced that the branding is a key factor in why young people start to smoke. 

The legislation, to be announced in the Queen's speech in May, is also expected to ban smoking in cars carrying anyone aged under 16 years. Ministers acknowledge that the ban is likely to be difficult for the police to enforce, but they believe peer group pressure will have an impact similar to the ban on drivers using mobile phones."

Will the plain packaging moves spread to other countries? How will major tobacco companies react? How will countries that rely on tobacco manufacturing for employment generation and national growth react? How will the panels established at the WTO decide on concerns of public health objectives in the context of intellectual property rights and trade?

 

EU Seal product case and a day to day account!

The EU Seal Product case is being fought at the WTO panel and the proceedings are on. I have blogged about the issue earlier here, here and here.

For a running commentary on the proceedings it is interesting to see Rob Howse's account of the proceedings detailed out on the IELP blog here, here, here and here! It gives a sense of the legal analysis being undertaken, the nuances as well as the excitement of courtroom drama that is associated with legal disputes.It is the window to the otherwise closed world of dispute settlement.

Would be interesting to see blogs dedicated to unravelling the debates of dispute settlement proceedings  on a day to day account! Too much to ask?

No to "Amicus Curiae" briefs - Analysis of the Canadian FiT case: Part I

The Canadian FiT case (WT/DS412/426) in the WTO does bring to the fore many issues concerning local content in Feed-in tariff programmes. The WTO Panel essentially found that the domestic content requirement in Ontario's Feed-in tariff program was inconsistent with Canada's obligations under GATT and TRIMS and violated the national treatment principle by providing a less favorable treatment to imported goods as compared to local goods.It however declined to hold the measure as a subsidy since it felt that no "benefit" was conferred. I have blogged on the issue here, here and here.

The WTO panel decision was the first instance where the WTO dispute settlement mechanism decided on renewable energy programs compatibility with WTO law. While the case is a fertile ground for discussion on issues of violation of national treatment, TRIMs as well as the ASCM, it has major implications for FiT programs that are implemented across the world. The applicability of the defence of Article III:8(a) GATT to a GATT and TRIMs violation has been aluded to in detail. The concepts of "financial contribution" and "benefit" in the ASCM have been authoritatively explained.  I recently completed a paper on Renewable Energy Support programs which is available here and may have to revisit the conclusions in the light of the findings here.

While the decision is almost certainly to be appealed against and will be legally dissected by experts in the coming days, I will, through a number of posts in this blog in the coming days, touch upon important issues that the panel report addressed.

Here is part I of the series. For starters, I found this interesting about the Panel report:

1. The panel was chaired by Thomas Cottier who is considered an authority on WTO law and the intersection of trade and environment. he has also extensively written on energy and WTO law.

2. Regarding amicus curiae briefs, the panel seemed to be lukewarm to several "unsolicited" briefs. It held:

"D. AMICUS CURIAE BRIEFS 

1.12 On 14 May 2012, the Panel received an unsolicited amicus curiae brief relating to both disputes from the following organizations: Blue Green Canada; the Canadian Auto Workers (CAW); the Communications, Energy and Paperworkers Union of Canada (CEP); the Canadian Federation of Students (CFS); the Council of Canadians; the Canadian Union of Public Employees (CUPE); and the Ontario Public Service Employees Union (OPSEU). On 15 May 2012, the Panel in WT/DS412 received a second unsolicited amicus curiae brief from the following organizations: the International Institute for Sustainable Development (IISD); the Canadian Environmental Law Association (CELA); and Ecojustice Canada. 

1.13 During the second substantive meeting of the Panel with the parties, Japan, the European Union and Canada recalled that it is within the discretion of the Panel to accept or reject the unsolicited amicus curiae briefs. Subsequently, and consistent with the approach taken by previous panels, the Panel informed the parties that it would take the briefs into account only to the extent the parties decided to incorporate them into their own submissions. Canada informed the Panel that it had no comments to add on this issue beyond what Canada had already stated at the second substantive meeting with the Panel, namely that it is within the discretion of the Panel to accept or reject the unsolicited amicus curiae briefs. Japan and the European Union (the "complainants") informed the Panel that they did not consider it necessary to incorporate any of the observations made in the amicus curiae briefs. In the light of the parties' views, the Panel did not find it necessary to take the briefs into account in its analysis of the claims and arguments made in these disputes."

The Panel suggested that amicus curiae briefs would be taken into account "only to the extent the parties decided to incorporate them into their own submissions."What implications does this have on the jurisprudence of the reliance of amicus curiae briefs in WTO dispute settlement proceedings. Does it imply that "independent", "non-party" (non-State/government) briefs are not acceptable to the Panel? Is this a positive sign? While reliance on amicus curiae briefs for arriving at a decision may not be necessary, is the decision not to consider them at all a step in the right direction?is here a resistance of member countries to accept amicus curiae briefs? Are amicus curiae briefs non-representational and aimed at espousing vested interests all the time? Ofcourse, amicus curiae briefs may not represent the will of the member countries but can they be important sources of expert opinion, third party interests, jurisprudence and understanding? While the terms of admissibility may be debated, can the "incorporation" by the parties of the amicus curiae vireo be the only ground for acceptance. If that were the case, there would be no need for amicus curiae briefs itself. Some scholarly works on amicus curiae briefs and WTO are found here, here, here  and here. Am I missing something here?

More on the issues of the compatibility of the Ontario FiT programme with TRIMs, GATT and the interpretation of a subsidy under the ASCM (financial contribution and benefit)in the coming days here.

Seal trade ban - Some issues

I have earlier blogged about the Seal dispute here. Canada and Norway requested for consultations in 2009 regarding EU regulations that ban the importation and marketing of seal products into the EU. The dispute panel in these cases has still not been set up. News of Canada agreeing to the appointment of panelists in these cases is trickling in now. 

This piece highlights the different stakeholders and interests that surround this dispute. The importation and marketing of seal products are banned. Communities and industries related to seal hunting are naturally impacted. Their economies and livelihood are at stake. 

My thoughts on the quagmire of interests, issues and impact this dispute has:

1. Trading communities involved in seal trade are impacted by this ban.

2. The "animal welfare" concerns of people in the EU translated into EU legislation by expression of democratic will is an exercise of domestic, regulatory policy space. Moral choice has been exercised by the EU.

3. The EU measure undoubtedly impacts seal trade. Whether it is discriminatory or unreasonably restrictive of international trade is another issue. Does the exercise of EU's domestic regulatory space have a discriminatory impact on Canada?

4. Does the opinion of the Canadian people regarding seal trade have any bearing not he dispute? Should Canada's position in the WTO reflect the interest of those adversely effected by seal trade or public opinion in Canada which may be against seal trade? What is Canada's "national interest" in this case?

5. It is reported that the value of seal trade is minimal compared to the benefits that Canada will gain by a trade agreements with the EU. Should there be a trade off and Canada drop this dispute to gain in trade with the EU?

6. It is often said that there are winners and losers in the globalization game. In this case, "trade barriers" are impacting livelihoods of certain people in Canada. Is the answer fixing alternative employment avenues and compensatory packages for them rather than challenging EU's domestic policy space? Can this analogy of providing compensation packages extended to other "losers" in the globalization arena. Industries and sectors often lose out to international competition. Should national strategies increasingly look at cushioning such losses? Is it feasible at all or should market forces be allowed to take its course.

7. It is "animal welfare" today. Can it be extended to labour rights, democratic values, social norms and environmental standards tomorrow? Can domestic regulatory policy space be a weapon of protectionism?

And finally on the delay in the dispute being proceeding at the WTO. The request for consultation was made in 2009. It is 2012 and the panelist have still not been chosen. Does not augur well for the dispute settlement mechanism of the WTO as commented by Robert Howse here. The only consolation perhaps is that the complainant, Canada, is itself the cause for the delay in the establishment of the panel. Trying times for the dispute settlement system.

A Dispute Tribunal for the WTO - Feasible?

The Dispute Settlement Mechanism in the WTO is often referred to as the crown jewel due too its effective mechanisms of dispute resolution and compliance. A judicial rule based system in an institution which has a history of political negotiation is indeed viewed as one of the positives of the WTO. While the failure of the Doha round of negotiations is viewed as a serious blow to the "negotiating" and "rule making" power of the WTO, the DSM has stood strong in contrast over the past decade. Some argue that the failure of the negotiation causes a serious strain on the judicial branch since disputes that are essentially political and require new rules are tried to be settled within existing legal frameworks leading to tensions.

A brief paper titled "Establishment of a Dispute Tribunal in the WTO" by Debra P Steger highlights another challenge to the DSM - the inadequacy of the Dispute Panels to address the increasing complexity and quantity of disputes at the WTO. Advocating for setting up a Dispute Tribunal which would be a permanent body consisting of international trade law experts to replace the ad hoc Panel system, the author seeks an overhaul of the DSM for ensuring that the legitimacy and credibility of the system is maintained. Highlighting the inadequacy of the Panel system as it exists today, the author states that the increasing complexity of the cases involving interpretation of many agreements as well as the inability to complete the cases within the stipulated time frame has aggravated the need for reform within the system. Increased competence and expertise in international trade law matters is the need of the hour.

Favouring the permanent Tribunal system with a set of part-time members, many advantages are seen in terms of timeliness and efficiency of disposal of cases, experience and expertise, independence and impartiality, collegiality and consistency in decision making, greater geographic diversity in members as well as a strong two-tier system along with the Appellate Body.

"There are compelling reasons to create a dispute tribunal at this point in the history of the WTO. As the WTO adjusts to the rapidly changing global economy, disputes are becoming more complex and challenging, both on their facts and in the novelty of the legal issues presented. Moreover, higher quality decisions would be produced by a tribunal whose members are available at all times and on short notice to serve on cases. This would allow the two-tier system in the WTO to function as it was designed, and enable the Appellate Body to focus on its mandate which is to review issues of law and legal interpretation in panel reports.

Finally, a dispute tribunal would result in significant time savings and efficiencies as compared with the present ad hoc panel system. Time would be saved in panel composition, and other procedural and organizational efficiencies would ensue from having members available at all times and on short notice to serve on cases and from the experience, knowledge and collegiality that would develop over time in the dispute tribunal as an institution.

There is currently a gap between the goals of the DSU and actual experience with respect to the timeliness of the dispute resolution system. While the number of disputes has been declining in recent years, panels have not generally completed their cases within the DSU timeframes and the Appellate Body has also recently begun to request the DSB to extend its timeframes. These delays could ultimately be problematic for the reputation of the WTO both with Members and stakeholders. If these delays continue and become accepted practice, they could undermine respect for the DSU as well as the credibility and legitimacy of the WTO."

The legitimacy of the multilateral system is under serious stress due to the failure of the Doha round. The judicial wing of the WTO has continued to perform an important role to implement a rule based system of mutlilateral trade devoid of "power-based" influences. Will the WTO members be ready for this reform? Though the Panel members are mandated to act independently without any affiliation, doubts have often been raised about the effectiveness of this mandate.   Is the present Panel system more favourable to members? Would the creation of the Tribunal be viewed as "over-judicialisation" of the WTO? Will the Tribunal system be an answer to this? Will the Tribunal be able to overcome the lack of progress in rule making with its judicial interpretation? Is there a danger of "judicial activism" wherein unintended interpretations may go beyond the original mandate? This possibility is true of the present panel system too but the likelihood of it happening more in a body of trade law experts seems more likely. While strengthening the DSM is pivotal to the continued credibility of the WTO, is the creation of the Tribunal system the answer?