III WORKSHOP ON DEVELOPMENTS OF WTO DISPUTE SETTLEMENT PROCEDURES

Data: 
Mon, 03/07/2017 - 08:00 - Wed, 05/07/2017 - 17:00
Local: 
Auditório EESP
Sala: 
6001

III WORKSHOP ON DEVELOPMENTS OF WTO DISPUTE SETTLEMENT PROCEDURES

3-5 JULY 2017

The São Paulo School of Economics - FGV, the Center on Global Trade and Investment Studies (CGTI), the WTO Chair and the WTO Secretariat are organizing a Course on the WTO Dispute Settlement Understanding for professionals and academics interested in contemporary discussions on international trade.
 
The course has no admission fees and it will be offered for a limited number of participants. Participants that complete the course will receive the certificate.
 
Minimum academic requirements: Master Candidate.
 
WTO Speakers:
 
Maria Pereyra is a Counsellor with the Legal Affair Division of the World Trade Organization. 
 
Daniel Ari Baker is a Lawyer at the DSB of the World Trade Organization.
 
Required readings:
 
- The Understanding on DSM.
Available at: https://www.wto.org/english/docs_e/legal_e/legal_e.htm#dispute
 
- E-learning course (WTO).
Available at: https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/signin_e.htm
 
- CCGI II Module Online Course
Available at: http://ccgi.fgv.br/pt-br/com%C3%A9rcio-internacional-m%C3%B3dulo-ii
 
Please indicate your interest in participating in this course by confirming your presence and sending your CV/Lattes for the admission process to:
 
Fernanda Gianesella Bertolaccini – fernanda.gianesella@fgv.br
Center for Global Trade and Investment – ccgi@fgv.br

 

 

PROGRAMME

3 July 2017

Morning

 

1  Recent developments on WTO dispute settlement (DS)

1.1  Introduction to WTO dispute settlement system

1.  This introduction is intended to highlight the main features of the WTO dispute settlement system so that all participants are equipped with the necessary knowledge to understand and take part in the more advanced DS discussions below.

1.2  Overview of WTO dispute settlement (DS) in 2015 to date:

2.  2016 was the busiest year for the WTO DS system since its inception, with 41 active panel, Appellate Body and arbitration proceedings (26 in 2015). On the panel level alone, the WTO was dealing - on average - with 19 active cases each month.

3.  We will provide the participants with an overview of the panel and Appellate Body reports issued during the past couple of years as well as of ongoing cases, with a focus on procedural issues.

1.3  Ongoing efforts to improve WTO DS procedures:

4.  This section is dedicated to the ongoing efforts to improve the WTO DS system. We will commence by reporting on the current status of the negotiations under the Special Session of the Dispute Settlement Body (SSDSB) to improve and clarify the Dispute Settlement Understanding (DSU) and provide an overview of the main topics of discussion.

5.  We will also cover the so-called "DS Efficiency process" (formerly known as the "Jara Process"). In 2015, Director-General Roberto Azevêdo asked Deputy Director-General Karl Brauner to continue with the "Jara process" and to "engage with Delegations to gather views … on improving the functioning of the system further, bearing in mind the budgetary constraints and headcount limitation imposed by Members". Deputy Director-General Brauner is consulting interested stakeholders, including government officials from WTO members, panelists, trade law practitioners and Secretariat staff. These consultations include the current debate on how to avoid backlogs as well as, more generally, all the possible ways and best practices available to enhance the efficiency of the WTO dispute settlement system. This process continues to be separate from, and must not diminish in any way, the DSU review process currently under way. Participants will be briefed about the results of these ongoing consultations and how some of these results have been put into practice by panels in their proceedings.

 

Afternoon

2  Preliminary Rulings

6.  Preliminary ruling requests have become a common feature in WTO dispute settlement proceedings. Unlike other jurisdictions, the WTO DS does not provide rules on how to deal with parties' requests for an early ruling by the adjudicator on certain issues of procedural or jurisdictional nature. Over the years, parties have nevertheless requested panels and the Appellate Body to issue "preliminary rulings" on a number of issues. The most frequent subject is the consistency of a panel request with Article 6.2 of the DSU.

7.  Under this topic, we will cover the legal basis for preliminary rulings by panels and the Appellate Body, the types of issues raised on a preliminary basis (from terms of reference and jurisdictional issues, to working procedures, timetables, evidence, enhanced third party rights, confidentiality etc), the procedural approaches adopted by panels and the Appellate Body (timing of decision, separate hearings, third parties, possible circulation of early decisions etc) and the current discussions on how to better handle requests for preliminary rulings.

3  Other recent procedural developments

8.  Under this section we will examine recent development in DS procedures regarding issues such as: enhanced third party rights, experts' consultation process, open hearings, confidentiality, coordination of Article 21.5 panels and Article 22.6 arbitrations etc

9.  At the end of this session, the participants will receive a "reference case" to review so as to be prepared to commence the simulation exercises the following day.

 

4 July 2017

Morning

 

4  Terms of Reference

4.1  The Panel's mandate

10.  The matter subject to dispute (i.e. the challenged measures and the claims) is the core of WTO dispute settlement procedures as it circumscribes the panel's terms of reference; in other words, it establishes the boundaries of what the panel can rule on. Under the standard terms of reference envisaged by Article 7, panels are directed to examine, in light of the provisions of the covered agreements cited by the parties to the dispute, the "matter referred to the DSB" by the complainant, in its panel request. The panel's terms of reference are therefore defined with reference to the panel request. The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings and therefore, getting the panel request right is crucial to succeed in taking one's case forward.

4.1.1  Measures at issue

11.  Article 3.3 of the DSU refers to the impairment of benefits under the covered agreements "by measures taken by another Member" of the DSU, and the proper identification of the challenged measures is a key aspect of the procedures. However, the DSU does not define the notion of "measure". We will examine issues such as: What types of action by a WTO Member are covered by a commitment in a covered agreement? Can only acts by administrative authorities be challenged or also legislative acts? Can the complainant invoke the dispute settlement system only against legally binding acts of members or also against non-binding acts taken by the members' authorities? Can the challenge be directed only against governmental conduct or also against the behaviour of private individuals? Can it be directed only against positive action or also against omissions, i.e. the failure to act? Can unwritten measures be challenged? How one identifies the challenged measures so as to meet the standard in Article 6.2 of the DSU? We will examine all these questions with special emphasis in the latest jurisprudence.

4.1.2  Legal claims

12.  We will proceed to examine the second element of the matter subject to dispute, the claims. A panel request must include a brief summary of the legal basis of the complaint, and this must be sufficient to present the problem clearly. A panel request cannot simply refer to a covered agreement in general or resort to the convenient phrase "including but not necessarily limited to". Rather, identification of the specific treaty provisions claimed to have been violated by the respondent is a minimum prerequisite in each case. We will respond to questions such as: Which claims can be raised? How to identify the claims? How "to present the problem clearly"? Again, we will refer to recent jurisprudence in this respect.

13.  At the end of the morning, the participants will be divided into groups and provided with the instructions to draft a preliminary ruling request.

 

Afternoon

 

5  Simulation Exercise I (drafting a preliminary ruling request)

14.  The participants will work together to draft a preliminary ruling request on the basis of the material provided and under the guidance of the presenter. The drafts must be ready for their distribution to all groups by COB.

 

5 July 2017

Morning

 

6  Simulation Exercise II (round table discussion on preliminary ruling requests)

15.  The participants will be expected to have read the preliminary ruling requests prepared by the other groups and be ready to discuss them in a round table format. At the end of this exercise, the groups will be given different roles as parties, third parties and panel so as to plead their positions in a preliminary ruling hearing to be held in the afternoon.

7  Burden of proof, standard of proof and rules of evidence

16.  The DSU does not set out any rules regarding burden and standard of proof or evidence in panel proceedings. Panels and the Appellate Body have thus relied on the general principles of law and practice of international and domestic tribunals to develop the evidentiary rules explained in the next chapters. We will examine the existing practice in this respect.

8  Simulation exercise III (preliminary ruling hearing)

17.  Preparation time for the pleadings in the afternoon.

 

Afternoon

 

9  Simulation Exercise III (preliminary ruling hearing)

18.  The participants divided into parties, third parties and panel, will simulate a substantive meeting of the panel to hear the parties' position on a preliminary ruling request. In these proceedings, the Panel has granted the third parties' request to be present and present their views at the hearing. Once the hearing has concluded, the panel will meet at closed doors and reach a decision that will be communicated orally to the parties and third parties.

10  Last remarks and comments. End of the course

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