Transparency and the rule of law

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9Module 8 - Transparency and the rule of law

Slide n° 1

Transparency and the rule of lawTransparency and the rule of law

• Trade Policy Review

• Dispute Settlement Mechanism

• Accession

• Regional Trade Agreements

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Slide n° 2

TPR: Introduction and objectivesTPR: Introduction and objectives

• Introduction

• Objective

• Trade policy reviews

• Scope of reviews

• TPRM and dispute settlement

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Slide n° 3

TPR: The TPRM in practiceTPR: The TPRM in practice

• The special features of the TPRM

• Benefits for the multilateral trading system

• Benefits for the Member under review

• Other benefits

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Slide n° 4

TPR: Frequency of reviewsTPR: Frequency of reviews

• The review cycles

• Members' review cycles

• Guidelines for succeeding reviews

• Variations in review cycles

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Slide n° 5

TPR: Basis for reviewTPR: Basis for review

• The Secretariat report

• Structure of the Secretariat reports

• Government's participation in the Secretariat report

• The Government's policy statement

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Slide n° 6

TPR: The TPRM review processTPR: The TPRM review process

• Introduction

• Collection of information

• Visit to the capital

• Preparation of documents

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Slide n° 7

TPR: Review meetings - preliminariesTPR: Review meetings - preliminaries

• The Trade Policy Review Body

• Discussants and observers

• Documentation and question in advance

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Slide n° 8

TPR: The TPRB meetingTPR: The TPRB meeting

• The Member's initial statement

• Statements by the discussants

• Other statements and outline of main themes

• Replies by the Member

• Discussions and conclusion

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Slide n° 9

TPR: Follow-up and publicationsTPR: Follow-up and publications

• Press conference

• Minutes

• Supplementary information

• Publications

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Slide n° 10

TPR: The TPRM and developing countriesTPR: The TPRM and developing countries

• The importance of the TPRM for developing countries

• Coverage of developing countries

• Helping participation in the TPRM

• Special provisions in the TPRM for the developing countries

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Slide n° 11

TPR: The review programmeTPR: The review programme

• The 1998 review programme

• Reviews conducted

between 1989 and 1997

• Reviews by region

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Slide n° 12

DS: PurposeDS: Purpose

• A central role in the security and predictability of WTO multilateral trading system

• A system favouring mutually agreed solutions

• A rule-oriented system

• A system intended to secure withdrawal of inconsistent measures

• Efficiency and dependability of dispute resolution

• A key to the effective functioning of the WTO

• Detailed procedures

• Quasi-judicial nature of procedures

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Slide n° 13

DS: PrinciplesDS: Principles

• Multilateralism v. unilateralism

• Exclusive application of WTO rules on dispute

settlement to disputes related to the WTO

• Uniform application to all WTO Agreements

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Slide n° 14

DS: FunctionsDS: Functions

• Preserving the rights and obligations of WTO Members

• The central concept of nullification or impairment

• In the Agreements on trade in goods

• In the GATS

• In the TRIPS Agreement

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Slide n° 15

DS: A two-tier mechanismDS: A two-tier mechanism

• Resolution by the parties themselves or resolution by a third party

• Resolution through mutually agreed solution

• Consultations

• Objectives of consultations

• Functions of consultations

• Good offices, conciliation and mediation

• Adjudication

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Slide n° 16

DS: CoverageDS: Coverage

• The principle: the DSU is applicable to all WTO agreements

• The exception: particular situation or the Plurilateral Trade

Agreements

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Slide n° 17

DS: IntroductionDS: Introduction

• Entities involved in the dispute settlement process

• The Dispute Settlement Body

• The adjudicating entities: panels and the Appellate Body

• The parties: the WTO Members

• Administrative and legal support: the WTO Secretariat

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Slide n° 18

DS: The Dispute Settlement BodyDS: The Dispute Settlement Body

• The entity overseeing the functioning of the dispute settlement

mechanism

• Decision-making process in the DSB: quasi-automaticity

• Participation in decision-making by the DSB

• Special role of the Chairman of the DSB

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Slide n° 19

DS: PanelsDS: Panels

• Task of panels: review the facts and arguments submitted by the

parties to a particular dispute

• Composition of panels: who can be called to serve on a panel?

• Panelist selection process

• Appointment of panelists

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Slide n° 20

DS: Appellate BodyDS: Appellate Body

• Task of the Appellate Body: review on appeal the issues of law

addressed by panels

• Composition of the Appellate Body

• Operation of the Appellate Body

• The Appellate Body Secretariat

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Slide n° 21

DS: ArbitrationDS: Arbitration

• Arbitration as an alternative to dispute resolution through panel and

Appellate Body procedure

• Arbitration in the implementation of reports

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Slide n° 22

DS: Interested partiesDS: Interested parties

• Who can participate?

• Complaint by more that one Member

• Who can take part in consultations?

• Third parties to the proceedings before the panel and the

Appellate Body

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Slide n° 23

DS: ExpertsDS: Experts

• Panels' general right to seek information

• Consultation of experts

• Expert review groups

• Circumstances and nature of consultations or expert review groups

• Composition of expert review groups

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Slide n° 24

DS: The SecretariatDS: The Secretariat

• Role of the Director-General

• Good offices, conciliation or mediation

• Good offices, conciliation or mediation in situations involving a least-developed country Member

• Appointment of panel members

• Appointment of arbitrators

• Responsibilities of the Secretariat Staff

• Administrative support to the DSB

• Assistance to developing country Members

• Panel secretariat

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Slide n° 25

DS: Rules of conductDS: Rules of conduct

• Purpose of rules of conduct in dispute resolution

• "Players" concerned

• Obligations under the WTO Rules of Conduct

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Slide n° 26

DS: Consultation phaseDS: Consultation phase

• A recognized means of dispute resolution

• Obligations of the Members in relation to the conduct of consultations

• Specific conditions in case of urgency

• Conditions applicable to requests by third parties to join consultations

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Slide n° 27

DS: PanelsDS: Panels

• Request for the establishment of a panel

• Establishment of a panel

• Constitution of a panel

• Terms of reference

• General requirements regarding the composition

• Absence of agreement of the parties regarding the composition

• Constitution of a panel in case of multiple complaints

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Slide n° 28

DS: Panel processDS: Panel process

• Organization of the panel procedure

• Structure of the panel review

• First exchange of submissions by the parties

• Subsequent meetings of the panel and submissions by the parties

• Issuance of the descriptive part of the panel report and interim review

phase

• Issuance of the interim report of the panel

• Issuance of the final report of the panel

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Slide n° 29

DS: Panels - Time periodsDS: Panels - Time periods

• Periods within which panels must complete their work

• Timetable for panel work

• Specific timetables under the SCM Agreement

• Disputes regarding prohibited subsidies

• Disputes regarding actionable subsidies

• Timetables in case of multiple complainants

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Slide n° 30

DS: Appeals ProcessDS: Appeals Process

• Who can appeal?

• What can be subject to appeals?

• Duration of appeals process

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Slide n° 31

DS: Deliberation and decision-makingDS: Deliberation and decision-making

• In panels

• In the Appellate Body

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Slide n° 32

DS: Content of the reportsDS: Content of the reports

• Panel report

• Appellate Body report

• Conclusions and Remedies

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Slide n° 33

DS: AdoptionDS: Adoption

• Adoption of panel reports

• Adoption of Appellate Body Reports

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Slide n° 34

DS: Voluntary implementationDS: Voluntary implementation

• Absence of a "Trade policeman"

• Surveillance and implementation of reports

• Implementation within a "reasonable period of time"

• Disagreement as to the actual implementation of the report

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Slide n° 35

DS: Non-complianceDS: Non-compliance

• Incentive for the "losing" Member to implement panel or appellate

body recommendations

• Compensation

• Suspension of concessions

• Conditions for suspension of concessions or other obligations (retaliation)

• Compensation and retaliation: Temporariness of measures

• Control of the level of suspension of concessions

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Slide n° 36

DS: SurveillanceDS: Surveillance

• Surveillance by the Members and the DSB

• Form of control

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Slide n° 37

DS: S&D - ProceduresDS: S&D - Procedures

• Recognition of the special condition of developing and least-

developed country Members

• Accelerated procedure at the request of a developing country

Member

• Special consideration of least-developed country Members

involved in a case

• Good offices, conciliation or mediation by the Chairman of the DSB

or the Director-General of the WTO

• Assistance from the Secretariat

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Slide n° 38

DS: S&D - ConsultationDS: S&D - Consultation

• Special attention to the particular problems and interests of LDCs

• Extension of the regular period of consultation

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Slide n° 39

DS: S&D - AdjudicationDS: S&D - Adjudication

• Consideration of special rights of developing country Members in the

selection of panelists

• Allocation of sufficient time to developing country Members to

prepare their argumentation

• Transparency

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Slide n° 40

DS: S&D - ImplementationDS: S&D - Implementation

• Requirement to assess actions to be taken

• Economic aspects to be taken into account in the assessment

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Slide n° 41

ACC: How to accedeACC: How to accede

• Article XII

• State or separate customs territory

• Terms to be agreed/negotiated

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Slide n° 42

ACC: The procedureACC: The procedure

• Commencement of the accessions process

• Working party and the fact-finding process

• Bilateral negotiations

• Report, Protocol of Accession and Entry into Force

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Slide n° 43

REG: RTAs and the WTO - GeneralREG: RTAs and the WTO - General

• Significance of RTAs in the WTO Context

• RTAs in the GATT

• RTAs in the WTO

• Rules

• The Committee on Regional Trade Agreements (CRTA)

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Slide n° 44

REG: Article XXIV of GATT 1994 (1)REG: Article XXIV of GATT 1994 (1)

• Coverage and basic thrust

• The rules

• Basic principle: paragraph 4

• Definition of customs unions and free-trade areas: paragraph 8

• Conditions: paragraph 5

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Slide n° 45


• Problems of interpretation

• Relationship between Article XXIV:4 and other provisions in Article XXIV

• "Other regulations of commerce"

• "Substantially all the trade"

• Relationship between Article XXIV:8 and Article XIX

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Slide n° 46


• The examination process

• Procedures

• Results of the examination

• Transparency requirements

• Biennial reports

• Tariff renegotiation under paragraph 6 of Article XXIV

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Slide n° 47

REG: Article V of the GATSREG: Article V of the GATS

• Conditions

• Some elements of flexibility

• Examination of Regional Economic Integration Agreements

• Article V bis: integration agreements covering labour markets

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Slide n° 48

REG: Enabling clauseREG: Enabling clause

• RTAs among developing countries

• Substantive requirements

• Other requirements and procedural aspects

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Slide n° 49

Module 8: FAQs (1)Module 8: FAQs (1)

• What is the WTO dispute settlement system?

• Who can initiate a WTO dispute settlement procedure?

• What kind of disputes can be brought to the WTO?

• How is a dispute resolved in the WTO?

• Who resolves disputes in the WTO?

• When are disputes considered to be resolved?

• Why are consultations the first step in WTO dispute settlement?

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Slide n° 50


• Who can take part in the consultations?

• Can consultations last "forever"?

• What is meant by "quasi-automaticity" of the dispute settlement

process?

• How does a WTO Member obtain the establishment of a panel?

• How is a panel composed?

• What happens if more than one WTO Member requests a panel in

the same matter?

• Who takes part in panel and Appellate Body proceedings?

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Slide n° 51


• Have outside experts or non-governmental entities a say in the panel

examination?

• Are there any time limits imposed on panels to issue their report?

• How does the panel proceed with its work?

• Who can appeal against a panel report?

• What is subject to appeal?

• How is the Appellate Body composed?

• What are the time limits for the appeal process?

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Slide n° 52


• What is contained in a panel or Appellate Body report?

• How are panel or Appellate Body reports adopted?

• How are panel or Appellate Body reports enforced?

• What if the "losing" party refuses to withdraw the inconsistent measure?

• What does "cross-retaliation" mean?

• Do developing countries get special treatment when they get involved in a dispute?

• What is the role of the WTO and Appellate Body secretariats in the settlement of disputes?

• What ensures the neutrality of the persons involved in the dispute settlement process?

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Transparency and the rule of law