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SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE

SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE. STRUCTURES AND PROCEDURES EMPLOYED. OVERVIEW. Why is South Africa important? What experience does SA have? What are the structures in SA? What should the structure look like? What expertise is available in SA?

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SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE

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  1. SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE STRUCTURES AND PROCEDURES EMPLOYED Gustav Brink

  2. OVERVIEW • Why is South Africa important? • What experience does SA have? • What are the structures in SA? • What should the structure look like? • What expertise is available in SA? • How does government and private sector link? Gustav Brink

  3. WHY IS SA IMPORTANT? • SA history • SA has biggest economy in Africa, 3 times that of Nigeria • SA accounts for 90%+ of SACU GDP • One of few African countries with exposure to DS • Additional experience in trade negotiations • Significant private sector expertise Gustav Brink

  4. SA’S EXPERIENCE • Two formal disputes • Penicillin from India • Blanketing from Turkey • Two informal disputes • Carbonless copy paper from EU • MIDP: challenge by Australia • Dispute requested by SA industry: wire, ropes and cables • EU request to join as third party, yet no third party participation • Textiles/clothing from China Gustav Brink

  5. SA’S EXPERIENCE (2) • Penicillin: Challenged factual determination, no agreement, challenged in court, ruled in SA’s favour • Blanketing: Challenged procedure, agreed procedure incorrect, measure withdrawn • Carbonless copy paper: challenged factual determination, no agreement, but not proceeded with • MIDP: challenged SA subsidy as prohibited, agreed, specific subsidy (leather seats) withdrawn Gustav Brink

  6. SA STRUCTURES • All trade issues fall under DTI • Geneva office – all WTO matters • International trade fall under ITEDD – WTO desk • ITAC – responsible for trade administration, including remedies • All disputes to date relate to remedies • ITAC – trade remedies section • Trade remedies – policy and investigations units • Trade remedies policy unit now defunct, but new legal services and ITAC policy units Gustav Brink

  7. SA STRUCTURES (2) • Request for consultations – Geneva office to inform ITEDD WTO desk • WTO desk to determine responsible party, e.g. ITAC, Agriculture, Customs • Specific department to determine facts, liaise with ITEDD • Consultations – ITEDD, with back-up from experts • Any Panel proceedings: ITEDD, experts and counsel Gustav Brink

  8. Minister of Trade and Industry Customs and Excise Department of Trade and Industry Core department, e.g. Agriculture ITEDD ITAC Geneva office TISA Other DTI units WTO desk Other desks Trade remedies Other units Trade remedies policy Trade remedy investigations INSTITUTIONS • . Gustav Brink

  9. Chief Commissioner: ITAC Trade remedies policy Trade remedies investigations Foreign government ACTUAL PROCESS FOLLOWED • . Gustav Brink

  10. AVAILABLE EXPERTISE: PUBLIC SECTOR • Only one person in public service with Panel experience • ITEDD • experience in trade negotiations, e.g. TDCA with EU, SACU-EFTA FTA, negotiations with US (failed/aborted), India, Brazil; MoU with China • Virtually no experience in or knowledge of dispute settlement (MIDP case only) • ITAC • Very little experience or knowledge – Director Trade Remedies Policy, one of two Trade Remedies Investigations directors, previous ITAC chairperson with Panel experience and ITAC Chief Commissioner and top two investigating officers all left in past 26 months Gustav Brink

  11. AVAILABLE EXPERTISE: PRIVATE SECTOR • Latest Appellate Body member from SA • At least three more panellists in SA (plus Johann Human) • Several experts that publish internationally • text books, chapters in text books, articles in int’l journals • International trade and trade law courses presented by several universities • Pretoria/Western Cape has course with Georgetown/Amsterdam – most students from Africa outside SA • Stellenbosch, Witwatersrand, etc. • Private sector individuals have attended WTO dispute settlement training Gustav Brink

  12. PUBLIC/PRIVATE SECTOR LINKAGES • Very few links between public and private sector • “Jealousy” against current and former colleagues (lectures, articles, general) • MoU with China prime example of lack of cooperation between public and private sector • SA and SADC must find a way to join hands with private sector • No lobbying as in US Gustav Brink

  13. CAPACITY REQUIREMENTS • Expertise • In region only in SA • In rest of Africa – only Egypt directly involved • Use private sector experts for on-the-job training • Numbers • Few experts required, use existing people • Depends on number of cases envisaged Gustav Brink

  14. RECOMMENDATIONS • Educate industry • Geneva office attendance of DSB meetings • Train public sector using private sector experts • Provide for outside experts to be involved in disputes • Become involved as third parties • Make use of Advisory Service for developing countries in Geneva • Be prepared to lodge disputes if industry negatively affected Gustav Brink

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