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EPA provisions on safeguards and dispute settlement: Opportunity to move beyond the legal text

EPA provisions on safeguards and dispute settlement: Opportunity to move beyond the legal text. Tralac International Trade Law Conference 2004 Stellenbosch. Overview. Safeguard measures - What are the nature and function of such measures? Examples of existing safeguard measures

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EPA provisions on safeguards and dispute settlement: Opportunity to move beyond the legal text

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  1. EPA provisions on safeguards and dispute settlement: Opportunity to move beyond the legal text Tralac International Trade Law Conference 2004 Stellenbosch

  2. Overview • Safeguard measures - • What are the nature and function of such measures? • Examples of existing safeguard measures • Going beyond the legal text • Dispute Settlement mechanism – • What are the nature and function of such mechanism? • Examples of existing mechanisms in the area of trade • Going beyond the legal text

  3. Safeguard measures • What are the nature and function of such measures? • Trade policy tool • Measure in response to ‘fair” trade • Temporary measure • Rules – based measure • Purpose: to facilitate the adjustment of the domestic industry and to prevent the industry from suffering serious injury (Art. 7 WTO SA)

  4. Safeguard measures • Examples of existing safeguard measures • Provisional safeguard measure • Definitive safeguard measure • Transitional safeguard measure/infant industry protection • Special safeguard measure/Agricultural Safeguard measure (Art.5 WTO AA) • Special Products list • G-20 SGM

  5. Safeguard measure • Going beyond the legal text • What are the challenges facing EPA – partners? • Investigating authorities – institutional problem • Legislative framework within which to operate • Technical knowledge and experience • Data collection, collation and interpretation • Public/private dialogue

  6. Dispute Settlement Mechanism • What are the nature and function of such mechanism? • Trade disputes • Ensuring certainty and predictability • Litigious and non-litigious mechanisms (regulated procedure) v political settlement (unregulated procedure)

  7. Dispute Settlement Mechanism • Examples of existing mechanisms in the area of trade • Multilateral level: WTO Dispute Settlement Understanding – • Provides for non-litigious settlement (good offices, conciliation and mediation) • Provides for litigious settlement (mandatory consultations, panel review, appellate review) • Regional level: SADC Annex VI of the Protocol on Trade – • Provides for non-litigious settlement (good offices, conciliation and mediation) • Provides for litigious settlement (mandatory consultations, panel review – appellate review to be provided for)

  8. Dispute Settlement Mechansim • Examples of existing mechanisms in the area of trade • Bilateral level: EC – Members of the ACP Group of States (Cotonou Agreement) • Provides for political settlement/non-litigious settlement of any dispute – Council of Ministers/Committee of Ambassadors can settle dispute by decision • Provides for “panel review” – arbitration according to the optional arbitration regulation of the Permanent Court of Arbitration for International Organisations and States • Disputes between one or more Member States or the Community, on the one hand, and one or more ACP States on the other

  9. Dispute Settlement Mechanism • Examples of existing mechanisms in the area of trade • Bilateral level: TDCA • Provides for political settlement/non-litigious settlement of any dispute – Cooperation Council can settle dispute by decision • Provides for “panel review” – arbitrators • Process non-exclusive with respect to WTO DSU

  10. Dispute Settlement Mechanism • Examples of existing mechanisms in the area of trade • Bilateral level: EC – Egypt • Provides for political settlement/non-litigious settlement of any dispute – Association Council can settle dispute by decision • Provides for “panel review” – arbitrators • No provision regulating relationship with WTO DSU • No provision regulating implementation of decision

  11. Dispute Settlement Mechanism • Examples of existing mechanisms in the area of trade • Bilateral level: EC-Chile • Provides for political settlement/non-litigious settlement of any dispute – Association Committee can settle dispute by decision • Provides for “panel review” – arbitrators – no appeal mechanism • Provides for a list of at least 15 arbitrators • Provides for a code of conduct for arbitrators • Resembles implementation phase of DSU

  12. Dispute Settlement Mechanism • Going beyond the legal text • Urgent technical capacity building required at the level of – • Identifying violation • Formulation of complaint • Presentation of case

  13. Conclusion • For the agreement to be truly fair – assistance will have to be provided in the text of the agreement. • Many of the issues are already addessed in the Cotonou, but not specifically related to safeguards/trade remedies and dispute settlement. • Training of officials • Exchange programmes for students including internships and assistance with development of curriculae at tersiary institutions in the region. • Financial assistance for institutional infrastructure • Private- sector focussed programmes to capacitate the private sector

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