ALBERTAS ŠEKŠTELO, FCIArb 20 March 2014

1. State-to-State and Private Dispute Resolution Mechanisms under the WTO Documents ALBERTAS ŠEKŠTELO, FCIArb20 March 2014

2. Content of this presentation • Legal framework of the WTO Dispute Settlement System; • Main features of the WTO Dispute Settlement System; • Defense of the private interest under WTO documents: • Influence on the government and representation; • Amicus curiae briefs • Direct effect of WTO Agreement in the member states; • Protection under Bilateral Investment Treaties: • Main features; • Main differences between WTO Dispute Settlement System and dispute settlement mechanism in the Bilateral Investment Treaties; • Conclusions Legal services in Estonia / Latvia / Lithuania

3. Legal framework of WTO Dispute Settlement System • Dispute Settlement Understanding (DSU) defines the rules and procedures of the dispute settlement system in the WTO. • The DSU applies to most of the disputes brought under the WTO Agreements, including the DSU itself and the Agreement establishingWTO (Article II of the WTO Agreement; Appendix 1 of the DSU). • DSU is applicable in a uniform manner to disputes under all the WTO Agreements (Article II of the WTO Agreement; Appendix 1 of the DSU). • In some instances, there are so-called “special and additional rules and procedures” on dispute settlement contained in the covered agreements (cf. Appendix 2 of the DSU). Legal services in Estonia / Latvia / Lithuania

4. Dispute Settlement System in the WTO Main objectives of the dispute settlement system are: • Providing security and predictability to the multilateral trading system (Article 3.2 of the DSU); • Preserving the rights and obligations of WTO Members (Article 3.2 of the DSU); • Clarification of rights and obligations through interpretation (Articles 3.2, 17.6 of the DSU; Articles 30-33 of the Vienna Convention on the Law of Treaties as “customary international law”, see Appellate Body Report, US Gasoline DSR 1996:I, 3 at p 23); • But only Ministerial Conference and the General Council have exclusive power of to adopt “authoritative” interpretations that are of general validity for all WTO Members (Article IX:2 of the WTO Agreement; Article 3.9 of the DSU); • “Mutually Agreed Solutions” as “Preferred Solution” (Articles 3.7, 11 of the DSU); • Prompt settlement of disputes (e.g. Articles 3.3, 4.3, 4.9, 6.1, 12.8, 20 of the DSU); • Exclusive jurisdiction (Article 23 of the DSU). WTO dispute settlement process consists of three broad stages: • Consultations(Article 4 of the DSU); • Panel(Articles 6-8, 11-16 of the DSU) and, if requested, Appelate Bodyreview(Article 17 of the DSU); and • If needed, implementation(Articles 21-23 of the DSU) See flow chart (next page) Legal services in Estonia / Latvia / Lithuania

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6. Dispute Settlement System in the WTO (2) Participants in the dispute settlement system: • As dispute settlement proceedings are confidential (see, e.g. Articles 4.6, 5.2, 14, 17.10, 18.2 of the DSU), and sometimes on without prejudice basis (see, e.g. Article 4.6 of the DSU), he only participants are the Member governments of the WTO, which can take part either as parties or as third parties. • The WTO Secretariat, WTO observer countries, other international organizations, and regional or local governments are not entitled to initiate dispute settlement proceedings. • Private individuals or companies do not have direct access to the dispute settlement system under WTO documents. Legal services in Estonia / Latvia / Lithuania

7. Defending private interest Private individuals or companies are usually most directly and adversely affected by the measures allegedly violating WTO Agreement. Although private individuals do not have direct access to dispute settlement system under WTO documents, there are ways to defend their interests: • Influence on the government and representation(A); • Amicus curiae submissions to DSB Panels and Appellate Bodies(B); • Direct effect (use) of WTO Agreement in theEU memberstates (C); • Using protection under bilateral investmenttreaties (D). Legal services in Estonia / Latvia / Lithuania

8. (A) Influence on the government Organizations, private individuals or companies (non-state actors) may exert influence or even pressureon the government with respect to the triggering of a dispute. In many respects, non-state actors serve as “resource enhancers” to the members whose support they need to defend their strategic interests, whether of a commercial or public nature. Non-state actors may also advice Governments on independent legal representatives that could assisting the Member state in drafting submissions and / or appear in Panel and Appellate Body proceedings (e.g., in EC – Bananas III, one party challenged the right of parties or third parties to have independent private legal counsel (i.e. barristers/solicitors/attorneys) as their representatives, even if these individuals are professionals who had been hired forthat specific purpose and were not permanently employed by the government. The practice under GATT 1947 (where private legal counsel was not allowed) was invoked in support of denying such a possibility. The Appellate Body, however, made clear that nothing in the WTO Agreement or in general international law prevents a WTO Member from determining for itself the composition of its delegation in WTO dispute settlement proceedings; Appellate Body Report, EC – Bananas III, para. 10). Legal services in Estonia / Latvia / Lithuania

9. (A) Influencing the Government to Trigger the Dispute(2) SomeWTO Members have formally adopted internal legislation under which private parties can petition their governments to bring a WTO dispute. • U.S. Trade Act of 1974 Sections 301-310 provide a means by which U.S. citizens may petition the United States government to investigate and act against potential violations of international trade agreements • EU Trade barriers regulation Article 4(1) stipulates that among other subjects „any enterprise, or any association, having or not legalpersonality, acting behalf of one or more enterprises“ is able to bring an action under the TBR, which means that a complaint from a private person may lead to dispute in WTO Legal services in Estonia / Latvia / Lithuania

10. (B) Amicus Curiae Submissions Amicus Curiae “friend of the court” submissions are submissions from entities, non-governmental organizations, or university professors. Theoretical side of the issue: • If the briefs are attached to the submission of a participant of the dispute, for instance as exhibits, it is considered to be an integral part of the submission (Appellate Body Report, US – Shrimp, pp. 89 and 91). • Under DSU Panels are permitted to accept and consider or to reject information and advice, even if submitted in an unsolicited fashion (Appellate Body Report, US – Shrimp, pp. 105–108). • When the unsolicited briefs are received directly from an amicus curiae, the entity filing the brief has no right to have it considered (Appellate Body Report, US – Lead and Bismuth II, pp. 40–41). • The Appellate Body is entitled to adopt additional procedure pursuant to Rule 16.1 of the Working Procedures allowing amicus curiae briefs (Appellate Body Report, EC – Asbestos, p. 52). Legal services in Estonia / Latvia / Lithuania

11. (B) Amicus Curiae Submissions (2) Practical side of the issue: • Many Members are of the strong view that the DSU does not allow panels to accept and consider non-requested amicus curiae submissions. • Panels have no obligation whatsoever to accept and consider these briefs. • Interested entities, which are neither parties nor third parties to the dispute, have no legal right to be heard by a panel. Legal services in Estonia / Latvia / Lithuania

12. (C) Effect of WTO Agreements in the EU European Court of Justice (ECJ) has stated that WTO agreement is not capable of having direct effectinthe EU. However, a privateindividualmayinvoke WTO Agreementbejore ECJ (EuropeanCourtofJustice) infourways: • Anactionforannulmentunder 263 TFEU according to whichanindividualmayrequestthe ECJ to reviewthelegalityofanactofUnioninstitutionsiftheactisofdirectandindividualconcern to them. • Anactionforfailure to actunder 265 TFEU againstinactionby EU institutionsifanindividualcanestablishthat EU institutionhasfailed to address to himanyactotherthanrecommendationoropinion. Legal services in Estonia / Latvia / Lithuania

13. (C) Effect of WTO Law in the EU (2) • An action for damages under article 340(2) TFEU whichstates: „In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.” • Raise the question of the validity of acts of Union institutions before the national court which will then, under article 267 TFEU, request the ECJ to give a preliminary ruling on that subject. In article 263 TFEU, it is stated that the ECJ shall review legality on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. Individuals who seek to invoke the provisions of the WTO Agreement may benefit from these four procedural routes only if the WTO Agreement is among the rules in the light of which the ECJ reviews the legality of acts of the Union institutions. Legal services in Estonia / Latvia / Lithuania

14. (C) Direct Effect of the WTO Agreement in the Russian Federation (3) • Under Russian law, international treaties to which the Russian Federation is a party are deemed an integral part of the Russian legal system. • Therefore, the WTO agreements to which Russia has joined have direct effect on the Russian Federation. • Russia’s obligatory WTO commitments are limited by those described in paragraph 1450 of the Report. Legal services in Estonia / Latvia / Lithuania

15. (D) Bilateral Investment Treaty (BIT) Bilateral Investment Treaty - an agreement made between two countries containing reciprocal undertakings for the promotion and protection of private investments made by nationals of the signatories in each other's territories. BITs establish the terms and conditions under which nationals of one country invest in the other, including their rights and protections. BITs provide protection against nationalization and expropriation of foreign assets and other actions by a signatory of the BIT that may undermine the ownership or economic interest of a national of the other signatory. Legal services in Estonia / Latvia / Lithuania

16. (D) Bilateral Investment Treaty (BIT) (2) As BITs are negotiated agreements between the signatory parties, their terms vary. However, they generally include such rights and protections as: • National treatment; • Most-favored-nation treatment; • Fair and equitable treatment; • Compensation in the event of expropriation. Legal services in Estonia / Latvia / Lithuania

17. (D) Dispute Settlement between Investors and Host States (3) One of the main protections under a BIT is that it allows foreign investors to submit claims for breach of the BIT to arbitration under adhocorinstitutionalarbitrationprovidedinthe BIT rather than to local courts. Two methods of privatedispute settlement in BITs: • Investor-State consultation and negotiation (which may be prerequisite to proceed to an arbitration „cooling-off“period); • Investor-State arbitration. Legal services in Estonia / Latvia / Lithuania

18. (D) BIT vs. WTO Dispute settlement (4) BIT and WTO dispute settlements supplements each other, however, has these main differences: • Goals: • WTO - to bring a country member in compliance with its obligations vis-à-vis other members under the WTO agreements; • BIT – enables private actors to bring an action against a state in an international forum; • Form: • WTO – special settlement mechanism; • BIT – mainly arbitration. Usually, the investor has several options for appropriate forum provided in the BIT • Primary remedies: • WTO – In terms of Article 3.7 of the DSU the primary objective of the dispute settlement mechanism is to secure the withdrawal of measures found to be inconsistent with the WTO agreements. Compensation is available as a temporary measure and only if the immediate withdrawal of the measure is impracticable; • BIT – compensation award (Hull formula: prompt, adequate and effective compensation). Legal services in Estonia / Latvia / Lithuania

19. Conclusions • WTO Dispute Settlement Mechanism designed for State-to-State disputes regarding WTO Agreements. Therefore, private persons can have only indirect impact of the course of proceedings. • By contrast, one of the main purpose of the BITs is to provide private Investor-to-State dispute mechanism and seek compensation. • These two mechanisms supplements each other as relevant State can commence WTO Dispute Settlement and aggrieved private investors can start relevant proceedings provided by the BIT. Legal services in Estonia / Latvia / Lithuania

20. Albertas Šekštelo, FCIArbSeniorAssociatealbertas.sekstelo@tgslegal.com