1 role of legal advisors in wto proceedings presentation to jindal global law school, centre for...
TRANSCRIPT
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Role of Legal Advisors in WTO Proceedings
Presentation to Jindal Global Law School, Centre for International Trade and Economics Laws
February 10, 2015
Greg Tereposky, PartnerInternational Trade and WTO Law Group
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There are a myriad of different roles that legal advisors can play in WTO dispute settlement:
1.Building dispute settlement capacity within government (e.g., training)
2.Advice on discrete legal and policy issues
3.Advice on strategic, evidentiary and procedural issues
4.Preparation for the different stages of dispute settlement
5.Representation in dispute settlement
A Myriad of Different Roles
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There are numerous potential clients in a given WTO dispute:
1.Complainant WTO Member, respondent WTO Member, third party WTO Member
2.There will be one or more interested government department or other entity in each affected WTO Member (counsel to government)
3.There will be one or more affected industries or private entities in each affected WTO Member (liaison counsel)
Numerous Potential Clients
Multiple Stages in Dispute Settlement
Disputes do not necessarily go through the same stages.
The potential procedural stages in a dispute are reflected in over 50 different procedural documents that are issued in dispute settlement
The intensity of activity in the different stages varies
Advisors may be involved in some or all of the stages of a particular dispute
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Maxrix of Activities for Advisors
To get an idea of how many different activities advisors can undertake:
# of potential roles
x
# of potential clients
x
# of different stages in dispute settlement
= a pretty big #
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Focus of Presentation
It is not possible to cover all of the potential activities of legal advisors
I will focus on some of the key activities that are generic to most disputes
I will present primarily from the perspective of a legal advisor to a WTO Member (government)
However, since all disputes generally go through these same considerations, consider the different perspectives you would have as advisor for complainants, respondents, third parties and private sector clients
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1. Identification of issues & facts
2. Legal and policy assessment and coordination with affected government departments and industry
3. Determining appropriate role (complainant, co-complainant, third party)
4. Creating alliances with other WTO Members
5. Consultations
6. Request for establishment and composition of panel
7. Dispute settlement proceedings
Overview of the Stages of Preparation
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Issues often first identified by industry and other private sector interests
Coordination between private sector and government trade officials
Clarification of issues and facts
1. Identification of issues & facts
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Essential to undertake comprehensive assessment
Legal and policy issues
Systemic and dispute-specific issues
Institutional consistency
Facts and supporting evidence
Coordination with affected government departments and private sector interests
Best approach is to have comprehensive analysis completed before initiating
2. Legal and policy assessment and coordination
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Complainant and respondent
Co-complainant
Join with other WTO Member(s)
Coordination to reduce resources for preparation and conduct of dispute
Third party
Monitor dispute or address systemic issues
Reserve appeal rights
Normal versus enhanced
No right to suspend concessions
3. Determining appropriate role for WTO Member
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Alliances with co-complainants and third parties
Sharing ideas, analysis and evidence
Reducing costs
Building support for interpretations and positions
Maximizing consistency in case presentation and preparing to explain divergent positions
4. Creating Alliances with other WTO Members
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Preparing a request for consultations and formally initiating a dispute
In addition to resolving dispute, opportunity for further preparation:
refine understanding of issues and supplement facts
complete legal, policy and factual analyses
delay initiating next phase of proceedings
Preparing questions to raise in consultations
Obtaining documentary evidence
Parallel consultations in subsequent phases
5. Consultations
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Initial case preparation (including draft first written submission and evidence) should be completed before filing request because formal time frames begin once panel composed
Preparing a request for establishment of a panel
Panelist selection process
Assessing potential panelists
Director-General appointment
Opportunity for delays
Final opportunity for preparation before filing case
6. Request for establishment and composition of panel
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Assembling team (legal, factual, policy)
Reviewing submissions (party and third party) and drafting responding submissions
Preparing questions and answers (Q&As) for questions that are likely to arise in meetings with the Panel
Preparing oral statements and executive summaries
Preparing written responses to questions from the Panel
7A. Dispute settlement proceedings - Panel
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Appeal time frames very short
Notice of Appeal due 60 days from date of circulation to Members
Appellant’s submission due with Notice of Appeal and Appellee’s submission due 18 days later
Begin appeal analysis immediately upon receiving interim panel report and begin drafting submissions
legal and policy issues
systemic issues and dispute-specific issues
Prepare oral statement and Q&As for likely questions
7B. Dispute settlement proceedings - Appeal
