The Challenge of Participating in WTO Dispute Settlement: Presentation to the informal group of developing countries

13 April 2011

The WTO's dispute settlement system has been called the 'jewel in the crown' of the WTO as it provides automatic, reliable and effective means of dispute resolution. But members can only take advantage of the rule of law if they can effectively pursue their rights in a complex legal regime, which largely depends on having an adequate number of experienced legal, economic and diplomatic staff and a large network of external experts and private sector representatives. Earlier research undertaken by ICTSD, has shown that, to varying degrees, developing countries lack such legal capacity, impeding their ability to participate fully in WTO dispute settlement. In particular, inadequate coordination between the government and private sector, a weak stakeholder community, and difficulty in determining the existence of undue trade barriers due to insufficiently processed information and data, constrain developing countries in their efforts of using dispute settlement.
In fifteen years of dispute settlement under the WTO, 400 cases have been initiated. Only around thirty developing countries have initiated one or more of these cases. Also, no African country has acted as a complainant and only one least developed country has ever filed a claim at the WTO. Yet a number of developing countries have made considerable progress in building domestic legal capacity over the last decades. This is reflected in the fact that currently seven out of the eleven most frequent complainants are developing countries. There are good lessons to be learnt from these examples, but the need for strengthening legal capacity in developing countries remains.
Legal capacity is not only needed in dispute settlement proceedings but it is of equal importance for the successful participation in ongoing trade negotiations, for an efficient implementation of WTO obligations and for the peaceful settlement of trade disputes. Generally speaking there is no single area or activity at the WTO for which legal capacity would not be required.
While international organizations such as the Advisory Centre on WTO Law (ACWL) provide legal advice and training courses for lawyers, there is a profound need for building greater legal capacity, particularly a strong and well informed stakeholder community, and extensive networks facilitating exchange among various domestic, regional and international actors that are key actors in the litigation process. Especially the role of private sector representatives should not be underestimated – empirical research has shown that most DSU cases are initiated, supported and partially covered by domestic companies that provide essential evidence and data gathered during their trading activities.
It is against this backdrop that ICTSD shall host this meeting bringing together experts within the field of trade negotiations and dispute settlement on the 13th of April, in a discussion at the WTO in Geneva.