REPRESENTING DEVELOPING COUNTRIES BEFORE THE WTO: THE ROLE OF THE ADVISORY CENTRE ON WTO LAW (ACWL)...

REPRESENTING DEVELOPING COUNTRIES BEFORE THE WTO: THE ROLE OF THE

ADVISORY CENTRE ON WTO LAW (ACWL)

EUI, 25 February 2014

Niall Meagher Executive Director, ACWL

What is legal aid? Why legal aid in the WTO legal system? Why provide legal aid through the ACWL? How does the ACWL provide legal aid? How is the ACWL structured? Who are the ACWL's Members? How is the ACWL financed? How does the ACWL operate? How has the ACWL been perceived?

AGENDA

"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, or steal bread" (Anatole France).

Success in a legal proceeding should depend on the strength of one's case, not the size of one's purse.

"Access to international justice should not be impeded by financial inequality" (Judge Guillaume, President of ICJ).

WHAT IS LEGAL AID?

The basic principles of the GATT/WTO – MFN, national treatment, non-discrimination – are essentially principles of equal treatment.

Equal treatment should therefore also apply in the WTO dispute settlement system.

The "single undertaking" of the WTO agreements, and the introduction of binding dispute settlement and the Appellate Body in the WTO made dispute settlement much more complex and less accessible.

WHY DO WE NEED LEGAL AID IN THE WTO?

"Under the WTO, the rule of law has been strengthened through increased automaticity of dispute settlement and detailed integrated dispute settlement procedures. All the more so in this context of thickening of legality ..." (Panel, India – QRs).

The WTO system is "second to none as a respected forum for the resolution of international frictions. The DSB has helped to quell protectionism through its accessibility to all WTO Members, by its very existence and by its excellence" (USTR Froman).


The volume of cases and complexity of legal issues make it very difficult for countries with few resources and different legal traditions to participate.

The WTO legal system includes not just the dispute settlement process, but also the negotiation of new legal texts and participation in the institutions of the WTO.

Also, WTO Members raise and resolve thousands of "specific trade concerns" in the shadow of the formal dispute settlement process.


The credibility of the existing WTO system depends on the ability of all WTO Members to be able to assert their rights and to defend themselves in the WTO.

The willingness of developing country Members to take on further obligations also depends on their confidence that they understand those obligations and, again, will be able to defend themselves on an equal basis.

Thus, all WTO Members have an interest in the accessibility of the system to all Members.


DSU Article 27.2 recognizes the need to provide legal aid to developing countries.

However, this must be done in a manner that preserves the independence of the WTO Secretariat.

While WTO provides assistance under Article 27.2, there are limits to what can be done.

Thus, WTO Members preferred to create an independent legal office to assist developing countries – the ACWL.

WHY PROVIDE LEGAL AID THROUGH THE ACWL?

1995 1999 2001Creation of WTO legal

systemConcerns about the WTO system and materialization of initiative to

create ACWL

Formal entry into operation of the ACWL

WHY PROVIDE LEGAL AID THROUGH THE ACWL?

"Today, and within the framework of the WTO dispute settlement system , the ACWL takes another, almost revolutionary, step forward in international adjudication, by establishing itself as the first true centre for legal aid within the international legal system" (then WTO DG Michael Moore).

Thirteen years later: 9 fulltime lawyers, 200 legal opinions per year, over 40 dispute settlement proceedings, and extensive training courses and seminars.

HOW DOES THE ACWL PROVIDE LEGAL AID?

The ACWL was set up in 2001 the following mandate:

To provide developing countries and LDCs with the legal capacity necessary to enable them to take full advantage of the opportunities of WTO membership.

The ACWL is not part of the WTO – different treaty, membership, mandate, administration and budget.

31 developing countries

43 LDCs


Four main challenges affected the structure of the ACWL:

The ACWL would be financed in large part by developed countries that would not be entitled to its services. However, the ACWL had to be, and had to be

seen to be, fully independent. The ACWL had to be managed in a strictly non-

political manner. The ACWL had to be able to guarantee the

confidentiality of its advice.

HOW IS THE ACWL STRUCTURED?

These challenges were met by devising a multi-level structure for the management of the ACWL.

The purpose of this structure is to ensure that the ACWL can work independently and in a non-political manner.

Under this structure, the ACWL is governed jointly by its developed and developing country Members.


• Non-political position• Manages the ACWL's day-to-day activities• Represents the ACWL externally

• Non-political body • Six experts in WTO law/policy serving in their personal capacities• Takes decisions necessary for the efficient and effective operation of the ACWL• Appoints the Executive Director in consultation with Members• Supervises the performance of the Endowment Fund

• Representatives of all ACWL Members and LDCs • Evaluates the performance of the ACWL• Responsible for decisions affecting the ACWL's financing• Adopts the annual budget proposed by the Management Board


All Members of the WTO and countries in the process of acceding to the WTO are entitled to join the ACWL.

The ACWL has 11 developed country Members: Australia, Canada, Denmark, Finland, Ireland, Italy, Netherlands, Norway, Sweden, Switzerland, United Kingdom.

The ACWL has 31 developing country Members that have acceded to the Agreement Establishing the ACWL, paid a "membership fee" and are entitled to its services.

WHO ARE THE MEMBERS OF THE ACWL?

In addition, 43 LDCs that are Members of or in the process of acceding to the WTO are automatically entitled to the services of the ACWL, without formally becoming Members.

Thus, 74 countries – almost half of the membership of the WTO – are currently entitled to the services of the ACWL.


Countries designated by UN as LDCs that are WTO Members or are in the process of acceding the WTO.

Developing countries that have become Members of the ACWL and have contributed to its Endowment Fund.

ENTITLED TO THE SERVICES OF THE ACWL: 74 COUNTRIES



Members of the ACWL/LDCs supported by the ACWL

Non-Members of the ACWL

The ACWL is co-financed by its developed and developing country Members.

The ACWL's main sources of financing are the revenues from its Endowment Fund (currently valued at about CHF25 million), fees levied for support in dispute settlement proceedings and voluntary contributions. The Endowment Fund was created from the contributions of both the developed and the developing country Members. During the period 2012-2016, the ACWL's annual budgets are being financed by additional contributions from the developed country Members.

HOW IS THE ACWL FINANCED?

The original expectation was that the ACWL's Endowment Fund would be large enough to fund a substantial portion of the ACWL's budgets (together with fees from disputes).

Due to the success of the ACWL, together with adverse market conditions, this expectation proved overly ambitious.

The Endowment Fund now provides a guarantee of the independence and viability of the ACWL.

Additional funding is needed from time to time.

HOW IS THE ACWL FINANCED?

The ACWL operates under these four main rules: The ACWL provides services only at the request of

the developing countries and LDCs (no "ambulance chasing"). The ACWL provides only legal advice, not

political or strategic advice (this is necessary to ensure the ACWL's neutrality).

The ACWL does not take positions of its own on any issues (to ensure the ACWL's neutrality and impartiality).

The ACWL's advice is strictly confidential.

HOW DOES THE ACWL OPERATE?

LEGAL ADVICE

Legal opinions provided free of charge Protected as strictly confidential Provided as oral or written opinions Includes assistance in follow-up steps May be provided in English, French or Spanish


The ACWL's legal advice is free of charge because the ACWL is supposed to provide developing countries and LDCs with the same "in-house" capacity as enjoyed by developed countries.

For example, officials of the European Commission can get in-house legal advice free of charge from their staff lawyers. The ACWL provides the same capacity to its users.

In many cases, countries would not be in a position to get approval to request advice if they had to pay.


The ACWL's legal advice must be strictly confidential in order to maintain the trust of its users.

This imposes constraints on how the ACWL reports on its activities to its donor Members and to the world at large.

However, the developed country Members and their Aid-for-Trade agencies generally understand the constraints under which the ACWL operates.


The ACWL has provided more than 1500 legal opinions to date. In 2013, it delivered 215 legal opinions.


ACWL Legal Opinions 2009-2013

Types of Legal Opinion

Related to WTO decision-making and negotiations

Related to measures taken or contemplated by the

Member or LDC seeking the advice

Related to measures of another Member

Examples

Legal opinion on the decision - making process within a WTO committee

Legal opinion on whether an internal measure intended to address sanitary

concerns meets the requirements of the SPS

Agreement

Legal opinion on whether an internal tax imposed by other WTO

Member is consistent with Article III:2 of the GATT


The majority of the ACWL's legal opinions addressed the Member's own implementation and systemic issues.


ASSISTANCE IN DISPUTE SETTLEMENT PROCEEDINGS


DISPUTE SETTLEMENT SUPPORTThe ACWL has been involved in more than 40 disputes and

through an external legal counsel in six disputes.

In half of these cases, the other party was a developing country (this is happening more frequently).

Fees vary with the GNP per capita and trade share of the Member concerned.

Fees are significantly lower than those charged by law firms. The original purpose of the fees was to discourage "frivolous cases".

Since "frivolous cases" are unlikely, what should the fees be?


ROSTER OF EXTERNAL LEGAL COUNSEL

If two countries entitled to ACWL services seek advice in the same dispute, the first-come-first-served rule applies.

The second Member may receive support through the hiring of an external legal counsel selected by that party.

There is a Roster of External Counsel consisting of 26 experienced law firms and four individuals that have agreed to represent developing countries and LDCs in cases of conflict.


ANNUAL TRAINING COURSE

The ACWL conducts a weekly training course on WTO law at its offices for Geneva-based delegates. The course includes a moot court exercise and an optional exam.


SECONDMENT PROGRAMME FOR TRADE LAWYERS

In 2005, the ACWL launched the Secondment Programme for Trade Lawyers, under which lawyers from the governments of LDCs and developing country Members join the staff of the ACWL as paid trainees for a nine-month term starting in mid-September and ending in mid-June of the following year.

The Programme gives government lawyers an opportunity to work with, and learn from, a team actively involved in WTO legal issues and dispute settlement proceedings.

To date, 23 government lawyers from 13 developing countries and six LDCs have participated in the Programme.


The ACWL has generally been perceived to be a success:

The ACWL "plays a crucial role in maintaining a viable and credible rules-based multilateral trading system" (former WTO DG Pascal Lamy). The ACWL "performs an important and unique

function that serves to strengthen the WTO system" (former Australian WTO Ambassador Tim Yeend).

HOW HAS THE ACWL BEEN PERCEIVED?

The ACWL has generally been perceived to be a success:

"With the ACWL's assistance, developing countries are able to enforce their market access rights for much more of their trade" (Prof. Chad Bown).

"The ACWL is a shining example of how technical assistance can and should be delivered" (Prof. Richard Mshomba).

The ACWL's advice "helps to avoid conflict in international trade as it enables us to ensure the WTO-consistency of our draft measures" (user).


What are the perceived weaknesses of the ACWL? Does not address/remedy all the internal capacity

constraints affecting developing countries.Does not have sufficient resources to reach beyond

Geneva.Should be supplemented by regional advisory

centres.


For further information on the ACWL, please visit our website:

www.acwl.ch

THANK YOU FOR YOUR ATTENTION!

REPRESENTING DEVELOPING COUNTRIES BEFORE THE WTO: THE ROLE OF THE ADVISORY CENTRE ON WTO LAW (ACWL)...

Documents

Transcript of REPRESENTING DEVELOPING COUNTRIES BEFORE THE WTO: THE ROLE OF THE ADVISORY CENTRE ON WTO LAW (ACWL)...