DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 11
Developing countries in WTO dispute settlement
Least-developed country Members involved in a dispute
All of the above rules of special and differential treatment apply to least-developed country Members, which are included in the group of developing country Members. In addition, the DSU sets out a few particular rules applicable only to least-developed country Members.
Where a least-developed country Member is involved in a dispute, particular consideration must be given to the special situation of that Member at all stages of the dispute. Members must exercise due restraint in bringing disputes against a least-developed country Member and in asking for compensation or seeking authorization to suspend obligations against a least-developed country Member that has “lost” a dispute (Article 24.1 of the DSU).
For disputes involving a least-developed country Member, the DSU also specifically foresees good offices, conciliation and mediation. Where consultations have not resulted in a satisfactory solution and the least-developed country Member so requests, the Director-General or the Chairman of the DSB must offer their good offices, conciliation and mediation. The aim is to assist the parties to settle the dispute before the establishment of a panel. In providing such assistance, the Director-General or the Chairman of the DSB, may consult any source either considers appropriate (Article 24.2 of the DSU).
Legal assistance back to top
The (WTO) Secretariat assists all Members in respect of dispute settlement at their request, but it provides additional legal advice and assistance to developing country Members. To this end, the Secretariat is required to make available a qualified legal expert from the WTO technical cooperation services to any developing country member which so requests (Article 27.2 of the DSU).
The Institute for Training and Technical Cooperation, a division in the WTO Secretariat, currently employs one full-time official and, on a permanent part-time basis, two independent consultants for this purpose. These experts must assist the developing country Member in a way that respects the continued impartiality of the Secretariat (Article 27.2 of the DSU).
The WTO Secretariat also runs technical cooperation activities in Geneva and in the capitals of Members by conducting special training courses concerning the dispute settlement system (Article 27.3 of the DSU). The courses that take place in Geneva are also accessible for representatives of developed country Members.
Representation by private counsel and the Advisory Centre on WTO Law back to top
As already mentioned, private legal counsel may appear before panels and the Appellate Body as part of a party’s delegation. Also, private law firms often participate in the preparation of the parties’ written submissions to a panel or the Appellate Body. This is important for developing country Members, as it may enable them to take part in dispute settlement proceedings even when they lack human resources with specific expertise in WTO dispute settlement.1 Resorting to private law firms, however, is costly, especially because lawyers specialized and experienced in WTO law are mostly established in the capitals of developed countries (e.g. Washington, Brussels, Geneva, Paris and London).
Developing country Members can receive effective assistance in dispute settlement from the recently established, Geneva-based Advisory Centre on WTO Law. The Advisory Centre is a “legal aid” centre in the form of an independent intergovernmental organization. It is separate and independent from the WTO. It was established by an international agreement signed by 29 Members of the WTO in Seattle on 1 December 1999, the “Agreement Establishing the Advisory Centre on WTO Law”. This Agreement entered into force on 15 June 2001 and the official opening of the Advisory Centre took place on 5 October 2001. There are currently some 30 members. Every WTO Member, whether a developing country or not, as well as countries and independent customs territories in the process of accession to the WTO, can become members of the Advisory Centre.
The Advisory Centre functions essentially as a law office specialized in WTO law. It provides legal services and training to developing countries or countries with economies in transition, as well as to all least-developed countries that are WTO Members or accession candidates. The legal services fall into two categories. First, the Advisory Centre provides legal assistance in WTO dispute settlement proceedings. This means representing WTO Members throughout dispute settlement proceedings (e.g. by drafting documents addressed to the DSB, submissions to panels and the Appellate Body and by appearing on behalf of those Members before panels and the Appellate Body). Since July 2001, the Advisory Centre has regularly represented developing country Members in WTO disputes. For these services, the “clients” pay (discounted) rates at varying levels that depend on the level of economic development and on whether they are members of the Advisory Centre.
Second, the Advisory Centre provides legal advice on matters that are not or not yet the subject of a WTO dispute settlement proceeding. These services are free of charge for all least-developed countries and members of the Advisory Centre that are developing countries or countries with economies in transition up to a certain amount of hours. The Advisory Centre also provides legal assistance, at a commercial rate, to developing countries that are not its members. The Advisory Centre also provides training on WTO dispute settlement and plans to offer paid internships in order to contribute to capacity building (by enhancing the WTO expertise of developing country officials). The staff of the Advisory Centre is small, but comprises legal experts, some with long experience in matters of WTO law in general and WTO dispute settlement in particular.
1. Appellate Body Report, EC — Bananas III, para. 12. back to text