epa provisions on safeguards and dispute settlement: opportunity to move beyond the legal text
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EPA provisions on safeguards and dispute settlement: Opportunity to move beyond the legal text. Tralac International Trade Law Conference 2004 Stellenbosch. Overview. Safeguard measures - What are the nature and function of such measures? Examples of existing safeguard measures - PowerPoint PPT PresentationTRANSCRIPT
EPA provisions on safeguards and dispute
settlement: Opportunity to move beyond the legal text
Tralac International Trade Law
Conference 2004
Stellenbosch
2
Overview
Safeguard measures -
What are the nature and function of such measures?
Examples of existing safeguard measures
Going beyond the legal text
Dispute Settlement mechanism –
What are the nature and function of such
mechanism?
Examples of existing mechanisms in the area of trade
Going beyond the legal text
3
Safeguard measures
What are the nature and function of such measures?
Trade policy tool
Measure in response to ‘fair” trade
Temporary measure
Rules – based measure
Purpose: to facilitate the adjustment of the domestic
industry and to prevent the industry from suffering
serious injury (Art. 7 WTO SA)
4
Safeguard measures
Examples of existing safeguard measures
Provisional safeguard measure
Definitive safeguard measure
Transitional safeguard measure/infant industry protection
Special safeguard measure/Agricultural Safeguard
measure (Art.5 WTO AA)
Special Products list
G-20 SGM
5
Safeguard measure
Going beyond the legal text
What are the challenges facing EPA – partners?
Investigating authorities – institutional problem
Legislative framework within which to operate
Technical knowledge and experience
Data collection, collation and interpretation
Public/private dialogue
6
Dispute Settlement Mechanism
What are the nature and function of such
mechanism?
Trade disputes
Ensuring certainty and predictability
Litigious and non-litigious mechanisms (regulated
procedure) v political settlement (unregulated procedure)
7
Dispute Settlement Mechanism
Examples of existing mechanisms in the area of
trade Multilateral level: WTO Dispute Settlement Understanding –
Provides for non-litigious settlement (good offices, conciliation
and mediation)
Provides for litigious settlement (mandatory consultations, panel
review, appellate review)
Regional level: SADC Annex VI of the Protocol on Trade –
Provides for non-litigious settlement (good offices, conciliation
and mediation)
Provides for litigious settlement (mandatory consultations, panel
review – appellate review to be provided for)
8
Dispute Settlement Mechansim
Examples of existing mechanisms in the area of trade
Bilateral level: EC – Members of the ACP Group of States (Cotonou
Agreement)
Provides for political settlement/non-litigious settlement of any
dispute – Council of Ministers/Committee of Ambassadors can
settle dispute by decision
Provides for “panel review” – arbitration according to the optional
arbitration regulation of the Permanent Court of Arbitration for
International Organisations and States
Disputes between one or more Member States or the
Community, on the one hand, and one or more ACP States
on the other
9
Dispute Settlement Mechanism
Examples of existing mechanisms in the area of trade
Bilateral level: TDCA
Provides for political settlement/non-litigious settlement
of any dispute – Cooperation Council can settle
dispute by decision
Provides for “panel review” – arbitrators Process non-exclusive with respect to WTO DSU
10
Dispute Settlement Mechanism
Examples of existing mechanisms in the area of
trade
Bilateral level: EC – Egypt
Provides for political settlement/non-litigious
settlement of any dispute – Association Council can
settle dispute by decision
Provides for “panel review” – arbitrators No provision regulating relationship with WTO DSU
No provision regulating implementation of decision
11
Dispute Settlement Mechanism
Examples of existing mechanisms in the area of trade
Bilateral level: EC-Chile Provides for political settlement/non-litigious
settlement of any dispute – Association Committee can settle dispute by decision
Provides for “panel review” – arbitrators – no appeal mechanism
Provides for a list of at least 15 arbitrators Provides for a code of conduct for arbitrators Resembles implementation phase of DSU
12
Dispute Settlement Mechanism
Going beyond the legal text Urgent technical capacity building required at the level of –
Identifying violation
Formulation of complaint
Presentation of case
13
Conclusion
For the agreement to be truly fair – assistance will have to be
provided in the text of the agreement.
Many of the issues are already addessed in the Cotonou, but not
specifically related to safeguards/trade remedies and dispute
settlement.
Training of officials
Exchange programmes for students including internships and
assistance with development of curriculae at tersiary institutions in
the region.
Financial assistance for institutional infrastructure
Private- sector focussed programmes to capacitate the private
sector