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

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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)

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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

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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)

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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)

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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

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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

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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

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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

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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

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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