In this month’s tralac Newsletter, we focus on dispute settlement in trade relations. There are several reasons for highlighting this topic.
The first reason concerns the need to draw attention to the bigger, global picture and to developments suggesting that the values underpinning the present multilateral order (not only rules-based international trade) are under attack. We take a look at the looming crisis in the dispute settlement system of the WTO. The WTO’s Appellate Body will have only three judges (it is designed to have seven) on its roster by the end of this month, after the United States had formally objected in late August to the reappointment for a second term of a current Appellate Body member. What lies behind Washington’s strategy? What happens next? And what are the broader implications?
Another reason for focusing on dispute settlement in trade relations flows from the need to be reminded, once again, about the benefits which certainty and predictability bring. The rights of private parties (whether in the form of importers and exporters, investors, service providers or owners of intellectual property) and of State Parties, need substantive a well as due process protection. They want to be treated fairly when doing business across borders and investing in foreign jurisdictions. When private parties are confronted by penalties (see the tralacBlog on the MTN case and its difficulties in Nigeria), restrictions, or measures imposed by foreign governments, they should have access to an impartial tribunal or court of law; which can rule on the validity and appropriateness of such measures. Restrictions and regulatory measures should be benchmarked against mutually agreed rules pertaining to justifiable exceptions, which apply to all.
Our blog on an application presently before South African Courts to set aside the whole AGOA regime deals with the facts of that case, the demands of a local industry for protection against imported poultry (which the applicant claims is being dumped in the South African market), and the danger of judicial overreach regarding sensitive public policy matters.
Investors often enjoy special remedies, such as those provided by Bilateral Investment Treaties or investment protection provisions in Free Trade Agreements. They may also be protected by the law of the land and the national constitution. Our blog on investment protection in SADC refers to the latest developments in this area.
We conclude with a blog on another question: are alternative dispute settlement arrangements available for the settlement of disputes involving trade related issues? What are they and how do they function? Are there examples of this kind?
This Newsletter does not provide an exhaustive picture. tralac has undertaken research on several other aspects of dispute settlement, such as the trade defence mechanisms in the SADC-EU Economic Partnership Agreement (SADC EPA), which entered provisionally into force in October 2016. We will continue to monitor developments around the settlement of disputes involving trade and regional integration, in particular in Africa. Improvements in this area are vital for securing rules-based trade governance, within and between States.
We look forward to your feedback.
The tralac team