Daring to Dispute: Africa and the WTO

1
Daring to Dispute Africa and the WTO

• Calvin Manduna, tralac
• Petina Gappah, ACWL

2

• By most measures, the operation of the dispute
  settlement system in the WTO has been a
  remarkable success. It is clear that the Members
  find it useful to utilise the new system as a
  tool for enhancing their trade diplomacy and
  securing solid and reasonably timely responses to
  practical trade problems.
• The Future of the WTO, Report by the
  Consultative Board to the WTO DG, 2004

3

• Optimistic statement may not give fuller picture
• Does not consider that developed WTO Members are
  responsible for at least a third of all disputes
  brought in last ten years
• Does not reflect repeat players among developing
  countries (Brazil, India, Korea, Mexico,
  Thailand)
• Does not reflect experience of African countries,
  who are among the smallest and most vulnerable of
  WTO Members.

4

• What is the true picture of African
  participation?
• No disputes as complainant or respondent
• 5 disputes as third parties, of which three were
  as part of ACP group
• Limited participation as panellists
• No Appellate Body Member from sub-Saharan Africa
• No African nationals currently involved in WTO
  dispute settlement in the Secretariat.

5

• Why be concerned about Africas non-involvement?
• Participants help develop jurisprudence
• Dispute settlement sometimes used to fill gaps
  in negotiations, for example, non-member
  submissions (India BOP case)
• African countries may miss the opportunity to
  shape obligations and develop interpretations
  supportive of development objectives
• Participation important to integration of African
  countries in multilateral trading system.

6

• Recent cases involving African countries
  encouraging.
• African countries involved as third parties in
  two of the most significant cases concerning
  trade in agriculture.
• US Subsidies on Upland Cotton
• EC Export Subsidies on sugar

7

• EC Sugar
• Complainants claimed EC provided export subsidies
  in excess of reduction commitment levels under
  the Agreement on Agriculture
• 21 third parties 9 sugar-exporting African
  countries
• ACP defending perceived challenge against the
  preferential access to the EC market
• Support to African countries from EC and EC sugar
  industry
• Role of counsel importance of political
  lobbying.

8

• Reflections on EC Sugar
• African countries yet again defending a
  challenged EC regime (Bananas, Sugar)
• Should Africans perform role of defending EC, or
  should Africans be insisting on arrangements that
  are not subject to challenge?
• Role of EC, private industry? Could Africa have
  gone it alone?

9

• US Cotton
• Claim by Brazil that US subsidies were having
  adverse effects and causing serious prejudice to
  Brazilian cotton industry by bringing down world
  prices
• Complex web of subsidies challenged, totalling
  about 4 billion to 25 000 farmers.
• Chad and Benin participated as third parties
  assisted pro bono by private law firm.
• Rural farmers in African LDCs among the most
  affected by US subsidies (Benin, CAR, Chad,
  Senegal, Mali, Burkina Faso, Togo)

10

• Reflections on US Cotton
• Absence of Private Sector Involvement unlike in
  EC - Sugar, no assistance from industry
• Vulnerability of African LDCs political
  pressure brought to bear
• Underscores crucial role of counsel, experts,
  research by NGOs and institutes such as tralac,
  coordination with main litigants in dispute
• Emphasizes importance of dispute settlement for
  negotiating process.

11
Thank you