Advisory Trade Law Centre proposal unveiled

by Chakravarthi Raghavan

Geneva, 7 June -- A proposed Advisory Centre on WTO Law (ACWL), sponsored by a group of industrialized and developing nations, to provide advisory and legal assistance to developing countries in the WTO dispute settlement process was unveiled at a pre-launch function and press briefing, with sponsors hoping to attract a critical mass of founding members and initial funding to be able to launch it at the Seattle Ministerial Meeting in November.

The Netherlands Trade Minister, Mr. Gerrit Ybema, announced that his country had pledged $2.2 million to the initiative. Sweden, the United Kingdom, Norway and Norway have announced one million dollars each.

The Colombian ambassador, Nestor Osario Londono, said the ACWL would need as founding and contributing members, some six to eight industrial countries and some 20 developing countries to achieve the critical mass to launch the initiative.

An initial capital fund of $8 million, and a donor contribution of $6 million for the first five years would be needed to make the centre viable and self-supporting from the sixth year, according to the project document made available Monday.

The objective is to provide developing countries with the capacity in their own administrations, through training programs, and give at affordable costs legal assistance to pursue and defend their rights in the dispute settlement process.

The centre would make its services available to all WTO members, developing countries and transition economies, prioritising the assistance to the least developed and founding members.

The WTO's DSU rules do not provide for outside lawyers as such to appear and present cases in disputes, and initially the US raised objections to outside lawyers.

But the panels (with approval of the appellate body in one or two rulings) have been gradually using their "working procedures" to enable countries to bring counsel, but making them members of their delegation and subject to the confidentiality and other requirements.

Ybema told the press briefing that he had discussed the ACWL initiative with the US Trade Representative, Mrs.Charlene Barshevsky, and the US was "positive" about the centre, though it would not fund it.

An initial capital contributions of atleast $1 million each from the developed founding members, and 50 to 300 thousand each,

according to a graduated scale, from developing countries and transition economies are aimed at to achieve the capital fund, with the interest from the fund and user fees, on a graduated scale of hourly billing per hour for the Centre's help in legal proceeding, for financing the operations.

Outside international law firms now charge anywhere between $250 to $1000 per hour for legal assistance (ranging from drawing up initial documents for the panel or responses etc - to be part of a delegation and assist in panel hearings).

Least developed countries would be able to join as founding members, without any capital contribution, and would receive legal help in disputes at a much lower per-hour user fee than other developing countries.

The Dutch Minister and the Colombian ambassador said that beyond an oversight role of the management board (where the developed country founders would be represented), the Centre would be autonomous and not be donor-driven.

The centre, which would be an inter-governmental body, will start with a Director and four experienced professionals, but may engage outside legal persons, through sub-contracting external specialists -- if this is crucial for a case or it is necessary to avoid conflict of interest between two user countries.

According to a project proposal document, the centre would provide regular seminars on WTO jurisprudence, provide legal advice on WTO law, give support to developing countries in legal proceedings, and internship for officials from developing countries dealing with WTO legal status. Legal advice and support would be through "user fees".

The WTO secretariat providing some assistance through technical assistance programs has run into problems because of the budget funding problems (and the WTO consensus procedures) and arguments about the secretariat's "neutrality requirement".

But the ACWL would also be judged by outsiders on its ability to depart from the ideological "hangups" of neo-liberal trade theology, in organising seminars on WTO jurisprudence and general legal advice, for example in the options and choices for developing countries to give effect to their obligations.

Also, while a legal assistance centre to help developing countries to defend their interests and fight cases would be of help, it is not certain that overall all these would not result in litigationist-dispute solving, rather than trade diplomacy.

Less litigation and more recourse to trade diplomacy depends of course on the attitude of the major trading partners, particularly the US with its litigationist approach to trade, and attempts to further the interests of its corporations abroad.

But the sponsors of the ACWL say that the centre would take up all defensive panel cases (where developing countries are defending themselves against complaints) when requested, but pursue complaints only on legal merit, paying attention to the Art 3 of the DSU which prefers mutually agreed solutions and exercise of judgement whether pursuing a dispute would be fruitful.

The Colombian ambassador stressed that more cases are settled during the DSU process in consultations than end up in disputes. (SUNS4451)

The above article first appeared  in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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