Legal capacity: the long path to access to justice in WTO top-level procedures for least developed countries

Transcription

1 Legal capacity: the long path to access to justice in WTO top-level procedures for least developed BY MARC-ANTOINE CARREIRA DA CRUZ 1 1 Marc-Antoine Carreira da Cruz is an MP Assistant at the Brussels House of Parliament. He graduated in political sciences, international relations and obtained an LLM in international business law at the Université Libre de Bruxelles. He has published articles in the Revue Belge de Droit international, Eyes on Europe, and the Joint Research Group Website in Public Law Studies of the ULB.

2 Effectius In a world where the fate of thousands of workers and millions of citizens can be deeply affected by legal procedures, the importance of ruling legal mechanisms is crucial. Besides the European legal institutions, the system of institutional justice of the World Trade Organisation (WTO) is arguablythe central point of exchange of legal procedures with a global impact in the last twenty years. The WTO mainly holds this role because it crystallises the North-South dual configuration in the era of the liberalisation of the world economy. Even if the WTO organises its intergovernmental framework under the equal representation of member states, the organisation s procedures are yet deeply marked by the economic weight of certain. This has been thoroughly analysed in thousands of academic works, most of them examining the institutionalisation of coalitions during negotiations and the impact on Least Developed Countries (LDCs) - (A. Narlikar, 2003). It has been shown that, with the exception of research and discussion group support in recent years by the Secretariat, the WTO legal and institutional framework tends not to be supportive of developing country coalitions (S. Rolland, Cambridge University, 2007). Nevertheless, we often forget a strong corollary in this point: in addition to the economic overpowering weight of rich, their strength is set on the extreme importance of their legal capacity (H. Horn, H. Nordstrom, P. Mavroidis, CEPR Discussion Paper, 1999). Though some of the most powerful developing (Brazil, India) have started using the Dispute Settlement Understanding, LDCs still never use it because of the weakness of their legal capacity, among other factors. Legal capacity depends basically on two intertwined major factors: legal expertise capacity and financial resources. The Dispute Settlement Understanding is a massive appellate review system which has seen the development of more complex case law. The texts of WTO panel and Appellate Body decisions are based on a highly sophisticated legal analysis, building on previous WTO jurisprudence as well as public international law. WTO members filed 330 complaints in just over ten years (from January 1995-April 2005). The WTO produced 693 pages of panel findings in 1999 (W.J. Davey, Illinois Law Public Research Paper, 2003). If one counts entire judicial reports and not just the sections on findings, then, in 2000, there were 6008 pages of WTO panel decisions, which amounts to 7251 pages if one includes Appellate Body and arbitration decisions concerning implementation periods, compliance measures, and sanctions (WTO, 2000). The Consultative Board to the WTO Director General reported in December 2004 that the first 81 cases for which reports are adopted, and reports where adoption is [2]

3 Legal capacity: the long path to access to justice in WTO top-level procedures for least developed pending, amount to more than pages of jurisprudence. The conclusion of these statistics is quite clear: the simple task of reading and understanding the growing WTO case law is a huge task, even for specialised academics (G. Schaffer, University of Wisconsin, 2005). Mastering the legal systems and jurisprudential developments involve getting a strong expertise, also through hiring legal staff. The Schweizer Koordination gerechter Welthandel has mentioned this concrete fact: it is estimated that a country, to face a minimal adequate representation, needs at least four permanent delegates at the WTO. For the moment, thirty don t have any permanent representation at the Geneva WTO Central office; fifty national representations have between one and three delegates. On average, half of all member states are not able to be active in the WTO decision process. More precisely, in 2000, 70% of developing country members did not have the minimum of four staff members based in Geneva (C. Michalopoulos, World Bank, 2001). Officially this legal advice is available within the WTO secretariat, but it is minimal and only covers a brief initial consultation. A country is not able to benefit from the resources of thewto Secretariat to fully prepare a case. Therefore, the choices of LDCs are limited and they must bet on private law firms, institutional initiatives like the Advisory Centre on WTO Law, and regional seminars given by the WTO and the UNCTAD. The Advisory Centre on WTO Law (ACWL) was created in 1999 thanks to donations from some wealthierwto members. Besides organising training courses and internships for delegates and lawyers of LDCs, the ACWL provides legal assistance including advice on whether to submit a case in the dispute settlement process. It is important to note that legal opinions are offered free of charge when concerning either the WTO s consistency with a member s own policies or those measures by another state that adversely affect the interests of the member. The estimate of legal fees in dispute settlement is calculated according to income level. In its first four years, the Center has offered its legal opinion 120 times to its members and supported fifteen in their dispute settlement proceedings (ACWL, 2005). At the same time, the ACWL represents a collective body to pool the experience of developing as a group in WTO adjudication (C.L. Davis and S. Blodgett Berneo, Princeton and Duke University, 2009). However, the ACWL is quite alone in its legal support initiative, and these efforts are not enough to significantly increase developing inhouse expertise through training (AITIC, 2000). As in-house expertise development for LDCs [3]

4 Effectius remains limited (V. Mosoti, FAO, 2005) this often results in the decision to use a private law firm or an independent consultant. If complex legal procedures mean top level expertise, expertise means high costs. For LDCs there is a major concern regarding the costs associated with legal procedures (submission, pursuing and defending cases), and human resources (V. Delich, National University of Buenos Aires, 2002). Given market rates, a litigation only bill of $ to an exporter for a market access case is common (V. Mosoti, FAO, 2005). However, this would include neither the resources necessary to investigate potential claims in the prelitigation phase, nor the resources necessary to engage public relations and/or political lobbying in the post-litigation phase of generating compliance. TCalculating attorney fees in trade litigation cases at a billable rate of $350 per hour, an estimate of the hourlyaverage indicates that the bill for legal services could run from $ for a low complexity Dispute Settlement Understanding (DSU) case to $ for a high complexity case (Advisory Centre on WTO Law, 2005). However, these fees will not include the cost of litigation support through necessary data collection, economic analysis and hiring of expert witnesses for testimony, which may lead to another $ to $ One must also consider that there are substantial overhead costs to the actual litigation process associated with travel, accommodation, communication and paralegal and secretarial assistance (C. Bown and B. Hoekman, Brandeis University, Massachusetts, and World Bank, 2005). A few initiatives exist from private law firms or institutional actors concerning the specific problem of the cost of legal expertise (i.e. legal procedure, accommodation, communication and paralegal and secretarial assistance).in 2000 one Geneva law firm was offering a free initial period of consultation for the LDCs. The expansion of pro-bono legal services, be it by law firms or other institutions which can provide expertise on international trade law, is one option mentioned in the rapport of The Forum on Improving Developing Country Access to the Dispute Settlement Mechanism (DSM), which was organised by the AITIC ten years ago. The AITIC, whose objective is to assist the LDCs in enhancing their presence in Geneva, decided to establish a permanent facility to cater to their specific requirements. In consequence, and with the assistance of the Swiss authorities, it established the NRU (Non-Resident s Unit) in October The NRU offers valuable support for the establishment of permanent missions in Geneva. Besides providing substantial guidance, information andpersonalised assistance to non-resident delegations without representation in [4]

5 Legal capacity: the long path to access to justice in WTO top-level procedures for least developed Geneva, the NRU equips the delegations attending meetings in Geneva with full logistical support, including the provision of temporary office space, secretarial services and internet access (AITIC, 2010). Nevertheless, as mentioned in the same rapport several measures are crucial for improving legal capacity and, therefore, the equal access of LDCs in the WTO Dispute Settlement Mechanism; firstly, an expansion of the WTO Secretariat legal advice facility, includingnot only initial consultations but also assistance with the detailed preparation of cases; secondly, the expansion of pro-bono legal services by law firms or other institutions which can provide expertise on international trade law; thirdly, a special endowment fund at the WTO Secretariat or the ACWL to finance the use of experienced private sector lawyers (a good way to the in-house development of legal staff) and provide a permanent logistic support system (office, internet connections, paralegal assistance). Marc-Antoine Carreira da Cruz Published as part of the Effectius Newsletter, Issue 8, (2010) [5]