Trade concerns relating to TBT may be addressed by concerned countries through different fora. In the WTO, Members may raise these concerns in the TBT Committee or by formally initiating a dispute under the WTO dispute settlement system (DSM). The options are not mutually exclusive and Members may go for either or both options simultaneously or one after the other. During the last decade, approximately 6% of matters raised in the Committee eventually become the subject of a formal dispute under the dispute settlement mechanism.
Managing TBT trade disputes requires smart handling and utilization of domestic resources and managing a fruitful collaboration between different role players and stakeholders. At the outset, countries have to evaluate and consider which forum would best address the specific trade concerns, while taking into account factors such as litigation costs, predictability of the dispute settlement mechanism and other practical consideration. As with other disputes, governments need inputs from the relevant industry to assist in identifying and assessing trade barriers, as well as inputs from the TBT community to provide guidance on the scientific or economic bases of existing or impending disputes.
Relatively few developing countries have gained practical experience and technical expertise in resorting to the WTO TBT Committee or the WTO DSM to address trade concerns relating to TBT. With increasing worldwide focus on standards, regulations intended to address non-trade concerns, such as public health, animal welfare, consumer information through trade measures such as stipulating production process, outlook of products, and the forming of global value chain, it is crucial that developing countries keep abreast with the increasing complexity of TBT disputes.
Lack of legal capacity is one of major hurdles for developing countries that prevent them from actively and effectively protecting and promoting their trade interests for example, through WTO TBT Committee and the WTO DSM. Legal capacity means solid institutional structures that allow for effective inter-governmental and multi-stakeholder coordination, processes that support and regulate the involvement of industry, trade law expertise, and national legislation that allows for effective implementation.
Against this background, the workshop, as part of the tripartite programme of the Secretariat of the World Trade Organization (WTO), the Advisory Centre on WTO Law (ACWL) and the International Centre on Trade and Sustainable Development (ICTSD), aimed to draw upon the experiences of developing countries that have successfully overcome the challenges in managing TBT disputes and thus were able to share their experiences, identify best practices and provide guidance in the context of legal capacity building.
The tripartite partnership, which benefits from the unique strengths of the three institutions, is financed through a grant by Finland, and includes a series of regional and sectorial workshops that are aimed at identifying and developing best-practices of developing countries in WTO dispute settlement and other highly specialized areas. By addressing the issue of legal capacity, the tripartite programme touches upon a critical matter, i.e., the ability of developing countries to manage their trading interests and, ultimately, their development rights and concerns.
So far, the three institutions have jointly organized seven activities. The first one took place in Geneva in May 2012; it was a global initiative and was thus entitled South-South Dialogue on Managing Trade Litigation. The participants shared their experiences in participating in the WTO dispute settlement process with the aim of identifying best practices in handling WTO disputes. The next steps followed between 2012 and 2014, respectively, with three regional dialogues, India Regional Dialogue on Managing Trade Disputes, held in New Delhi, Latin America Regional Dialogue on Managing Trade Disputes, held in Brasilia, Africa Dialogue on Managing Trade Concerns, held in Geneva. Three sectorial workshops have also been organised since 2013: a workshop on trade remedies which was held in Beijing in late 2013, one on handling trade and environment disputes, which was held in Geneva in early 2014 and another one on managing SPS trade concerns which was held in Geneva in late 2014.
The tripartite approach chosen by the institutions is critical for ensuring the success of the initiative. All three institutions have strong and unique expertise in the area of WTO law, trade litigation and domestic legal capacity. Combining the different expertise is thus an essential step in ensuring that technical assistance, especially in critical areas in trade, takes a holistic and resource efficient approach.
In this context, the WTO would provide the institutional and procedural perspective, while the ACWL would offer its unmatched expertise in litigation, which would be complemented by ICTSD’s unique knowledge base on domestic and non-governmental realities.