"Brendan McGivern Partner, White & Case LLP, Geneva Materials of the workshop on Resolving agricultural trade issues through the WTO organized by FAO in collaboration with Ukraine’s Ministry of Agrarian Policy and Food of Ukraine in Kyiv on June 7, 2017. http://www.fao.org/economic/est/est-events-new/wtokiev/en/ http://www.fao.org/europe/news/detail-news/en/c/892730/"

1. Resolving agricultural trade
issues through the WTO
Presentation to the FAO Workshop
Kiev, Ukraine
7 June 2017
Brendan McGivern - Partner
White & Case LLP, Geneva

2. WTO Litigation

3. WTO Litigation: Key principles
 Important features of the WTO dispute settlement
system:
 WTO Panels have compulsory jurisdiction over all
WTO Members.
 WTO Panel and Appellate Body decisions, once
adopted, are binding.
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4. WTO Litigation: Key principles
 Major innovation of the WTO: “automaticity”.
– Panels are established automatically.
– Panel reports are adopted automatically.
– Retaliation is authorized automatically.
 Significant change from GATT dispute settlement.
 Strengthens rule of law in multilateral trading system.
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5. WTO Litigation: Key principles
 State-to-state dispute settlement system.
– Private companies have no standing – but are usually
active behind the scenes in any dispute.
 Three independent experts serving on panel.
 Standing Appellate Body to review errors of law.
 System has high degree of confidence among WTO
Members.
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6. WTO Litigation: Procedural steps
 WTO Consultations
– Intended to facilitate diplomatic discussion and resolution of
the dispute – has not performed this role in practice.
– Consultations within 30 days.
– 60 days from Consultations to Panel Request.
– Urgent consultations within 10 days – rarely used.
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7. WTO Litigation: Procedural steps
 Request for Establishment of Panel
– Requires two meetings of the WTO Dispute Settlement Body –
supposed to facilitate settlement but rarely does.
 Panel selection
– Parties agree on three members.
– Or WTO Director-General will appoint.
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8. WTO Litigation: Procedural steps
 WTO Panel proceedings
– Three neutral experts – often trade diplomats from non-
involved countries.
– Other WTO Members can join as Third Parties to provide
views – usually on systemic or interpretive issues.
– Panel report – facts, law, rulings: can be quite lengthy.
– Time period varies but usually about 18 months.
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9. WTO Litigation: Procedural steps
 WTO Appellate Body proceedings
– Standing body of seven members to review errors of law.
– Most important part of the dispute settlement process.
– Supposed to be 90 days but this is now slipping.
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10. WTO Litigation: Procedural steps
 DSB adoption of reports
 Implementation period
 Compliance panel proceedings
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11. WTO Litigation: Procedural steps
 Retaliation
– Option available to seek enforcement of WTO rulings.
– Can get authorization to “suspend concessions” – such as by
imposing retaliatory trade sanctions on imports.
– Very difficult. Retaliation can often hurt the importing country
– higher import tariffs mean higher prices for consumers and
businesses.
– Disparity in size of economies: Antigua authorized to
retaliate against the U.S.
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12. WTO Litigation: Agricultural
disputes
 Wide range of disputes covering agriculture,
including:
– Agricultural subsidies (Canada – Milk, US – Upland Cotton,
EC - Sugar)
– Quotas (EC – Bananas, EC – Poultry)
– Distribution networks (Korea – Beef)
– “Tariffication” (Chile – Price Band, Peru – Price Band)
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13. WTO Litigation: Conclusions
– Agriculture remained outside the multilateral
trading system for most of the post-war era.
– WTO Agreement on Agriculture a major
achievement of the Uruguay Round – but far from
perfect.
– Agricultural trade has led to some of the most
difficult WTO disputes.
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14. Questions?

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