Article: Considering Development in the Implementation of Panel and Appellate Body Reports, 4(1) TRADE L. & DEV. 150 (2012) [available here]
Reply by Sonia E. Rolland
I will first take this opportunity to sincerely thank the Editors of Trade Law & Development and Simon Lester of the International Economic Law and Policy blog for presenting this symposium and supporting
this unique opportunity for a global exchange on dispute settlement at the WTO. I also wish to thank particularly Professor Yogesh Pai for his kind introduction and Ms. Cherise M. Valles for her insightful and thought-provoking comments. Her experience as a practitioner is precious to help inform the debate.
While my paper focuses on the narrow issue of development in implementation procedures, the issues must be viewed in the broader context of the debate regarding development considerations under the DSU and, ultimately, under the WTO agreements as a whole. As such, many of the critiques of Special and Differential Treatment (SDT), and some proposed alternatives are also relevant here. In particular, the debate on whether to treat development as a marginal consideration, typically through SDT, or to reconsider the rules and their interpretation to “mainstream” the interests of many WTO developing members comes into play at the implementation stage of dispute settlement. My paper examined the value and limitations of SDT as it currently exists under Articles 21 and 22 of the DSU, and offered some alternatives.
My analysis on Article 22 suggests that the requirement to take into consideration broader economic conditions may be creating such an opportunity for taking into account development constraints much like what some commentators and practitioners have called “mainstreaming”. Article 22.3(d) is facially neutral (it does not distinguish between developing, developed or LDC members) but allows the particular circumstances of members to influence the legal determination, presumably including development constraints of developing and LDC members. I must re-emphasize here that the analysis must be taken with great caution, as there is only a very limited record of arbitrations to examine.
As Ms. Valles rightly points out, a risk with SDT is to create tiered obligations between developed and developing countries. While some members advocate precisely that, others have withdrawn from their SDT demands. The WTO agreements and the DSU, in as much as they make special allowances for
developing and LDC members, do seem to create different rights and obligations for different members. Whether this differentiation is helpful or desirable is very much up for debate amongst members.
Where both Ms. Valles and I agree is that arbitrariness and lack of consistency in the interpretation of SDT and development arguments is a real problem. Arbitrations regarding the time-period for implementation and the suspension of concessions are not immune from critique on that point.
The issue then is to propose avenues for improving the consistency and predictability of arbitrators’ decisions when they face development arguments made under SDT provisions. As I discuss in the paper and more broadly in my book Development at the WTO (Oxford University Press, 2012), the lack of precision in many SDT provisions regarding the nature of the obligation and the type of obligor has made it all too easy to brush them aside as merely hortatory. I argue that obligations can take other forms than bright line prohibitions and mandates. Recent evolutions in international environmental law and human rights, for instance, have resulted in the interpretation, adjudication and implementation of treaty provisions previously seen as simply aspirational to now comprise a legal obligation of conduct or means.
Similarly, in the WTO context, consider provisions such as Article 21.7: “If the matter is one which has been raised by a developing country Member, the DSB shall consider what further action it might take which could be appropriate to the circumstances.” It is unclear as to exactly what the DSB should do in order to meet its burden: there is no guidance on what range of actions are to be considered, nor on what circumstances must be taken into account. Is that to say that the clause is devoid of any legal meaning and can be ignored as merely hortatory? The drafters certainly chose the language of legal obligation (“shall”) and not the softer “should” used in some SDT provisions. The clause also makes it clear that the DSB must consider the issues and the possible responses. I suggest that compliance could be evidenced by some discussion, in the DSB minutes, of any development considerations
raised by members involved in the dispute and possible responses to the particular problems brought to the DSB’s attention. The DSB does that in part, for instance, when it allows developing members a longer time for submitting their written arguments in proceedings, acknowledging their capacity constraints. I used the term “best efforts” to describe the type of obligation where the treaty provision does not mandate a particular result but appears to require a process for dealing with development issues. While Ms. Valles doubts that such a framing would be helpful to reinforce the value of SDT provisions, I suggest that it could be a step forward, by no means exclusive of other canons of interpretation or even stronger enforcement processes.