Article: Considering Development in the Implementation of Panel and Appellate Body Reports, 4(1) TRADE L. & DEV. 150 (2012) [available here]
Article Author: Sonia E. Rolland
Reviewer: Cherise M. Valles
Introduction to Article by (Moderator): Yogesh A. Pai
The dialectics of development policy debate at the WTO has thus far largely focused on special and differential treatment (SDT). The WTO dispute settlement mechanism as an ‘institution’ has come a long way to accommodate the needs and aspirations of developing countries by adhering to the norms and standards of SDT enshrined in the DSU. Nevertheless, the way and extent to which SDT has been practiced within WTO dispute settlement may reveal certain gaps. Prof. Rolland’s article is very timely in as much as it focuses on an important area of dispute settlement, i.e. implementation and compliance (Articles 21 and 22). By way of brief introduction, Prof. Sonia Rolland is an Associate Professor at Northeastern University School of Law. Her scholarly work has focused on the framework of development in international trade law, and she recently published a book titled Development at the WTO (OUP 2012). The reviewer for this leg of the symposium is Ms. Cherise M. Valles, a Deputy Director and attorney at the Advisory Centre on WTO Law. Ms. Valles, with her vast experience in representing and advising developing- and least developed-countries at the WTO, provides an excellent and informed perspective in her comment. In fact, my task as a moderator has been made much easier since Ms. Valles’ elaborate comment also includes a brief narrative of the article. I thank her for accepting this invitation at short notice.
As the Faculty Advisor of TL&D, let me also take this opportunity to thank Simon Lester for collaborating with us and hosting this symposium. As I look back, I think we’ve had a productive exchange over the past few weeks, informed by a variety of perspectives. I hope the readers have found the symposium as useful and enjoyable as the discussants.
Coming to the focus of our present discussion, Prof. Rolland’s article draws a very interesting parallel between SDT obligations in Articles 21 and 22 of the DSU. Broadly, her claim is that despite a clear mandate of SDT in Article 21.2, the current understanding of reasonable period of time for implementation being the “shortest possible period of time in which implementation can be achieved within the legal and administrative system of the implementing country” leaves much to be desired by way of considering development in implementation. Prof. Rolland draws an interesting contrast that although Article 22 does not include a clear SDT provision, the arbitrators in 22.6 proceedings have in some instances taken into account development considerations in determining appropriate sectors and agreements for retaliation by developing countries. So, does it provide some useful basis to mainstream development considerations when clear SDT provisions are not available or applicable? Prof. Rolland answer is a cautious “yes”, suggesting further that one can draw valuable lessons for mainstreaming development-oriented reading of WTO law provisions without recourse to any formal amendment or renegotiation.
I would not pre-empt Ms. Valles by discussing her comment here, but would only like to note the main disagreement. While she agrees with Prof. Rolland’s characterization of the unpredictable and arbitrary application of Article 21.2 with respect to Article 21.3 (c) arbitration proceedings, she does not agree with the conclusions drawn by Prof. Rolland in relation to 21.5 and 22.6 proceedings.
Readers should note that Prof. Rolland’s article captures different aspects of the provision and use of SDT in the implementation and compliance stages. Therefore, an analysis of how SDT has been invoked in disputes involving developed-developed and developing-developing countries (as complainants and respondents) is also thoroughly examined on an issue by issue basis, which need not be elaborated at this juncture. Rather unsurprisingly, Prof. Rolland does not place very high hopes on the Doha outcome on proposals involving implementation and compliance remedies. However, Prof. Rolland does suggest that there are equally effective alternatives available to WTO member countries to mainstream development even without resorting to any formal textual reform. This includes the emergence of new standards of interpretation based on existing practice and positions adopted by the arbitrators, panels and the AB to give effect to the broader textual language. She concludes that lack of stare decisis in dispute settlement can be both advantageous and disadvantageous in achieving consistency involving different decisions that allow mainstreaming development in Articles 21 and 22. In sum, let me only note that as the negotiation machinery at the WTO has slowed down, this perspective tries to shift the focus of change to the judicial process. It is a fact that the DSM has been a “crown jewel” of the WTO, which may explain the immediate faith in the abilities of the WTO adjudicatory process. I would only caution, however, that this faith should not lead to a reorganization of spaces at the WTO which leads to a disproportionate burden on one particular organ as an agent of change and evolution, for it is in these circumstances that we see the strongest criticisms of judicial processes in any systems of governance.