DSM 4 EU-ACP EPAS

1
DSM 4 EU-ACP EPAS

• Lambert Botha
• International Trade Advisor

2
Overview

• General remarks
• Considerations in designing a dispute settlement
  mechanism
• Advantages of having a well-functioning dispute
  settlement mechanism
• Conclusion

3
General Remarks

• Litigation usually 2nd best option, but sometimes
  unavoidable
• Merely providing for a good dispute settlement
  mechanism (dsm) is not enough
• Political convenience should not determine the
  design of the dsm and
• A good dsm goes beyond the report.

4
The design of the mechanism

• The role and function of the highest joint
  consultative body
• The selection and appointment of arbitrators
• Whether to provide for a code of conduct and
  rules of procedure
• How to deal with confidentiality

5
The design of the mechanism

• Whether to allow for third party participation
• Whether to allow for the filing of friends of
  the court submissions
• Whether to provide for an interim and/or final
  report
• Whether to allow for adoption of the report by
  the highest consultative body

6
The design of the mechanism

• Whether to provide for a negative consensus rule
• Whether to allow for an appeal mechanism
• Implementation
• Determination of reasonable period
• Allowing for compensation
• Determining appropriate level of compliance
• Allowing for withdrawal of concessions
• Providing for a tight but reasonable timeframe
• Forum shopping and
• How to deal with costs.

7
Advantages of a well-functioning dsm

• Enhances the credibility
• Facilitates integration
• Provides certainty and predictability
• Limits power-based engagements.

8
Conclusion

• Resolving trade disputes through the use of a
  dsm, should not be regarded as an unfriendly
  act.
• Without political commitment, any government to
  government dsm is destined for failure.