SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE STRUCTURES AND PROCEDURES EMPLOYED 16/01/2019 Gustav Brink

OVERVIEW Why is South Africa important? What experience does SA have? What are the structures in SA? What should the structure look like? What expertise is available in SA? How does government and private sector link? 16/01/2019 Gustav Brink

WHY IS SA IMPORTANT? SA history SA has biggest economy in Africa, 3 times that of Nigeria SA accounts for 90%+ of SACU GDP One of few African countries with exposure to DS Additional experience in trade negotiations Significant private sector expertise 16/01/2019 Gustav Brink

SA’S EXPERIENCE Two formal disputes Two informal disputes Penicillin from India Blanketing from Turkey Two informal disputes Carbonless copy paper from EU MIDP: challenge by Australia Dispute requested by SA industry: wire, ropes and cables EU request to join as third party, yet no third party participation Textiles/clothing from China 16/01/2019 Gustav Brink

SA’S EXPERIENCE (2) Penicillin: Challenged factual determination, no agreement, challenged in court, ruled in SA’s favour Blanketing: Challenged procedure, agreed procedure incorrect, measure withdrawn Carbonless copy paper: challenged factual determination, no agreement, but not proceeded with MIDP: challenged SA subsidy as prohibited, agreed, specific subsidy (leather seats) withdrawn 16/01/2019 Gustav Brink

SA STRUCTURES All trade issues fall under DTI Geneva office – all WTO matters International trade fall under ITEDD – WTO desk ITAC – responsible for trade administration, including remedies All disputes to date relate to remedies ITAC – trade remedies section Trade remedies – policy and investigations units Trade remedies policy unit now defunct, but new legal services and ITAC policy units 16/01/2019 Gustav Brink

SA STRUCTURES (2) Request for consultations – Geneva office to inform ITEDD WTO desk WTO desk to determine responsible party, e.g. ITAC, Agriculture, Customs Specific department to determine facts, liaise with ITEDD Consultations – ITEDD, with back-up from experts Any Panel proceedings: ITEDD, experts and counsel 16/01/2019 Gustav Brink

INSTITUTIONS 16/01/2019 Gustav Brink Minister of Trade and Industry Department of Trade and Industry Customs and Excise Core department, e.g. Agriculture ITEDD ITAC Geneva office TISA Other DTI units WTO desk Other desks Trade remedies Other units Trade remedies policy Trade remedy investigations . 16/01/2019 Gustav Brink

ACTUAL PROCESS FOLLOWED . Trade remedies policy Trade remedies investigations Chief Commissioner: ITAC Foreign government 16/01/2019 Gustav Brink

AVAILABLE EXPERTISE: PUBLIC SECTOR Only one person in public service with Panel experience ITEDD experience in trade negotiations, e.g. TDCA with EU, SACU-EFTA FTA, negotiations with US (failed/aborted), India, Brazil; MoU with China Virtually no experience in or knowledge of dispute settlement (MIDP case only) ITAC Very little experience or knowledge – Director Trade Remedies Policy, one of two Trade Remedies Investigations directors, previous ITAC chairperson with Panel experience and ITAC Chief Commissioner and top two investigating officers all left in past 26 months 16/01/2019 Gustav Brink

AVAILABLE EXPERTISE: PRIVATE SECTOR Latest Appellate Body member from SA At least three more panellists in SA (plus Johann Human) Several experts that publish internationally text books, chapters in text books, articles in int’l journals International trade and trade law courses presented by several universities Pretoria/Western Cape has course with Georgetown/Amsterdam – most students from Africa outside SA Stellenbosch, Witwatersrand, etc. Private sector individuals have attended WTO dispute settlement training 16/01/2019 Gustav Brink

PUBLIC/PRIVATE SECTOR LINKAGES Very few links between public and private sector “Jealousy” against current and former colleagues (lectures, articles, general) MoU with China prime example of lack of cooperation between public and private sector SA and SADC must find a way to join hands with private sector No lobbying as in US 16/01/2019 Gustav Brink

CAPACITY REQUIREMENTS Expertise In region only in SA In rest of Africa – only Egypt directly involved Use private sector experts for on-the-job training Numbers Few experts required, use existing people Depends on number of cases envisaged 16/01/2019 Gustav Brink

RECOMMENDATIONS Educate industry Geneva office attendance of DSB meetings Train public sector using private sector experts Provide for outside experts to be involved in disputes Become involved as third parties Make use of Advisory Service for developing countries in Geneva Be prepared to lodge disputes if industry negatively affected 16/01/2019 Gustav Brink