DSM 4 EU-ACP EPAS Lambert Botha International Trade Advisor

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

General Remarks 1.Litigation usually 2 nd best option, but sometimes unavoidable; 2.Merely providing for a good dispute settlement mechanism (dsm) is not enough; 3.Political convenience should not determine the design of the dsm; and 4.A good dsm goes beyond the “report”.

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;

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;

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.

Advantages of a well-functioning dsm Enhances the credibility; Facilitates integration; Provides certainty and predictability; Limits power-based engagements.

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.