1 Role of Legal Advisors in WTO Proceedings Presentation to Jindal Global Law School, Centre for International Trade and Economics Laws February 10, 2015 Greg Tereposky, Partner International Trade and WTO Law Group

2 There are a myriad of different roles that legal advisors can play in WTO dispute settlement: 1. Building dispute settlement capacity within government (e.g., training) 2. Advice on discrete legal and policy issues 3. Advice on strategic, evidentiary and procedural issues 4. Preparation for the different stages of dispute settlement 5. Representation in dispute settlement A Myriad of Different Roles

3 There are numerous potential clients in a given WTO dispute: 1. Complainant WTO Member, respondent WTO Member, third party WTO Member 2. There will be one or more interested government department or other entity in each affected WTO Member (counsel to government) 3. There will be one or more affected industries or private entities in each affected WTO Member (liaison counsel) Numerous Potential Clients

Multiple Stages in Dispute Settlement Disputes do not necessarily go through the same stages. The potential procedural stages in a dispute are reflected in over 50 different procedural documents that are issued in dispute settlement The intensity of activity in the different stages varies Advisors may be involved in some or all of the stages of a particular dispute 4

Maxrix of Activities for Advisors To get an idea of how many different activities advisors can undertake: # of potential roles x # of potential clients x # of different stages in dispute settlement = a pretty big # 5

Focus of Presentation It is not possible to cover all of the potential activities of legal advisors I will focus on some of the key activities that are generic to most disputes I will present primarily from the perspective of a legal advisor to a WTO Member (government) However, since all disputes generally go through these same considerations, consider the different perspectives you would have as advisor for complainants, respondents, third parties and private sector clients 6

7 1. Identification of issues & facts 2. Legal and policy assessment and coordination with affected government departments and industry 3. Determining appropriate role (complainant, co- complainant, third party) 4. Creating alliances with other WTO Members 5. Consultations 6. Request for establishment and composition of panel 7. Dispute settlement proceedings Overview of the Stages of Preparation

8  Issues often first identified by industry and other private sector interests  Coordination between private sector and government trade officials  Clarification of issues and facts 1.Identification of issues & facts

9  Essential to undertake comprehensive assessment  Legal and policy issues  Systemic and dispute-specific issues  Institutional consistency  Facts and supporting evidence  Coordination with affected government departments and private sector interests  Best approach is to have comprehensive analysis completed before initiating 2. Legal and policy assessment and coordination

10  Complainant and respondent  Co-complainant  Join with other WTO Member(s)  Coordination to reduce resources for preparation and conduct of dispute  Third party  Monitor dispute or address systemic issues  Reserve appeal rights  Normal versus enhanced  No right to suspend concessions 3. Determining appropriate role for WTO Member

11  Alliances with co-complainants and third parties  Sharing ideas, analysis and evidence  Reducing costs  Building support for interpretations and positions  Maximizing consistency in case presentation and preparing to explain divergent positions 4. Creating Alliances with other WTO Members

12  Preparing a request for consultations and formally initiating a dispute  In addition to resolving dispute, opportunity for further preparation:  refine understanding of issues and supplement facts  complete legal, policy and factual analyses  delay initiating next phase of proceedings  Preparing questions to raise in consultations  Obtaining documentary evidence  Parallel consultations in subsequent phases 5. Consultations

13  Initial case preparation (including draft first written submission and evidence) should be completed before filing request because formal time frames begin once panel composed  Preparing a request for establishment of a panel  Panelist selection process  Assessing potential panelists  Director-General appointment  Opportunity for delays  Final opportunity for preparation before filing case 6. Request for establishment and composition of panel

14  Assembling team (legal, factual, policy)  Reviewing submissions (party and third party) and drafting responding submissions  Preparing questions and answers (Q&As) for questions that are likely to arise in meetings with the Panel  Preparing oral statements and executive summaries  Preparing written responses to questions from the Panel 7A. Dispute settlement proceedings - Panel

15  Appeal time frames very short  Notice of Appeal due 60 days from date of circulation to Members  Appellant’s submission due with Notice of Appeal and Appellee’s submission due 18 days later  Begin appeal analysis immediately upon receiving interim panel report and begin drafting submissions  legal and policy issues  systemic issues and dispute-specific issues  Prepare oral statement and Q&As for likely questions 7B. Dispute settlement proceedings - Appeal

16 Questions? Greg Tereposky tel THANK YOU FOR YOUR ATTENTION