1. SOUTH AFRICA’S INTERNATIONAL DISPUTE SETTLEMENT EXPERIENCE
STRUCTURES AND PROCEDURES EMPLOYED
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Gustav Brink

2. 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?
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Gustav Brink

3. 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
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Gustav Brink

4. 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
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Gustav Brink

5. 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Blanketing: Challenged procedure, agreed procedure incorrect, measure withdrawn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MIDP: challenged SA subsidy as prohibited, agreed, specific subsidy (leather seats) withdrawn
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Gustav Brink

6. 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
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Gustav Brink

7. 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
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Gustav Brink

8. 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 .
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Gustav Brink

9. ACTUAL PROCESS FOLLOWED.
Trade remedies policy
Trade remedies investigations
Chief Commissioner: ITAC
Foreign government
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Gustav Brink

10. 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
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Gustav Brink

11. 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
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Gustav Brink

12. 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
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Gustav Brink

13. 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
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Gustav Brink

14. 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
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Gustav Brink