1. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot The Role of Non-State Actors in WTO Dispute Settlement Proceedings International Annual WTO Forum Kaliningrad State Technical University 20-22 March 2014 Prof. Dr. Karsten Nowrot, LL.M. (Indiana) University of Hamburg, Germany

2. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Introduction “The multilateral trading system is, per force, composed not only of States but also, indeed mostly, of individual economic operators.” (US-Section 301, Report of the Panel of 22 December 1999, para. 7.76)

3. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Introduction “[I]t would be entirely wrong to consider that the position of individuals is of no relevance to the GATT/WTO legal matrix. Many of the benefits to Members which are meant to flow as a result of the acceptance of various disciplines under the GATT/WTO depend on the activity of individual economic operators in the national and global market places. The purpose of many of these disciplines, indeed one of the primary objects of the GATT/WTO as a whole, is to produce certain market conditions which would allow this individual activity to flourish.” (id., para. 7.73)

4. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Outline of the Presentation Outline of the presentation  Four main steps  Participatory options for private actors in WTO dispute settlement  Status enjoyed by non-state actors in international investment arbitration  Reasons for the current appropriateness to reevaluate the position of societal actors in the dispute settlement processes of the global economic system as a whole  Some broader conceptual thoughts on a common standard for respective international remedies in transnational economic law

5. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Participation of Private Actors in WTO Disputes Settlement Participation of private actors in WTO dispute settlement  No direct participation as complainant or third party in WTO panel or Appellate Body proceedings  (informal) participatory options to assist respective WTO members  “public-private partnerships in WTO litigation” (Gregory Shaffer, 2003)  Submission of amicus curiae briefs

6. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Status of Non-State Actors in International Investment Arbitration  “mixed” arbitration as the currently most common dispute settlement mechanism  “investor-state dispute settlement” based on arbitration clauses in investment agreements  Direct access of private investors to international dispute settlement mechanisms  “marking another step in their transition from objects to subjects of international law” (Plama Consortium Ltd. v. Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction of 8 February 2005, para. 141)

7. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot “Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors Current “window of opportunity” for a comprehensive reassessment of the role of societal actors in the dispute settlement processes WTO perspective  Frequent criticism voiced against the restrictive approach adopted by the WTO  “The world has changed dramatically since the GATT’s creation in 1947. Yet 60 years later, the WTO has not adapted itself to these changes.” (Joost Pauwelyn, 2008)

8. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot “Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors “Moreover, the entire WTO is built on the practice and culture of the old GATT 1947 which played its role in the old international system on the basis of a concept of a small club of trading powers, namely the US and the EU, ruling the system. However, the days of the old GATT 1947 are gone; the former bi-polar system has been replaced by a multi-polar system of different important actors – states, civil society and transnational corporations – and a multitude of interests. The institutional system of the WTO and its entire culture do not fit into an international economic system shaped by globalization. It is obvious that a system built on ideas of the Post-World War II era is not able to cope with the challenges of today – but this is exactly the situation with regard to the WTO.” (Christian Tietje, 2009) “Clearly, the idea of developing more formal mechanisms for receiving input from non-state stakeholders in the WTO should be explored.” (Debra P. Steger, 2009)

9. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot “Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors WTO perspective  WTO would in its current phase of relative stagnation benefit from new innovation impulses  E.g. coping with the challenge of regionalism Investment law perspective  Approach of investor-state arbitration itself is more recently increasingly controversially perceived  Reasons for the current “policy shift” in international investment law

10. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot Broader Conceptual Thoughts on Common Standards for International Private Remedies in Economic Law Broader conceptual thoughts on potential common standards for international private remedies in transnational economic law  Effects of dynamization of law-enforcement processes  Inclusiveness of transnational economic governance processes  Transparency of international economic dispute settlement processes  Responsibility of private actors  Non-state actors are increasingly expected to respect and contribute to the promotion of global community interests

11. Non-State Actors in WTO Dispute Settlement Prof. Dr. Karsten Nowrot The Role of Non-State Actors in WTO Dispute Settlement Proceedings International Annual WTO Forum Kaliningrad State Technical University 20-22 March 2014 Prof. Dr. Karsten Nowrot, LL.M. (Indiana) University of Hamburg, Germany