What's new in EU trade dispute settlement? Judicialization, public–private networks and the WTO legal order

Abstract

There is a recursive relationship between the judicialization of international trade relations and the development of public–private partnerships in the EU to address international trade claims. The more legalized international trading system creates stronger incentives for well-placed private actors to engage public legal processes. At the same time, to litigate effectively in the WTO system, government officials need the specific information that businesses and their legal representatives can provide. Officials therefore strive to establish better working relations with industry on trade matters. As a result, the EU's decision-making process for the investigation, litigation and settlement of trade claims has become a dynamic, ad hoc, hybrid, multi-tiered process in which private interests are deeply implicated. The process is neither purely intergovernmental nor purely private, but rather involves public–private networks operating in the shadow of international trade law. The process changes and adapts through trial and error.

Keywords:

• EU
• judicialization
• legalization
• public–private partnerships
• trade
• WTO

Notes

1. Abbott et al. (2000) incorporate judicialization (third-party dispute resolution) as a component of the legalization of international relations. Stone Sweet (1999) focuses on judicialization as a key component in the construction of governance.

2. Formally, the European Communities (EC) is a party to the WTO, but we use the term EU since the EU encompasses the EC as a political entity, and that term is used more frequently.

3. Telephone interview with member of the dispute settlement unit, November 14, 2005. Confirmed in telephone interviews with other members of DG Trade and private European lawyers, November 2005.

4. See Commission Communication, ‘The Global Challenge of International Trade: A Market Access Strategy for the European Union,’ COM(96) 53 Final.

5. Directorate-General I Press Conference. See ‘EU Launches New Market Strategy,’ in Eurocom Monthly Bulletin, December 1996. (www.eurunion.org/news/eurecom/1996/ecom1296.htm [July 2001]).

6. Interview in Washington DC (October 18, 2001). See also Hudec (2003: 203).

7. Interviews with Dorian Prince, former head of the market access unit, on March 5, 1998, and confirmed in a subsequent interview with him on June 28, 1999 in Brussels.

8. Telephone interview with member of the market access unit, November 11, 2005.

9. Telephone interview with member of the market access unit, November 11, 2005. See also Crowell and Moring (2005: 29).

10. Telephone interviews with Commission officials and private counsel for EU businesses, November 2005. See also Crowell and Moring (2005: 39).

11. DG Trade's dispute settlement unit continues to take the lead during the ‘consultations’ phase. Email from member of the dispute settlement unit, March 13, 2006.

12. Telephone interviews with private lawyers from three firms that have handled WTO matters on behalf of EU companies, November 14, 16 and 18, 2005 respectively. See also discussion in Shaffer (2003: 120–5).

13. For a comparison of their operation in practice, see Shaffer (2003: 89–94).

14. Interview with a member of the Commission's DG Trade, Brussels, June 13, 2001. See also Woolcock (2000: 387–8); Bronckers and McNelis (2001: 458–9).

15. Interview with a DG Trade official, Brussels, June 16, 2001.

16. Interviews with a member state representative to the Article 133 Committee in Brussels (June 23, 1999), a Commission official in DG Trade, Brussels (June 24, 1999), and telephone interview with an official from DG Trade on November 11, 2005.

17. Remarks of Tim Jackson, head of the SWA, at a conference in Geneva, May 1997, distributed at conference (on file with author). Confirmed by a USTR official, inteview, May 10, 2000, and by a member of the Legal Service of the European Commission, interview, June 22, 1999.

18. Remarks of Tim Jackson, see note 17. The reports on the three alcohol cases can be found at: Report of the Appellate Body, ‘Japan – Taxes on Alcoholic Beverages,’ WTO Documents WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (October 4, 1996); Report of the Appellate Body, ‘Korea – Taxes on Alcoholic Beverages,’ WTO Documents WT/DS75/AB/R, WT/DS84/AB/R (January 18, 1999); Report of the Appellate Body, ‘Chile – Taxes on Alcoholic Beverages,’ WTO Documents WT/DS87/AB/R, WT/DS110/AB/R (December 13, 1999).

19. Telephone interview, November 18, 2005; Report of the Panel, ‘Korea – Taxes on Alcoholic Beverages,’ WTO Document WT/DS/75/R (September 17, 1998), pars. 10.91–92.

20. Council Regulation 3286/94 of 22 December 1994, Official Journal of the European Communities, L 349, December 31, 1994, p. 71.

21. Council Regulation 2641/84 of 17 September 1984, Official Journal of the European Communities, L 252, September 20, 1984, pp. 1–6.

22. Telephone interview with member of the dispute settlement unit, November 14, 2005.

23. Telephone interview with member of the Commission, November 14, 2005.

24. ‘Fédération des Industries Condimentaires de France (FICF) v. Commission,' Case T-317/02 (December 14, 2004).

25. Interview with Commission official in the TBR unit in Brussels (June 13, 2001). See also ‘Columbia – Discriminatory Taxes on Automobiles,’ OJ C236/05 (2000).

26. Telephone interview with private legal counsel, November 18, 2005. BIPAVER is the trade association for the retreaded tyre industry.

27. Telephone interview with Mr Tettamanti, a representative of Federtessile, based outside Milan, Italy (February 19, 1998).

28. After a side agreement and renewed EU challenge, the dispute was finally settled to the industry's satisfaction following Congress' passage of the Miscellaneous Trade and Technical Corrections Act of 1999. See Public Law Number 106-36-2423 (1999).

29. Interview with the representative of the leather trade association COTANCE in Brussels (June 22, 1999). Confirmed in Prince 1998 and 1999 interviews; see note 7.

30. Telephone interview with member of the dispute settlement unit, November 14, 2005.

31. Interview with member of the TBR unit, Brussels, June 21, 1999; and telephone interviews with Commission officials in November 2005.

32. Telephone interview with official from DG Trade, November 11, 2005.

33. Telephone interview with a private counsel assisting Airbus, November 16, 2005.

34. Interview, private legal counsel, July 20, 2005.

35. Jackson, SWA 1997 (‘among [the] top five export sectors …, with EU spirits exports totaling 4 billion ECU’ in 1996); Prince 1998 and 1999 interviews; see note 7.

36. Tim Jackson, SWA, May 1997.

37. See ‘Brazil: Cognac Appellation of Origin,’ OJ C103 (1997); and ‘Canada: Lack of Protection of the Wines with Geographical Indication “Bordeaux” and “Medoc”,’ OJ C124/6 (2002).

38. In matters that require a Commission investigation, the TBR does not necessarily create delay. Telephone interview with member of the dispute settlement unit, November 14, 2005.

39. Both complaints were filed before the WTO Dispute Settlement Body on October 6, 2004. See European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft – Request for Consultations by the US; and US – Measures Affecting Trade in Large Civil Aircraft – Request for Consultations by the European Communities, WT/DS317/1.

40. Telephone interview, November 18, 2005.

41. Confirmed in telephone interviews with members of the dispute settlement unit and private legal counsel, November 2005.

42. Telephone interview with member of the dispute settlement unit, November 11, 2005.

43. 1999 Prince interview; see note 7.

44. Telephone interview with member of TBR unit (February 1998).

45. Telephone interview with person involved in the cases, November 2005.

46. Interview with Danish representative to the 133 Committee, Brussels (June 24, 1999); chemical industry representative, telephone interview, November 14, 2005. Telephone interview with private legal counsel, November 18, 2005. Telephone interview with member of dispute settlement unit, November 14, 2005, confirmed in telephone interviews with private counsel representing European clients, November 14, 16 and 18, 2005.

47. Interview with member of the TBR unit in Brussels (June 29, 1999); email message from a lawyer in the Legal Service (March 11, 2003).