Participation by Private Counsel in World Trade Organization Dispute Settlement Proceedings

By Pearlman, Jessica C. | Law and Policy in International Business, Winter 1999 | Go to article overview

Participation by Private Counsel in World Trade Organization Dispute Settlement Proceedings


Pearlman, Jessica C., Law and Policy in International Business


I. INTRODUCTION

The threshold question to ask in examining the role of private counsel in the WTO dispute settlement procedures is whether private counsel can have a role. The first section of this Note addresses whether WTO member governments can hire private lawyers to represent them in disputes before the WTO. This question requires an inquiry into both the text of the WTO Dispute Settlement Understanding(2) (DSU) and into prior and current expectations and practice. This section will examine arguments for and against private counsel representation of Member governments.

The second question to ask (assuming private counsel is allowed to represent members) is whether individual WTO Member governments should choose to give private sector counsel access to the dispute settlement proceedings. The second section of this Note addresses this issue and examines two different levels of access that could be allowed. The first involves limited access with government control and the second involves giving private parties a right to access. Also examined in the second section are the practices and expectations regarding private sector access to WTO dispute settlement proceedings and the various issues raised by each of the two levels of access.

II. PRIVATE COUNSEL REPRESENTATION OF WTO MEMBER GOVERNMENTS IN WTO DISPUTE SETTLEMENT PROCEEDINGS

A. Increased Use of WTO Dispute Settlement Proceedings

1. Increased Case Load Overall

The WTO dispute settlement procedures have become more important due to the fact that they have been increasingly utilized. This "steady increase in the case-load"(3) is only expected to continue. Washington attorney Andrew Shoyer, formerly with the Office of the United States Trade Representative (USTR), has said "[t]he World Trade Organization dispute settlement process will be challenged by both an increasing volume of complaints and greater complexity of cases."(4) Phillipe Sands, of the University of London, has written:

   Over the past decade States have shown a willingness to resort to the use
   of ... international bodies to resolve their international disputes....
   This is reflected in the increased case load of most of the
   well-established bodies, the creation of a number of new such bodies, and
   the number of cases being brought before the new bodies. The consequential
   prospect is for an increase in international litigation.(5)

This increase in cases makes the role of private counsel particularly significant: "With more cases expected to be filed ... there will be greater reliance on private parties to do the ground work."(6) Exactly what private counsel can do is therefore a question of importance.

2. Increase in Use by Developing Countries

Developing countries have increasingly seized the opportunity to litigate cases within the WTO's dispute settlement system.(7) This increased use suggests that they view the WTO dispute settlement procedures as presenting new prospects.(8) The capability of developing countries to effectively utilize the dispute settlement procedures is closely related to whether or not they can hire private counsel to represent them. This ability can help developing countries to overcome the disadvantages they face in international litigation due to their lack of resources and experience.(9)

B. Assumptions Based Upon Past Practices Under GATT

The assumption of some had been that private counsel would not be permitted to represent WTO Member governments in dispute settlement proceedings.(10) This assumption relied upon practices under the GATT. It has been said that "[t]he absence of lawyer representatives has been maintained in the GATT/WTO forum as a testimony of the diplomatic roots of the system."(11) Those who oppose such representation argue that allowing private counsel impairs the position of other parties because it is counter to their legitimate expectations. …

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