RTA Dispute Settlement Provisions: Options for Effective Enforcement

February 8, 2018

Together with the proliferation of regional trade agreements (RTAs), there has been a proliferation of dispute settlement mechanisms (DSMs) included in those agreements. While they are far from being used as often as the WTO dispute settlement mechanism, even in relative terms, these mechanisms are regular elements of RTAs and exist as one of the tools for handling trade differences. Considering the different paces of rule-making at the multilateral and regional levels, DSMs under RTAs are likely to become increasingly relevant in the future as litigious fora for addressing trade differences among trading partners, particularly with respect to WTO-extra obligations. For this to happen however, RTA DSMs need to function efficiently and effectively.

The few concluded RTA disputes highlight some of the challenges facing countries when using RTA DSMs and how such mechanisms relate to other international DSMs. While RTA DSMs may need to be improved in order for them to foster confidence and be able to resolve trade differences efficiently, they provide direct legal basis for RTA trade differences to be heard, especially those relating to WTO-extra matters. A relevant overarching question in this respect is therefore what can be done to promote a system that would address trade disputes in a more comprehensive manner.

As a contribution to this debate, this informal dialogue organized by the International Centre for Trade and Sustainable Development (ICTSD) and the Inter-American Development Bank (IDB) aims at systematically reviewing dispute settlement provisions and practical experiences in using RTA DSMs. Leading experts, private sector representatives, practitioners and policy makers together with Geneva-based delegates and relevant IGOs will engage in the discussion. Ultimately, such a review will lead to the identification of priorities for action or governance reform that enhance coherence at the global level.


Agenda: Link


RTA

RTA

Dialogue Report and Background Materials


RTA

Regional Trade Agreement Dispute Settlement Mechanisms: Modes, Challenges and Options for Effective Dispute Resolution

The importance of regional trade agreements (RTAs) and their dispute settlement mechanisms (DSMs) will likely continue to grow considering the dynamics of the multilateral trade negotiations and the challenges faced by the World Trade Organization dispute settlement system. This paper examines the evolution RTA-DSMs and their common features. It looks at six aspects in particular: initiation, method of settlement, procedures for adjudication, enforcement, openness, and institutional arrangements. It argues that the evolution is a reflection of a continuous effort to improve the avenues available for resolving disputes, while calibrating a careful balance between retaining state flexibility and control, on the one hand, and the degree of delegation of resolution to neutral third parties, on the other hand. The author also puts forward policy options for those mechanisms to be more accessible and effective. The paper is part of the RTA Exchange on Dispute Settlement project. It is aimed at analysing experiences and best practices, with a view to cultivating creative ideas for global trade policymaking and facilitating the enforcement of RTAs, taking into account their practical feasibility and the political realities. The RTA Exchange, jointly implemented by the International Centre for Trade and Sustainable Development (ICTSD) and the Inter-American Development Bank (IDB), is a platform that convenes purposeful multi-stakeholder dialogues that work in the interest of constructing better trade and investment agreements for sustainable development at the regional and multilateral levels.

Authors: ROBERT MCDOUGALL

Read Full Material: Link

RTA

Reforming Dispute Settlement in Trade: The Contribution of Mega-Regionals

Dispute settlement rules and procedures are an important component of so-called mega-regional trade agreements. Reacting to recurrent criticism of the legitimacy of dispute settlement in international economic law, their characteristics and innovative features are driven by two partly competing and overlapping concerns. First, to decrease the autonomy of dispute settlement mechanisms and their potential to develop into independent institutions of international public authority. Second, to minimise friction with existing multilateral governance mechanisms, particularly under the World Trade Organization (WTO). Given the economic and political weight of the parties involved, the means used in the EU-Canada Comprehensive Economic Trade Agreement and the (Comprehensive and Progressive Agreement for) Trans-Pacific Partnership to address these concerns are likely to influence the development of dispute settlement provisions in future regional trade agreements, as well as negotiations to reform WTO dispute settlement. The paper is part of the RTA Exchange on Dispute Settlement project. It is aimed at analysing experiences and best practices, with a view to cultivating creative ideas for global trade policy making and facilitating the enforcement of RTAs, taking into account their practical feasibility and the political realities. The RTA Exchange, jointly implemented by the International Centre for Trade and Sustainable Development (ICTSD) and the Inter-American Development Bank (IDB), is a platform that convenes purposeful multi-stakeholder dialogues that work in the interest of constructing better trade and investment agreements for sustainable development at the regional and multilateral levels.

Authors: STEPHAN W. SCHILL GERALDO VIDIGAL

Read Full Material: Link


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