Advisory Centre on WTO Law Centre Consultatif sur la Législation de lOMC Centro de Asesoría Legal en Asuntos de la OMC Daring to Dispute: Africa and the WTO Calvin Manduna, tralac Petina Gappah, ACWL

By … most measures, the operation of the dispute settlement system in the WTO has been a remarkable success. …It is clear that the Members find it useful to utilise the new system as a tool for enhancing their trade diplomacy and securing solid and reasonably timely responses to practical trade problems. The Future of the WTO, Report by the Consultative Board to the WTO DG, 2004

Optimistic statement may not give fuller picture: Does not consider that developed WTO Members are responsible for at least a third of all disputes brought in last ten years; Does not reflect repeat players among developing countries (Brazil, India, Korea, Mexico, Thailand) Does not reflect experience of African countries, who are among the smallest and most vulnerable of WTO Members.

What is the true picture of African participation? No disputes as complainant or respondent; 5 disputes as third parties, of which three were as part of ACP group; Limited participation as panellists; No Appellate Body Member from sub-Saharan Africa; No African nationals currently involved in WTO dispute settlement in the Secretariat.

Why be concerned about Africas non-involvement? Participants help develop jurisprudence; Dispute settlement sometimes used to fill gaps in negotiations, for example, non-member submissions (India – BOP case); African countries may miss the opportunity to shape obligations and develop interpretations supportive of development objectives; Participation important to integration of African countries in multilateral trading system.

Recent cases involving African countries encouraging. African countries involved as third parties in two of the most significant cases concerning trade in agriculture. US – Subsidies on Upland Cotton EC – Export Subsidies on sugar

EC – Sugar Complainants claimed EC provided export subsidies in excess of reduction commitment levels under the Agreement on Agriculture; 21 third parties; 9 sugar-exporting African countries; ACP defending perceived challenge against the preferential access to the EC market; Support to African countries from EC and EC sugar industry; Role of counsel; importance of political lobbying.

Reflections on EC – Sugar African countries yet again defending a challenged EC regime (Bananas, Sugar) Should Africans perform role of defending EC, or should Africans be insisting on arrangements that are not subject to challenge? Role of EC, private industry? Could Africa have gone it alone?

US – Cotton Claim by Brazil that US subsidies were having adverse effects and causing serious prejudice to Brazilian cotton industry by bringing down world prices; Complex web of subsidies challenged, totalling about $4 billion to farmers. Chad and Benin participated as third parties; assisted pro bono by private law firm. Rural farmers in African LDCs among the most affected by US subsidies; (Benin, CAR, Chad, Senegal, Mali, Burkina Faso, Togo)

Reflections on US – Cotton Absence of Private Sector Involvement; unlike in EC - Sugar, no assistance from industry; Vulnerability of African LDCs: political pressure brought to bear; Underscores crucial role of counsel, experts, research by NGOs and institutes such as tralac, coordination with main litigants in dispute; Emphasizes importance of dispute settlement for negotiating process.