Least Developed Countries in the WTO Dispute Settlement System

A.H. Qureshi, ‘Participation of Developing Countries in the WTO Dispute Settlement System’, 47 Journal of African Law (2003) p. 174 at p. 174. J. Lacarte-Muro and P. Gappah, ‘Developing Countries and the WTO Legal and Dispute Settlement System: A View from the Bench’, 3 Journal of International Economic Law (2000) p. 395 at p. 401. Ibid. WorldTradeLaw.net is a comprehensive legal research tool for WTO dispute settlement. WorldTradeLaw.net, ‘WTO Complaints Sorted by Type of Economy’, available at: www.worldtradelaw.net.ezproxy2.1ibrary.usyd.edu.au/dsc/database/complaintsclassification.asp (accessed 9 July 2013). The classifications are based on data and terminology from the World Bank. A country’s classification in a particular complaint is based on the World Bank classification for that country in the year in which the complaint was brought (some countries have shifted between different income classifications over the years), available at: www.worldtradelaw.net.simsrad.net.ocs.mq.edu.au/dsc/database/complaintsclassification.asp (visited 9 July 2013). Request for Consultations by Bangladesh, India — Anti-dumping Measure on Batteries from Bangladesh (India-Batteries), WT/DS306/1 (requested 28 January 2004). C.P. Bown and B.M. Hoekman, ‘WTO Dispute Settlement and the Missing Developing Country Cases: Engaging the Private Sector’, 8 Journal of International Economic Law (2005) p. 861 at pp. 862–863. The United Nations Conference on Trade and Development (UNCTAD) has established the list of LDCs, which is reviewed by the Committee for Development Policy on the basis of three criteria: Gross National Income (GNI), Human Asset Index, and Economic Vulnerability Index. According to the official website of the WTO, to date 34 LDCs have become members of the WTO. These are: Angola, Bangladesh, Benin, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Democratic Republic of the Congo, Djibouti, Gambia, Guinea, Guinea-Bissau, Haiti, Lesotho, Lao People’s Republic, Madagascar, Malawi, Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Samoa, Senegal, Sierra Leone, Solomon Islands, Tanzania, Togo, Uganda, Vanuatu and Zambia: WTO, ‘Understanding the WTO: The Organisation: Least Developed Countries’, available at: www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm (accessed 9 July 2013). WTO Dispute Settlement Body Special Session, Negotiations on the Dispute Settlement Understanding, WTO Doc. TN/DS/W/17 (9 October 2002) (Proposal by the LDC Group) (hereinafter 2002 LDC Proposal). C.P. Bown, Self-Enforcing Trade: Developing Countries and WTO Dispute Settlement (Washington, DC, Brookings Institution Press 2009); H. Horn and P.C. Mavroidis, ‘The WTO Dispute Settlement System 1995–2006: Some Descriptive Statistics’, in J.C. Hartigan, ed., Trade Disputes and the Dispute Settlement Understanding of the WTO: An Interdisciplinary Assessment (Bingley, Emerald Group Publishing Ltd. 2009) p. 3; T. Stostad, ‘Trappings of Legality: Judicialisation of Dispute Settlement in the WTO, and Its Impact on Developing Countries’, 39 Cornell ILJ (2006) p. 811; C.L. Davis and S.B. Bermeo, ‘Who Files? Developing Country Participation in GATT/WTO Adjudication’, 71 Journal of Politics (2009) p. 1033; cf. M.D. Froese, ‘Do Developed Countries “Lawyer up” Faster Than Developing Countries? Evaluating the Speed and Momentum of Trade Litigation at the World Trade Organization’, 45 Journal of World Trade (2011) p. 1237: Marc D. Froese argued on the basis of WTO complaints and responses between 1995–2009 that there is no discernible relationship between the level of development and the pace of dispute settlement; G. Shaffer, ‘The Challenges of WTO Law: Strategies for Developing Country Adaptation’, Paper presented at the WTO at 10: The Role of Developing Countries in Negotiations and Dispute Settlement, Cairo, Egypt, 11–13 February, 2006, also published as G. Shaffer, ‘The Challenges of WTO Law: Strategies for Developing Country Adaptation’, 5 World Trade Review (2006) p. 177. J. Nzelibe, ‘The Case Against Reforming the WTO Enforcement Mechanism’, University of Illinois Law Review (2008) p. 319 at p. 351. D. McRae, ‘Measuring the Effectiveness of the WTO Dispute Settlement System’, 3 Asian Journal of WTO & International Health and Policy (2008) p. 1 at p. 14; K. Van Der Borght, ‘Justice for All in the Dispute Settlement System of the World Trade Organization?’, 39 Georgia JICL (2011) p. 787 at p. 791. WTO Negotiations on the Dispute Settlement Understanding, Proposal by the African Group, TN/DS/W/15 (15 September 2002), p. 7 (hereinafter African Group Proposal). M. Cartland, G. Depayre and J. Woznowski, ‘Is Something Wrong in the WTO Dispute Settlement?’, 46 Journal of World Trade (2012) p. 979 at p. 979. Panel Report, United States — Subsidies on Upland Cotton (US — Upland Cotton), WT/DS267/R (adopted 21 March 2005); WTO Appellate Body Report, United States: Subsidies on UplandCotton, WT/DS267/AB/R (adopted 21 March 2005). Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 of the WTO Agreement in WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge, Cambridge University Press 1999) p. 354 (hereinafter DSU). Qureshi, supra n. 1, at p. 175. Davis and Bermeo, supran. 10, at p. 1033. G. Shaffer, ‘Recognising Public Goods in WTO Dispute Settlement: Who Participates? Who Decides’, 7 Journal of International Economic Law (2004) p. 459 at p. 470. WTO law requires consensus to modify, resulting in a rigid legislative system, with rule modifications occurring through infrequent negotiating rounds (p. 470). DSU, Art. 3.2. M. Tanaka, ‘Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO under the Rio Principles’, 30 Ecology Law Quarterly (2003) p. 113 at p. 150. WTO Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products (US — Shrimp), WT/DS58/AB/R (adopted 6 November 1998); Panel Report, United States: Import Prohibition of Certain Shrimp and Shrimp Products (US — Shrimp), WT/DS58/R (adopted 6 November 1998). Panel Report, United States: Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia (US — Shrimp, Article 21.5 — Malaysia), WT/DS58/RW (adopted 21 November 2001), para. 3.159. Lacarte-Muro and Gappah, supra n. 2, at p. 395. Davis and Bermeo, supra n. 10, at p. 1033. Bown and Hoekman, supra n. 7, at pp. 862–863. Qureshi, supra n. 1, at p. 175. E.-U. Petersmann, ‘Why Rational Choice Theory Requires a Multilevel Constitutional Approach to International Economic Law: A Response to the Case Against Reforming the WTO Enforcement Mechanism’, University of Illinois Law Review (2008) p. 359 at p. 374. M.L. Busch and E. Reinhardt, ‘Three’s a Crowd: Third Parties and WTO Dispute Settlement’, 58 World Politics (2006) p. 446 at p. 454. G. Shaffer, Defending Interests: Public-Private Partnership in WTO Litigation (Washington, DC, Brookings Institution Press 2003) p. 21. M.A. Taslim, ‘Dispute Settlement in the WTO and the Least Developed Countries: The Case of India’s Anti-dumping Duties on Lead Acid Battery Import from Bangladesh’ (ICTSD 2006) p. 11, available at: http://ictsd.org/downloads/2008/06/ma_taslim.pdf (accessed 31 July 2011); M.A. Taslim, ‘How the DSU worked for Bangladesh: The First Least Developed Country to Bring a WTO Claim’, in G.C. Shaffer and R. Melendez-Ortiz, Dispute Settlement at the WTO: The Developing Country Experience (Cambridge, Cambridge University Press 2010) p. 230 at p. 240. The US revoked the anti-dumping duties on shop towels with effect from 17 February 2005 since no domestic interested parties participated in the review: Taslim (2006), supra n. 31, at p. 3. India — Batteries, supra n. 6. M.A. Taslim, ‘WTO and Indo-Bangladesh Trade Dispute’, The Financial Express, 3 January 2008, available at: www.thefinancialexpress-bd.com/search_index.php?page=detail_news&news_id=21355 (accessed 25 October 2010). Taslim, supra n. 34. Shaffer, supra n. 10, at p. 9. Brazil decided to impose anti-dumping duties on jute bags imported from Bangladesh (and India) in September 1992. Brazil conducted sunset reviews of the anti-dumping measures in September 1998 and September 2004. On both occasions, the final decision was to continue with the measures: Taslim (2006), supra n. 31, at p. 2, fn. 2. Ibid. Froese, supra n. 10, at p. 1240. The 2002 LDC Proposal, supra n. 9. Shaffer, supra n. 10, at p. 9. Stostad, supra n. 10, at p. 826; Shaffer, supra n. 19, at p. 474. Shaffer, supra n. 19, at p. 474. Bown and Hoekman, supra n. 7, at pp. 863–866. Bown, supra n. 10, at p. 61. Section 301 of the Trade Act of 1974 provides the US with the authority to, among other things, enforce trade agreements. It is the principal statutory authority under which the US may impose trade sanctions on foreign countries for violating trade agreements or engaging in other unfair trade practices in the view of the US: Department of Commerce, United States of America, ‘International Trade Administration: Section 301’, available at: www.trade.gov/mas/ian/tradedisputes-enforcement/tg_ian_002100.asp (accessed 26 June 2012). Ibid. It was awarded as partial compensation for its participation in the War on Drugs. D. Mazuera, ‘A Trade Dispute Gone Bananas’, Wall Street Journal, 17 November 1995, cited in Bown, supra n. 10, at p. 61. Stostad, supra n. 10, at pp. 826–827. Bown and Hoekman, supra n. 7, at p. 865. Ka Zeng, ‘Legal Capacity and Developing Country Performance in the Panel Stage of the WTO Dispute Settlement System’, 47 Journal of World Trade (2013) pp. 187–214 at p. 188. R.E. Hudec, ‘The Adequacy of WTO Dispute Settlement Remedies: A Developing Countries Perspective’, in B. Hoekman, A. Mattoo and P. English, eds., Development, Trade, and the WTO: A Handbook (Washington, DC, The World Bank 2002) p. 81 at p. 81. DSU, Art. 3.7. P.X.F. Cai, ‘Making WTO Remedies Work for Developing Nations: The Need for Class Actions’, 25 Emory LLR (2011) p. 151 at p. 170. DSU, Art. 22.2. This is based on the similar language of Art. XXIII:2 of the GATT 1994. A relevant portion of Art. XXIII:2 provides: ‘If the CONTRACTING PARTIES consider that the circumstances are serious enough to justify such action, they may authorise a contracting party or parties to suspend the application to any other contracting party or parties of such concessions or other obligations under this Agreement as they determine to be appropriate in the circumstances.’ M. Bronckers and F. Baetens, ‘Reconsidering Financial Remedies in WTO Dispute Settlement’, 16 Journal of International Economic Law (2013) p. 281 at p. 282. K. Anderson, ‘Peculiarities of Retaliation in WTO Dispute Settlement’, 1 World Trade Review (2002) p. 123 at p. 129. DSU, Art. 21.3. Anderson, supra n. 57, at p. 129. Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Complaint by Ecuador (EC — Bananas III (Ecuador)), WT/DS27/R/ECU (adopted 25 September 1997); Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Complaint by Guatemala and Honduras (EC — Bananas III (Guatemala and Honduras)), WT/DS27/GTM, WT/DS27/R/HND (adopted 25 September 1997); Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Complaint by Mexico (EC — Bananas III (Mexico)), WT/DS27/R/MEX (adopted 25 September 1997); Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Complaint by the United States (EC — Bananas III (US)), WT/DS27/R/USA (adopted 25 September 1997); WTO Appellate Body Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas (EC — Bananas III), WT/DS27/AB/R (adopted 25 September 1997). Decision of Arbitrators, European Communities: Regime for the Importation, Sale and Distribution of Bananas, Recourse to Arbitration by the European Communities under Article 22.6 of the DSU (EC — Bananas III (US) (Article 22.6 — EC)), WT/DS27/ARB (9 April 1999), para. 8.1. ‘Trade War Escalates as EU Fights US Sanctions Move’, Financial Times, 5 March 1999. p. 1. Decision of Arbitrators, European Communities: Regime for the Importation, Sale and Distribution of Bananas, Recourse to Arbitration by the European Communities under Article 22.6 of the DSU (EC — Bananas III (Ecuador) (Article 22.6 — EC)), WT/DS27/ARB/ECU (24 March 2000), para. 170. B. O’Connor, ‘Remedies in the World Trade Organisation Dispute Settlement System — The Bananas and Hormones Cases’, 38 Journal of World Trade (2004) pp. 245–266 at p. 249; S. Charnovitz, ‘Rethinking WTO Trade Sanctions’, 95 AJIL (2001) p. 792 at p. 795; L.E.F.A. Spadano, ‘Cross-agreement Retaliation in the WTO Dispute Settlement System: An Important Enforcement Mechanism for Developing Countries?’, 7 World Trade Review (2008) p. 511 at p. 512. Request for Consultations by Bangladesh, India — Batteries, supra n. 6. Notification of Mutually Satisfactory Solution, India: Anti-dumping Measure on Batteries from Bangladesh (India — Batteries), WT/DS306/3 (notification 23 February 2006). The Table is drawn from the information on the website worldtradelaw.net. Qureshi, supra n. 1. In the current Doha Round, LDCs will virtually not have to make any commitments in respect of tariff reductions for agricultural and non-agricultural products. Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, Decision of 28 November 1979 (L/4903), GATT BISD, 26th Supp. (1980) pp. 203–218. It must be mentioned that two other instruments — Agreed Conclusions on the Special Committee on Preferences of 1970 and the Waiver for Generalized System of Preferences of 1971 clarified that the granting of tariff preferences does not constitute a binding commitment: Appendix: Agreed Conclusions on the Special Committee on Preferences, UNCTAD, Generalized System of Preferences, Decision 75 (S-IV), 10 ILM (1971) p. 1083 at p. 1084; Waiver for Generalized System of Preferences, Decision of 25 June 1971, GATT BISD, 18th Supp. (1972) p. 24. The Hong Kong Ministerial Declaration of 2005 provides that ‘[d]eveloped country Members shall … [p]rovide duty-free and quota-free market access on a lasting basis, for all products originating from all LDCs by 2008 or no later than the start of the implementation period’: Hong Kong Ministerial Declaration, WT/MIN(05)/27 (adopted 18 December 2005). E. Kessie and K. Addo, ‘African Countries and the WTO Negotiations on the Dispute Settlement Understanding’, available at: http://ictsd.org/downloads/2008/05/african-countries-and-the-wto-negotiations-on-the-dispute-settlement-understanding.pdf (accessed 15 July 2013). Panel Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas — Second Recourse to Article 21.5 of the DSU by Ecuador (EC — Bananas III (Article 21.5 — Ecuador II)), WT/DS27/RW2/ECU (adopted 11 December 2008). Panel Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas — Recourse to Article 21.5 of the DSU by Ecuador (EC — Bananas III (Article 21.5 — Ecuador)), WT/DS27/RW/ECU (adopted 6 May 1999). Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Recourse by the European Communities to Article 21.5 of the DSU (EC — Bananas III (Article 21.5 — EC)), WT/DS27/RW/EEC (circulated on 12 April 1999; this Report was never put on the DSB agenda for adoption). EC — Bananas III, supra n. 60. Panel Report, United States — Subsidies on Upland Cotton, Recourse to Article 21.5 of the DSU by Brazil (US — Upland Cotton (Article 21.5 — Brazil)), WT/DS267/RW (adopted 20 June 2008); WTO Appellate Body Report, United States: Subsidies on Upland Cotton, Recourse to Article 21.5 of the DSU by Brazil (Article 21.5 — Brazil), WT/DS267/AB/RW (adopted 20 June 2008). US — Upland Cotton, supra n. 15. Panel Report, European Communities — Export Subsidies on Sugar (EC — Export Subsidies on Sugar), WT/DS265/R, WT/DS266/R, WT/DS283/R (adopted 19 May 2005); WTO Appellate Body Report, European Communities: Export Subsidies on Sugar (EC — Export Subsidies on Sugar), WT/DS265/AB/R, WT/DS266/AB/R WT/DS283/AB/R (adopted 19 May 2005). Panel Report, United States — Rules of Origin for Textiles and Apparel Products (US — Textiles Rules of Origin), WT/DS243/R (adopted 23 July 2003). US — Shrimp, supra n. 22. Busch and Reinhardt, supra n. 29, at p. 453. K. Bagwell and R.W. Staiger, ‘Multilateral Trade Negotiations, Bilateral Opportunism, and the Rules of GATT/WTO’, 67 Journal of International Economics (2005) p. 268. Art. 9 of the DSU provides for the procedures of multiple complainants in DSS. WTO Appellate Body Report, Chile — Price Band System and Safeguard Measures Relating to Certain Agricultural Products (Chile — Price Band System), WT/DS207/AB/R (adopted 23 October 2002), para. 78 DSU, Art. 17.4. Ibid. Busch and Reinhardt, supra n. 29, at p. 451. Panel Report, European Communities: Regime for the Importation, Sale and Distribution of Bananas: Complaint by the United States (EC — Bananas III (US)), WT/DS27/R/USA (adopted 25 September 1997). D. Palmeter and P.C. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure, 2nd edn. (Cambridge, Cambridge University Press 2004) p. 110. Panel Report, EC — Bananas III (US), supra n. 89, para. 7.8. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada (EC — Hormones (Canada)), WT/DS48/R/CAN (adopted 13 February 1998); Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States (EC — Hormones (US)), WT/DS26/R/USA (adopted 13 February 1998); WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (EC — Hormones), WT/DS48/AB/R, WT/DS26/AB/R (adopted 13 February 1998). Palmeter and Mavroidis, supra n. 90, at p. 110. Panel Report, United States — Anti-dumping Act of 1916, Complaint by Japan (US — 1916 Act (Japan)), WT/DS162/R and Add. 1 (adopted 26 September 2000); WTO Appellate Body Report, United States — Anti-dumping Act of 1916 (US — 1916 Act), WT/DS136/AB/R, WT/DS162/AB/R (adopted 26 September 2000). For a detailed analysis of this case, see A. Antoniadis, ‘Enhanced Third Party Rights in the WTO Dispute Settlement Understanding’, 29 Legal Issues of Economic Integration (2002) pp. 285–304. Panel Report, US — 1916 Act (Japan), supra n. 94, para. 6.32. WTO Appellate Body Report, US — 1916 Act, supra n. 94, para. 150. On 27 September 2002, the government of Brazil requested consultations with the government of the US. Failing this, Brazil requested the establishment of a Panel on 3 February 2003. They include measures referred to as marketing loan programme payments (including marketing loan gains and loan deficiency payments (LDPs)), user marketing payments, production flexibility contract payments, market loss assistance payments, direct payments, counter-cyclical payments, crop insurance payments, cottonseed payments and export credit guarantee programmes: Panel Report, US — Upland Cotton, supran. 15, para. 2.2. Agreement on Agriculture, 1867 UNTS I-31874 (1995) p. 410, reproduced in WTO, The Legal Texts, supra n. 16, at p. 33. Agreement on Subsides and Countervailing Measures, reproduced in WTO, The Legal Texts, supra n. 16, at p. 231. General Agreement on Tariffs and Trade 1994, Geneva, 30 October 1947, as amended, 61 Stat. (pt. 5), TIAS No. 1700, 55–61 UNTS 188, reproduced in WTO, The Legal Texts, supra n. 16, at p. 423. WTO Trade Policy Review Body, Trade Policy Review: Benin, WT/TPR/S/131 (24 May 2004) p. x (Report by the Secretariat). Further Third Party Submission of Benin: Third Party Submission of Chad, WTO Doc. WT/DS267/R/Add.1 (2003), Annex E-4 to Panel Report, US — Upland Cotton, supra n. 15, para. 12. It is mentioned in para. 12 of the Third Party Submission that 1.5 million people in Chad were affected by production. This was the submission of Chad for the Resumed Session of the First Substantive Meeting (Annex E). African Development Bank and OECD, ‘African Economic Outlook 2003/2004, Country Studies: Burkina Faso’ (2004) p. 82, available at: www.oecd.org/dataoecd/44/57/32411965.pdf (accessed 30 July 2011). WTO Trade Policy Review Body, Trade Policy Review: Mali, WT/TPR/G/133/Rev.1 (2 June 2004) p. 11 (Report by the Government: Revision). Further Third Party Submission of Benin and Chad, supran. 104, paras. 17–21. K. Watkins, ‘Cultivating Poverty — The Impact of US Cotton Subsidies on Africa’, Oxfam Briefing Paper 30 (Oxford, Oxfam 2002), available at: www.oxfam.org.uk/resources/policy/trade/downloads/bp30_cotton.pdf (visited 30 July 2011). Ibid., pp. 17–18. Ibid. Ibid., p. 32; Further Third Party Submission of Benin and Chad, supra n. 104, para. 21. Further Third Party Submission of Benin and Chad, supra n. 104, para. 21; Panel Report, US — Upland Cotton, supra n. 15, fn. 1330. N. Minot and L. Daniels, ‘Impact of Global Cotton Markets on Rural Poverty in Benin’, MSSD Discussion Paper No. 48 (Washington, International Food Policy Research Institute 2002). Further Third Party Submission of Benin and Chad, supra n. 104, paras. 22–24. Ibid. Also cited in H.E. Zunckel, ‘The African Awakening in United States-Upland Cotton’, 39 Journal of World Trade (2005) p. 1071 at p. 1086. O. Badiane, et al., ‘Cotton Sector Strategies in West and Central Africa’, World Bank Policy Research Working Paper 2867 (Washington, World Bank 2002), available at: www.spa-psa.org/resources/Working%20Paper%20Cotton%20Sector.pdf (visited 30 July 2011); L. Goreux and J. Macrae, ‘Reforming the Cotton Sector in Sub-Saharan Africa (SSA)’, Africa Region Working Paper Series No. 47 (Washington, World Bank 2003), available at: www.worldbank.org/afr/wps/wp47.pdf (visited 30 My 2011). Zunckel, supra n. 115, at p. 1074. Nzelibe, supra n. 11, at p. 351. See the text corresponding n. 186. F. Roessler, ‘Developing Countries in the WTO Dispute Settlement’, Lecture at the Sydney Law School, University of Sydney, 23 March 2010, available at: www.usyd.edu.au/news/law/457.html?eventid=5475. However, he acknowledged in the question — answer session after the lecture that this spill-over benefit does not provide LDCs with an entitlement in the system. C.P. Bown, ‘Participation in WTO Dispute Settlement: Complaints, Interested Parties, and Free Riders’, 19 World Bank Economic Review (2005) p. 287 at p. 290. Ibid. Zunickel, supran. 115, at p. 1082. Panel Report, US — Upland Cotton, supran. 15, para. 7.1400. Ibid. Ibid. Ibid., paras. 7.1409–7.1410. Ibid., para. 7.1410. Panel Report, US — Upland Cotton, supran. 15, para. 7.1400. Ibid., para. 7.1411 (emphasis in the original). Ibid., para. 7.1415. Ibid. Appellate Body Report, US — Upland Cotton, supra n. 15, paras. 211, 214. Ibid., para. 214. In international adjudication, the principle of judicial economy requires the judge to obtain the best result in resolving the dispute with the most rational and efficient use possible of his or her powers: F.M. Palombino, ‘Judicial Economy and Limitation of the Scope of the Decision in International Adjudication’, 23 LJIL (2010) p. 909 at p. 909. E.L. Heinisch, ‘West Africa versus the United States on Cotton Subsidies: How, Why and What Next?’, 44 Journal of Modern African Studies (2006) p. 251 at pp. 262–263. IMF and World Bank, ‘Market Access for Developing Country Exports — Selected Issues’ (September 2002), available at: www.imf.org/external/np/pdr/ma/2002/eng/092602.pdf (accessed 31 July 2011); UNCTAD, ‘Economic Development in Africa: Trade Performance and Commodity Dependence’, UNCTAD/GDS/AFRICA/2003/1 (New York, United Nations Publications 2003), available at: http://unctad.org/en/docs/gdsafrica20031_en.pdf (accessed 30 July 2011); FAO, ‘Cotton: Impact of Support Policies on Developing Countries — Why Do the Numbers Vary?’, Trade Policy Brief No. 1 (2004), available at: ftp://ftp.fao.org/docrep/fao/007/y5533e/y5533e00.pdf (accessed 30 July 2011). ‘Harvesting Poverty: the Unkept Promise’, New York Times, 30 December 2003, available at: www.nytimes.com/2003/12/30/opinion/30TUE1.html (accessed 30 July 2011); S. Miller, ‘WTO Cotton Ruling May Help Subsidy Opponents’, Wall Street Journal, 28 April 2004, available at: www.bilkent.edu.tr/~akdeniz/courses/micro/case_9.htm (accessed 30 July 2011); A. Seager, ‘WTO Rules American Cotton Subsidy Illegal’, The Guardian, 28 April 2004, available at: www.guardian.co.uk/business/2004/apr/28/brazil.usnews (accessed 31 July 2011); N. Stern, ‘Remove These Trade Barriers’, International Herald Tribune, 19 December 2002, available at: www.highbeam.com/doc/1P1-70488305.html (accessed 31 July 2011); R. Thurow and S. Kilman, ‘How a Cotton Glut Bred by US Hurts Poor African Farmers’, Wall Street Journal, 26 June 2002, available at: http://online.wsj.com/article/0„SB1025050239742827480,00.html (accessed 30 July 2012); A.T. Toure and B. Compaore, ‘Your Farm Subsidies Are Strangling Us’, New York Times, 1 July 2003, available at: www.nytimes.com/2003/07/11/opinion/your-farm-subsidies-are-strangling-us.html (accessed 31 July 2011). G. Yusuf ‘The Marginalisation of African Agricultural Trade and Development: A Case Study of the WTO’s Efforts to Cater to African Agricultural Trading Interests Particularly Cotton and Sugar’, 17 African JICL (2009) p. 213 at p. 234. Tanaka, sup ran. 21, at pp. 150–158, 173–179. DSU, Arts. 3.12, 4.10, 8.10, 12.10, 12.11, 21.2, 21.7, 21.8, 24.1, 24.2, and 27.2. DSU, Arts. 12.10, 12.11, 21.2, and 24.1. WTO CTD, ‘Concerns Regarding Special and Differential Treatment Provisions in WTO Agreement and Decisions’, WT/COMTD/W/66 (16 February 2000), p. 31 (Note by the Secretariat); A. Alavi, ‘On the (Non-) Effectiveness of the World Trade Organization Special and Differential Treatments in the Dispute Settlement Process’, 41 Journal of World Trade (2007) p. 319. Decision of 5 April 1966 on Procedures under Article XXIII, GATT BISD, 14th Supp, p. 18, available at: www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/a2s1p1_e.htm (accessed 31 July 2011) (hereinafter 1966 Procedure). The last line of Art. 3.12 states that ‘to the extent there is a difference between the rules and procedures of Articles 4, 5, 6 and 12 and the corresponding rules and procedures of the Decision, the latter shall prevail’. M.E. Footer, ‘Developing Country Practice in the Matter of WTO Dispute Settlement’, 35 Journal of World Trade (2001) p. 55 at p. 63. The 1966 Procedure, para. 1. Panel Report, European Communities: Trade Description of Scallops: Request by Canada (EC — Scallops (Canada)), WT/DS7/R (mutually agreed solution circulated on 5 August 1996); Panel Report, European Communities: Trade Description of Scallops: Request by Peru and Chile (EC — Scallops (Peru and Chile)), WTO Docs. WT/DS12, WT/DS14 (mutually agreed solution circulated on 5 August 1996); cited in Footer, supra n. 146. Minutes of Meeting of the DSB, WT/DSB/M/7 (27 October 1995), cited in WTO Committee on Trade and Development, ‘Concerns Regarding Special and Differential Treatment Provisions in WTO Agreement and Decisions’, WT/COMTD/W/66 (16 February 2000), p. 32 (Note by the Secretariat). 2002 LDC Proposal, supra n. 9; WTO Dispute Settlement Body Special Session, ‘Text for LDC Proposal on Dispute Settlement Understanding Negotiations’, TN/DS/W/37 (22 January 2003) (Communication from Haiti). 2002 LDC Proposal, supra n. 9, para. 3; Text for LDC Proposal on DSU, supra n. 150, para. 1. Art. 4.7 of the DSU provides that ‘if the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request for the establishment of a panel’. Art. 4.8 of the DSU provides that in the case of an emergency, including those that concern perishable goods, a party may request the establishment of a Panel after the completion of 20 days of the date of receipt of the request for consultation. DSU, Art. 12.10. The dispute was settled by mutual agreement between the parties: ‘Pakistan: Patent Protection for Pharmaceutical and Agricultural Chemical Products’, WT/DS36 (7 March 1997) (Notification of a Mutually-Agreed Solution). Minutes of the Meeting of the DSB, 15 and 16 July 1996, WT.DSB/M/21 (5 August 1996). Ibid., p. 4; Text for LDC Proposal on DSU, supra n. 150, at p. 32. 2002 LDC Proposal, supra n. 9, para. 4; Text for LDC Proposal on DSU, supra n. 150, para. III. Third sentence of Art. 12.10 of the DSU (emphasis added). Belize, Cameroon, Côte d’Ivoire, Dominica, the Dominican Republic, Ghana, Grenada, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Senegal, and Suriname (the ‘ACP third parties’): EC — Bananas III, supra n. 60, para. 5.1. Ibid., para. 5.17. The Panel in the EC — Bananas referred to Art. 10 and Appendix 3 as the provisions dealing with the right of the third parties: ibid., para. 7.5. However, the phrase ‘which have been raised by the developing country Member’ can be read as qualifying either ‘the relevant provision on special and differential treatment’ or the ‘agreement’, which are the subject-matter of the dispute. Panel Report, United States — Continued Dumping and Subsidy Offset Act of 2000 (US — Offset Act (Byrd Amendment)), WT/DS217/R, WT/DS234/R (adopted 27 January 2003). Ibid., paras. 7.87–7.89. Alavi, supra n. 143, at p. 323. 2002 LDC Proposal, supra n. 9, paras. 7–8; Text for LDC Proposal on DSU, supra n. 150, para. IV. If the developing country that invokes this provision is the complainant, then ‘particular attention’ is asked to be paid by fixing a shorter period of implementation. This will enable the complainant developing country to obtain the findings of the Panel or the Appellate Body to be implemented within the shortest period. Conversely, if the developing country that invokes this provision happens to be the respondent, then paying particular attention means fixing a longer time-period for the implementation of the rulings. This enables the developing country member to have more flexibility to implement the findings against it. However, difficulties arise when both parties are developing members. Award of the Arbitrator, Indonesia — Certain Measures Affecting the Automobile Industry, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Indonesia — Autos (Article 21.3(c))), WTO Docs. WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12 (7 December 1998). Ibid., para. 24. Award of the Arbitrator, European Communities — Customs Classification of Frozen Boneless Chicken Cuts, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (EC — Chicken Cuts (Article 21.3(c))), WT/DS269/13, WT/DS286/15, ARB-2005-4/21 (20 February 2006). In EC ô Chicken Classification 21.3(c), the Arbitrator summarized the WTO jurisprudence in this regard in para. 82. Award of the Arbitrator, European Communities — Export Subsidies on Sugar, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Dispute (EC — Export Subsidies on Sugar (Article 21.3(c))), WT/DS265/33, WT/DS266/33, WT/DS283/14, ARB-2005-3/20 (28 October 2005). Ibid., paras. 98–104. Award of the Arbitrator, United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (US — Gambling (Article 21.3(c))), WT/DS285/13, ARB-2005-2/19 (9 August 2005). Ibid., paras. 56–60. Ibid., paras. 62–63. DSU, Art. 24.1. Panel Report, US — Upland Cotton, supran. 15, para. 7.1410. DSU, Art. 24.1. Ibid., Art. 27.2. Shaffer, supra n. 10, at pp. 6–9, 16. Ibid. Bown and Hoekman, supra n. 7. H. Nordstrom and G. Shaffer, ‘Access to Justice in the World Trade Organization: A Case for a Small Claims Procedure?’, 7 World Trade Review (2008) p. 587. The Advisory Centre was established under the Agreement Establishing the Advisory Centre on WTO Law (14 July 2001), available at: www.acwl.ch/e/documents/agreement_establishing.pdf (accessed 15 July 2013). Agreement Establishing the Advisory Centre on WTO Law, Art. 7, Annex III. ACWL, ‘LDCs Are Entitled to the Services of ACWL without Becoming ACWL Members’, available at: www.acwl.ch/e/ld_countries/ld_countries.html (accessed 14 July 2013). ACWL, Decision 2004/3 Adopted by the Management Board on 26 March 2004, Billing Policy and Revised Time Budget, ACWL/MB/D/2004/3 (26 March 2004). C.P. Bown and R. McCulloch, ‘Developing Countries, Dispute Settlement, and the Advisory Centre on WTO Law’, 19 The Journal of International Trade & Economic Development (2010) p. 58 at p. 33. The ACWL consists of an Executive Director, two Deputy Directors, two Senior Counsel, four Counsel, one Junior Counsel, one Legal Assistant and two Office Administrators. Hudec, supra n. 52, at p. 84. Brazil and Uruguay proposed that Panels be given authority to propose an ‘indemnity of a financial character’ in complaints by developing countries: K.W. Dam. The GATT: Law and International Economic Organisation (Chicago, University of Chicago Press 1970) p. 368, quoting report of the Ad Hoc Group on Legal Amendments to the General Agreement, reprinted in GATT, Expansion of Trade of the Developing Countries (December 1966) p. 112 at p. 119. 2002 LDC Proposal, supra n. 9, para. 13 Hudec, supra n. 52, at p. 85. Ibid. Jagdish Bhawati has proposed that the defending country provides cash compensation to the complaining country, which could then be donated to the exporting industry: J. Bhagwati, ‘After Seattle: Free Trade and the WTO’, 77 International Affairs (2001) p. 15 at p. 28; similar argument has also been made in C. Barfield, ‘WTO Dispute Settlement System in Need of Change’, 37 Intereconomics (2002) p. 131; C. Carmody, ‘Remedies and Conformity under the WTO Agreement’, 5 Journal of International Economic Law (2002) p. 307; R. MacLean, ‘The Urgent Need to Reform the WTO’s Dispute Settlement Process’, 8 International Trade Law and Regulation (2002) p. 137. Jide Nzelibe argued that collective or third-party sanctions are likely to increase the global level of protectionism without any offsetting compliance benefits: Nzelibe, supra n. 11, at pp. 321–322; B. Mercurio, ‘Why Compensation Cannot Replace Trade Retaliation in the WTO Dispute Settlement Understanding’, 8 World Trade Review (2009) p. 315; Bronckers and Baetens considered the significance of financial payments for the WTO system: Bronckers and Baetens, supra n. 56. 2002 LDC Proposal, supra n. 9, para. 13. Ibid., para. 14. K.M.W. Mitchell, ‘Developing Country Success in WTO Disputes’, 47 Journal of World Trade (2013) p. 77 at p. 90. ACWL, supra n. 188. Busch and Reinhardt, supra n. 29, at p. 451. Kessie and Addo, supra n. 72, at p. 15. The development institutions include the United Nations Commission on Trade and Development, the United Nations Development Programme, the International Food Policy Research Institute, the Food and Agriculture Organization, and the World Health Organization. Redressing the asymmetries of powers is one of the 12 goals of WTO dispute settlement, identified by Professor John H. Jackson: J.H. Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge, Cambridge University Press 2006) pp. 147–151. Bronckers and Baetens, supra n. 56, at p. 303.