PhD Proposal - PROPOSAL ON AFRICA AND THE WTO DISPUTE SETTLEMENT MECHANISM: UNDERLYING CHALLENGES AND REFORM PROPOSALS

 

 

 

PROPOSAL ON AFRICA AND THE WTO DISPUTE SETTLEMENT MECHANISM: UNDERLYING CHALLENGES AND REFORM PROPOSALS

 

 NS (move to the top)

African Group of Negotiators – AGN

African Group – AG

Appellate Body – AB

Dispute Settlement Mechanism – DSM

Dispute Settlement Understanding – DSU

Economic Partnership Agreements – EPAs

International Court of Justice – ICJ

Lomé Convention - LC

Least Developed Countries – LDCs

General Agreements on Tariffs and Trade – GATT

Marrakesh Agreement – MA

Special and Differential Treatment – SDT

World Trade Organization – WTO

 

1.1 BACKGROUND TO THE STUDY

At the inception of the GATT as a predecessor to the WTO regime, there were countless promises of prosperity to the world, particularly the developing world were to expect socio-economic transformation as the wealthy nations embarked on lowering and eventually eliminating tariffs on exports from poorer nations. However, the GATT/WTO regime has failed these nations with the existing legal regime, governance structures, mechanisms, and the decision-making processes. The first is that obstacles exist Will participate both in terms of agenda-setting in relation to negotiations/rule-making processes and accessing developed nations' markets even after they have agreed to the already skewed rules under the WTO regime. The second level of the obstacles are embedded in the inaccessible and ineffective dispute settlement mechanism for poorer countries whenever they would have needed to seek a recourse.

 

PURPOSE

The purpose of this study is to examine in detail certain challenges that have inhibited the participation of African countries under the WTO dispute settlement mechanism. Therefore the current study will investigate the possible solutions such as assisting African countries to come up with advanced trade-policy infrastructures, amend the rules and regulation of DSB/DSU and others which would address the barriers inhibiting African countries participation under the WTO rules.  

Several dispute cases with regard to WTO regime has been recorded chronologically of which some of them include measures concerning the imported products in general, Safeguard measures on certain steel products, Measures relating to Raw Materials, Measures related to exportation of products and technology, Anti-dumping measures on Steel pipes, Measures concerning imported spirits, Provisional Anti-dumping duties, and so forth. The current study includes 1420 participants that include respondents, complainants and 3rd Party from African countries who are aware of WTO’s DSM. These cases will be examined as part of the study to see whether or not common threads /themes emerge.

Table showing lists of African nations who participated as 3^rd Parties in the WTO’s DSM (1995 – 2020).

Country	Dispute (participation at panel or appellate level)	Total number of African participants
Cameroun, Cote d’Ivoire, Ghana, Senegal	European Communities – Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/R/) (Panel and Appellate Body)	4
Nigeria & Senegal	United States – Import Prohibition of Certain Shrimp and Shrimp Products (WT/DS58/R) (Panel & Appellate Body)	2
Cameroun, Cote d’Ivoire & Mauritius	European Communities – Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/RWE/EEC) (Panel)	3
Mauritius	Mexico – Anti-Dumping Investigation of High Fructose Com Syrup (HFCS) from the United States (WT/DS132/R) (Panel)	1
Egypt	European Communities – Antidumping Duties on the imports of Bed Linen from India	1

 

Table showing lists of African nations who participated as 3^rd Party Respondents in the WTO’s DSM (1995 – 2020).

Country	Dispute (participation at panel or appellate level)	Total number of African participants
Egypt	Egypt – Anti-dumping Duties on Matches on Pakistan (WT/DS327)	1
Egypt	Egypt-Measures Affecting Imports of Textile and Apparel Products from USA (WT/DS305)	1
Egypt	Egypt-Definitive Anti-dumping Measures on Steel Rebar from Turkey (WT/DS211)	1
Egypt	Egypt – Import Prohibition on Canned Tuna with Soybean Oil from Thailand (WT/DS205)	1
South Africa	South Africa – Anti-dumping Duties on Certain Pharmaceutical Products from India (WT/DS168)	1
South Africa	South Africa – Definitive Anti-dumping Measures on Blanketing from Turkey (WT/DS288)	1
Zimbabwe	European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (WT/DS135/R) (Panel & Appellate Body)	1

 

1.2 PROBLEM STATEMENT

Of all African nations, it is observed that some of them do not actively take participation in the proceedings of the DSB in comparison to the industrialized countries’. This is one of the contentious issues for people working on trade related issues, particularly in African development discourse and diplomatic circles. Since the inception of the WTO dispute settlement system, its proceedings are the main mechanism for settlement of disputes arising amongst the WTO membership be it global north or south. However, developing countries have a number of challenges that have limited their ability to participate in the DSB proceedings. Since those challenges came to light, many studies have examined the impacts of the WTO’s DSU to settle the disputes as well as how the disputes and settlement proceedings under the WTO regime stifles Africa’s participation. This paper will examine several of these studies to support its findings,

These challenges were part of the African Group proposals for better innovation, improvement, and the development of the WTO’s DSU. Therefore, this research would identify   the most essential obstacles that are inhibiting the African and other third world countries under the WTO regime and how third world nations deal with those constraints such as lack of financial and legal resources as well as enforcement capacity for DSU rulings and compensation.

This study will also examine the protectionist exclusion clauses (WTO, 2010) under the WTO rules and the barriers to participation under the DSU and whether they have achieved the goal of settling disputes fairly.

1.3 RESEARCH QUESTIONS

In view of the above challenges, this study will explore the answers to the following questions:

1.     What are the challenges confronting African countries under the WTO disputes settlement mechanisms? Specifically:

(a). Whether or not ,are the litigation cost and duration so expensive (prohibitive)  for African countries under (to participate in ) the dispute settlement proceedings?

(b). Whether or not, Do the legal precedent DSB rulings (from the DSB) deterrent enough to impede African countries’ participation in the dispute settlement proceedings?

(c). Do the DSB have the power and incentives to enforce its own decisions with limitations?

(d). Whether or not Are the retaliatory rules in the DSU mechanism considered to be inefficient?

2.     Whether or not What are the specific provisions of the WTO legal infrastructure regime that pose as barriers to African nations?

3.     Whether or not Are they biased provisions against African and developing countries under the WTO’s DSU/DSB mechanisms?

4.     Which provisions under the WTO regime and the DSB mechanism are/should be sources of concerns for African and third world nations?

1.4 HYPOTHESIS OF THE STUDY

The hypothesis of the thesis include:

H1: The litigation cost and duration is expensive for African countries under the dispute settlement proceedings

H01: The litigation cost and duration is not so expensive for African countries under the dispute settlement proceedings

H2: DSB have the power and incentives to enforce its own decisions in the WTO DSM proceedings for African nations

H02: DSB does not have the power and incentives to enforce its own decisions in the WTO DSM proceedings for African nations

H3: DSB deterrent enough to limit African countries’ participation in the dispute settlement proceedings

H03: DSB not deterrent enough to limit African countries’ participation in the dispute settlement proceedings

H4: The specific provisions of the WTO legal regime pose as barriers to African nations.

H04: The specific provisions of the WTO legal regime do not pose as barriers to African nations.

1.5 RESEARCH OBJECTIVES

The overall goal of this research is to examine the participation of African countries in WTO dispute settlement mechanisms. Thus, the study is seeking

(i). To examine the extent to which African nations are required to settle their disputes under the DSB/DSU proceedings and the overall WTO regime.

(ii). To identify and examine the level of African countries’ participation in the DSB proceedings.

(iii). To ascertain those factors that serve as barriers to African countries’ participation in the DSB proceedings.

(iv). To ascertain whether the WTO provisions (either in parts or in a whole) and its institutional structure impacts on the participation of African nations in those proceedings.

(v). To highlight any other finding(s) that may impact the subject of the participation of African countries in the DSB proceedings.

(vi). To provide strategic framework and propose recommendations that can be envisaged by African countries to ensure greater participation of developing countries in the WTO proceedings.

(vii). To look at alternatives to the current dispute settlement mechanisms for African nations whiles waiting on the outcome and possible reforms from the ongoing WTO negotiation rounds.

 

 

1.6 SIGNIFICANCE OF THE STUDY (can we strengthen this section with more evidence based materials.. Citations)

Although the advent of the WTO regime has provided significant opportunities and prosperity for developing and developed countries alike, many third world nations are still impoverished as they are unable to tap into the promised prosperity of free trade (Buyonge and Kireeva, 2008). Several studies have discussed the WTO Dispute Settlement Mechanism with respect to international trade and their agreements (Alavi, 2007; Busch et.al, 2003; Bown et.al, 2005). Hence, the findings of this study will add to the body of knowledge and comprehension of the participation of African countries and other poorer nations in the DSB mechanism and how to enhance the WTO system to deal with them. The significance of this study will address the following:

1. Identify the conceptual framework of the existing WTO regime and how it deals with African nations and the other developing countries.
2. Contribute to the ongoing efforts to reform the existing legal framework and mechanisms of the WTO in the negotiating rounds.
3. Contribute to the useful and difficult knowledge on the factors that are/could impact the successful participation of developing countries under the WTO regime.
4. To draw the attention of African Group of Negotiators and the other developing nations to the reforms process from the DSU and the other WTO rules, particularly the cultural exclusion clauses which are possible new legal barriers to market access that has not yet been raised by the African Group and the developing world in the negotiating rounds.

All in all, the study will contribute to the emerging body of literature that examines the obstacles confronting third world nations in their ability to seek recourse for protectionist trade practices against them under the WTO dispute settlement mechanisms.

 

1.7 THEORETICAL FRAMEWORK OF THE STUDY

The current thesis is structured at three levels. In the first level, the study will provide a background study that supports the topic and central argument of the study as well. Later, secondary literature is reviewed and analyzed in detail. In the third level, the study comes up with its own hypothesis testifies and then draw possible conclusions form the data collected.

1.8 RESEARCH METHODOLOGY

This thesis adopts a mixed methods approach in response to its research questions. It combines comparative, empirical, doctrinal and historical methods to provide a deep examination of all pertinent dimensions of the research problem stated. The current study is mixed in nature and hence collects the primary data and secondary data. The primary data is collected with the help of questionnaire survey. A questionnaire is developed considering the constraints and later distributed among the participants selected for the study thorough survey monkey. The sampling methods employed in the current study is convenience sampling method. The instrument used in the study to collect the data is questionnaire. Later, the data gathered is tested using statistic tools and discuss the results analyzing the data and results of statistics. 

 

This thesis has adopted a qualitative empirical approach to fill in the gap. The empirical component of this thesis consisted of a questionnaire survey conducted in Africa for 25 years till date(today??). The participants included from different sectors were chosen taking into account their backgrounds, experiences, roles with regard to WTO DSM. The monkey survey questionnaire included open-ended questions, rather than closed-ended questions that are normally answered by a simple ‘Yes’ or ‘No’ responses, with the purpose of ensuring sufficient flexibility to allow and encourage the participants to respond in more depth, exploring fully the themes, the key topic and issues during the survey.

 

Apart from the survey,  the doctrinal research method is described as locating the law or sources of law and analyzing the text, in order to reach a tentative conclusion, predicated on solving a specific legal problem, or envisaging a future development. In order to answer the research questions, and to comprehensively cover the themes of the current study, this study also included a limited doctrinal component. Most importantly, the current study undergoes a historical research that implies the better understanding of the past for a better future. Thus, the study adopts a historical method to identify and discuss the challenges that have inhibited the participation of African countries under the WTO dispute settlement mechanism. The thesis provides a historical insight into the challenges African countries have been facing to participate in WHO DSM.

The current thesis also analyses the credibility and validity of the research by evaluating the factors such as integrity, competence, sound judgement, relational sensitivity, trustworthiness, reliability, transparency, replicability of outcome, and legal authority. In other words, the purpose of the study is to analyze the credibility and validity of the above discussed factors with regard to the challenges faced by African countries in WTO DSM.

 1.9 LIMITATIONS OF THE STUDY

The study would cover the twenty-five years of existence of the WTO dispute settlement architecture from 1995 to 2020.

The study will not delve into all the possible factors accountable for African nations’ inability to participate in the dispute settlement mechanism. Thus, the study is limited to the organizational structures and functioning of the DSB/DSU as well as the cultural exclusion clauses. It would also consider the very few or little participation by the African nations either as plaintiffs, respondents, or as third-party involvements. Equally, the study will analyze the proposals by Africa nations (2002/03/05 and the least developed countries (2002/03) negotiation rounds.

The major limitations of the research have been the effect of the Covid-19 pandemic which is impacting on many levels. First, the study will be hampered by the unavailability and inability to access hard copy literatures, particularly exclusively reference materials and publications, textbooks and journals in most libraries that were previously opened for in-person services to the public.

Second, the pandemic is negatively impacting researcher’s ability to consider and conduct interviews from trade departments and industrial sector experts in selected African countries who would have enriched the outputs of the research. But this is become impossible due to Covid-19 induced governmental and societal restrictions, time, and resource constraints.

Third, and finally, the research would have been enriched had they been enough legal precedents from the panel and appellate bodies of the WTO’s dispute settlement system involving African nations beyond the very few ones or peripheral involvements.

1.10 CHAPTERIZATION

Layout of the proposed chapters for the whole study is given below. Chapter 1 provides background to the study and an introduction to WTO regime in African country. Chapter 2 will contextualize the WTO DSM in general across the world. All the possible challenges that have inhibited the participation of African countries under the WTO dispute settlement mechanism will be discussed in this chapter. The chapter will also discuss the importance of the WTO DSM for developing countries. It will contextualize African countries dispute in the WTO DSM by describing: (1) a short overview of its trading profile, economy and development, and the importance of Africa’s participation in the WTO DSM, (2) Africa’s early engagement in the GATT, (3) Africa’s accession to the WTO. The chapter also will provide arguments and evaluate the possible solutions that would address the barriers which are inhibiting African countries’ participation under the WTO rules and DSU/DSB. Chapter 3 will provide literature review relevant to the current study. Chapter 4 provides detailed research methodology, research process, research design followed in the current thesis. Chapter 5 testifies hypothesis and discusses the results of the current thesis along with implications of the current thesis. Chapter 6 is conclusion chapter that discusses results of the study and future scope of the research.

1.11 LITERATURE REVIEW

There is substantial body of available literature on Africa and other third world nations’ participation in the WTO’s dispute settlement system. This study would lean on the works by Amin Alavi (1), Busch and Reinhardt(2) to your references etc, Clement Ng’ong’ola, Edwini Kessie and Kofi Addo,  and Susan Esserman and Robert Howse and several others to demonstrate that despite the usual challenges that are inhibiting Africa’s participation, there are other numerous problems confronting Africa under the DSB/DSU.

Several other literatures in this subject area are consulted along in the progression of this study.

To begin with, Amin Alavi (2007) examines the position of African countries in relation to the WTO’s Dispute Settlement Mechanism (DSM), particularly as participants in the ongoing review of the WTO rules under the DSU. Whiles he posits that the challenges facing sub-Saharan African countries (SSA) in seeking recourse under the DSM are akin to those other third world nations, he contends that these problems are even more difficult to overcome. Amin concurs with the African Group’s conception of the obstacles to their own participation in the DSM – high entry barriers, lack of credible retaliatory system/power, etc. (Supra note 28, p. 1). Also, he advances his own reasons for Africa’s minimal role in the WTO, which includes low level of development and insignificant stake in international trade that in turn undermines their ability to build a pool of experts who can negotiate the best possible deals individually and for the whole continent.

He equally asserts that the WTO’s and its legal framework seem to alienate African and other third world nations because those rules were drafted without due considerations to their concerns and realities. Alavi further frowns on the retaliatory provision under the WTO rules because African countries barely have the power to retaliate against industrialized nations when the recourse to their complaints from the DSU/DSB is retaliation. Therefore, he recommends that African countries build alliances with other nations with similar interest like the collaborative support to the G-20’s negotiation position on agriculture during the Hong Kong Ministerial in 2005.

Much as Alavi identifies the specific challenges confronting African nations participation under the WTO’s DSM, he has failed in identifying possible solutions like third-party party participation, which can enable State parties to join a principal party in case before the DSB and/or its Appellate Body   as an interested party in the possible outcome of the case (Zunckel, 2005, p. 20). This was demonstrated in the Upland Cotton precedent where Benin and Chad joined Brazil as third parties in the case against the US. Alavi equally failed in recognizing other possible solutions to the participation challenges such as private counsels and academic research organizations and think tanks whose research works can help poorer countries to maximize their resources.

Besides, Busch and Reinhardt (2003) sought to explore whether developing countries have derived better outcomes for themselves under the WTO DSM than they had under the previous GATT regime. They aver that capacity and development constraints influences a poor country’s determination to initiate a trade dispute or otherwise. They go on to demonstrate that industrialized countries who are plaintiffs are more likely to be able to leverage their power to extract concessions from defendants at the pre-panel phase than third world nations who are complainants.

Thus, the authors also assert that “the move has not actually reduced a poor complainant’s prospects of inducing concessions from a [vulnerable] defendant; it has merely left behind the poorest complainants” (Busch & Reinhardt, 2003, p. 723).

But as much as these views are credibly persuasive, the authors flounder in addressing the challenges inherently embedded in the nature of the DSM - DSB/DSU. They overlooked the fact that the remedies under the existing DSM does not reinstate full benefits to the injured party up to pre-violation levels. The DSM also lacks financial compensation commiserate to the overall economic losses incurred by a vulnerable respondent, which is further exacerbated by the inability of weaker winning parties like African nations to retaliate.

In addition, Clement Ng’ong’ola (2009) sets out to investigate some stated proposals pushed forward by negotiators of the African countries at the Doha Ministerial conference that was supposed to review the DSU. He takes note of the lack of progress and breakthrough since the beginning of the DSU review processes. He asserts that Africa’s major obstacle in the negotiations is how to support nuanced reform proposals in respect of offensive African participation under the WTO’s DSM. Clement observes that factors such as third-party rights, panel compositions, special and differential treatment provisions, sequencing and post retaliation and others are being negotiated in a bottom-up approach by State parties to the WTO regime.

Furthermore, he argues that proposals such as a dedicated fund to financing the DSM, hosting the DSM processes in capital cities of third world nations as part of the special and differential treatment provisions, and collective retaliatory measures against one industrialized respondent would amount to nothing or very little effect addressing African countries’ lack of participation. Thus, developing countries should look for major reforms beyond these ill-conceived proposals which basically amounts to tokenism with little impact on African participation in the DSM process.

Clement posits that the negotiations are likely to yield no positive outcome for Africa if they do not focus on addressing their insignificant share of international trade, and advocate for stronger third-party participatory rights. While  Clement is urging African countries to continue to engage in subsequent negotiations with the view to influencing the evolutionary trends in the DSM, he is especially disappointed and cynical about the African Group’s proposals and the overall DSM review process at the Doha Round.

In view of the above, it is very clear that the WTO’s DSM must undergo some organizational and institutional reforms before it can attempt at addressing the needs of African or least developed countries. If African countries who constitute the majority of the WTO membership are largely absent or cannot access the DSM, then the overall goal of ensuring the predictability and security of the multilateral trading system remains a mere theoretical endeavour.

Edwini Kessie and Kofi Addo in recognizing the uniqueness of the WTO’s DSM process in comparison to the GATT, noted that the system is being assessed on the basis of the frequency of access to the DSM. They observed that it is mostly the leading industrialized nations who are making use of the DSM than even the African countries and the other developing nations, which is not different from the experience under the GATT as third world nations accounted for only 10% of the initiated cases under that previous GATT regime. According to the authors, Africa’s lack of participation in the WTO’s DSM process is due to their insignificant share of global trade and lack of expertise in the WTO matters, which they further argue has consequences for the development of legal precedents in the DSM and jurisprudence in the area of international trade law. They review the African Group’s proposals at the Doha Round and correctly predicted the rejection of those overambitious proposals by the industrialized world.

Edwin and Kofi, therefore, admonished African nations to amongst others, adopt certain proposals that could enhance their participation: third party participation and involvement of institutions like UNCTAD in the DSM process, and addressing the supply-side constraints which obstructed their abilities to diversify their efforts. Despite the efforts in providing new alternative proposals to the African Group’s proposals, the authors failed to recognize that the factors that constitute majority stake amongst the barriers to the non/little participation by African countries is the DSU itself.

Susan Esserman and Robert Howse acknowledges the compulsory and binding nature of the DSM, and suggest that compiling a more comprehensive history of the WTO’s negotiation rounds would be resourceful to guiding the DSB and the Appellate Body’s interpretation of the texts of the  ambiguous treaty provisions in the DSU. They describe the consultative phase of the DSM as superficially ineffective and goes onto suggest the involvement of professionally trained facilitators with expertise in alternative dispute resolution as a recourse to addressing these shortcomings. Whiles  the authors are quick to point to the fact that much of the reliefs under the DSU are ineffective, they suggest that those ineffectual WTO rules remain because they represents the most essential pillars of the global economic order that releases the socio-political and economic pressures, which otherwise could have threaten the WTO’s mission for free multilateral trade regime.

 

THESIS TIMELINE CHECKLIST

That the indicators below should be presented in a Gant Chart………………..

Stages of Research	Aug - Oct 2020	Nov - Dec 2020	Jan – Feb 2021	Mar 2021	Apr 2021
Preparing thesis proposal
Seeking ethics approval
Preparation, testing and modification of the survey questionnaire
Embarking on actual data collection
Data entry and cleaning
Data Analysis
Progress Report Writing
Pre-Defence Final Thesis
Thesis Oral Public Defence
Post-Defence Final Thesis
Publication of Post-Defence Final Thesis

 

 

 

 

 

 

Conclusion

This study will be the initial phase of a much comprehensive study on the participation of developing countries under the existing dispute settlement system that will contribute to understand the magnitude of the institutional factors that impacts that participation. It is my fervent hope that the study’s outcome will contribute to the enhancement of the knowledge and academic discourses around the subject.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Alavi, Amin. (2007). African countries and the WTO's Dispute Settlement Mechanism. Development Policy Review, 25(1), 25-42.

Busch, M. L., & Reinhardt, E. (2003). Developing countries and general agreement on tariffs and trade/world trade organization dispute settlement. J. World Trade, 37(4), 719 - 735.

Buyonge, C. and Kieeva, I. (2008). Trade Facilitation in Africa: Challenges and Possible Solutions. World Customs Journal 2(1), pp. 41-54.

Esserman, S., & Howse, R. (2003). The WTO on Trial. Foreign Affairs, 82(1), 130-140.  https://www.jstor.org/stable/20033434

Footer, M. E. (2001). Developing Country Practice in the Matter of WTO Dispute. J. World Trade, 35(1), pp. 5-98.

Kessie, E., & Addo, K. (2007). African countries and the WTO negotiations on the dispute settlement understanding. International Centre for Trade and Sustainable Development (ICTSD).

Ng’ong’ola, C. (2005). African Member States and the Negotiations on Dispute Settlement Reform in the World Trade Organization (No. 11). Tralac Working Paper.

The World Trade Organization: The WTO, available from: https://www.wto.org/index.htm [accessed on June 13, 2020].

The World Trade Organization: Dispute Settlement, Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, accessed from: https://www.wto.org/english/tratop_e/dispu_e/rc_e.htm [accessed on May 19, 2020).

Zunckel, H. E. (2005). African Awakening in United States-Upland Cotton, The. J. World Trade, 39, 1071.

World Trade Organization. WTO Dispute Settlement: One-page case summaries. World Trade Organization, 2010.