Milestones of the ACWL
Inauguration of the ACWL: Speech delivered by the Chairman of the Appellate Body, 5 October 2001
Inauguration of the ACWL on 5 October 2001
Speech delivered by the Chairman, Appellate Body, Claus-Dieter Ehlermann
Your excellencies, Members of the Management Board, Ladies and Gentlemen.
It gives me great pleasure to speak to you on the occasion of the inauguration of the Advisory Centre on WTO Law. The Centre represents the collective efforts of many individuals, and many WTO Member governments. I wish to congratulate all those involved in the conception and development of this important initiative for your vision, and the dedication with which you followed this vision through. The establishment of the Centre is an important step in advancing the interests and securing the rights of developing countries in the WTO dispute settlement system.
WTO Members have demonstrated their confidence in the new dispute settlement system in bringing more and more disputes to the system. There is no indication that recourse to the WTO dispute settlement system will slow down in the future.
It has been said that panels and the Appellate Body have made a considerable contribution to the development of WTO law, thus enhancing the "rule-based" character of the WTO. But it is obvious that there would be nothing for us to decide without the WTO Members who bring their disputes to the system. It is the Members of the WTO who have the ultimate challenge in ensuring the endurance of the rule-based system.
WTO Members bring disputes to the system do so because they feel that certain rights accruing to them have been nullified or impaired. But there is more to participation in WTO dispute settlement than the preservation of the rights of individual Members. Article 3.2 of the DSU states that the function of the dispute settlement system is "to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions …" It is only through participation, and through engagement with the system, that WTO Members can influence the outcome of rulings and recommendations, and thus contribute to the growing body of WTO law.
Speaking at an UNCTAD conference about a year ago, my friend and colleague on the Appellate Body, Ambassador Julio Lacarte-Muro, spoke of the benefits that developing countries gain from participating in the dispute settlement process. But he also spoke of the benefits that the multilateral system gains from the participation of developing countries.
We have seen a number of different WTO developing country Members participating in both Appellate Body and panel proceedings. The very first dispute to be brought to the Appellate Body involved two developing country Members, Brazil and Venezuela. More and more issues are coming before panels and the Appellate Body that are systemic in nature, and consequently, we are seeing more and more developing country Members participating for systemic reasons.
An important way in which developing countries have familiarised themselves in the appellate review process is by participating as third participants. Developing countries which have been third parties are likely to have found that their knowledge of the functioning of the dispute settlement system has been considerably enhanced by such participation.[1]
Not so many developing country WTO Members, however, have participated as appellants or appellees. Only 11 developing countries have appeared before the Appellate Body as either appellant or appellee. This represents less than one fourteenth of the total Membership of the WTO.
The problems and constraints facing developing country Members in the multilateral trading system are well known. For many developing countries, access to the dispute settlement system is a costly exercise. Limited resources sometimes mean limited opportunities for engagement and participation. However, what is needed is the equality of access to means of engagement.
In one of its earliest reports, the Appellate Body ruled that private lawyers could represent WTO Members in dispute settlement proceedings. [2] This ruling was hailed as allowing access to the dispute settlement system by developing country Members, who often do not have the experience or expertise to represent themselves. But as I have said, good professional advice and representation is costly, and may be beyond the means of many small developing country Members.
It is against this background that we welcome the establishment of the Centre. By providing low-cost, high-quality legal services, the Centre will enable the greater participation of developing country Members. The Centre will, therefore, benefit its Members. It will benefit panels, the Appellate Body, and the WTO.
Ultimately, the Centre will benefit the "rules–based" multilateral trading system, and strengthen the notion that the dispute settlement system of the WTO is available to the economically weak as much as it is available to the economically strong.
I would like to wish the Executive Director of the Centre, Mr Frieder Roessler, and his team, all the best. I myself will be retiring from the Appellate Body at the end of the year, and, will, unfortunately, not have the opportunity to follow the development of the Centre first hand. But I am sure that my colleagues who remain on the Appellate Body, and those who join the Appellate Body in December, will benefit from the Centre's participation in, and contribution to, the WTO dispute settlement system. And I am sure that they will join me in wishing the Centre all the best in the future.
Thank you very much.
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[1] To date, a total of 34 different WTO Members have participated as third participants, or as "passive observers" in Appellate Body proceedings, a number that represents slightly less than a quarter of the total WTO Membership.
[2] European Communities – Regime for the Importation, Sale and Distribution of Bananas