Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

The Role of Non-State Actors in WTO Dispute Settlement Proceedings

International Annual WTO ForumKaliningrad State Technical University

20-22 March 2014

Prof. Dr. Karsten Nowrot, LL.M. (Indiana)University of Hamburg, Germany

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Introduction

•“The multilateral trading system is, per force, composed not only of States but also, indeed mostly, of individual economic operators.”(US-Section 301, Report of the Panel of 22 December 1999, para. 7.76)

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Introduction

• “[I]t would be entirely wrong to consider that the position of individuals is of no relevance to the GATT/WTO legal matrix. Many of the benefits to Members which are meant to flow as a result of the acceptance of various disciplines under the GATT/WTO depend on the activity of individual economic operators in the national and global market places. The purpose of many of these disciplines, indeed one of the primary objects of the GATT/WTO as a whole, is to produce certain market conditions which would allow this individual activity to flourish.” (id., para. 7.73)

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Outline of the Presentation

• Outline of the presentation Four main steps Participatory options for private actors in WTO dispute

settlement Status enjoyed by non-state actors in international

investment arbitration Reasons for the current appropriateness to reevaluate

the position of societal actors in the dispute settlement processes of the global economic system as a whole

Some broader conceptual thoughts on a common standard for respective international remedies in transnational economic law

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Participation of Private Actors in WTO Disputes Settlement

• Participation of private actors in WTO dispute settlementNo direct participation as complainant or third

party in WTO panel or Appellate Body proceedings

(informal) participatory options to assist respective WTO members“public-private partnerships in WTO litigation”

(Gregory Shaffer, 2003)Submission of amicus curiae briefs

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Status of Non-State Actors in International Investment Arbitration

• Status of Non-State Actors in International Investment Arbitration“mixed” arbitration as the currently most common

dispute settlement mechanism“investor-state dispute settlement” based on

arbitration clauses in investment agreementsDirect access of private investors to international

dispute settlement mechanisms“marking another step in their transition from

objects to subjects of international law” (Plama Consortium Ltd. v. Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction of 8 February 2005, para. 141)

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

“Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors

• Current “window of opportunity” for a comprehensive reassessment of the role of societal actors in the dispute settlement processes

• WTO perspectiveFrequent criticism voiced against the restrictive

approach adopted by the WTO“The world has changed dramatically since the

GATT’s creation in 1947. Yet 60 years later, the WTO has not adapted itself to these changes.” (Joost Pauwelyn, 2008)

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

“Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors

• “Moreover, the entire WTO is built on the practice and culture of the old GATT 1947 which played its role in the old international system on the basis of a concept of a small club of trading powers, namely the US and the EU, ruling the system. However, the days of the old GATT 1947 are gone; the former bi-polar system has been replaced by a multi-polar system of different important actors – states, civil society and transnational corporations – and a multitude of interests. The institutional system of the WTO and its entire culture do not fit into an international economic system shaped by globalization. It is obvious that a system built on ideas of the Post-World War II era is not able to cope with the challenges of today – but this is exactly the situation with regard to the WTO.” (Christian Tietje, 2009)

• “Clearly, the idea of developing more formal mechanisms for receiving input from non-state stakeholders in the WTO should be explored.” (Debra P. Steger, 2009)

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

“Window of Opportunity”: Reasons for a Comprehensive Reevaluation of the Role of Private Actors

• WTO perspectiveWTO would in its current phase of relative

stagnation benefit from new innovation impulsesE.g. coping with the challenge of regionalism

• Investment law perspectiveApproach of investor-state arbitration itself is

more recently increasingly controversially perceivedReasons for the current “policy shift” in

international investment law

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

Broader Conceptual Thoughts on Common Standards for International Private Remedies in Economic Law

• Broader conceptual thoughts on potential common standards for international private remedies in transnational economic lawEffects of dynamization of law-enforcement

processes Inclusiveness of transnational economic governance

processesTransparency of international economic dispute

settlement processesResponsibility of private actors

Non-state actors are increasingly expected to respect and contribute to the promotion of global community interests

Non-State Actors in WTO Dispute SettlementProf. Dr. Karsten Nowrot

The Role of Non-State Actors in WTO Dispute Settlement Proceedings

International Annual WTO ForumKaliningrad State Technical University

20-22 March 2014

Prof. Dr. Karsten Nowrot, LL.M. (Indiana)University of Hamburg, Germany