GBD COLLOQUIUM ON NGOs, GOVERNMENTS AND THE WTO

November 6, 2000 Washington, DC

This was the fourth in the series of Colloquiums sponsored by the Global Business Dialogue with support from the Market News International. It was held in the First Amendment Lounge at the National Press Club in Washington on Monday, November 6, 2000. It began at 9:30 a.m. and concluded around 11 a.m.

The moderator for this event was R. K. ("JUDGE") MORRIS of the Global Business Dialogue. The speakers were JOHN MAGNUS, a partner in the law firm of Dewey Ballantine; BRUCE GOSPER, Minister (Commercial) at the Embassy of Australia in Washington; EDWARD (MONTY) GRAHAM, who is a Senior Fellow at the Institute for International Economics; and GRANT ALDONAS, Chief International Trade Counsel, Senate Finance Committee (Majority).

The transcript below has been edited but only very slightly and only in the interest of clarity. Its character remains that of extemporaneous oral speech rather than that of formal writing. There are portions here and there where the tape recording missed a word or two. Otherwise, it is essentially complete. A copy of this transcript was sent to each speaker in advance of this document being posted on the GBD Web Page. The decision to post the document, however, was made by the Global Business Dialogue.

Remarks Of
JOHN MAGNUS
Partner
Dewey Ballantine

Rather than begin with a definition of an NGO, I would rather let that emerge from the balance of my presentation. In considering the relationship of NGOs to the WTO, it is useful to think in terms of the following three, distinct aspects of the WTO’s work: 1) Negotiations 2) Committees and Working Groups, and 3) Dispute Settlement in the context of the Dispute Settlement Body and the Appellate Body.

The score card on these is: Negotions: partially closed; working groups: mostly closed; dispute settlement: mostly closed.

NGOs & WTO Negotiations
So negotiations gets the best grades. In Seattle there were a great many NGO in attendance and not just in the street demonstrations. [At Dewey Ballantine,] we were involved in registering a couple of NGOs that were officially accredited by the WTO. One was LICIT, the Labor-Industry Coalition for International Trade. . a group of companies and labor unions that make common cause on a number of trade issues. [We] and got badges to send four representatives of LICIT to Seattle. Likewise, we were involved in the paperwork for the participation of the Semiconductor Industry Association as an NGO at the Seattle Ministerial.

These are not, perhaps, what you would think of as prototypical NGOs in the sense of environmental groups, but in the eyes of the WTO office that handled the accreditation for the Seattle Ministerial they were NGOs just like any other. Not only did the WTO itself accredit NGO representatives and issue badges, but a number of NGO representatives were included in the U.S. delegation. It was a very large delegation. As near as I can tell, this is all standard procedure; although, in the case of Seattle, it may have been a bit more charged than in past ministerials.

There was also an NGO day at the Seattle Ministerial, which some of you will remember. As far as I know, that is something new under the sun, an entire day of presentations that were just aimed at the NGO representatives in attendance.

So, yes, there was access at that level; but, of course, there were levels of access; negotiating being, after all, a diplomatic function that does require a certain amount secrecy in order to succeed. In terms of the Green Room, where some of the most sensitive decisions were being made and discussions were being held on the ministerial declaration and the contours of the proposed new round, there were a great many governments around the world that would have liked better access to those discussions, as I suppose would have the NGOs. So, the record on negotiations is: partially closed.

NGOs & WTO Working Groups
Working groups: I would say mostly closed. Generally, there is no right of the public or of NGO representatives to watch the regular business of the WTO being transacted. The organization itself has committees and working groups on a whole variety of subjects, from intellectual property to services to subsidies to competition policy; and nobody but delegates is allowed to observe or participate in those discussions.

This is even true for working groups that are convened in the WTO for "educational purposes," such as the working group on trade and competition policy, which has been in existence since it was established in the Singapore Ministerial. [This] group has absolutely no negotiating mandate at all. This is a forum for educational discussions to occur. Yet those meetings are held in secret, and the submissions, the written submissions of participating governments are considered to be restricted documents, unavailable to the public.

Some outreach is beginning to happen. And, perhaps predictably, it is beginning with business NGOs. In that regard, I was fortunate to participate in a briefing of the members, the delegates to the WTO Working Group on Trade and Competition Policy. This was a delegation sent by the International Chamber of Commerce to Geneva. The ICC has a working group on trade and competition policy, and we were permitted to meet in a room in the WTO building with a number of the delegates from this particular working group. The session was organized by the WTO secretariat staff who work with that working group, but they were at great pains to stress that we were not actually meeting with the working group. That would be considered improper. So, we just were together sharing the same space and having a discussion with anyone who wanted to attend on the subject of trade and competition policy.

Those working groups and committees in the WTO are forums in which a certain amount of negotiating can sometimes take place. And so it might be said that there is some appropriate level of secrecy for those discussions as well. Fair enough.

NGOs & WTO Dispute Settlement
I would say that that is basically not the case with respect to WTO dispute settlement, the third category, which is also mostly closed. In dispute settlement proceedings, what might you want to do if you come from an NGO? You might want to attend and watch oral arguments. Or you might want to send in briefs of your own directly to the tribunal deciding the case. Amicus submissions are now possibly a reality. Attendance most certainly is not.

On attendance, the most desirable approach, as a matter of principle, would be total openness. Adjudication is what is occurring in these WTO panel proceedings. They ought to occur in public, in order to enhance their credibility. However, that is not what the current dispute settlement rules provide for, and it is not something that is a very commonly held value or position among the WTO members. Given that situation, it seems to me there is a lot the U.S. Government probably could do to try to increase transparency and access for outside groups that are affected by the results of the WTO dispute settlement policy.

In the cases that have gone through recently - a couple of cases that we have been involved with - there is a sort of dance step that goes on, a pas de deux, if you will. Particularly in cases filed against the United States, challenges to U.S. measures - the United States, in mounting its defense and in preparing for a meeting of the panel and oral argument, will submit a request to the panel that observers be admitted into the room. This is a means of trying to accommodate requests that are coming in from NGO representatives who want to be there, [who want] to see what is going on. These are NGOs whose members are affected by the outcome of the case or think they would be affected by the outcome of the case.

The U.S. Government will request that observers be admitted. The panel will field this request. And they will say: Well, we thank you for your request, and we are just going to ask the other governments participating whether they would like to have observers or not. The other governments of the WTO members, predictably, will say "Thanks but no thanks; we would rather not have any observers." The panel will inform the U.S. Government of that, and that is the end of this story. There are no observers, and the attendance in the room is limited to the official delegations.

That last point is the key thing for what the U.S. Government can do to improve the situation. This is, of course, to include more people in its delegations. The U.S. Government has complete control over the composition of its delegations [for dispute settlement], just as it does in the case of negotiation meetings of the WTO and, in principle, for delegations that are fielded for working groups. So too in delegations that are fielded for dispute settlement meetings, the U.S. Government could include representatives of outside groups that consider themselves to be affected by what is going on in the case.

Recommended Criteria for NGOs in Delegations
What you will hear from the Government when this idea is raised is: Well, yes, but how would we ever decide whom to let in the door? How could we let in Group A and not let in Group B? It seems to me there is a very easy answer to that. This is that you make decisions on what I will call "deputizing," including non-government experts in your delegation, based on two things.

One of these is agreement with the U.S. Government’s position. The U.S. Government is defending itself in Geneva, has been challenged, has a measure that is in the dock, that has been contested, and the U.S. Government’s position is that its measure is fully consistent with the WTO rules. You would want everybody in the delegation to agree with that. So, first of all, is agreement with the U.S. Government. Second is expertise and ability to help. Who might, if in the room and listening to what is going on, actually be in a position to whisper some sort of useful comment to the U.S. Government lawyers who are arguing the case?

This does not seem to me to be terribly controversial. It has not got anything to do with the right to grab the microphone and speak for the United States. It is just about the right to be inside the room, hear what is going on, and potentially provide helpful input to the advocates who are speaking for the United States. I think those criteria would work. Whether the outside interests involved are 20,000 steel workers or 20,000 members of an environmental NGO, the principle is the same. Do you agree with the U.S. government? And, do you have expertise that would potentially enable you to be helpful if you were in the room?

Amicus Submissions
As for amicus briefs, the current situation is that, after a great deal of effort and litigation, it has now been established that the Appellate Body and the panels may accept amicus briefs. It may surprise some of you to learn that this was a disputed point, a heavily litigated issue. In a recent case involving some countervailing duties on steel bars from the United Kingdom, the U.S. Government took the view that the Appellate Body had the authority to accept amicus briefs if it wanted to. Incredibly, some of the other governments participating in that case took the view that it did not have that authority, because that authority was not spelled out in the DSU itself, the Dispute Settlement Understanding, or in the written procedures for the Appellate Body. The United States pointed out that there are number of things that are not specifically laid out in the DSU or in the written procedures for the Appellate Body.

For example, it does not specifically say that you can hold an oral argument on Monday. But indeed the Appellate Body certainly has - and nobody would argue that it does not have - the authority to hold an oral argument on a Monday. Well, the acceptance of an amicus brief is very much in that same category. It has to do with the tribunal’s control of the proceeding over which it is presiding. Ultimately, the Appellate Body was able to conclude that it could accept amicus briefs if it wished to do so and if they were filed in a manner consistent with the filing rules of a dispute settlement proceeding. The next step, which of course will be much more difficult, is going to be elaborating criteria for when amicus briefs from outside groups such as NGOs should be actually considered and responded to.

NGOs And The U.S. Trade Policy Process
The U.S. picture is actually a lot quicker to describe. NGO access to the trade system here in Washington is much less of a problem. Anyone who thinks that NGOs are not influential here in Washington must inhabit different circles than I do.

The debate over participation in the official advisory committees, the advisory committees established under the Trade Act of 1974 under the umbrella of the ACTPN
[Advisory Committee on Trade Policy and Negotiations] has been an interesting one, since the advisory committees are only one source of input to U.S. negotiators, and since there is a Labor Advisory Committee and a Trade and Environment Policy Advisory Committee; so that a number of the different perspectives that you typically hear raised under the heading of NGOs are represented in the advisory committee system. Furthermore, the main statutory role for the advisory committees is simply to issue advisory reports on completed agreements for the benefit of the Congress, which has to decide whether to ratify these completed agreements. And, of course, in Congress NGOs have no shortage of direct influence of their own.

Nevertheless, I would say the inclusion of different perspectives, including NGO perspectives, on the advisory committees has been, on balance, a good thing. You can question whether courts ought to be ordering that these different perspectives be added to these advisory committees, but the inclusion of perspectives in principle is a good thing.

The Executive Order On Environment And Trade
My view of the new executive order on environmental review of trade agreements is that that really does represent a significant departure. Its unstated premise is that the environmental advice that is available to negotiators under current procedures, whether through the advisory committee system or through the many other means by which environmental advice can reach trade negotiators, is to little, and that there is some kind of structural reason why it is too little. [Implicitly, therefore,] some kind of additional official procedure for getting environmental input has to be constructed. I am not sure that the facts bear that out.

My guess is that maybe disagreements over substance have been confused with disagreements over procedure. The fact that the U.S. Government went ahead with certain trade measures, even though there were claims about environmental harm that would result, has been taken to mean that the procedures are somehow defective. But, we’ll see. We shall see how that executive order is actually implemented. That is another subject for an entirely different panel, perhaps.

The next frontier domestically, it seems to me, has got to be deputization, the inclusion of outside experts in U.S. delegations. I don’t just mean negotiating delegations. It definitely should include working group delegations and dispute settlement delegations. Perhaps most important of all are dispute settlement delegations.

People at events like this often talk about forging a new consensus on trade. Often times what that turns out to be a discussion of procedures, things like what are going to be the rules in Congress for consideration of an implementing bill. In this area of procedures, one of the highest priorities, it seems to me for the new administration, should be to roll out a policy on deputizing, getting outside experts into the U.S. delegations, and to start trying that policy out in specific meetings and gatherings in Geneva. Thanks.

QUESTIONS: Are the so-called public interest and environmental NGOs filling a vacuum? Or are they on their own separate track toward engagement? How do you judge? Are they just a counterweight?

JOHN MAGNUS: Do you mean domestically or in Geneva?

QUESTION: In Geneva.

JOHN MAGNUS: Geneva is a place where governments get together to make agreements and lay battle plans. The amount of direct access for business groups and other kinds of NGOs is pretty limited. The outreach program that has been launched is - I guess it is encouraging. It is counter-cultural in the sense that it goes very much against the grain of people who work in the WTO building to do so this. They are now being as careful as they can be to try to make sure that they do not do the outreach in a preferential manner.

Ultimately, all of these agreements are agreements undertaken by governments. So, unless things really change in a dramatic way, you won’t see the NGOs, business, environmental or otherwise, actually engaging in negotiations. Most of what they do there is more in the nature advocacy and lobbying. It [the WTO] is agreements by governments, among governments, binding government behavior.

Remarks Of
BRUCE GOSPER
Minsister (Commercial)
Embassy of Australia

Transparency & Accountability In The WTO
I am here from the government, and I am here to help you. I thought today I would just say a few things about transparency and accountability in the WTO from two perspectives: first, from the perspective of internal transparency and, secondly, external.

Internal Transparency. Obviously, since Seattle there has been a good deal of recognition of the need to [look at] WTO processes from the viewpoint of whether they are sufficiently efficient and transparent for all members. In particular, [there is] the need to strike the right sort of balance between inclusiveness [on the one hand] and the efficiency of small group meetings [on the other]. That is probably a key point from the perspective of how the negotiating process works and produces results. [There is], I think, under lying this a recognition that the balance that was struck in Seattle between these two objectives of inclusiveness and efficiency of small group processes was not the appropriate balance.

I think that since then, of course, Members have been seeking to enhance interaction between the open-ended meetings of the WTO and the small group processes that continually go on in Geneva. Those of you who were at Seattle might have been struck by how antiquated some administrative processes were for getting documents .. It was quite an eye-opener to see how antiquated some of those processes were. There is certainly a lot of potential to increase the efficiency of meetings like Seattle and hence increase the sense of inclusiveness.

Also, of course, looking at the on-going work of the WTO, [there is] some interest in rationalizing meetings at the WTO. Australia has, for us, a sizeable delegation, and frankly, even as a middle-sized country, we are pretty stretched just to cover the range of meetings that are a being held that day. How you actually protect your interest in the on-going meetings of the WTO in dispute settlement cases is a major issue for us and perhaps an impossible issue for a developing country.

So, [there is] a recognition of a need to make changes. I think two other important things have come down in the period since Seattle. The first is that most of us think that major changes to the way the WTO works are not required. And the second is that decisions should continue to be made on the basis of consensus. That is not putting to one side the need to enhance the process of decision making in relation to our communication but a very clear reaffirmation of the point that decisions need to be made by consensus.

One of the real problems when we face internal transparency under the WTO are the resource constraints on developing countries. Here, there are a range of initiatives that have been put in train by the WTO itself and by other members. Australia, for instances, has been involved in a number of initiatives. Just recently, in the last month or so, we held some training seminars in South Africa that drew in a number of people throughout the southern part of Africa. [These were] to talk about WTO obligations and processes and what [South Africans] could do to advance and protect their own interests within the system. I know a number of countries are undertaking similar sorts of efforts. Similarly, I think there have been various efforts to improve representation of LDCs in Geneva. There, institutions like the Commonwealth and UN agencies have a clear role.

Responding to developing country concerns, of course, has been a priority since Seattle. That covers issues like implementation, market access Frankly, I won’t go into any detail on those issues.

External transparency is something that is equally, perhaps even more, problematic, I think, since Seattle. Seattle certainly brought home to many countries the greatly increased public interest in the WTO’s work compared, certainly, to that of interest in the GATT. It certainly has exploded in our country and internationally. That has led initially to a number of initiative to try and address some of the issues that have been brought up by the NGO community and the public generally.

John talked a little about the need to improve access to basic documents and to streamline procedures for derestriction of documents, with the emphasis being on public availability to those documents as soon as possible. Certainly, the fact that some document are not available until six months after a particular event does fuel concerns about transparency in the WTO.

We are seeing a number of publications emerge in the WTO. There is a trade and environment bulletin now, which goes to some of us. Better use of the web site and access to documents has been one thing that has emerged. And, of course, the symposia that have been organized on trade, environment and development I think there have been four since 1994. These have been quite important for providing a forum for public debate and involving NGO interests and other public interests. NGO access to plenary sessions at the Ministerial Conference has been another initiative. Lastly, NGOs now have the opportunity to provide information to members via the WTO secretariat.

I might just conclude by pointing out that there is a strong view amongst members that as an inter-governmental organization the primary responsibility for consultation with civil society interests must lie in the national governments. Our view is that there is unlikely to be any major change amongst WTO members. The NGO participation in the day-to-day meetings of the WTO is inappropriate.

Access To Documents
Importantly, there is increasing recognition in many countries, including Australia, that access to documents in a very timely way is very important to the domestic consultation process that we have to undertake ourselves. We are dealing with publics that are very well informed on what happens within the WTO. They want to make sure that they are part of the domestic consultation process that we engage in and that they are properly and in a timely way informed on the sorts of issues that are being discussed in the WTO. So, although the primary responsibility for consultation with these groups must lie with national governments, that in turn is an imperative for national governments to be able to, in a timely, quick and efficient way, distribute as much information about the WTO as possible. So, I’ll just leave my comments there.

QUESTION: [What are the reasons for the relatively low level of participation in the WTO by developing countries.]

BRUCE GOSPER: It is a battle for a country like us, a middle-sized country that has always been an active player in the multilateral system, to keep track of what is happening in the dispute settlement system. To actually have a view on each panel and Appellate Body decision, to be able to discern from those decisions what our interests are, what opportunities or challenge they pose is quite a challenge.

As a consequence of that, we are at the moment upgrading our resources, what is allocated to the dispute settlement work. We are putting more lawyers into play on these issues. [We are doing this] so that we can handle our defensive interest, but more importantly [so that we can] use the system to advance our trading interests with our countries.

For developing countries, where they might not have an in-house group of people with expertise on the WTO system or any law firms with that particular expertise, I am not quite sure how they handle those sets of interests, unless they want to [hire] themselves some Washington-based lawyers.

Remarks Of
EDWARD M. GRAHAM
Senior Fellow
Institute for International Economics

Maybe I should start by just asking the question, Why was there all this fuss at Seattle and, before that, in Paris over the ultimately failed negotiations conducted at the Organization for Cooperation and Development (OECD) on the Multilateral Agreement on Investment? It is worth recalling that, prior to Seattle, there was this latter negotiation, in which the NGOs played a considerable role. The one thing I haven’t heard the other speakers talk about is exactly this issue. What is the fuss about anyway?

The main thing to be said is that the NGOs - or at least a large majority of them -hold the view that the WTO is itself a highly non-democratic and closed process and that their voices, that is the voices of the NGOs, has been systematically excluded. In contrasts, in their view again, the representatives of what they often call "corporate capitalism" do have a voice in the system. On this latter point, at the release meeting of my book, only three weeks ago, a retired person from the State Department rather unwittingly supported the NGOs’ contention.

He cited the guidelines on multinational corporations that were negotiated during the 1970s. This was a non-binding code. He noted that at that time negotiators worked in partnership with large corporations to make sure that both sides could live with the outcome. Thus, governments did indeed bring the corporations into the negotiating process. He also indicated that he thought this was a good example of how to run this sort of negotiation. But, in doing so, he unwittingly made the case of the NGOs. The NGOs have never been invited at this level into any negotiating process. Whether one thinks that they should be or not, that they have never been invited but business interests have just simply has to be one of the starting facts in this debate.

As the previous speakers have alluded to, WTO agreements certainly are, however, negotiated by governments and not by corporations. Even so, some NGOs view is that: "Hey look, the governments are nothing but front agents for the corporations." This, of course, is entirely wrong. In fact, when the claim that the WTO is non-democratic is put forth, it must be kept in mind that WTO agreements are in fact negotiated by governments. Furthermore, by and large those governments that are the the "major players" at the WTO are democracies. At least in principle, these represent interests through a democratic process of all of their citizens.

Both of these facts thus must be kept in mind. One is that the claim of the NGOs, that they do not enjoy access at the same level as business interests, does seem to have at least some basis in fact. The second is that the WTO, in the final analysis, is an organization where at least the major players are democracies, including some developing countries such as India, which certainly is a leading player in the WTO and considers itself to be sort of be the leader of the developing countries. India is, if nothing else, a democratic country.

NGO Vote or Veto?
The question then is, Should the NGOs have a stronger voice in setting the multilateral trade agenda? One thing that is clear is that, if they do indeed warrant a stronger voice, they should not have a vote. Let’s be clear on that. A lot of NGOs take the position that they should have a vote, or at least that they should actually be brought in to the negotiation room. They believe that they should have, in some sense, voting or perhaps veto power over decisions. That, of course, as both of the previous panelists have rightly indicated, is completely unacceptable. How to go about giving them a voice, without giving them a vote? I have a number of possible ways to do so jotted down, but as these were covered by the previous speakers, I don’t think I’ll go through them again.

Documents And Transparency
The only thing I will note further in this regard regards the matter of transparency and the possible issuance of documents on a more timely basis. I recall that, in the early 1980s, the OECD produced a rather thick report on the trade arrangements covering the textile and apparel industry. The report took the position that the multilateral system, as constituted, should be greatly altered, because it created undue costs on consumers in OECD nations in order to benefit a relatively small number of producers and workers. In particular, it said that the multifiber arrangement should be ended. This document was suppressed at the behest of certain governments. It was a limited circulation document to begin with, and, officially, it was indeed suppressed. But just as the OECD was going about suppressing it and making sure that it was not formally released, copies were freely available on the streets of both Paris and Geneva. Street hawkers were actually selling the things.

So much for secrecy. And so much also for the propensity of these organizations to maintain a veil of confidentiality where: 1) It is not necessary; 2) It is usually politically motivate (and that was entirely the case in the instance of the OECD report); and 3) It is ineffective. The documents do get out.

That is, of course, what happened in the case of the MAI. The negotiating text was put on the internet by NGOs, in spite of the fact that it was supposed to be a confidential document. Given that the confidentiality steps that are taken by the WTO and by the OECD are largely ineffectual and in most cases unwarranted - We are not talking about issues of national security or such things as that - why not just open up at least public access to most documents, and, in doing so, accede to what is de facto reality anyway?

Problems of Openness
Here are some problems that have to be considered. If the NGOs are going to have a greater voice in the multilateral process, who speaks for them? At last count, there are more than 10,000 groups out there claiming to be NGOs. They are by no means a homogenous group. They do not speak with one voice. They range from the Ruckus Society, which as nearly as I can determine has no mission other than to throw rocks and stones, to other organizations that have very well considered positions that are very thoughtful. In particular, if you try to bring all of these groups into the process in a more formal way, how do you avoid the tyranny of the minority?

This tyranny is very real. To cite one example, this morning there is a letter in The New York Times that is from a person in California talking about gun control. On this issue, he says: "Look, the Congress, in blocking gun control, has only exercised the will of the majority." Well, every single poll I have seen on this issue shows that about two-thirds of Americans favor greater gun control. Thus, I would say that a more correct interpretation is that the Congress is blocking the will of the majority, not exercising it. This phenomenon is well understood by those who study political science. Called "the tyranny of the minority," it basically says that a group representing a minority of interests, very often can get its way, even in a highly democratic process, if it is loud enough. How to avoid a "tyranny of the minority" with the NGOs is a very major issue.

Substance As Well As Process
There is one other matter that I want to raise, which other speakers again didn’t mention. This is that there is very definitely a set of issues on which - at least, standing where I do, the "ivory tower" - the NGOs probably are right. This suggest that there may be a need for change in the substantive rules of the WTO to meet the concerns raised by these groups. There may be deficiencies within the WTO agreements themselves that actually need correcting. Therefore, the discussion has to go beyond that of process and into areas of substance.

These involve some very, very delicate areas. The shrimp/turtles case and the tuna case before it, of course, were decided highly to the disfavor of the environmental NGOs. But a number of experts who have looked at those cases in fact believe that the environmentalists were largely, substantively correct on the issues posed by these cases. (In fact, that is the position of the U.S. Government. The U.S. government was the [defendant] in these cases. There is a very deep issue at stake here. This is that the WTO, through predecessor GATT rules, basically does not allow decisions regarding whether trade in goods can be restricted for reasons pertaining to environment, health, safety and so forth to reach back to production and process methods, PPMs.

However, as some NGOs point out, and I believe correctly, the TRIPS agreement - the Trade Related Intellectual Property protection agreement - which came into being as a result of the Marrakesh Agreement [concluding the Uruguay Round and establishing the WTO] does already embody a PPM reach-back.

Some NGOs thus argue: If the WTO procedures allow trade restrictions to protect intellectual property rights, why can’t these restrictions also serve to protect human rights and environmental endowments? If one class of rights that does reach back to PPMs is, in effected, protected by the WTO, why does this not extent to other rights, i.e., why do we protect intellectual property rights but not other classes of rights? This is a substantive issue that NGOs insist has to be addressed.

Standing
Finally, and let me conclude on this, there is the issue of standing to bring cases. On this, both of the predecessor speakers noted that only governments have such standing. Frankly, I would keep it that way. But part of the reason why the NGOs got into the act, to begin, at least with regard to the predecessor MAI negotiations at the OECD, was that under the proposed MAI, corporations would have standing under a separate investor-to-state dispute settlement procedure to bring disputes to dispute settlement without government representation. And such standing now exist within the NAFTA [North American Free Trade Agreement], although it doesn’t within the WTO.

The issue the NGOs raised is, If corporations will have the standing to bring disputes through the NAFTA mechanism and possibly through an MAI, what about the standing of everyone else? Why should corporations alone have such a special standing?

On this, I must admit something. That is, in my book Global Corporations and National Governments, that was published in 1996, I was an advocate of investor-to-state dispute resolution. But I have changed my mind on that issue. I think that this has opened a can of worms that should have been left closed. Thus, I would continue to limit the standing to bring cases to governments, and I would put to bed forever the idea of other parties having standing to do so, despite my earlier advocacy. That does leave open the question of what to do about NAFTA, where in NAFTA such standing already does exist. That is a very big issues.

To summarize, there are really two major issues. One is, how to bring the NGO voice into the process of setting the multilateral trade agenda, but without giving them a veto or creating the tyranny of the minority. The other is an honest examination of what substantive changes might be required in light of what I think are very legitimate issues raised by the groups regarding environmental preservation. Ok. I’ll close there. Thank you.

QUESTION: [Should there be transparency declarations for NGOs, like the 10K that certain companies file with the Securities and Exchange Commission?]

EDWARD GBRAHAM: The first thing to point out, of course, is that not all corporations have to file a 10K. Listed firms have to file a 10K, and there are some very big firms that are not listed.

If there is going to be a transparency requirement that applies to NGOs, then it should apply as well to other organizations, including some corporations that have deliberately bought their own stock in order to avoid 10K requirements. Having said that, I am in favor of more transparency everywhere. But I do think that, if there is to be a blanket requirement, that everybody, including NGOs, must file basic disclosure statements (and that might even include IIE, God help us) it does have to be a requirement that applies to everyone, not just simply to the NGOs.

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Remarks Of
GRANT ALDONAS
Chief International Trade Counsel (Majority)
Senate Finance Committe

Given that tomorrow [November 7, 2000] we are likely to face an election that will define which way we go on trade in some very, very fundamental ways, it’s a timely topic.

I want to touch on three points. The first is the definition of an NGO, where I am largely going to agree with the other members of the panel. [The second is] the fora for NGO participation, which again I think there is going to be a consensus point of view. And the last thing is the democracy deficit.

NGO Definition
The definition of an NGO is sort of what is good for the goose is good for the gander. What we have to do is find a way so that all voices, all stakeholders are heard, largely in the domestic political process, as long as we live in an international system made up of nation states.

Now there are obvious exceptions. There are international institutions where the members agree to provide for direct participation of other groups. The ILO [International Labor Organization] is the prominent example, where you have all of the interests represented in the ILO, directly, as opposed to the governments alone. You will have the employers, the labor interests, as well as the governments represented at the table when you negotiate an agreement.

That is a rarity, frankly, in terms of these institutions. And it is a rarity precisely because it [the ILO] is unique in the way the governments agreed to set up the institution. Short of that, governments will have to define what the rules are for participation. They will have to serve the political function of equilibrating interests within our own society and bringing other voices to bear at the negotiating table ultimately.

Having said that, I want to talk a little about a distinction between international fora and domestic fora here. Plainly on the domestic side, there is a need to be as transparent as possible. Here there is sort of an ultimate irony, I have to say. Having spent a lot of time in private practice, over a dozen years, representing both corporations and environmental groups in international negotiations, international disputes, one of the striking things about the last three years - spending the time on the Hill and listening to this debate - is how both open and formal the process is for participation in trade negotiations and how and informal, and how much of a black box the negotiating process is, the process of setting negotiating objectives in environmental negotiations, in many labor negotiations, and frankly in international negotiations in other sectors.

The trade process, by virtue of the trade act of 1974, started then to build in participation from a lot of stakeholders in the process. Labor was there from the start. Certainly, environmental groups have been there at least since the tail end of the 70s. So what you had from the outset almost in this negotiating process, when we have had something like fast-track, is an attempt to gather voices into the process in a way that I would say is unique in terms of the international negotiations I have been a part of.

[Brief gap in the tape.]

Democracy Deficit
On the domestic side, you can tell from what I am saying already, you need to throw the doors open. I think that has to inform the judgment of governments with respect to setting their negotiating positions. You need to try and find a way to maximize the opportunity for all voices to be heard. Now, I think that means frankly, [is that] it is not the environmental groups or large business. The real democracy deficit in our system for example is how small businesses have their voices heard. A lot of folks who provide employment, most of the job growth in our economy, in fact don’t have their voices heard in Washington. I think that’s clear. I think that we all understand that there is a lack of organization around those issues that allow the people who maximize growth potential, maximize building wealth, are really on the forefront and cutting edge of our economy, where they don’t always have their voices heard in this process. That is where I would say there is actually a gap and not on the things that we traditionally view as NGO participation - the divide between multinationals and environmental groups or labor groups on the other hand.

NGO Participation
On the international level, implicit in my comments is the idea that it is still going to have to be national governments [making the decision] as long as we are involved in a system of nation states. The one difference is on disputes. So, at the negotiation table, my own view is that the political consensus in the United States, as well as the necessities of the system, means that governments are going to have to perform the function of striking the balance politically about what negotiating positions should be.

Disputes are different. Now this might be the legacy or the residue, depending upon what you think of lawyers, of time I did spend in private practice.

We grow up as lawyers in an American judicial system that is intent upon forcing the advocates to refine the issues in a way that allows judges to render decisions about legal issues, to try and crystallize [the issues]. In that process, you want to maximize the amount of information and maximize the number of voices that are heard if they have a different outlook on the issue. That is why you will find judges, traditionally, in the U.S. system weeding through requests from various amici curiae as to what their views are. What they want to do is make sure that they have a proper representation of all of the points of view. That is a way of trying to help refine an issue so that you can render a decision about it.

I would suggest that in the context of the WTO and other international institutions that, when it comes down to disputes, there should be a formal rule to allow for that participation. Again, what is good for the goose is good for the gander. I think there should be an opportunity for all NGOs to apply, as a matter of right, for their voices to be heard. It should be up to the judges to sort out what briefs they are willing to hear.

 

Page Limits
Here I would put in a plea, separate and apart from this. If you think about the WTO dispute settlement process, probably the most significant reform we need is page limits on briefs. For anybody who actually tries to read through any of these WTO decisions, this is a system that right now is not intent upon refining or crystallizing the issues for decision by the panels. That reform, and I mean this in a very practical way, would open up the opportunity for other voices to be heard. I agree with many of John’s comments about who should be in a position to offer their views to a panel in the WTO dispute settlement process.

But having said that, it depends on trying to provide for some notions of judicial economy. That really does require some practical changes of how disputes are litigated in front of the WTO if we are going to make room for other voices as a part of the process. Now, again, as I said, on international negotiations, I come back to the point that ultimately it is the domestic political procedures that have to set the negotiating positions for governments. There, I think what we need to do, again, is encourage as much participation in the process as possible, regardless of the forum in which the negotiations are going to take place.

Democracy Deficit
That brings me finally to the democracy deficit. Monty is right. I think that the complaint that you have heard from the NGO community is that the WTO process is fundamentally undemocratic. In fact, it is quite the opposite. What you have is an opportunity for an institution that requires consensus of all of the members. The democracy within this system is one of governments as opposed to individual stakeholder interests. What I would suggest is, whether it is business, whether it is environmental groups, or whether it is labor, that you cannot set up a system that allows them to short-circuit the domestic political process. Ultimately, you can’t let anybody off the hook - I don’t care whether it is business, labor or environmental groups -- from the need and the responsibility to build a domestic political consensus in favor of their views before those views make their way on to the international stage in a formal negotiating position.

It is incumbent upon labor and environmental groups to drive the process in that direction if they want to open up the process so that those voices are heard. Here I just want to close with a personal reflection on the last four years. What I am going to say are my thoughts only, which is true of the whole talk, and not those of Chairman Roth and not necessarily of the Finance Committee.

Three years ago with the failure of fast-track in 1997, Bill Roth [and] Senator Moynihan made a conscious effort to open their doors to make sure that we tried to find a way to build a domestic political consensus on the issues of trade and environment and on the issues of trade and labor.

What has been remarkable about that is the lack of contact I have had personally from environmental groups, many of whom are friends of mine from days past, or from labor organizations in that process - to the point of even not wanting to testify in the context of Senate Finance Committee hearings. It is striking that by opening the door what we got back was less contact. There was less of an effort to try and build a domestic political consensus, less of an effort to try and affect the process here at home in a way that would drive the process forward. What I would suggest is that it is incumbent upon all of those groups to make their views known, to play in the political process. Otherwise, they are negating the standing that they otherwise might have in international negotiations.

UNITE & AFRICA-CBI
I want to draw an exception that proves the rule. One group we have heard from - and part of it is because of the issues that were in front of the Finance Committee on the Africa-Caribbean bill, was UNITE, the needle workers. [They represent] a declining group of people, and yet they were a powerful voice in that part of the process. There were things they got as part of their agenda because they were there and they were willing to play in the game. They were willing to push as hard as they could. Now, that may not satisfy a lot of the interests that wanted to be more expansive with respect to AFRICA-CBI.

My point is, they played. And they had their views heard; and they got some of the things that they wanted out of the political process. I would suggest [this is] a role that has to be one that all NGOs fall into in the future, whether it is business, whether it is environment, whether it is labor. Let me stop there.

IPR & Other Rights
Oh, I’m sorry. I wanted to comment on a couple of things Monty raised. One [was] on the distinction between intellectual property rights and other rights. I don’t agree, Monty with the argument that somehow, because we have negotiated on intellectual property rights that we necessarily have to open the door to discussions of other rights. I think there is a logical fallacy to the argument that is being made, and there is also a practical fallacy.

Number one, the logical fallacy [has to do with the fact that] intellectual property rights define the terms under which goods are sold in the marketplace. It is a legitimate exercise that goes to the heart of commercial considerations, reasonable expectations about market access. [This is] because, what you could do through denying intellectual property rights is deny the value of tariff concessions, negotiations on quotas, [and] a variety of other things. It is a means, as surely as denying transportation services, of nullifying and impairing the benefits of a trade agreement. So there was real value, in a commercial context, in the context of trade agreements, in negotiating something with respect to intellectual property rights, which is inherently different than negotiating on other sorts of rights.

More practically, though, the fact of the matter is that there was a consensus that developed internationally to have those rights as a part of a trade agreement. Frankly, that is a consensus that is now lacking with respect to issues of labor and environment within the framework of the trading system. The election tomorrow will reshape how we think about that. I would suggest that there is a difference, both in philosophical terms and in practical terms.

Investor-To-State Disputes
I have always struggled with this issue, having been a guy in my State Department days who was responsible for investment issues and advising the Under Secretary of Economic Affairs, when we first kicked off the BIT [bilateral investment treaty] program and a variety of other things.

Again, coming at it from the point of view of an American lawyer - I am talking about the 5^th Amendment and our notions of due process - we already had investor-state dispute settlement under the Constitution. It has always struck me as ironic that we are unwilling, at this later stage in negotiations, to say, "What’s good for the goose is good for the gander."

An investor in the United States will have those rights necessarily. In fact those rights under the Constitution, given the view of the Supreme Court about regulatory takings, [are stronger] than they are under any international arbitration or international investment agreements.

So, just as a straight matter of trying to set the rules of the road in a way that doesn’t disadvantage the United States, I have always struggled with the notion that we should avoid investor-state, apart from practical political point that Monty makes, which is that it may not be doable under the current context. But the notion that we should stop pressing for that, given that we already provide that consideration, and frankly provide that consideration in a way that I am not sure that all of the environmental groups understand, under our own Constitution, has always struck me as odd. Thanks.

GENERAL Q & A

QUESTION: [Doesn’t investor-state dispute settlement also short-circuit the political process. If a country is ravage by AIDs, for example, might not the larger foreign policy issues be more important than allowing investor-to-state dispute resolution?]

GRANT ALDONAS: It is a fair point. However governments make choices about their own priorities, whether it is focusing on the AIDs crisis or focusing on conserving territory for elephant ranges, or whatever it may be, certainly, from my point of view, is something that ought to be left to the national governments.

My only comment about investor-to-state is the irony, where we have walked away from a position [in favor of investor-state dispute settlement abroad] when in fact the United States is Constitutionally required to provide that to investors who have opened a corporation here, where their headquarters are in the United States. So, it has always struck me, just as a trade negotiator, in terms of the concessions, odd that the United States would say that we are no longer interested in that [investor-to-state dispute settlement] when we have to give that as a Constitutional matter in the United States.

It is not to the point where I would suggest that you shouldn’t leave it to, first of all, the domestic processes to determine whether that is in their own political interest, and in international negotiations, as to determine whether or not we could accomplish this as an international obligiation. [This] really goes to Monty’s point, which is a practical one, which is, "That may not be doable, at all," for the very reason I think that NGOs have stated.

QUESTION: [Businesses are NGOs, are they not?]

JUDGE MORRIS: Actually, I am kind of glad [you asked that question]. That question is sort of the genesis of this event. I would like to take it as a question to which I respond, but I would welcome [comments] from anybody else. I asked people in the WTO how they set up the situation for Seattle. In that [exercise], they did not regard businesses per se -- IBM (I am not picking on anybody; I am just picking names), Motorola, whomever, as an NGO. They were all there, but they were there as members of the NAM or some group.

QUESTION: We were an NGO. [from a representative of the American Forest and Paper Association.]

JUDGE MORRIS: Yes, but you are an association. What I am saying is, they decided on this choice, that associations were NGOs, that companies were not. However, when you ask them the question, "Have you defined what an NGO is?" which I asked them subsequently, the answer is, "No, we have not." Yet one of the speakers referred to "business and other NGOs." My point is that decisions have been made on the basis of counting business as not NGOs. We often hear references in common parlance that say they are. I am simply suggesting to anybody who will listen that we ought to decide this.

I would suspect that, in fact, if we were to subdivide NGOs, we could make a case for business as being the premier NGO in the sense that, in trade matters, it is regulated entity. If you are going to let somebody in on a governmental decision, it seems to me that the first one that you would want to consult is the regulated entity. So, if you are making a law about electricity regulation, you would talk to the providers of electricity as the regulated entity. If you are talking about medical things, I would talk at least to doctors as well as patients as the regulated entities.

So, in one sense, business has, if anything, a particularly strong claim. Still, in at least one very significant situation, without any written guidelines, it was decided that they were not [NGOs]. Were they there and represented? Yes. Were they considered NGOs? No, they were not. The question is, I think, still open and still important.

JOHN MAGNUS: I agree very strongly with the point that you made. When you sit down and try to diagram a definition of NGO that precludes a taint of business, you can’t do it. I think that is why, for purposes of the Seattle Ministerial, the secretariat followed an approach that just dealt with organizations and why you saw that of the many thousands of NGOs that registered, a great many of them were business organizations. Some of them sectoral. Some of them not at all interested in labor or the environment.

QUESTION: [Effectively a comment to the effect that some organizations - OECD versus UNEP - are more open and transparent than others. Trade negotiations, said the questioner are fairly transparent, whereas environmental negotiations are not. Further, the U.S. has a better track record of letting various parties into the process of formulating policies and positions]

QUESTION: [What changes are likely to follow from different electoral outcomes on November 7?]

ALDONAS: Certainly in terms of the formalities, the trade system, starting with the Trade Act of 1974, going forward, stands out as formalizing the opportunities for voices to be heard from a variety of different communities. I would be inclined to go further. But, outside of the trade context, you don’t have the statutory framework that necessarily demands access at that point where you expect voices to be heard in setting the negotiating positions. It is much more of a black box than you have on the trade side.

My comments about the election go more broadly to the point about the Vice President saying that all future trade agreements will require something with respect to labor standards and environmental standards. They would be integral to any trade agreement. They would be subject to dispute settlement, and that any violation of those labor and environmental standards would be subject to trade sanctions.

With George Bush you have quite the opposite philosophy. Frankly, the international consensus as reflected in the WTO, and I think it has hardened in some respects since that time, comes down on the side of not including those standards in any agreement going forward. So, the election in some respects is an election [about] progress versus stasis. We are blocked fundamentally, I would suggest, from making progress, not only on trade but potentially on the environment and potentially on labor if were are left in a position where we are hamstrung on an one of those issues, if we put one down as a condition for the others.

The model that Chairman Roth, for example, has put forward is the need to make progress on all of these issues. I was kidding [the representative] from the ILO that, unless the ILO really can make some progress, we won’t make progress on other issues. But, we can’t leave these things conditional, one upon the other. We need to try to make progress on all fronts.

To that point, if I might, one of the striking things about NAFTA is where we have made progress on the environmental front, much to my pleasure, having served in Mexico, when I was in the Foreign Service. [This has been] where we have talked strictly speaking about environmental cooperation, without the threat of trade sanctions, without the notion that there was some penalty that would be exacted.

We have made substantial progress with Mexico in terms of cleaning up the border area - in terms of commitments from all three governments for that matter, in terms of commons problems - than we would [have made] if [we] had the threat of trade sanctions out there. I also think that part of the reason Mexico is now opposed to a lot of transparency in the WTO is based on its experience with the NAFTA, where process, frankly, has driven a direction of feeling threatened by the participation of their own in NGOs in filing cases on behalf of U.S. interests, with respect to both labor and environmental issues.

All of that, for me, underscores the point that you want to maximize the opportunity for cooperation individually on labor and environment and on trade and to try to minimize the friction between those processes so that you can ahead on all three fronts.

QUESTION: [NGOs are reluctant to accept a "sovereign only process" because in many developing countries, for example, the system for receiving inputs from the society at large is not well established. Environmental NGOs have a double problem in developing countries. First, they generally cannot affect the policies of their own governments. Second, even if they do, those governments are not effective players in the international arena. Separately, might a powerful NGO capture a developing country government and cut a deal to represent them?]

ALDONAS: A point about democracy. The way the facts have played out, you have not heard from either NGOs or labor an acknowledgement of the fact that there is a trend toward democracy over the last decade in Latin America. In fact, they would like to read that out of the system. If you establish that there is, in fact, a functioning democracy in Latin American countries, the tendency is to slip from that to an argument that they are corrupt. Therefore, they don’t enforce their laws, regardless of whether you say there is a functioning democracy.

Frankly, you can’t let anybody off the hook on that point. I think you have to say that there has been a trend toward democracy across much of the world. [Moreover,] where that has happened, it has reinforced the opportunities for a lot of voices to be heard.

Now a lot of good work has been done by NGOs both in the private sector to increase the number of voices that are heard within the business community, as well as on the part of environmental NGOs, particularly in Latin America to make sure their voices are heard in Argentina, Brazil, and a variety of other places.

I am not sure it is fair to paint with quite so broad a brush about the developing world and simply dishonor the degree to which they do have functioning democracies that do equilibrate differences.

NGOs In Government
Now, as to your last point about whether a Green Party, for example, might capture the government, we’ve got that, in part, in Germany. And that has driven the European governments in a certain direction. I am not sure how long that will last or whether the Green Party is satisfied that it has made the inroads it wants to. All they got was Joschka Fischer as the foreign minister in Germany. Understanding that the EU process, particularly on trade issues is a closed box. The Commission is largely immune from any constituency, business or otherwise, as near as we can tell in disputes like the FSC and a variety of other things. That is a separate problem. Certainly, I think you have had an instance where Greens have been involved in the government and have proved that they can drive the process in a direction that, from their perspective, is helpful. It may not, at this point, have gone as far as I think they may have hoped.

Developing Countries
MONTY GRAHAM: Specifically, on the developing countries, I might say that, just in the last eight weeks, I have been both to Indonesia and Peru, have attended meetings on multilateral issues. Indonesia is a struggling democracy. Peru, well, make your own judgment.

Two things are to be said. The first is that developing countries as a group are unequivocally opposed to labor standards coming into the WTO. I think that represents a wide range of constituencies. It is not just a narrowly, dictatorially imposed view. And the reason is pretty clear. They see this as a protectionist agenda. I think rightly so, if I may speak honestly on this. Being an economist, to me protectionism is the No. 1 evil to be avoided, and everything else is a little bit secondary. So maybe I am biased, but I see this as essentially correct. Many of them see many of the labor type initiatives that have been suggested as ones that would actually be detrimental to workers in their own countries, and I think that is largely correct, if not completely correct, largely correct.

On the environment, I think there is a little more openness. But again I might say that that the major thing I hear is a fear that environmental regulation will be used as the basis for protectionist action. Countries on this are a little more open in that they will generally agree that there may be a way to work this in.

Regulatory Capture
Let me just make two other comments. One is that a lot of what we are talking about in these discussions has been trying to avoid regulatory capture. One thing I would have to say even to Judge on this that, yes, in this sort of multilateral process, you do want to consult with the parties that are going to be regulated. But it is worth remembering that there is a long history of regulatory capture in this country. Even some of the process that Grant talks about have been subject to pretty bad abuses on the level of regulatory capture.

The second thing is that there is a very open issue out there. That is, What is the relationship between the multilateral rules that are embodied in the WTO and multilateral environmental agreements [MEAs]? There is a very definite possibility of conflict between these two, where you will get inconsistent outcomes. This is one of those substantive issues in the WTO itself, but it does need addressing. There is just an out-and-out possibility that WTO obligations and MEA obligations could be contradictory to one another. The resolution of any dispute would, therefore, depend upon the forum in which it is resolved, with possibly conflicting results.

GRANT ALDONAS. If I could add to Monty’s point about regulatory capture, he is absolutely right. That is one of the reasons why, I think, you have to maximize the opportunity for business voices that are not currently being heard in the process. Let me describe retaliation on bananas and beef. I like to use an example that we have heard a lot about from Delaware, which is a fellow that imports tea makers from Germany. As I have said in many fora, nobody will argue that barring imports of tea makers from Germany is a dagger pointed at the heart of German industry. In other words, it is a sanction with no meaning. All it does is penalize the fellow who is importing those tea makers and the consumers who want them.

In that process, let’s be clear: Those are voices that don’t get heard in Washington. Unless you have competing voices, even within the business community, in terms of representation here in Washington as well as at the international level, you are going to victimized, as Monty suggests, by regulatory capture.

QUESTION: [The issue of amicus curiae briefs in the WTO has not been adequately addressed and is a "gap" in the WTO rules. It is a more serious matter than the WTO’s ability to call a meeting on a Monday morning. This issue has the ability to blur the line that currently exists among members on the issue of who has standing in what cases, especially if one is to accord standing to NGOs. The questioner asked for a clarification of Australia’s position on this issue.]

BRUCE GOSPER: Your first comment: I wasn’t sure whether it was directed to me or to John [Magnus], because I didn’t talk in any particular detail about amicus curiae briefs. It is true; we have been somewhat skeptical about the claims that we should allow access for these briefs. And we certainly haven’t been at the forefront of the moves to have them allowed. Notwithstanding that, we have had some panel and Appellate Body processes which seem to have established something of a precedent. Our primary concern relates to what that means for the membership as a whole and the position that is taken by the membership as a whole. Certainly, I think, there are some widely divergent views on this question.

It also leads to some basic anomalies. We wonder, for instance, in what circumstances other parties might be given effectively greater rights, greater access to the system for some of the developing countries. That is a very real question that, I think, that we need to address.

Can I just come back to the developing country discussion and the previous question as well. I don’t know much about the South Center, but it is a Geneva-based NGO center, as far as I know. We were rather struck during the agriculture negotiations a couple of months ago to have a proposal that was submitted by a group of 11 developing countries, facilitated by the South Center. This was an example where an NGO institution actually helped to bring together a group of small developing countries, basically from the Caribbean and from Africa and from a few other places to argue their interests with respect to special and differential treatment in the agriculture negotiations.

Now, as it happens, the very point they were making is something that Australia and, indeed, the Cairns Group are highly supportive of. From that perspective alone, it was good to see .It was interesting to see the way this NGO center was able to facilitate a group of developing countries - quite poor developing countries - to come to a consensus view on a core interest they have in the negotiation and to put forward a paper. I thought that was quite significant.

JOHN MAGNUS: Just one very quick comment on the question of amicus briefs. The principle that has been decided so far, in my view, doesn’t really have any effect at all on the blurring of the standing of private organizations versus governments. You have to remember what it was that was being argued about. It was not about the rights of outside organizations. The argument was about the power and authority of the Appellate Body itself. Organizations have absolutely no rights at all. You can send in an amicus brief, and it may never be opened. You have no rights. All that was established is that the Appellate Body itself has the authority, if it chooses to do so, to open the brief and read it.

To argue that it doesn’t have that authority would be It is a very, very common part of international dispute settlement in all kinds of non-trade forums as well. So far, what has been done does not confer any rights at all on outside organizations. Obviously, the next stage would do so. If you started to elaborate criteria for when those briefs really ought to be considered and responded to, then you would raise the risks that have been mentioned about potentially putting amicus submitters in a more favorable position, in terms of having their views considered, than some non-participant WTO governments. That is something that, certainly, will have to be worked out.

—GBD—

 

The program concluded at approximately 11 a.m. on Monday, November 6. The next GBD Colloquium will be held in the Holeman Lounge at the National Press Club on Tuesday, December 19, beginning at 9:30 a.m.