The creation of the World Trade Organization (WTO) in 1995 provided member governments and their private stakeholders a strong mechanism by which to remedy violations of global rules regarding trade in goods and services, and trade-related intellectual property rights (TRIPs). Although governments must ultimately pursue such action, they generally do so at the urging of industries that have been negatively affected by the actions (or inaction) of other governments. Obtaining relief via the WTO can open new markets, protect existing market share and/or reduce the cost of doing business. Members of our International Trade group with substantial experience in WTO matters publish frequently and have been recognized for their excellence in international trade.
Members of our WTO practice have unsurpassed experience in all aspects of dispute settlement proceedings and negotiations, including years of representing companies, industries and member governments affected by WTO rules and violations of WTO member government commitments to those rules. Since the WTO was formed, they have presented positions in dispute settlement proceedings and negotiations, often as accredited members of government delegations. They have served as WTO counsel for private parties and for many WTO members.
The experience and excellence of our WTO practice has been recognized by the Advisory Centre on WTO Law in Geneva, which has qualified Thompson Hine as one of only 20 firms worldwide on the Roster of External Counsel, a list of firms the Centre has approved to supply legal advice to the world’s least-developed countries, along with other WTO member countries.
The members of our WTO practice have participated in more than 30 WTO disputes (involving many more distinct segments of proceedings). We have represented WTO members in every stage of a dispute – from consultations to panel and Appellate Body proceedings, and subsequent arbitration on reasonable period of time, compliance and retaliation. We have worked for member governments, as well as for private-sector companies and industries in the following WTO sectors: agriculture, aircraft, alcohol, antidumping, automobiles, computer chips, government procurement, intellectual property, safeguards, raw materials, safeguards, steel and subsidies. WTO member governments have relied on us to represent them in disputes covering each of the major WTO agreements. We have advised Argentina, Brazil, Canada, Indonesia, Jamaica, Japan, Korea, Poland and St. Lucia (Caribbean ACP States), often serving as official members of the country’s delegation to the WTO. One of our lawyers was the first private attorney to present a WTO member’s case to a panel (along with a former colleague). We also help companies and industries increase market access by working through the WTO to remove barriers to their products.
We design and implement members’ dispute settlement strategies, providing an unlimited range of support during all stages of a WTO dispute, including lobbying member governments, initiating dispute settlement, participating in consultations, litigating before panels and the Appellate Body, and arbitrating under Articles 21.3, 21.5, 22.2 and 22.6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).
We negotiate WTO agreements on behalf of member governments, governments seeking WTO membership, and industries and companies. Our representations extend beyond advising from “outside the room” – we frequently attend negotiations as accredited members of a government’s team. Our experience extends to every major WTO negotiation, including those taking place under the WTO Doha Development Agenda; the accessions to the WTO of Saudi Arabia, China, Russia and Taiwan; and the Uruguay Round negotiations that created the WTO and its dispute settlement mechanism.
We have unmatched experience in guiding governments through the complex and exacting process of WTO accession negotiations. One of our lawyers represented the Saudi Ministry of Commerce and Industry in all aspects of the bilateral and multilateral negotiations and processes that led to Saudi Arabia’s accession to the WTO. He helped Saudi Arabia restructure its trade-related legal regimes and participated directly in nearly every change of law and regulation that allowed it to become the 149th member of the WTO. Throughout the process, he worked closely with senior and staff officials of the WTO Secretariat, the U.S. government, the European Commission and other WTO member delegations. After accession, he advised Saudi Arabia on implementation and compliance issues.
In addition, we have participated in the accession negotiations of Russia and Ukraine and advised China and Taiwan on resulting implementation issues. We also have worked extensively with private-sector stakeholders interested in the detailed commitments obtained from countries seeking accession, particularly in the case of China. For example, we advised a major financial information provider in convincing the U.S. government to pursue a case against China’s policies restricting access to its financial information services market. The resulting U.S.-China Memorandum of Understanding (MOU) was signed in November 2008. Since then, we have continued to advise our client on monitoring China’s compliance with the MOU and its WTO obligations and provided counsel concerning WTO and free trade agreement provisions affecting access to other services markets as well.
Other WTO Services
We advise member governments and industries on the full range of general WTO policy and compliance matters and provide in-depth training on WTO concepts, compliance, and dispute settlement and negotiating tactics.
Trade associations, industries, multinational corporations and non-governmental organizations seek our counsel on a wide range of other WTO issues, including trade and environment issues, such as cap-and-trade schemes, eco-labeling and conservation efforts.
WTO Trade Remedy Dispute Settlements
A list of notable dispute settlement proceedings involving trade remedy matters in which we have been involved follows:
- Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain (DS276). In this dispute, the United States challenged Canada’s state trading enterprise for wheat. We represented Montana and North Dakota wheat farmers in assisting the USTR’s efforts. The panel found that Canada was not in compliance with certain of its GATT obligations and Canada agreed to amendments to the Canada Transportation Act and the Canada Grain Act.
- U.S. – Definitive Safeguard Measures on Imports of Certain Steel Products (DS248/249/251-54/258/259/274). We were at the center of the largest and most procedurally complex case to date, representing Brazil, Japan and Korea in the consolidated WTO challenge to the U.S. safeguard measures on steel, which resulted in withdrawal of the measures.
- U.S. – Continued Dumping and Subsidy Offset Act of 2000 (DS217/234). We represented Korea and Japan in the successful challenge to the U.S. “Byrd Amendment.” Similar to the 1916 Act dispute, which we litigated on behalf of Japan, this proceeding defined the actions that a member may take against dumping.
- Chile – Price Band System and Safeguard Measures Affecting Agricultural Products (DS207). We represented the Argentine Chamber of Oil Seed Manufacturers and Argentina’s government before the panel and the Appellate Body, which found that Chile’s price-band mechanism and safeguard measures violated provisions of the Agriculture Agreement, the Safeguards Agreement and the GATT.
- U.S. – Anti-Dumping Measures on Certain Hot-Rolled Steel Products (DS184). In this crucial dispute, Japan successfully challenged a number of aspects of the U.S. antidumping regime. We represented Japan, providing strategic and legal advice during all phases of the dispute.
- U.S. – Anti-Dumping Act of 1916 (DS162). We represented Japan during all phases of the panel and Appellate Body proceedings in its successful challenge to the U.S. Anti-Dumping Act of 1916, providing strategic advice and drafting all of Japan’s submissions to the panel and the Appellate Body, including legal briefs, oral statements and responses to questions. The Appellate Body affirmed the panel’s findings, handing Japan a substantial victory.
- Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland (DS122). We represented the government of Poland before the Appellate Body in its challenge to Thailand’s antidumping duty on H-beams. We were hired just one week prior to the hearing to present Poland’s case after it replaced the firm it previously had employed. (Thailand claimed the previous firm had breached rules of confidentiality.) We successfully defended the panel decision in Poland’s favor.
- U.S. – Anti-Dumping Duty on DRAMs from Korea (DS99). In Korea’s challenge to the U.S. failure to revoke an antidumping duty order on DRAMs from Korea, we developed the legal strategy and tactics for the consultations and the dispute. We drafted all submissions and argued Korea’s case before the panel and the 21.5 arbitration. The panel found that the U.S. regulation governing the revocation of antidumping orders violated U.S. WTO obligations, as did the U.S. revocation determination in the underlying antidumping proceeding. We then assisted Korea with implementation issues, resulting in the U.S. withdrawing the duty.
Other WTO Dispute Settlements
Other significant WTO disputes in which we have advised WTO member governments, sub-central governments and/or private-sector stakeholders include:
- Mexico – Definitive Countervailing Measures on Olive Oil from the European Communities (DS341)
- U.S. – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing) (DS294)
- U.S. – Subsidies on Upland Cotton (DS267)
- U.S. – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (DS244)
- Canada – Export Credits and Loan Guarantees for Regional Aircraft (DS222)
- U.S. – Section 129(c)(1) of the Uruguay Round Agreements Act (DS221)
- EC – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil (DS219)
- Chile – Price Band System and Safeguard Measures Affecting Agricultural Products (DS207)
- U.S. – Anti-Dumping and Countervailing Measures on Steel Plate from India (DS206)
- U.S. – Definitive Safeguard Measures on Imports of Circular Welded Carbon-Quality Line Pipe from Korea (DS202)
- Canada – Term of Patent Protection (DS170)
- India – Measures Affecting the Automotive Sector (DS146)
- EC – Anti-Dumping Duties on Imports of Cotton-Type Bed Linens (DS141)
- Canada – Certain Measures Affecting the Automobile Industry (DS139)
- EC – Measures Affecting Asbestos and Products Containing Asbestos (DS135)
- Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products (DS103)
- U.S. – Measure Affecting Government Procurement (DS95)
- Indonesia – Measures Affecting the Automotive Industry (DS54/55/59/64)
- Brazil – Export Financing Programme for Aircraft (DS46)
- EC – Regime for the Importation, Sale and Distribution of Bananas (DS27)
- U.S. – Standards for Reformulated and Conventional Gasoline (DS2)