If the above is not sufficient to make a judgment and with the consent of the plaintiff, which is a developing country, the above period can be extended.
According to Article 12.11 of the DSU, in cases where one or more parties to a dispute are developing countries, the Panel Report shall clearly indicate the form of consideration of the provisions on special and differential treatment for developing countries as part of the covered agreements and raised by the developing countries in the dispute settlement process. The content of this provision means that whenever developing countries have the right to invoke the provisions on special and differential treatment in the covered agreements of the WTO before the Panel, the Panel must clearly indicate in its report the consideration of such provisions.
Article 24.1 of the DSU provides for special conditions relating to least-developed country Members. Accordingly, the special situation of least-developed country Members should be given special consideration at all stages of determining the cause of a dispute and determining dispute settlement procedures. Members are advised to refrain, as appropriate, from initiating dispute settlement proceedings, from seeking compensation or from seeking permission to suspend concessions or other obligations under the procedures provided for in the DSU. In cases involving a least-developed country Member, if a satisfactory solution cannot be reached in consultations, the Director-General or the Chairman of the DSB shall, at the request of the least-developed country Member, offer good offices, conciliation and mediation to assist the parties to resolve the dispute before a request for the establishment of a panel.
In addition, the preferential treatment for developing member countries is also reflected in the provisions of Article 27.2 of the DSU on the responsibilities of the WTO Secretariat. Accordingly, when the Secretariat assists members in resolving disputes at their request, it must also provide additional legal advice and support on dispute resolution.
dispute resolution for developing country Members. To this end, the Secretariat shall make available to any developing country Member a competent legal expert from the WTO technical cooperation services, upon request, that expert assist the developing country Member in a manner that ensures the Secretariat’s impartiality.
2.2.2 Special and differential treatment at the stages of proceedings
Special and differential treatment for developing countries is clearly reflected in the provisions on the process of resolving cases through the stages of consultation, adjudication and enforcement of judgments.
During the consultation phase, preferences for developing countries are reflected in the provision on paying special attention to the specific issues and interests of least-developed countries and allowing for extensions of the normal consultation period. According to Article 4.10 of the DSU, member countries must pay special attention to the specific issues and interests of members who are developing countries. This provision is understood to mean that the economic and trade difficulties of developing member countries need to be considered and reviewed during the consultation phase. However, because the provision does not specify what specific issues need special attention, the possibility of implementing this more theoretical provision is very low in practice. Special treatment for developing member countries is also reflected in Article 12.10 of the DSU. Accordingly, within the framework of consultations related to measures applied by a developing member country, the parties may agree to extend the normal consultation period. If, after the expiry of the relevant period, the consulting parties are unable to agree on the conclusion of the consultations, the Chairman of the DSB may decide to extend the consultations.
During the adjudication phase, developing countries are granted preferential treatment based on provisions regarding the special rights of developing country members in selecting panelists, provisions regarding sufficient time for developing country members to prepare their arguments, and transparency in the adjudication process. According to Article 8.10 of the DSU, when disputing
In the case of a dispute between a developed country member and a developing country member, the panel must include at least one panelist from a developing country member, if requested by the developing country member. In addition, according to Article 12.10 of the DSU, when considering a complaint against a developing country member, the panel must provide sufficient time for the developing country member to prepare and present its arguments. However, this must not affect the total time allotted to the panel to complete the dispute settlement process. In addition, as stated above, when a developing country member participating in the dispute invokes the provisions on special and differential treatment of the DSU or of other covered agreements, the panel report must specify how these provisions were considered. This provision is intended to clarify the effectiveness of the provisions referred to and their application in practice.
In the implementation phase of DSB rulings, preferential treatment is given to developing country Members based on the provisions on the need to assess the actions to be taken and the economic aspects to be taken into account in the assessment. According to Article 21.2 of the DSU, in the process of monitoring the implementation of recommendations and rulings, special attention should be paid to the interests of developing country Members in relation to the measures that are the subject of dispute settlement. In addition, within the framework of monitoring implementation, the DSB should also consider taking appropriate action beyond monitoring and reporting on the status if a developing country Member raises this issue (Article 21.7 of the DSU). Furthermore, under Article 21.8 of the DSU, when considering appropriate action in a case brought by a developing country Member, the DSB must consider not only the extent of trade affected by the measures complained of but also their impact on the economies of the developing country Member concerned. Accordingly, the DSB may also recommend specific measures for the developed country to take in order to fully restore the rights of the developing country Member.
Thus, with their special status in the WTO, developing countries are entitled to certain preferences in the process of resolving trade disputes based on the clear provisions of the DSU. However, the actual implementation of these provisions needs to be assessed based on the review and analysis of the current status of WTO dispute settlement related to developing countries.
2.3 Practice of WTO dispute settlement involving developing countries
2.3.1 General statistics
Despite certain difficulties and limitations, developing countries have actively participated in the WTO dispute settlement mechanism since its inception. This is reflected in the number of disputes brought to the WTO in which developing countries have participated.
In terms of quantity, since the mechanism was implemented, of the total of more than 360 disputes brought to the WTO for settlement, 190 involved developing countries. Of these, the number of cases initiated by developing countries accounted for about 1/3, and the number of cases sued by developing countries accounted for about 2/5 of the total number of disputes. 2001 was the peak year for the number of lawsuits filed by developing member countries, accounting for 75% of the total number of lawsuits. Developing countries have filed lawsuits against developed members as well as other developing members and have participated in many lawsuits as third parties. The participation of these member countries as third parties has provided valuable experience for members who do not regularly participate in the dispute settlement process. The total number of annual disputes involving developing countries brought to the WTO for settlement is shown in the table below (See Table 3).
TABLE 3- NUMBER OF DISPUTES BROUGHT TO WTO BY DEVELOPING COUNTRIES (FROM 1995 TO JULY 12, 2007)
Year
95 | 96 | 97 | 98 | 99 | 00 | 01 | 02 | 03 | 04 | 05 | 06 | 7/07 | |
Defendant | 12 | 11 | 10 | 5 | 7 | 18 | 17 | 17 | 15 | 5 | 7 | 5 | 4 |
Original single | 7 | 18 | 21 | 11 | 12 | 19 | 11 | 8 | 9 | 6 | 7 | 6 | 3 |
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Source: http://www.wto.org/english/tratop_e/dispu_by_country_e.htm
Regarding the participating subjects, as of mid-July 2007, the DSB has resolved 136 disputes between developing countries and developed countries and about 60 disputes between developing countries. The developing countries that participate most in the disputes are usually some developing countries with strong economic potential in Asia and Latin America such as Thailand, India, Philippines, Indonesia, ... Brazil, Argentina, Mexico ... African countries, up to now, have not initiated a lawsuit or been sued in any dispute although some countries such as Nigeria and Zimbabwe have participated as third parties. The country that participates most is probably Brazil with 37 disputes, followed by Mexico with 31 cases, Argentina with 30 cases. Asian countries including India, Thailand, Philippines, China have also participated in a total of 76 cases. Notably, China is a new country to the WTO but has participated in 9 lawsuits, including 8 as defendant and 1 as plaintiff. In addition, some other countries such as Costa Rica, Venezuela, Peru, Turkey... have also actively participated in this dispute resolution mechanism.
Regarding the nature of the disputes, disputes between developing countries and developed countries are often not concentrated in a certain field but can mainly be seen in the field of trade in goods, focusing on a number of items such as oil, wool, consumer goods, trade measures affecting import and export. Disputes between developing countries and developed countries are mainly related to the AD Agreement, AS Agreement or SCM Agreement with the number increasing significantly in the recent period compared to the previous period, especially developed countries are defendants in more than half of the disputes (61 cases). Developing countries are also often sued in
Many intellectual property cases. Disputes between developing countries mainly concern import regimes and measures affecting imports (23 cases), disputes due to violations of the Agreement on Agriculture (15 cases) and the Anti-Dumping Agreement (14 cases). Among these disputes, Mexico and Chile are the countries involved in the most disputes (6 cases each), followed by Argentina, Brazil, Hungary and India (5 cases each), and Honduras, Guatemala, Costa Rica and Colombia (3 cases each).
Some developing countries have successfully challenged the major powers, as exemplified by Costa Rica against the United States over cotton import restrictions and Venezuela and Brazil against the United States over petroleum regulations. They have actively resorted to panels to resolve trade disputes and to interpret WTO rules. Developing countries are a group of countries that use the WTO dispute settlement mechanism more than they did under the GATT, and this trend is increasing. This is a sign that the system is more trustworthy and effective for developing countries. The cases brought by developing countries often involve the AD Agreement, the Agreement on Agriculture, and disputes related to violations of the principles of Most-Favoured-Nation or National Treatment.
A noticeable point in the dispute settlement process involving developing countries is that these countries are willing to terminate the Panel procedure on the basis of agreements with the parties on the settlement of their disputes. For example, in the case of Chile and Peru against France regarding restrictions on the use of the trade name “coquilles Saint-Jacques”, the interim report of the Panel in March 1996 presented an agreement between the EC and these developing countries, according to which the French measures would be promptly corrected in accordance with WTO regulations and in return the complaining countries would withdraw their request to adopt the Panel report. Or in the case of India against the United States regarding restrictions on woolen coat imports, the DSB established the Panel in April 1996, one week after the United States.
withdraw these restrictions and India immediately requested the termination of the Panel proceedings.
2.3.2 Disputes involving China and some ASEAN countries
China and ASEAN are developing countries and newly industrialized countries in the region and the world. Becoming members of the WTO before Vietnam, these countries have also actively participated in the WTO's trade dispute settlement mechanism. With natural, geographical, historical, economic and social conditions relatively similar to Vietnam, the experience of resolving trade disputes under the WTO of these countries are lessons of special importance to Vietnam even before Vietnam joined the WTO. Therefore, it is necessary to consider and evaluate the participation of these countries in the WTO's dispute settlement mechanism.
As of July 2007, China and some ASEAN countries have participated in resolving 40 disputes under the WTO mechanism, including 22 cases as plaintiffs and 18 cases as defendants. Notably, some countries have actively participated in this mechanism such as Thailand (13 cases, including 12 cases as plaintiffs and 1 case as defendants), the Philippines (8 cases, including 4 cases as plaintiffs and 4 cases as defendants), Indonesia (7 cases, including 3 cases as plaintiffs and 4 cases as defendants), China (9 cases, including 1 case as plaintiff and 8 cases as defendants) (Source: http://www.wto.org/english/tratop_e/dispu_by_country_e.htm ). Thus, these countries have recognized the role and effectiveness of the new dispute settlement mechanism for developing countries from an early age. Of the more than 20 cases these countries have filed, 15 have defendants who are developed countries, mainly the US, EC, and Australia. These developed countries are also plaintiffs in most of the lawsuits involving China and ASEAN countries.
These disputes mainly arise from measures affecting imports, import prohibitions and tariff classifications (21 disputes), followed by disputes over violations of the AD Agreement (6 cases), the SCM Agreement (3 cases) and the Agreement on Agriculture (3 cases). The disputes occur in the field of
Trade in goods in which the most disputed items are industrial products and some agricultural and fishery products.
Among these disputes, some were resolved through negotiation and consultation without the intervention of the Panel, typically the disputes between the Philippines and the United States (cases DS74 and DS102). Notably, many disputes were also resolved thanks to the Panel and the Appellate Body, Arbitration and the parties' relatively serious implementation of the recommendations and rulings of the DSB. However, the resolution of these disputes took a relatively long time and was quite costly. There were also some disputes due to subjective reasons that led to them not being resolved at the consultation stage, nor being brought to the Panel for resolution and to date there has been no final conclusion, typically cases DS1 (dispute between Singapore and Malaysia regarding the import of synthetic resins), DS47 (dispute between Thailand and Türkiye regarding the import of garments) and DS61 (dispute between the Philippines and the United States regarding import restrictions on shrimp and shrimp products).
Thus, through the above analysis, it can be seen that China and ASEAN developing countries have actively participated in the WTO dispute settlement mechanism to protect their legitimate interests. A deep study of each dispute that China and ASEAN countries have participated in can draw valuable lessons for Vietnam in the process of becoming a member of the WTO.
2.4 Some typical lawsuits
The typical cases selected for reference and consideration are disputes involving developing countries, on the basis of important areas, affecting trade interests for Vietnam, including: agriculture, anti-dumping, subsidies and taxes.