The World Trade Organization (WTO) provides member governments and their private stakeholders a strong mechanism for remedying violations of global rules on trade in goods and services, and trade-related intellectual property rights (TRIPs).
Since the creation of the WTO, companies injured by a WTO member government’s actions (or inactions) have successfully lobbied other member governments to pursue WTO disputes. They have used WTO dispute settlement in a variety of ways to increase or maintain profitability and competitiveness, including opening a new market, preserving existing market share, protecting IP and reducing the impact of onerous regulations that increase the cost of doing business.
Perkins Coie's WTO practice provides government and corporate clients with advice, capacity-building assistance and representation on all aspects of the multilateral trading system, including WTO dispute settlement proceedings, accession negotiations, compliance matters and the Doha Round of trade negotiations. Members of our WTO practice are at the forefront of emerging WTO issues, including plain packaging and other labeling initiatives, and green measures, such as feed-in-tariffs (FITs). Our practice comprises experienced international trade and investment lawyers, economists and professors.
Collectively, we have:
- Won landmark WTO rulings allowing member governments to appoint private attorneys to represent them in disputes. David Christy was the first private attorney (with a former colleague) to argue a member’s case, serving as an accredited member of government delegations in Bananas III and Indonesian Autos.
- Served as WTO counsel for many WTO members, including Argentina, Brazil, Canada, Chinese Taipei, Indonesia, Jamaica, Japan, Korea, Poland, St. Lucia (Caribbean ACP States) and Saudi Arabia, often serving as an official member of the country’s delegation to the WTO;
- Represented WTO member governments in disputes covering each of the major WTO agreements;
- Participated in more than 20 WTO dispute settlement proceedings, involving many more distinct segments;
- Participated in the accession negotiations of WTO applicant countries, including China, Russia and Saudi Arabia;
- Helped governments evaluate the extent of their WTO commitments and then implement them in domestic law; and
- Advised GATT/WTO members and their industries on the Uruguay and Doha rounds of negotiations.
As a result of our dispute and negotiations work, the members of Perkins Coie’s WTO practice have deep experience with all significant WTO disciplines. We have researched, drafted and presented arguments relating to 14 of the WTO’s 15 substantive agreements–all except for the Agreement on Pre-Shipment Inspection, as to which there has been no dispute. Our experience covers not only the basics–MFN and national treatment provisions, and antidumping, subsidies and safeguards–but also areas in which very few attorneys have significant experience, such as:
- Sanitary and Phytosanitary (SPS) Measures
- Technical Barriers to Trade (TBT)
- GATT General Exceptions, including those that apply to environmental and public health and safety measures.
The members of Perkins Coie’s WTO practice have earned a reputation for providing clients with outstanding service that draws on our in-depth knowledge of WTO law and policy; our practical experience with how WTO rules are negotiated, implemented and enforced; and our relationships within the WTO Secretariat and member country trade administrations. We combine deep knowledge of the technical, legal and economic aspects of WTO issues with substantial government affairs experience to achieve the best possible result for each client.
Michael House and David Christy of our International Trade group have substantial experience in WTO matters. They publish and speak frequently on international trade, and have been recognized for their excellence in international trade and WTO law by Chambers & Partners (U.S. and Global editions), The Best Lawyers in America, The International Who’s Who of Trade and Customs Lawyers, The Guide to the World’s Best International Trade Lawyers and Super Lawyers. David was the first private attorney to argue a member government’s case at the WTO (with a former colleague). Since 1997, he has served at Georgetown University as an Adjunct Professor of Law, teaching courses on the WTO agreements, negotiations and dispute settlement. In recognition of his experience, Chambers & Partners, the world’s leading attorney rating service, has acclaimed David a "recognized WTO expert."
In sum, members of our WTO practice have unsurpassed experience in all aspects of the WTO. For decades, they have advised companies and industries, and represented member governments affected by GATT/WTO rules and violations of them. Since the WTO was formed in 1995, 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, including Argentina, Brazil, Canada, Chinese Taipei, Indonesia, Jamaica, Japan, Korea, Poland, St. Lucia (Caribbean ACP States) and Saudi Arabia.
Our WTO Services
Disputes arise when a WTO member country adopts a measure which another WTO member considers to be contrary to WTO rules. If consultations fail to resolve the disagreement, a formal dispute settlement procedure can be initiated. A member found to be in breach of a WTO agreement is obliged to conform its measure to the rules or provide acceptable compensation. If it fails to do so, it faces retaliation from the complaining party. The stakes involved for all parties to the dispute, and for the affected industries, are high. Countries and companies wishing either to exercise their rights for maximum effect, or to minimize their exposure, need effective counsel.
With deep experience with every phase of WTO dispute settlement, Perkins Coie provides the full range of services required at each stage of a dispute. We provide various levels of assistance up to and including full representation throughout the dispute settlement process. We have advised member governments in cases conducted in each of the official WTO languages. Our services include:
- Preparing comprehensive assessments of draft and existing measures to determine whether or not they comply with WTO obligations
- Conducting capacity building and background briefings on the processes and practices involved in a WTO dispute settlement case;
- Preparing submissions and advising on all procedural aspects of a dispute;
- Conducting oral arguments on behalf of client governments before panels and the Appellate Body, and in proceedings under Articles 21.3, 21.5, 22.2 and 22.6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
- Assisting with implementation of panel and Appellate Body reports adopted by the WTO Dispute Settlement Body (DSB), including developing strategies regarding retaliation
- Crafting media strategies to manage the public debate surrounding a WTO case
- Identifying changes necessary to conform domestic measures to a WTO ruling
- Developing and implementing lobbying strategies to assist clients’ efforts to remove products of interest from WTO members’ draft retaliation lists.
We have designed and implemented dispute settlement strategies for many WTO members. We have represented complainants, respondents and third parties, and have participated in every stage of a WTO dispute, from lobbying member governments on behalf of company stakeholders, to advising companies, industries and governments with regard to all phases of a WTO dispute. The disputes in which we have participated are listed below.
Countries wishing to join the WTO must navigate an extensive accession process that involves a complex series of bilateral and multilateral negotiations, as well as significant restructuring of domestic legal regimes. The steps that acceding countries must take include:
- Describing all aspects of their trade and economic policies that relate to WTO rules
- Negotiating their terms of accession multilaterally in Working Party meetings and bilaterally with all interested WTO members
- Jointly drafting with the WTO Secretariat Accessions Division the Protocol of Accession, the Working Party Report and related schedules, which detail the commitments they will undertake when joining the WTO
- Conforming their domestic legal regimes to WTO obligations
The accession process is complex and often lengthy, requiring at least three years and usually lasting much longer–over 19 years in Russia’s case. Countries looking for an efficient, balanced and successful outcome, which minimizes their costs and takes full advantage of the benefits of the process, can profit greatly from legal advice.
Similarly, companies located within an acceding country, or with an interest in an acceding country's market, can benefit greatly from advice on the consequences and opportunities that stem from accession. Advice that identifies ways to influence the terms of accession to ensure the most favorable terms from a company’s perspective is particularly valuable. We have worked extensively with private-sector stakeholders interested in the detailed commitments obtained from countries seeking accession.
We have unmatched experience in guiding governments through the complex and exacting process of WTO accession negotiations. Members of the team have participated in the accessions of Kazakhstan, Russia and Saudi Arabia, as legal advisors to either the applicant country or a current WTO member government engaged in bilateral negotiations with the applicant country. Our representations extend beyond advising from “outside the room” – we frequently attend negotiations as accredited members of a government’s negotiating team. For example, David Christy represented the Kingdom of Saudi Arabia 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 Saudi Arabia 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. We are one of the very few teams experienced with every aspect of the accession process.
As the largest WTO members, the United States and the EU generally drive the accession process by seeking broad and deep concessions in the bilateral negotiations. Through our experience with the accession of Saudi Arabia and other countries, we have developed deep experience with the U.S. and EU decision-making processes and can guide clients through these complex and exacting negotiations.
We provide clients seeking to join the WTO technical support and strategic legal and political advice from start to finish. We provide the full range of services, including:
- Analysis of the implications and requirements of WTO membership, focusing on a country's entire economy, a specific sector or an individual company
- Advice for companies on WTO procedures and decision-making processes, and on how to lobby their governments to ensure the best possible outcome from the accession negotiations
- A full strategic analysis of the negotiations that identifies all the legal, regulatory and policy issues likely to be raised during Working Party meetings and bilateral negotiations
- Training sessions for negotiators that cover the format, conduct and dynamics of the multilateral and bilateral negotiations (both formal and informal) and demonstrate successful negotiating techniques
- Legal and policy advice on how to handle the accession negotiations (both at the Working Party and bilateral levels) and how to influence WTO members to maximize the chances of obtaining a positive outcome and avoiding negotiating delays
- Assistance drafting the Protocol of Accession, the Working Party Report and related schedules
- Legal advice concerning institutional reform and the drafting of implementing legislation
- Analysis and impact assessments of a final accession agreement, identifying the opportunities and risks that have been created for the entire economy, a specific sector or an individual company
Once a country has acceded to the WTO, it must ensure that its legislation complies with WTO rules and its Protocol of Accession. Similar issues arise when existing WTO members enact new laws and regulations. Prior to enactment, governments often confirm that proposed measures comply with WTO rules and any relevant accession commitments.
For clients interested in WTO compliance, Perkins Coie’s WTO Practice can provide:
- Comprehensive assessments of draft laws, regulations and policies to ensure they comply with WTO obligations, including advice on modifications that may be necessary to achieve WTO compatibility, without sacrificing the purpose of the law, regulation or policy
- Assistance drafting implementing legislation
- Advice on how to notify regulatory changes to relevant WTO committees
- Assistance regarding the regular reviews conducted by the Trade Policy Review Body
- Assessments of the risks associated with non-compliance.
We have significant experience helping clients with implementation and compliance matters. Members of the team have:
- Assisted several recently acceded WTO members on the full range of actions necessary to implement their accession commitments and comply with WTO obligations
- Assisted a recently acceded WTO member in identifying and fulfilling its various notification commitments;
- Helped a WTO member implement a WTO-compatible SPS compliance program
- Advised a WTO member on the compatibility of product standards legislation with the TBT Agreement
- Advised a UK-based company on the WTO implications of the UK’s “Golden Share” rule
- Advised a U.S. state on the WTO implications of its agricultural policies
- Advised a multinational provider of financial services on WTO members’ GATS schedules, focusing on strategies to maintain and increase market access
As the principal objective of the WTO is to gradually liberalize international trade, members agree to more ambitious commitments in each successive round of negotiations. The Doha Round, though at a standstill, warrants regular monitoring and input as it still presents risks and opportunities, particularly in the area of trade facilitation where significant progress has been made. Moreover, if members can agree on modalities (the broad negotiating framework and formulas), the round could move forward as countries look to apply the general rules to their own markets. The post-modality phase is crucial for countries and companies wishing to influence the final outcome for specific products in specific markets. Timely and effective lobbying during this phase will be key.
We have substantial experience in this area. Members of the Perkins Coie’s WTO Practice have advised numerous corporations and GATT/WTO members in the Uruguay and Doha rounds of trade negotiations. We can provide clients interested in the Doha Round a full range of services, including:
- Tailored background briefings on the status of the negotiations that identify and evaluate relevant legal, regulatory and policy issues and assess the implications of the talks for specific governments, sectors and companies
- Persuasive argumentation, position statements and detailed lobbying plans to enable governments, negotiating groups and companies to influence the talks
- Advice on how to use strategic alliances to maximize negotiating leverage
- Counsel and technical assistance during the drafting of revised national tariff, agricultural and services schedules and implementing legislation
- Analysis of the impact of the final agreements and members’ revised schedules, which will enable countries and companies to identify newly created opportunities and risks
Perkins Coie’s WTO practice provides member governments and interested industries with training in the WTO and related disciplines. Our training courses cover the full range of subjects, from strategies for negotiations and dispute settlement proceedings to substantive areas such as the basic MFN and National Treatment principles, Antidumping and Safeguards Measures, Agriculture, SPS, TBT, Services and TRIPS.
Members of Perkin’s Coie’s WTO Practice have significant experience serving as Adjunct Professors of Law at prestigious institutions such as Georgetown University teaching WTO and related trade issues. In addition, members of the WTO Practice have conducted capacity building and training sessions for WTO members such as China, Japan, Korea, Paraguay, Saudi Arabia, Taiwan and Trinidad and Tobago.
We represent trade associations, industries, multinational corporations and non-governmental organizations on a wide range of other WTO issues, including trade and environment issues, such as cap-and-trade schemes, eco-labeling and conservation efforts.