Strategic Balancing of Trade Interests in WTO Dispute Settlement: The Place of Informal Pre-Litigation Dispute Submission in Canada’s WTO Litigation

                 Philip  Holdsworth                  Table of Contents  

Introduction ....................................................................................................................... 1  1.   WTO Pre-Litigation Considerations ........................................................................ 3  a.   Legal  Considerations  ..................................................................................................................................  4  b.   Economic  Considerations  ........................................................................................................................  6  c.   Strategic  Considerations  ...........................................................................................................................  9  

2.   Comparative Review of Canada’s Domestic Complaint Petition Process .......... 11  a.   Canada’s  Pre-­‐litigation  Petition  Mechanism  .................................................................................  12  b.   Pre-­‐Litigation  Petition  Processes  in  other  Countries  ...............................................................  13  

3.   Trends and Interests in Canada’s WTO Litigation History ................................ 15  Conclusion: The Coherence of Canada’s Informal Mechanism with Its Litigation Interests ............................................................................................................................. 20  Bibliography .................................................................................................................... 24    

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Introduction

During the negotiations of the Uruguay round, Canada and then Minister of

International Trade John Crosbie, advocated for the establishment of a permanent

institution that would function as a binding court-like body, and be more effective in

resolving trade disputes than the General Agreement on Tariffs and Trade (“GATT”).1 Its

successor, the World Trade Organization’s (“WTO”) dispute settlement system, governed

by the Dispute Settlement Understanding (“DSU”),2 is considered by numerous accounts

the most prolific and successful dispute settlement system in international law.3 The

stand-alone body, empowered with the ability to issue binding decisions, was premised

on the notion that the establishment of a rule based system would lead to the fair and

effective resolution of concession disputes. As of December 1st 2013, member states had

filed 469 requests for consultation with the Dispute Settlement Body (“DSB”) over its 19

years of operation.4

Despite the DSU’s success in using rule-based interpretation and application of

the Marrakesh Agreements and Country-specific commitments to prevent small trade

disputes from erupting into the full-fledged trade-wars of the 20th century,5 the decision of

a member state to submit a dispute for consultation, negotiation and potentially litigation

before the DSB remains inherently influenced by political consideration. If negotiation of

commitments by States forms the central political currency in securing greater

commitments to trade liberalization, litigation plays an important and complimentary role.

However the decision by a country to use litigation to secure and expand market access

for its domestic exporting industries, as part of the politics of trade liberalization, is a

two-sided coin in such transactions. The flip side of the litigation coin is that through

efforts to litigate and enforce obligations before the DSB, countries expand and develop

                                                                                                                         1 Jacqueline Krikorian, International Trade Law and Domestic Policy (Vancouver: UBC Press, 2012) at 49. 2 Understanding on Rules and Procedures Governing the Settlement of Disputes, 1994, 1869 UNTS 401, 33 ILM 1226 [DSU]. 3 For a recent example, see Valerie Hughes, “Why is the WTO Dispute Settlement System So Successful?” (Lecture delivered at the ANZSIL Conference, Victoria University, 6 July 2012) online: Victoria University <http://bit.ly/1kqen85> 4 The World Trade Organization, Dispute Settlement: The Disputes, Chronological list of Disputes Cases, online: WTO <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm> 5 See e.g. the US Smoot-Hawley tariffs, the US-EEC “chicken wars” of the 1960s and the US-Japan-EEC steel wars of the 1970s.  

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the common law jurisprudence that defines the rules of the game and the scope of

countries legal obligations under within the system. Additionally, with the new

commitments recently secured in the Doha round of negotiations, litigation and the

development of jurisprudence are likely to see significant activity and advancement. For law students and trade litigators, the development of panel and appellate body

jurisprudence is of central interest. In contrast, for trade policy practitioners, litigation

decisions are influenced by myriad political considerations. Somewhat surprisingly,

given the reality that the practice of trade law operates at the nexus of these two foci,

there is a paucity of analysis on the dual roles that litigation plays in the development of

WTO jurisprudence and as a political tool in trade liberalization. This is especially true in

the Canadian context.6 As such, this paper aims to explore the nexus between the

considerations that influence Canada’s WTO litigation policy and the substantive legal

outcomes of trade litigation before the DSB.

There is a rumour that in response to a question by an industry representative at a

conference on trade law dispute settlement, asking how to get the Canadian Government

to submit a trade dispute before the DSB, the Director General of the Trade Law Bureau

(“JLT”) responded, “it depends on who you know.” Regardless of its truth, the story

reflects the informal reality of the process by which Canadian industry can alert and

petition the Government to bring a claim before the WTO.7 This paper, uses JLT’s lack of

a procedural petition mechanism to underpin an analysis of the balance between the

political interest of expanding market access and the legal goal of developing WTO

jurisprudence, through the Trade Law Bureau’s—and by extension the Department of

Foreign Affairs, Trade and Development’s (“DFATD”)—trade litigation policy.

Attempting to discern empirical correlations between the process JLT undertakes

in submitting a dispute to the DSU, focusing on the consultation mechanisms through

which industry participates, and the substantive outcome of DSB panel and Appellate

                                                                                                                         6 There is little academic literature that deals with the subject. The one book most prominently featured in search returns (Marc Froese, Canada at the WTO: Trade Litigation and the Future of Public Policy, (Toronto: University of Toronto Press, 2010).) received a scathing critique by Dan Ciuriak a former Trade Policy advisor to Canada’s Department of Foreign Affairs and International Trade (“DFAIT”). In fact, his critique specifically cited the absent analysis of the legal implications of litigation policy decisions on the development of WTO Jurisprudence. Dan Ciuriak, Book Review of Canada at the WTO: Trade Litigation and the Future of Public Policy by Marc Froese, (2010) 16:3 Canadian Foreign Policy 65. 7 Under the DSU, member states are the only people that have standing to bring a claim.

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Body decisions, is beyond the scope of this paper; most evidently because the scale of

quantitative analysis necessary to assess the intervening variables. In lieu, this paper

undertakes a qualitative analysis of the divergent interests served through a formal, as

compared to an informal industry petition process and contrasts them against other

considerations likely to influence Canada’s trade litigation policy. The emphasis placed

on these competing considerations is evaluated through a deconstruction of the spectrum

of consultations Canada has submitted as complainant to the DSB. The objective here is

to draw inferences from JLT’s approach to industry consultation, about its use of trade

litigation as a political, as opposed to a legal tool.

This paper is broken into three parts. Part I reviews the literature on WTO trade

litigation policy, surveying the considerations and interests in countries’ decisions to

submit disputes. Part II details the informal and consequently ambiguous process; largely

ignored by Canadian centric trade policy research, by which industries participate in the

pre-litigation process of bringing a trade dispute to the point of submission for

consultation before the DSB. Comparisons with alternative mechanisms for industry

petition in other countries are considered. Part III considers trends in Canada’s DSB

litigation, through the lens of interests identified in Part I, and highlighting several

specific cases. The paper concludes by considering the implications of benefits and

drawbacks of an informal petition process in relation to the importance of balancing

interests in a strategic approach to litigation before the DSB.

Ultimately, while it is impossible to quantify the missed opportunities from the

absence of a formal mechanism, it appears from Canada’s litigation history before the

DSB, that the existing process has been effective in ensuring a balance between the

political, economic and legal interests present in litigation are met.

1. WTO Pre-Litigation Considerations

This section explores a non-exhaustive list of considerations and interests that the

literature identifies that states take into account in a decision to submit a dispute before

the DSB. Following Horlick and Boeckmann’s identification of three major pillars of pre-

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litigation assessment, the following section considers a) the legal considerations, b) the

economic (and political considerations), and c) the strategic considerations.8

a. Legal Considerations

A review of the literature on the WTO dispute settlement system highlights two

things. Analysis of panel and Appellate Body interpretation of the system of rules that

governs international trade and their attendant implications for future legal interpretation

and challenge is abundant. Second, from a policy perspective, and perhaps because

emphasis has for so long been on the a-political nature of the DSB, less analysis is readily

available about the use of litigation by Countries as a political tool.

It would seem almost facetious to point out that outcomes of legal cases have

broader implications that influence future policy decisions about whether to submit

particular disputes. Yet research on how political decision makers are influenced by and

incorporate the abundance of analysis on the legal implications of DSB decisions into

States’ approach to litigation is sparse.

It may be that because the rules governing the trading regime are so difficult to

change, as the challenges of the Doha round demonstrated, that the possibility of a

dialogue between the drafters and the interpretive body is discounted in research.9 The

reality of trade litigation is that the most frequent type of complaint filed by member

states is related to economic loss in the exporting market.10 This is a direct product of the

fact that redress for WTO-inconsistent action must be self-enforced by the exporting

countries effected.11 This is in line with the original intent of the DSB as a body to

amicably resolve straightforward disputes over breaches of obligations. However, the

diversity of products, member countries and provisions at dispute has continued to grow

in complexity. Litigation as a policy tool for gaining or defending market access for a

                                                                                                                         8 Gary Horlick and Hanna Boeckmann, What to Do Before You Call the WTO: The Prelitigation Assessment of Trade Barriers, Issue Paper No 13 (Geneva: International Center for Trade and Sustainable Development, 2013) at 7. 9 The DSB and the WTO members do not unfortunately, benefit from the same “dialogue” that exists between the legislative and judicial branches in Canadian domestic politics. 10 Chad Bown, Self-Enforcing Trade, Developing Countries and WTO Dispute Settlement, (Washington DC: Brookings Institution Press, 2019), at 77-81. 11 Ibid.

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country’s constituent domestic exporting industry12 does not preclude and should not

ignore the use of litigation to advance systemic interests in the body of rules governing

trade. Arguing over whether a member has broken the rules implicates the scope and

nature of the rules themselves, as a secondary alternative to negotiation for expanding

market access. WTO Jurisprudence subsequently shapes the interpretation and

application of trade “law”, and affects future bargaining positions as a result.13

Often legal analysis that engages with the procedure of disputes begins—

formally—at the stage when a complaint is submitted for consultation, aimed at

achieving a negotiated settlement. This underemphasizes the important decisions by

countries about whether to agree to a negotiated settlement, to follow a dispute through to

litigation, or even to initiate a dispute in the first instance. The fact that a “Request for

Consultation” can only be filed by a WTO Member government, “more than any other,

shapes the entire WTO litigation process.” 14 Legal considerations do not start at the

beginning of the formal process, but “considerably earlier, when a potential trade barrier

is discovered that sufficiently affects the Member’s industry.” 15 The interests and

considerations involved in an initial decision to submit, hold important implications for

the subsequent insistence on the establishment of a panel and ultimately on the

development of WTO jurisprudence. Similar to the practice of using strategic case

litigation at the domestic level to advance interpretation of a particular area of law, the

systemic implications of bringing particular cases form one of the multiple factors taken

into account by governments.

Trends in the types of cases that countries submit emphasize the legal

considerations governments engage in, in their decision to bring a case. Categorizing

complainant’s disputed measures by their level of “observability”, Bown found

                                                                                                                         12 The activities covered under the “market access” component of Canada’s Global Commerce Strategy are the primary responsibility of the Trade Policy and Negotiations Branch (TFM), as well as the Trade Law Bureau (JLT) for legal-related aspects. 13 Gregory Shaffer, “Developing Country Use of the WTO Dispute Settlement System: Why it Matters, the Barriers Posed, and its Impact on Bargaining” (Paper delivered at the WTO at 10: A Look at the Appellate Body Sao Paulo, Brazil, May 16-17, 2005) online: International Center for Trade and Sustainable Development <  http://ictsd.org/downloads/2008/05/shaffer_1.pdf>. 14 Horlick and Boeckmann, supra note 8 at 3.  15 Ibid.

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differences of approach existed between developed and developing countries. 16 He

observed that the European Union (EU) and United States (US) more frequently focused

their challenges on “less observable” measures such as subsidies and other domestic

measures that indirectly impact issues of market access and national treatment. As

VanGrasstek elaborates, “[t]his would suggest their use of the DSU as a means of

defining the scope of countries’ commitments, including the resolution of ambiguities in

the “grey zones”. That is one way of using litigation as a follow-up to negotiation.”17

Panels “fill in the gaps of trade agreements ... they … finish the job negotiators

did not perform, perhaps as part of an intentional compromise, when they failed to define

a provision with much precision, leaving its meaning to be resolved in the future.18 The

potential role of cases in determining the scope of DSB interpretation of both individual

commitments and the broader scope of the agreements themselves, most certainly has an

impact on the cases countries decide to pursue. Using litigation to broaden or narrow the

scope of application of a particular provision of the agreements also has the derivative

benefit of signalling to other WTO members, the types of regulations and restrictions that

are permissible under the agreements.

In testifying on ways for Canada to achieve progress at the WTO before the

Senate Standing Committee on Foreign Affairs, Gilbert Gagné explained that he believed

the answer lies in “(a) clarifying existing WTO provisions on the definitions of subsidy

and dumping, and (b) tightening the WTO conditions under which dumping and

countervail action can be taken.”19

b. Economic Considerations

Arguably the “trading stakes” theory reflects the strongest consideration

influencing a country’s decision to submit a dispute to the DSB. Simply put, the theory

postulates that the aggregate volume of exports of a complaining party (and imports for

                                                                                                                         16 Chad Bown supra note16. (Ranging in a four-part spectrum from the most obviously observable measures (i.e. anti-dumping and countervailing duty orders) to the least observable (e.g. subsidies, other domestic measures, and export restrictions.)) 17 Craig VanGrasstek, The History and Future of the World Trade Organization (Geneva: WTO Publications, 2013) at 251-252. 18 Shaffer, supra note 13 at 15. 19 Senate, Standing Senate Committee on Foreign Affairs, Uncertain Access:The Consequences of US Security and Trade Actions for Canadian Trade Policy, vol 1 (Ottawa: Fourth Report, 2003).

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defending parties) is the most effective predictor of a WTO member’s use of the dispute

system.20 Applied at the domestic level, the same principle would posit that the more

significant a particular export industry is to the domestic economy of the complaining

country, the greater likelihood that a disputed measure affecting that industry will be

submitted for consultation.

Perhaps obviously, the interests and impact on domestic industry plays such a

strong role in the consideration to submit a dispute because WTO dispute settlement has

tangible effects by providing greater market access for individual industries. WTO legal

decisions affect specific economic outcomes to the benefit of successful complainants.

Bown has statistically demonstrated that concessions following the adoption of WTO

judicial decision in favour of the complainant result in substantial increases of imports of

complainant’s affected goods into the respondent member’s market.21

Two further factors can influence the role that domestic import industries play in

a decision to submit a dispute: the politics of democratic governance and the

sophistication of the domestic industry petitioning government. With respect to the

former, Davis has found that the decision of governments to litigate in democratic

countries can be influenced by pressure from the legislature to demonstrate efforts to

enforce ratified agreements on behalf of constituents. Adjudication before a panel

demonstrates, both to domestic constituents and trading partners, the willingness to take

action to ensure enforcement, and settlement. 22 The transparency, formality and

predictability of the rules based system not only reflects values that “resonate with

domestic institutions and processes,” 23 encouraging greater reliance on their use by

democratic governments,24 but also function to depoliticize disputes through submission

                                                                                                                         20 Henrik Horn, Hakan Nordstrom and Petros Mavroidis, “Is the Use of the WTO Dispute Settlement System Biased?” (1999) CEPR Discussion Paper 2340 (“[o]ur tentative conclusion is that the seeming over- representation by G4 countries, or the mirror image under-representation of developing countries, to a large extent reflect differences in the diversity and value of trade” at 26). 21 Chad Bown, “On the Economic Success of GATT/WTO Dispute Settlement,” (2004) 86:3 The Review of Economics and Statistics 811. 22 Christina Davis, Why Adjudicate? Enforcing Trade Rules in the WTO (Princeton, NJ: Princeton University Press, 2012) at 2. 23 Andrew Guzman and Beth Simmons, “To Settle or Empanel? An Empirical Analysis of Litigation and Settlement at the WTO” (2002) 31:1 J Legal Stud S205 at S220. 24 Marc Busch, (2000) “Democracy, Consultation and the Paneling of Disputes under GATT” 44 J Confl Resolution 425 at 430.

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the binding decision of a neutral adjudicating body; decisions that would otherwise

remain politically divisive in the context of attempting a negotiated compromise. 2526

The sophistication of private industry in the process and requirements of WTO

Trade regulation (both at the domestic and international levels) may also affect the

conversion of disputes by states. Large domestic export industries have the knowledge

and capacity to watch for and understand the scope of obligations of the agreements,

enabling them to recognize and bring alleged breaches to the attention of the government.

Private industry with WTO sophistication and a willingness to lobby the necessary

political actors within the democratic system and influence the government’s engagement

at the multilateral trading system can play a highly influential factor. Exporters familiar

with WTO rules and their domestic implementation in importing countries, are able

effectively act as ‘enforcement constituencies’27 for the WTO.

Further, where exporters are unable to broker deals with the importing country in

breach, they have at their disposal both “carrot and stick” incentives. Sophisticated

industry players can turn relatively obscure issues into politically sensitive ones through

effective lobbying, incentivising the legislative branch to pressure the executive to take

action.28 In addition, indirect rewards of political favour with particular industry (or direct

rewards through political funding, although likely to a lesser extent in Canada) encourage

executive actors to find ways to broker deals.29

Economic capacity to bring disputes may also play a role in which cases can be

submitted. Although such a consideration is often dealt with in the context of developing

country members, the consideration is no less applicable to Canada. Canada’s 2011

Global Commerce Strategy (GCS) Report noted that the “Enhanced Market Access

agenda,” combined with unplanned additions increased the workload of Trade Litigation

                                                                                                                         25 See Christina Davis supra note 22 at 93. 26 Michael Ewing-Chow, Alex Goh and Akshay Kolse Patil, “Are Asian WTO Members Using the WTO DSU ‘Effectively’?” 16:3 J Int’l Econ L 669 (However, they find that “[c]ountries which are perceived to be more democratic do not necessarily initiate and convert more disputes. There is no immediate correlation between a country’s degree of democratic governance and its propensity to initiate disputes” at 691-92). 27 Keisuki Iida, Legalization and Japan: The Politics of WTO Dispute Settlement (London: Cameron May Ltd, 2006) at 29. 28 Interview of Private Sector Canadian Trade Lawyer 1 (4 December 2013). 29 Ewing-Chow, Goh and Patil, supra note 26 at 693.

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department among others.30 Essentially the challenge of effectively negotiating enhanced

market access, is an increase in the challenge of enforcing such benefits through

litigation. It went on to find that

[a]lthough additional resources were provided to JLT to support trade litigation, they do not appear to be sufficient to manage the increased demand of the GCS trade policy agenda. GCS recognizes that through a more strategic approach to trade litigation, Canada will be better prepared to initiate disputes in priority areas where negotiations are unsuccessful in removing significant barriers … The understaffing has prevented JLT from mining the benefits of signed agreements and ensuring the realisation of negotiated market access.31

c. Strategic Considerations

The third pillar in a decision to submit a dispute before the DSB relates to the

strategic considerations born from the dynamics of the international trading system. Here,

there are two major implications to consider. First, from a pragmatic perspective,

litigation has an external impact on the reciprocal litigation strategies of trading partners.

Second, the balance between the choice of litigation and the potential systemic

implications of a DSB decision and the availability of a negotiated compromise creates a

strategic opportunity and risk to use litigation as a bargaining tool.

Despite the fact that the DSU text exhorts that “the use of the dispute settlement

procedures should not be intended or considered as contentious acts”,32 there are

nevertheless realpolitik calculations that states must take into consideration in the

submission of disputes. VanGrasstek finds the evidence and logic of tit-for-tat reciprocal

retaliation between states compelling. “If member A brings a complaint against member

B, there is a fair chance that member B will respond in kind. Conversely, if the pace of

member A’s complaints against member B declines, the result may be multiplied by a

reciprocal reduction in complaints.” 33 Bown also notes the fundamental nature of

reciprocity in the dispute settlement system. “[T]he more a country challenges others by

using the WTO to enforce their commitments, the more it can expect to be challenged.”34

                                                                                                                         30 Foreign Affairs and International Trade Canada Inspector General Office, Evaluation of the Global Commerce Strategy Final Report (Ottawa: Office of the Inspector General / Evaluation Division, 2012) at 11. 31 Ibid at 133-34. 32 DSU, supra note 2 at Article 3.10. 33 VanGrasstek, supra note 17 at 247-48. 34 Bown, supra note 16 at 4

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Stemming from this reality, Horlick and Boeckmann advise that strategic litigation

requires reflexive consideration by the potential complainant country of it’s own

domestic trade regime, lest it find itself vulnerable to the same or a similar complaint

which may easily prompt a counter-complaint.35

Although potentially less of a consideration in the Canadian context, the reality of

reciprocal litigation enforcement actions by defendant states likely acts as a deterent for

states to escalate disputes against important trading partners. 36 At the same time,

submitting a dispute for consultation, and proceeding to dispute can function as a political

tool to get State’s to the bargaining table.37 Additionally, the fact that submission of

disputes to the DSB (as of 2000) result in a significant ratio of the disputed measures

being fully or partially conceded by the defendant, likely acts as an incentive to submit

cases.38  

The ever present possibility of arriving at a negotiated settlement in the face of the

risk of an adverse ruling by a panel is also a significant strategic consideration that

governments likely considering when balancing the interests of the domestic industry and

the potential development of the systemic jurisprudence. Shaffer illustrates this reality:

“Bilaterally, WTO law, jurisprudence and legal procedures affect bargaining over trade

disputes conducted in the legal system’s shadow.”39 The majority of disputes over WTO

agreement obligations between members are settled without having to proceed to the

formation of a panel and subsequent litigation. In fact, in the face of a legalized dispute

system, the percentage of negotiated settlements appears to be increasing over time. In

2000, Busch and Reinhardt show how around two-thirds of complaints “ending prior to a

ruling (whether before or after the establishment of a panel), exhibited full or partial

concessions by the defendant.”40 They noted that settled complaints increased from

                                                                                                                         35 Supra note 8 at 10. 36 Andrew Guzman and Beth Simmons, ‘Political power Plays & Capacity Constraints: The Selection of Defendants in WTO Disputes’, 34 (2) Journal of Legal Studies 557 (2005), at 569. 37 Interview with Private Sector Canadian Trade Lawyer 1 (6 December 2013). 38 Marc Busch and Eric Reinhardt, “Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes,” (2000) 24 Fordham Intl’l L J 158 at 162. 39 Shaffer, supra note 13 at 16. 40 Marc Busch and Eric Reinhardt, “Developing Countries and General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement” (2003) 37:4 J World Trade 719 at 728-729; Busch and Reinhardt supra 38 (“three-fifths of all [complaints] end prior to a panel ruling, and most of these without a request for a panel even being made at 158-159). The authors note that no panel was ever established in roughly 55% of the cases.

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58.2% to 66.5% in the first five years (1994-99) of the WTO. By 2003, the WTO World

Trade Report found that ratio of complaints that did not proceed beyond the consultation

stage to the panel stage, increased to “about three quarters of the complaints”.41

2. Comparative Review of Canada’s Domestic Complaint Petition Process

For all the emphasis on the rules based, transparent system of the DSU, it is

interesting that very few countries have formal regulations or processes that facilitate

similar mechanisms at the pre-litigation stage—vesting the interests of potentially

affected industries with the right to request the investigation and submission of trade

disputes. Canada does not have a formal mechanism by which companies or industry

representatives can formally raise an issue of a trade barrier they may face. On the other

hand, the only two WTO members currently more litigious than Canada at the DSB, the

US and the EU, both have formal petition mechanisms that are frequently complimented

by informal lobbying networks. On its face, this is surprising for Canada, given that

domestic exporting firms are recognized as forming a critically important element in the

entire process of initiating and pursuing a case.42

Not only is private industry the direct beneficiaries of complaints through the

WTO dispute settlement mechanism, and therefore have an interest in an accessible

system, they are also in the best position to detect WTO-inconsistent measures in

importing countries because they are direct victims of such measures.43 Indeed, the issue

was considered important enough that the International Law section of the Canadian Bar

Association considered in the early 2000s, whether the issue was significant enough to

seek reform.44

The initial impetus for this research was spurred by an interest in whether

Canada’s lack of a formal petition mechanism for industry to request the initiation of

WTO litigation by government, had a legally substantive impact on the outcome of

dispute settlement before the DSB. Realizing the challenge of the volume of data                                                                                                                          41 WTO World Trade Report, at xx (2003) in Shaffer supra note 13 at 16. 42 Bown, supra note 16. 43 Junji Nakagawa, ‘No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia’, 10(4) Journal of International Economic Law 837 (2007) at 845. 44 Although this fact was independently confirmed by trade lawyers in the discussions, no documentary evidence verifying the specific issues considered at the time was uncovered in the course of the present research.

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necessary for the appropriate statistical regression, and the limited availability of relevant

data, the modified focus here explores how Canada’s chosen procedural mechanism for

engagement with industry fits into the multiple other considerations and the overall

effectiveness of Canada’s WTO litigation strategy. Reflecting on the strengths and

weaknesses of the existing mechanism will shed light on role that industry plays in this

process.

a. Canada’s Pre-litigation Petition Mechanism

As the anecdotal story in the introduction demonstrates, Canada’s informal

system for industry facing trade barriers to bring a dispute to the attention of JLT is, if not

convoluted, obscure. Extensive Internet searches and a review of DFATD’s website

return essentially nothing that would explain or indicate to a Canadian exporter how or

where to begin the process of filing a complaint.

This first initial hurdle therefore, essentially requires that exporters seek the

assistance of more sophisticated trade law practitioners and consultants. At this stage it is

essential that before the case is raised with the government, it be assessed for the strength

of its legal argument.45 If there is a strong legal case, then it must be brought to the

attention of the relevant country or departmental desk officer within DFATD. It is clear

from interviews with practitioners that it is at the submission to government stage, that

two distinct and somewhat simultaneous considerations must be engaged by the

petitioning industry: the formal internal process for assessing a trade dispute case and the

government’s broader policy consistency. As one respondent noted, one of the prime

reasons that petitioned cases have difficulty moving forward, or will not be picked up by

government is consistency with government policy: “A dispute may run into road blocks

because in raises potential problems for other issues, or industries … the Government of

Canada has much broader interests [than those being raised in a specific trade barrier

case].”46 One example in particular is Canada’s position on supply management for

particular industries. “Where a client’s interests [in seeking to remove a barrier in the

country they are exporting to] contradict Canada’s position or message on supply

                                                                                                                         45 Interview with Private Sector Canadian Trade Lawyer 1 (4 December 2013). 46 Interview with Private Sector Canadian Trade Lawyer 2 (6 December 2013).  

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management [generally, but also in trade negotiations], you are going to have trouble

moving the case forward.”47

The internal vetting process for cases broadly involves an assessment of the facts

and analysis of the legal case. “Canada’s practice is to prepare its cases by committee.

Depending on what the industry is, you could have a lot of parties contributing to the

case.”48 This process is supposed to facilitate independent views and positions on that

case and facts. Importantly, from a legal perspective, “if a case makes it to JLT and they

disagree with the legal analysis, it’s not going anywhere.”49 In contrast to this perspective

another respondent noted that “JLT is not the ultimate decider of whether a case moves

forward, the policy people decide whether or not to run with a case. If it’s a political

decision, JLT will have nothing to do with it.”50 This quote is not inconsistent with the

preceding one. It indirectly highlights the reality that depending on the facts of a case,

varying legal and political interests are likely to influence the decision to submit a

dispute.

Beyond a strong legal case, the political considerations must be engaged with. It

is important to “sell them on what you’re trying to do, why it’s important.” This may if

necessary, involve a political push—using other informal political tools such as lobbying

members of Parliament and the media to raise the profile of the issue and bring political

pressure from the executive on the civil service to advance the case.

b. Pre-Litigation Petition Processes in other Countries

By contrast, both the United States and the European Union have more readily

accessibly avenues through which industry can formally file a request to have a trade

barrier assessed. That being said, the relative accessibility of the initial filing process

appears to be one of the only substantive advantages to the existence of the formal

mechanism.

                                                                                                                         47 Ibid. 48 Interview with Private Sector Canadian Trade Lawyer 1 (4 December 2013). 49 Ibid. 50 Supra note 46.

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The United States’ formal procedure for petitions requesting trade barrier

investigations, under Section 301 of the Trade Act of 1974,51 allows almost any entity

(including non-economic/exporting individuals and organizations)52 to file a petition

requesting the United States Trade Representative (USTR) conduct an investigation into

a foreign country’s WTO obligations. However, the USTR enjoys broad discretion to

choose to pursue—or not—a case at the conclusion of an investigation following the

initiation of a Section 301 petition. Neither is a Section 301 petition required for the

USTR to initiate a request for consultation with the DSB. As a consequence, despite

Shaffer’s recognition that Section 301 allows firms to take a proactive approach, in

formally petitioning the government to submit disputes challenging inconsistent measures

by trade partners, 53 the process doesn’t play much more of a role other than as a public

relations device. Most stakeholders invest their resources in the more complex informal

process of lobbying the USTR and Congress directly, after having made the formal

petition.54

Ultimately, despite instances where the US has clearly brought cases at the behest

of a particular industry— the United Steelworkers’ Union was a strong supporter of

President Obama and is attributed for successfully encouraging the USTR to bring China

– Windmills55 for example56—the USTR maintains a high standard for bringing cases.

Although actual economic harm is not required in order to submit a dispute for

consultation,57 political motivations alone are likely insufficient without some economic

stakes involved. As Horlick and Boeckmann note, with perhaps the exception of Japan-

                                                                                                                         51 Pub.L. 93-618, 19 USC § 2411. 52 In 2011, two individuals filed two Section 301 petitions under the CAFTA and the “Institute for Research: The Middle East” filed one under the Israel FTA. Both were rejected by the USTR. (USTR Declines To Investigate Section 301 Claims Under CAFTA, Israel FTA, Inside US Trade, July 14, 2011) 53 Gregory Shaffer, Defending Interests: Public-Private Partnerships in WTO Litigation (Washington, DC: Brookings Institution Press, 2003) at 37–40. 54 Horlick and Boeckmann, supra note 8 at 23. 55 China — Measures concerning wind power equipment (DS419). 56 Horlick and Boeckmann, supra note 8 at 23. 57 Nothing in the DSU requires a legal or economic assessment before bringing a dispute. DSU Article 3.7 only requires a member to “exercise its judgment as to whether action under these procedures would be fruitful.” This has been understood as conferring broad discretion to bring a dispute or not. Economic loss need not be proven. In EC – Bananas, the Appellate Body referred to a “potential export interest” as sufficient for bringing a complaint. European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 (DS27), WT/DS27/AB/RW, at paras 135-138.

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Photofilm,58 considered a product of heavy lobbying by Kodak in congress, the legal

bona fides of a case must be strong; the USTR “will not file a case unless … [it] is at

least 90 percent confident to win.”59

The EU has a similar petition process that was in fact adopted in consideration of

the success of the US’ Section 301 mechanism.60 Trade Barriers Regulation (TBR)61

petitions were the originating source for 12 of the EU’s WTO cases since 1995,62 and has

functioned as a useful tool for industry to initiate a formal investigation and fight trade

barriers. Despite this being a relatively low number, it is apparently more frequently used

than US Section 301. Even so, similar to the US, TBR petitions are less favoured than

direct lobbying between industry and the European Commission, responsible for filing a

complaint.63

In all three cases, the entities responsible for the formal procedure of submitting a

complaint employ, either formally or informally, inter-departmental consultation or

committee mechanisms, to ensure that all departments are on board.

3. Trends and Interests in Canada’s WTO Litigation History

Canada was the world's thirteenth largest merchandise exporter in 2011 64 with a

total value of exported merchandise of $452 billion.65 In contrast, Canada is the third

most litigious member of the WTO, having submitted 33 cases to date, behind only the

European Union with 89 cases and the United States with 106 cases. From a macro

trading-strakes perspective, Canada’s ratio of initiated cases to total present day export

                                                                                                                         58 Japan — Measures Affecting Consumer Photographic Film and Paper (1998), WT/DS44/R; Shaffer, supra note 51 at 34; see James Durling, Anatomy of Trade Dispute: A Documentary History of the Kodak – Fujifilm Dispute, (London: Cameron May, 2000) at 674. 59 Horlick and Boeckmann, supra note 8 at 10. 60 M Bronckers and N McNelis,“The EU Trade Barrier Regulations Comes of Age,” in A von Bogdandy, PC Mavroidis and Y Mény, eds, European Integration and International Co-ordination, Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann (The Hague: Kluwer Law International, 2002) at 57-99. 61 Council Regulation (EC) No, 3286/94 62 The 12 cases submitted resulted from a total of 27 petitions filed and investigations started. 63 Bronckers and McNelis, supra note 58 at 89-90.  64 WTO, Trade Policy Review Report by Canada, Trade Policy Review Body, WT/TPR/G/246, 4 May 2011 at para 6. 65 Canada’s State of Trade: Trade and Investment Update 2012, (Ottawa: Foreign Affairs and International Trade Canada, 2012).

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market value is marginally more litigious than the United States and almost five times

more so than the European Union.66

Clearly, the absence of a formal process has not inhibited Canada’s ability or

willingness to submit cases before the DSB. A full analysis of Canada’s litigiousness at

the WTO is beyond the scope of this paper. A perfunctory analysis, however, suggests

that the high number of cases is largely a by product of Canada’s use of the system to

settle disputes with the US. Almost half of Canada’s submitted cases, 15 of 33, are with

the United States (see figure 1). This is arguably a product of the fact that nearly 70% of

the value of Canada’s export market is derived from trade across Canada’s southern

border. Additionally, Canada’s heavy involvement in the negotiation of the DSU and

establishment of the DSB, likely played a strong role in Canada’s willingness,

particularly at the outset, to use the system (see Figure 2).

Figure 1: Canadian Cases submitted for Consultation by Respondent Country67

The purpose of this section is to explore some of the issues and priorities that the

Canadian government is likely to take into consideration in it’s decision to submit a

complaint to the DSB, and the subsequent negotiation or litigation of the dispute. Without

a thorough investigative analysis of the procedural history behind each of the 33 cases

Canada has submitted, the following calls on several trends and explicit assumptions to

                                                                                                                         66 Dividing the total number of complaints submitted by the present day value of each member’s export market, Canada’s export value per case is $13.6 billion compared to the United States and the European Union at $14 and $67.7 billion per case respectively. 67 Dispute Settlement: The Disputes, Chronological list of disputes cases, online: The World Trade Organizations <  http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm> [World Trade Organization, Dispute Database].

15  

9  

2   2   1   1   1   1   1  0  

5  

10  

15  

20  

US   EC   China   Korea   Japan   Australia   Brazil   India   Hungary  

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draw inferences about the possible balance of priorities identified in Part I above. These

priorities are subsequently contrasted with the strengths and weaknesses of the informal

petition mechanism deployed by JLT to engage industry in the trade dispute settlement

process, below. The following survey is limited to trends in cases submitted by Canada

for consultation (Canada’s offensive litigation strategy) because the concluding analysis

focuses on the relationship and place of Canada’s informal domestic dispute submission

mechanism in the process. However, similar analysis of Canada’s balance between it’s

engagement with domestic producer interests and legal considerations in strategic

defensive litigation of trade disputes is equally possible.68

The number of cases that Canada has submitted for consultation has declined

consistently through each six year period between 1995-2012. Between 1995 and 2000

Canada submitted 16 disputes. That number declined to 11 between 2001-2006, and

again to 6 between 2007-2012. The decline in cases might be attributed to a responsive

liberalization of restrictions as the scope of the legal agreements and commitments have

been clarified by the jurisprudence. Interestingly, however, the ratio of cases that Canada

has pushed beyond negotiation to litigation has increased over the same time periods. In

the first six years Canada settled 62.5 percent of the cases submitted. In the following six

years, (if one discounts the subsequent Softwood Lumber Agreement) Canada settled

only 27.3 per cent of disputes. This number is somewhat misleading as five of these cases

related specifically to the ongoing Softwood Lumber dispute between Canada and the

US, four of which Canada pursued through to a panel decision. Counting them as one

decision that Canada pursued through to litigation, between 2001-2006 Canada settled 57

percent of the cases it submitted. Finally between 2007-2012 Canada settled 60 percent of

the time.69

                                                                                                                         68 Jacqueline Krikorian, “Canada and the WTO: multilevel governance, public policy-making and the WTO Auto Pact Case” in Peter Gallagher, Patrick Low and Andrew Stoler, eds, Managing the Challenges of WTO Participation (Cambridge: Cambridge University Press, 2005) 134 at 142-147. 69 Similar to the treatment of Softwood Lumber above, the two submissions for consultation on measures affecting the importation of seal products have been treated as one, for the purpose of this analysis.

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Figure 2: Canada’s submission of disputes over time, compared against cases that advanced to a panel decision, and those that were settled. *Several cases included in this data set overlap with cases that resulted in a panel decision as a mutually agreed upon settlement was negotiated after the Panel’s decision was released. Settled cases here include cases were a submission for consultation was made, yet WTO records indicate that no further action was taken, the case was still at the consultation stage or a Panel was established but not composed.70

Working from the assumption that were a dispute is pursued through to litigation

and a panel decision the case necessarily involves either a strong political or economic

interest or a strong interest in the systemic legal issues involved, it is useful to consider

more the industries and measures involved.

From an industry perspective, it is interesting to note that of the six cases

involving Canada’s agricultural export industry, not only were the respondent countries

the most diversified, comprising four different countries, but in all instances the cases

were settled before a panel was formed. This would seem to indicate that despite the

industry being politically important, Canada is reluctant to engage in litigation that may

invite reciprocal submissions, or adverse rulings on approaches to supply management by

a panel. However at $44.1 billion, the value of Canada’s Agri-food exports represents just

under 10 percent of Canada’s export industry by value, yet occupy over one third of the

cases submitted to the DSB.71

                                                                                                                         70 World Trade Organization, Dispute Database; At least one, US-Corn, and arguably two, Korea-Beef, of the three cases that resulted in settlements were strong cases for Canada from the outset (US-Corn is discussed briefly below) and negotiations resulted in the removal of the disputed measures. Arguably, Canada’s submission of the disputes served as a signalling mechanism to the respondent countries for negotiation purposes, rather than a real interest in the pursuit of the issue through to litigation. Excluding these cases as a result would further decrease Canada’s ratio of settlement 33 percent. 71 Canada’s State of Trade, supra note 63.

0  

1  

2  

3  

4  

5  

6  

Claims  

Settled/Didn't  move  Forward*  

Panel  Decision  

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Canada’s use of the third-party intervener status in 90 cases also sheds light on the

important emphasis placed on the systemic legal implications of various challenges at the

WTO. The potential for the legal precedent to be applied in future litigation at lower cost

was demonstrated in Canada’s successful negotiated settlement in US-Corn.72 Brazil’s

successful challenge of US cotton subsidies was instrumental in Canada launching its

DSB complaint on similarly structured US subsidies for corn.73

Further, Canada’s pursuit of arbitrated decisions in 16 of the 33 cases submitted

has been relatively successful. In only two—EC – Asbestos74 and US – Section 129(C)(1)

URAA75—can Canada’s challenge of the disputed measure be considered to have failed

outright. In the latter, Canada did not appeal the Panel’s decision. From this it might be

inferred that the challenge to the legality of the US legislation was weak, or additionally

lacked sufficient political momentum to file an appeal. In EU – Asbestos, Canada filed a

complaint against a French decree banning the importation and marketing of asbestos

products. As Horn and Weiler write, There was never a serious doubt as to the material outcome of this case: Validating the legality of the French measure. (Many suspect that the Canadian government could not have seriously believed the WTO would overturn a ban on asbestos, but that it needed the result as a matter of domestic politics.)76

The asbestos industry, despite the economic losses being negligible to Canada, was

important to the Government given the industry’s importance in Quebec. For political

reasons the Government likely wanted to be seen as standing up for its constituency. On

the flip side, as a result of the Appellate Body’s interpretation, the litigation ultimately

had significant systemic impact the interpretation of GATT Article III:4. The

implications of this legal precedent may potentially have an adverse effect on Canada’s

agricultural export industry, where the health impact of genetic or hormone treatment

                                                                                                                         72 United States — Subsidies and Other Domestic Support for Corn and Other Agricultural Products (DS357) 73 Horlick and Boeckmann, supra note 8 at 10. 74 European Communities — Measures Concerning Meat and Meat Products (Hormones) (1998) WT/DS48/AB/R. 75 United States — Section 129(c)(1) of the Uruguay Round Agreements Act (2002) WT/DS221/R. 76 Henrik Horn and JHH Weiler, “European Communities – Measures Affecting Asbestos and Asbestos-Containing Products” (Paper prepared for the American Law Institute (ALI) project “The Principles of World Trade Law”, 2003), at 3.

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could be used to challenge “likeness” of certain products using the Appellate Body’s

interpretation of likeness under GATT Article III:4.

The balance of political and legal interests over economic interests in the bringing

of a dispute is also apparent in the EU-Seals77 case as well. Canada’s direct economic

loss was negligible. In fact, it was estimated that the cost of the case would be as much as

10 times the increased added value from the removal of the ban for the export industry.78

Although the Panel decision has yet to be appealed,79the ruling has mixed legal

implications. While essentially ruling that the de facto inconsistent application of the

exception for indigenous products caused the ban to be discriminatory, the panel also

disagreed with Canada in finding that the EU’s justification for the ban, under GATT

Article XX’s protection of public morals exception was valid.

Finally, Horlick and Boeckmann point to Canada’s complaint in EC –

Hormones80 as an example of litigation driven by interests in the systemic jurisprudential

implications of the case’s outcome. Despite the fact that EQ quotas limited the market

share of Canadian meat producers to less than one percent of the European market, both

countries pursued litigation to (successfully) clarify the principle legal issue surrounding

the use of growth hormones – namely, the standard of scientific evidence necessary under

the application of the SPS Agreement.

Conclusion: The Coherence of Canada’s Informal Mechanism with Its Litigation

Interests

The initial concern, when considering the absence of a formal petition mechanism

was that cases having real merit, might fail to get submitted to the DSB. The risk of an

industry affected by trade barrier either lacking the resource to overcome the informal

hurdles and raise the profile of a trade barrier, or the divergent political interests of the

government preventing a case from being filed, prima facie appeared problematic. Not                                                                                                                          77 European Communities — Measures Prohibiting the Importation and Marketing of Seal Products, (2013) WT/DS400/R. 78 Campbell Clark, A $10-million fight to save $1-million hunt”, The Globe and Mail (28 July 2009) online: The Globe and Mail <  http://www.theglobeandmail.com/news/politics/a-10-million-fight-to-save-1-million-hunt/article1200631/>.  79 Canada indicated publicly that it will. Foreign Affairs, Trade and Development Canada, News Release, “Harper Government to Appeal WTO Decision on EU Ban on Seal Products” (25 November 2013) online: DFATD <http://www.international.gc.ca/media/comm/news-communiques/2013/11/25a.aspx?lang=eng> 80 Supra note 72.

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only in the sense of “access to justice” for smaller exporting industries, but also for the

natural development of WTO jurisprudence. This assumption, however, that a more

automated and transparent pre-litigation process would result in more effective cases,

overlooks the core value of the Dispute Settlement Understanding in relation to the WTO

agreements. Effectiveness for an individual country is not purely measured through use

of the DSU as an institution through which to advance trade interests through litigation,

akin to the role of domestic courts in advancing particular political interests. The risks of

using litigation to effect systemic change and expansion of markets, must be balanced

against the risk of DSB jurisprudence being effectively outside the control of members,

particularly in the face of the opportunity for a negotiated compromise. Particular in light

of the fact that the WTO membership at large is limited in its ability to respond to

interpretations of the agreement by the DSB that diverge from their intended application.

From a strategic perspective then, the weaknesses of an informal system are outweighed

by the control it provides Government to balance the role of litigation against its multiple

other interests.

The informal mechanism risks the potential that the multiplicity of interests and

voices relevant to a claim may not be brought to the table in the development of the case

at the pre-litigation stage. It also means that where cases are not a political priority, or

pose a legal question that may conflict with the coherence of government policy, and risk

raising legal issues that may result in the development of adverse precedent for Canada,

the absence of a formal process means that the informal process poses a far greater

obstacle.

On the other hand, one of the prime advantages of the informal process is the

privacy it affords participants in the development of a case at the pre-litigation stage.81 A

benefit that would likely not exist in a more open and formal system. This protects

important business confidential interests and prevents respondents from retaliating before

a case is fully developed. Most importantly, however, the confidentiality of the informal

process facilitates the use of litigation as a negotiating tool. The Canadian Bar

Association stated that

                                                                                                                         81 Interview with Private Sector Canadian Trade Lawyer 1 (4 December 2013).

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[s]ince disputing Members are able to settle a dispute consensually at any time before a panel issues its decision, there may be merit to keeping the formal positions taken by Members confidential until the panel’s decision precludes consensual settlement. Premature disclosure of submissions and arguments, including the panel hearing, may create an unfortunate impediment to late-hour efforts to resolve disputes through negotiation by raising the political stakes for Member governments and limiting their margin for compromise.82

The ability to reach a negotiated compromise is one of the key aspects of the dispute

settlement system that supports ensuring that the government remain both the principle

and the agent in the dispute process. Something, a more formal pre-litigation mechanism

would place in jeopardy. Industries are likely to want solutions that remove trade barriers

to the greatest extent possible. Armed with a strong legal argument (and sufficient

monetary incentive), this means pursuing a dispute through to litigation. The

ramifications of doing so, however are more far reaching than the immediate trade barrier

as trade relations, the lowering of trade barriers and the legal precedent that cases

potentially establish, effect the interests of many beyond the immediate industry pursuing

the claim.

It does not appear from the history and trends in Canada’s WTO litigation, that

the dual role WTO litigation plays—protecting the economic interests of domestic

exporting industries by maintaining market access benefits, and expanding market access

by challenging judicial interpretation in the “grey zones” of the agreements—has been

hindered by the informal process. The systemic interests, in the risk of retaliation, but

most substantively for the development of the jurisprudence appear to be balanced well.

Canada has not fallen victim to only representing the interests of large exporting

industries, and has represented the smaller industries were litigation isn’t necessarily

economical, yet the principles have been considered important to uphold.

A final caveat to this analysis, is that it is impossible to analyse the potential

shortcomings of the absence of a formal petition process, without being able to discover

what cases might be brought through such a process. It is easy to see how the cases

Canada has brought to litigation despite the relatively minor economic interests involved,

                                                                                                                         82 Letter from DSU Committee Chair, Canadian Bar Association’s International Law Section to Denyse Mackenzie Director General and Counsel Department of Justice Trade Law Bureau (JLT) (29 August 2002) Re: Understanding on Rules and Procedures Governing the Settlement of Disputes; Submission of Canadian Bar Association National Section of International Law at 2.

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were politically valuable for the Government. Cases that don’t get raised, however, can’t

be counted. Having a formal complaint system would not have to jeopardize the

flexibility with which the Government and JLT are able to balance the diverse breadth of

economic, political and legal considerations. It could, on the other hand, ensure that small

export industries that are not as politically “sexy” or that do not raise principled legal

issues, still have an avenue through which to channel their concerns about trade barriers.

Ultimately, the export industries must function as the eyes and ears of the Government in

searching for trade barriers. With respect to using litigation to challenge interpretations of

the WTO agreements, a system that channels such information about existing barriers

with low cost is more likely to give rise to ideal cases through which to challenge and

expand the jurisprudence, and market access along with it.

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Foreign Affairs, Trade and Development Canada, News Release, “Harper Government to Appeal WTO Decision on EU Ban on Seal Products” (25 November 2013) online: DFATD <http://www.international.gc.ca/media/comm/news-communiques/2013/11/25a.aspx?lang=eng>. Gary Horlick and Hanna Boeckmann, What to Do Before You Call the WTO: The Prelitigation Assessment of Trade Barriers, Issue Paper No 13 (Geneva: International Center for Trade and Sustainable Development, 2013) Gregory Shaffer, “Developing Country Use of the WTO Dispute Settlement System: Why it Matters, the Barriers Posed, and its Impact on Bargaining” (Paper delivered at the WTO at 10: A Look at the Appellate Body Sao Paulo, Brazil, May 16-17, 2005) online: International Center for Trade and Sustainable Development <http://ictsd.org/downloads/2008/05/shaffer_1.pdf>. Gregory Shaffer, Defending Interests: Public-Private Partnerships in WTO Litigation (Washington, DC: Brookings Institution Press, 2003) at 37–40. Henrik Horn and JHH Weiler, “European Communities – Measures Affecting Asbestos and Asbestos-Containing Products” (Paper prepared for the American Law Institute (ALI) project “The Principles of World Trade Law”, 2003). Henrik Horn, Hakan Nordstrom and Petros Mavroidis, “Is the Use of the WTO Dispute Settlement System Biased?” (1999) CEPR Discussion Paper 2340. Jacqueline Krikorian, “Canada and the WTO: multilevel governance, public policy-making and the WTO Auto Pact Case” in Peter Gallagher, Patrick Low and Andrew Stoler, eds, Managing the Challenges of WTO Participation (Cambridge: Cambridge University Press, 2005) 134. Jacqueline Krikorian, International Trade Law and Domestic Policy (Vancouver: UBC Press, 2012) James Durling, Anatomy of Trade Dispute: A Documentary History of the Kodak – Fujifilm Dispute, (London: Cameron May, 2000). Japan — Measures Affecting Consumer Photographic Film and Paper (1998), WT/DS44/R. Junji Nakagawa, ‘No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia’, 10(4) Journal of International Economic Law 837 (2007) Keisuki Iida, Legalization and Japan: The Politics of WTO Dispute Settlement (London: Cameron May Ltd, 2006). Letter from DSU Committee Chair, Canadian Bar Association’s International Law Section to Denyse Mackenzie Director General and Counsel Department of Justice Trade

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