MIMISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Specialization: The master of International Trade Policy and Law NGUYEN THI NGOC HA Ha Noi - 2019 MIMISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International economics Specialization: The master of International Trade Policy and Law Code: 8310106 Full name : Nguyen Thi Ngoc Ha Supervisor : Dr. Nguyen Ngoc Ha Ha Noi - 2019 i ACKNOWLEDGEMENT I’d like to thank Dr. Nguyen Ngoc Ha, my supervisor during the research period, for his patient guidance and support. I admire not only his academic knowledge but also his personal qualities.
I would also like to thank my teacher Ms. Nguyen Hong Vinh and the Faculty of University – Foreign Trade University, for giving me the opportunity to carry on my advanced studies and for their ultimate support. I would like to thank everyone in the class MITPL5 for their support in the course of the program. Finally, I would like to thank all my family members, friends and colleagues who have given me valuable support during my studies.
This thesis studies on the third party in the WTO dispute system is not new but a very complicated issues required various knowledge, skills and practical experiences. Thus, the thesis has the inevitable shortcomings and limitations. I look forward to receiving valuable comments for improving the thesis. Sincerely, Hanoi, 2019 The Author Nguyen Thi Ngoc Ha ii CERTIFICATION I hereby certify that the thesis with the title: “Third party in the WTO Dispute Settlement System: International Experiences and Lessons for Vietnam” is my own research and does not reproduce any other materials.
The data indicated in the thesis is clear, accurate and are collected from the confident sources of information. The Author Nguyen Thi Ngoc Ha iii TABLE OF CONTENT ACKNOWLEDGEMENT. i TABLE OF ABBREVIATIONS .v LIST OF CHART/ TABLE .1 CHAPTER 1: THIRD PARTY INTERVENTION IN THE WTO DISPUTE SETTLEMENT SYSTEM. Overview of the WTO dispute settlement system of WTO.
History of the establishment and development of the WTO dispute settlement system. Principles of WTO dispute settlement system. Dispute settlement Bodies. Dispute settlement process.
WTO rules on third party intervention. Conditions for becoming a third party. The third party status in each stage of dispute settlement.4 The role of third party intervention .30 CHAPTER 2: PRACTICES INVOLVED IN DISPUTE SETTLEMENT AS THIRD PARTY OF SOME WTO MEMBERS. The developed country members.
The United States of America.2 The developing countries members. General evaluation and lessons for Vietnam. Lessons for Vietnam .57 iv CHAPTER 3: PRACTICES OF VIETNAM INTERVENTION AS THIRD PARTY IN THE WTO DISPUTE SETTLEMENT SYSTEM AND RECOMMENDATIONS. Practices of Vietnam’s intervention as third party.
Legal basis and mechanisms of participation in Vietnam. General evaluation and some orientation for Vietnam. Evaluation of achieved results .2 Some orientation for Vietnam. For the Government.93 v TABLE OF ABBREVIATIONS 1 AB Appellate Body 2 ACWL Advisory Centre for WTO Law 3 AD Anti- Dumping 4 DSB Dispute Settlement Body 5 DSM Dispute Settlement Mechanism 6 DSS Dispute Settlement System 7 DSU Dispute Settlement Understanding 8 EU European Union 9 GATT General Agreement on Tariffs and Trade 10 MFN Most Favoured Nation 11 SCM Subsidies and Countervailing Measures 12 SG Safeguard 13 SPS Snaitary and Phytosanitary Measures 14 TRIMs Trade-Related Investment Measures 15 TRIPs Trade-Related to Aspects of Interllectual Property Rights 16 US United State 17 WTO World Trade Organization vi LIST OF CHART/ TABLE Chart 1.1: WTO Dispute Settlement Process .1: WTO members most involved in disputes, 1995 to 2017 .1: Participate as a third party of Vietnam.1: Top countries access WTO DSS as third party.2: World’s export countries in 2017.3: World’s import countries 2017 .4: Participate as a third party of developed members.5: Participate as a third party of developing members.46 vii ABSTRACT The thesis provides a theoretical overview of third party invention in the WTO Dispute Settlement System.
We’ll have the knowledge about WTO Dispute Settlement System, identification of third party and the rights and role of the third parties in a dispute case. The thesis also carefully studies the practices of some WTO member both developed and developing countries (Japan, the USA, China, India, and Thailand) that frequently involved in WTO Dispute Settlement System as a third party. The studies show the root reason, the benefit which these members get when they participate as a third party and the way they organize the related resources and building regulation and law. The thesis analyzes the practice of Vietnam intervention as a third party in the WTO Settlement System, its achieved results and restrictions until now.
From these characteristics of Vietnam and international experiences gives the orientations and proposes some recommendations to improve Vietnam’s participation in the WTO Dispute Settlement System. Research rationale Every economy that wants to grow and develop must participate in international trade activities, participate in the international economy. Thanks to bilateral and multilateral economic agreements, the international economy is increasingly developing and closely linked to benefits. In which, there are over 95% of world trade activities currently governed by the World Trade Organization’s (WTO) Agreements1.
This international organization was established and operated since January 1st, 1995 with the goal of establishing and managing a free and transparent global trade. This organization inherits, develops the rules, and practices implementing the General Agreement on Trade and Tariffs - GATT 1947 (limited to trade in goods only) and is a direct result of the Uruguay Round (covering the areas of trade in goods, services, intellectual property and investment. As of March, 2019, this organization has 164 members. Through agreements, countries have an opportunity to cooperate not only in trade but also in some social fields.
However, deeper participation in the world economy will breed conflicts of interest among member countries. These conflicts sometimes become cornerstones that prevent trade flows between nations. To ensure the full and serious implementation of the provisions of the Agreement, prevent trade measures that violate the Agreements, contribute to the implementation of the WTO's great objectives, a disputes settlement system within this organization have been established. This mechanism is the realization of the trend of legalizing the process of settling international trade disputes today, gradually replacing the methods of resolving political and diplomatic disputes in this area.
WTO has one of the most active international dispute settlement system in the world. Since 1995, over 500 disputes have been brought to WTO and over 350 rulings have been issued2. Fergusson, “The World Trade Organization: Background and Issues”, CRS Report for Congress, Updated May 9, 2007, available at: https://nationalaglawcenter.org/wp-content/uploads/assets/crs/98-928.org/english/tratop_e/dispu_e/dispu_e. 2 As a member of WTO, Vietnam can use this mechanism for settling possible trade disputes with other WTO members.
The consideration of this dispute settlement mechanism and its massive case system are of great practical significance not only in understanding the provisions of the WTO Agreements, but also in protecting them. However, the participation as a plaintiff or a defendant often requires high manpower, experiences and skills as well as financial resources. Then, participation as a third party constitutes a very interesting option, because it will be an opportunity to not only reinforce the Members’ presence in the DSS, but also to allow them to learn and accumulate experience when the WTO dispute settlement process is becoming more and more technical. In the practice, some WTO’s Members, as the United States, the European Union, Japan, China and other developing Members have profited from its participation as third party in DSS.
From this point of view, Vietnam could use third party intervention as a legal instrument for reinforce its participation in the DSS. Nonetheless, for more than 10 years of participating in DSS, Vietnam did not consider third party intervention as a useful tool, especially in order to strengthen its capacities. Therefore, what are WTO’s rules governing third party intervention in DSS? What is the role of third party and third party intervention in this mechanism? How are international experiences on this issue? How can Vietnam use these international experiences to gain practical benefits to reinforce its role in DSS? To answer these questions, I have chosen the topic “Third party in the WTO Dispute Settlement System: International Experiences and Lessons for Vietnam” as my graduation thesis topic. Literature review Given the practical benefits, WTO members actively involve in dispute settlement system at the WTO as a third party.
Vietnam is also aware of this issue and is actively participating in this capacity in the DSU dispute settlement cases. Since the date of accession (January 11th, 2007), Vietnam has so far participated in 38 cases, in 5 of which cases stood as plaintiffs and participated as a third party in 33 cases. However, in terms of theoretical basis and research projects of scale and overall, this regulation in Vietnam has not been properly concerned. 3 In the curricula of law schools and economics of our country, the law has not mentioned the system of participating in the settlement of trade disputes of WTO as a third party both in terms of theory and Practice.
Also, in scientific works in specialized journals such as Journal of Law, Law and State Magazine. mentioned the above issue, however, these studies only study participation. The WTO's general dispute settlement system has not studied in depth the WTO dispute settlement system as a third party. Some monographs, documents, articles related to WTO and dispute settlement system of WTO can be mentioned as: Participating in trade dispute settlement mechanism as a third party (Vu Quoc Khanh, Faculty of Law - Hanoi National University 2012); China participates as a third party into the World Trade Organization's dispute settlement mechanism and experiences for Vietnam (Dr.
Nguyen Ngoc Ha - Law and State magazine No11 (343), 2016). Foreign experience and strengthening Vietnam's participation in dispute settlement mechanism at the World Trade Organization (WTO) (VNU Journal of Science - Law No. 28, pages 165–181) and “Some issues from a procedural perspective in Vietnam's first lawsuit at WTO” (Journal of Legislative Studies No. 16, pages 19–29); Acessing the WTO Settlement System as a third party (website: http://chongbanphagia.vn – 24/9/2014); Improving the effectiveness of Vietnam's participation in the WTO dispute settlement mechanism (http://isl.
Objectives of the research The thesis focuses on studying the issue of joining WTO's dispute settlement system (hereinafter referred to as DSU) as a third party with the aim of determining the legal basis and experiences from the praticial particiapation as third party of some members, thereby drawing lessons for Vietnam. This research also focuses on analyzing the practice of Vietnam’s participation in WTO’s DSS as third party, and on proposing for Vietnam some recommendations in order to improve its participation in this system in the upcoming dispute resolution cases of WTO. Scope of the research 4 In the context of international economic integration today, the issue of resolving trade disputes arising between countries has always been recognized as complex and diverse. On the other hand, with the development of current international relations, the practice of resolving disputes in international organizations in general and WTO in particular has been posing many issues that need to be addressed research center.
The thesis does not address all the issues, but focuses on the following contents: Theoretical issues of participating in the WTO trade dispute settlement system as a third party; the practice of participating in the WTO dispute settlement system as a third party of some WTO’s Members and Vietnam; recommendations for Vietnam to improve its participation in the WTO's dispute settlement system as a third party. Methodology The topic is studied on dialectical materialist perspective, combined with methods of statistical analysis, synthesis methods, comparisons, historical methods and developmental methods.