EGYPT NATIONAL DIALOGUE ON WTO DISPUTE SETTLEMENT
EXPLORING STRATEGIES TO ENHANCE EGYPT’S
PARTICIPATION IN WTO DISPUTE SETTLEMENT
Successful Case Studies From Egypt*
Charles Julien
Legal Counsel
Ministry of Foreign Trade and Industry, ARE
I.
Introduction
Since its accession to the World Trade Organisation (WTO) on 30 June 1995,
Egypt has been involved in seven dispute settlement proceedings.
The elements that have led Egypt to invoke – or not to invoke – issues before the
WTO dispute settlement system have been analysed by Dr. Shahin in her presentation.
Dr. Shahin’s analysis has led her to the conclusion that Egypt could draw further benefits
from the WTO dispute settlement system if the cooperation between the private sector
and the competent authorities is expanded and if efforts are undertaken to increase
Egypt’s knowledge of WTO rules.
The conclusions that I will reach are very similar to those of Dr. Shahin but are
based on a different analysis – those of the use of the WTO dispute settlement system by
Egypt and the development of specific structures and rules to address the challenges
raised by the WTO dispute settlement system.
As legal counsel – first external and now internal – to the Ministry of Foreign
Trade and Industry for nearly the last ten years, I have been in a privileged situation to
witness the evolution of Egypt’s participation in the WTO and, in particular, its use of the
WTO dispute settlement system. Even though, the WTO dispute settlement rules have
seldom been used by Egypt over the last decade, the cases to which Egypt has been a
party are revealing of Egypt’s desire to use the international instruments available to it to
promote and defend its trade interests.
After a brief analysis of the cases in which Egypt has been involved, my
presentation will introduce the authorities and procedures in place in Egypt for the private
sector to have violations of WTO rules challenged under the WTO dispute settlement
system.
*
The views expressed in this paper are solely those of its author.
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II.
From bed linen to rice: Egypt’s participation in the DSS
Egypt has, between 1998 and now participated in seven dispute settlement
proceedings: four has a respondent, and three as a third party.
1.
Egypt as a respondent: some convincing results
As detailed in the case-specific analysis, Egypt has been fairly successful because
it has been able to succeed in defending the measures that were challenged or has agreed
to mutually acceptable solutions.
a.
Rebar from Turkey
This case is, thus far, the reference case for Egypt under the WTO dispute
settlement system. It is the only case that reached its term and that was fully successful
since the Panel dismissed the great majority of the claims raised by Turkey.
This case followed the imposition by Egypt of anti-dumping duties on imports of
steel rebar from Turkey.
The anti-dumping investigation was initiated on 6 February 1999 by the Ministry
of Trade and Industry upon receipt of an application by the Ezz Steel Company and the
Alexandria National Iron and Steel Company. Further to an anti-dumping investigation,
the Trade Agreements Sector recommended the imposition of anti-dumping duties
ranging from 22.63% to 61% on imports of steel rebar from Turkey. These
recommendations were followed and measures were imposed on 21 October 1999 by the
Minister of Trade and Industry.
More than a year after the imposition of these anti-dumping measures, i.e., on 6
November 2000, Turkey requested consultations with Egypt regarding these measures.
Consultations are the first step of WTO dispute settlement proceedings. In its request for
consultations, Turkey claimed that the anti-dumping measures imposed by Egypt were
inconsistent with the rules set forth in the WTO Anti-Dumping Agreement, since the
Egyptian investigating authority had failed to properly calculate the dumping margins of
the cooperating Turkish exporting companies and also failed to assess the resulting injury
suffered by the Egyptian rebar industry.
Following the receipt of the request for consultations lodged by Turkey, the
Ministry of Trade and Industry quickly contacted the external legal counsel regularly
assisting it with trade remedy matters. After a rapid internal assessment of the claims
raised by Turkey, the Egyptian investigating authority and the external legal counsel
reached the conclusion that the anti-dumping measures maintained on imports of rebar
from Turkey were imposed in line with the obligations of Egypt under the WTO
Agreements and, thus, recommended to the Minister of Trade and Industry that these
measures be actively defended.
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Two rounds of consultations were held between Egypt and Turkey from 3 to 5
December 2000 and from 3 to 4 January 2001, but both countries failed to reach a
mutually satisfactory solution. Therefore, Turkey requested the establishment of a panel
on 3 May 2001. Chile, the European Communities, Japan and the United States reserved
their rights to participate in the panel proceedings as third parties.
Following the establishment of the Panel on 20 June 2001, the Ministry of Trade
and Industry decided to retain the services of the external legal counsel regularly assisting
it with trade remedy matters. The latter was actively involved, together with the Trade
Agreements Sector, in drafting the submissions that were filed with the Panel and in the
preparation of the meetings that the Panel held in Geneva with Egypt, Turkey and third
parties between 25 and 28 February 2002. The assistance provided by the external legal
counsel was extremely valuable to the Trade Agreement Sector, the Egyptian authority
responsible within the Ministry of Trade and Industry for the conduct of dispute
settlement cases before the WTO, since these panel proceedings were the first in which it
was deeply involved.
In its report on 8 August 2002, the Panel concluded that most of the claims raised
by Turkey were either unsubstantiated or unfounded.
With respect to the analysis of the injury suffered by the Egyptian industry,
Turkey claimed that the Egyptian investigating authority had: failed to examine and
evaluate the factors listed in the WTO Anti-Dumping Agreement; not considered all
relevant factors; not properly determine the price undercutting; changed the scope of the
investigation; not positively established a causal link between the dumped imports and
the injury suffered by the Egyptian industry; and, failed to sufficiently consider other
known factors affecting the Egyptian industry. The Panel confirmed that the investigating
authority gathered data on all the factors listed in the WTO Anti-Dumping Agreement but
that it failed to evaluate some factors, i.e., productivity, actual and potential negative
effects on cash flow, employment, wages and ability to raise capital or investments. The
Panel also noted that the investigating authority analysed all relevant factors. Moreover,
the Panel concluded that Turkey failed to establish that an objective and unbiased
investigating authority could not have found price undercutting to exist on the basis of the
elements before it. Furthermore, the decision of the Egyptian investigating authority to
determine whether or not the Egyptian industry was suffering material injury and not
threat of material injury, as initially envisaged, was not found to be inconsistent with the
WTO Anti-Dumping Agreement. Finally, the Panel found that Turkey had not
established that the Egyptian investigating authority violated the WTO Anti-Dumping
Agreement when establishing that there was a causal link between the dumped imports
and the material injury suffered by the Egyptian industry.
Turkey also claimed that the Egyptian investigating authority had violated its
WTO obligations but not taking into consideration all the information submitted by the
cooperating Turkish exporting producers and deciding to rely instead on the “facts
available”. The Panel found that the deadline granted by the Egyptian investigating
authority to interested parties to provide it with information was reasonable and that the
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cooperating Turkish exporting producers were provided with a full opportunity to defend
their interests. The Panel confirmed that the Egyptian investigating authority had not
erred in resorting to “facts available” for most of the cooperating exporting producers but,
that for those that had provided the requested information in due time, further information
should have been provided as to why the necessary information was considered not to
have been submitted. Also, it considered that these exporting producers should have been
given an opportunity to provide further explanations.
Finally, Turkey considered that the dumping margins of the cooperating exporting
producers were not properly established. Turkey claimed in particular, that the Egyptian
investigating authority erred in adding five percent to costs to reflect inflation; and, in
using part of the information provided by cooperating exporting producers concerning
scrap costs and interests costs. Contrary to Turkey’s claim, the Panel found that the
Egyptian investigating authority had not failed to use special circumspection in
determining the inflation rate used for the cost calculation. The Panel also found that the
Egyptian investigating authority had not violated the provisions of the WTO AntiDumping Agreement when determining what “facts available” should be used for scrap
and monthly interests costs. The Panel then confirmed that nothing in the WTO AntiDumping Agreement prevented the Egyptian investigating authority from seeking
additional information during the on-the-spot verification that was conducted at the
premises of cooperating exporting producers and that the requests for certain cost
information did not impose an unreasonable burden of proof on these producers.
The Panel report was adopted on 1 October 2002 and Egypt and Turkey latter
mutually agreed that the reasonable period of time to implement the Panel’s conclusions
should not be more than nine months, i.e., until 31 July 2003.
This first successful case gave confidence to Egypt in the WTO dispute settlement
system and helped it become more familiar with the substantive and procedural rules. It
also confirmed that the Egyptian investigating authority was complying with rules set
forth in the WTO Agreements when conducting anti-dumping investigations.
It is interesting to note that, in the majority of cases where they were respondents,
important users of the anti-dumping instrument, e.g., the United States, the European
Union or Argentina, were found to be breaching significant provisions of the WTO AntiDumping Agreement.
b.
Anti-dumping measures on matches from Pakistan
On 18 November 2003, Egypt imposed anti-dumping measures on imports of
matches in boxes further to an investigation initiated in August 2002 at the request of
Nile Company for Matches and Ready Wooden Houses. The anti-dumping investigation
was peculiar and complex because the Egyptian investigating authorities was unable to
send officials to verify the information provided by the two cooperating exporting
producers located in Peshawar, Pakistan.
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Over a year after the imposition of anti-dumping measures on its exports of
matches to Egypt, on 21 February 2005, Pakistan requested consultations with Egypt
arguing that the anti-dumping measures adopted against imports of matches from
Pakistan were inconsistent with the WTO Anti-Dumping Agreement. Pakistan claimed
that its authorities and exporting producers had not been provided with a copy of the
request for the initiation of an anti-dumping investigation that was lodged by the
Egyptian industry; that confidential treatment had been granted to information contained
in the application without requiring good cause or non-confidential summaries; that the
essential facts under consideration had not been provided in sufficient detail to interested
parties and that these were not provided with a full opportunity to defend their interests;
and, that the dumping and material injury determinations were not in line with the
requirements set forth in the WTO Anti-Dumping Agreement.
In line with the procedure followed in the rebar case, following the receipt of the
request for consultations lodged by Pakistan, the Ministry of Trade and Industry
contacted the external legal counsel regularly assisting it with trade remedy matters and
internally assessed the claims of Pakistan. The only difference with the rebar case was the
active involvement of the Legal Department that had recently been established within the
Trade Agreements Sector of the Ministry of Trade and Industry in the analysis of the
case.
Consultations were held in Geneva on 21 March and 3 June 2005. These provided
the opportunity to the Egyptian authorities to provide their Pakistani counterparts with
some of the requested information. However, since no mutually acceptable solution could
be found, Pakistan requested the establishment of a panel on 9 June 2005. The Panel was
established on 20 July 2005 but Egypt and Pakistan continued their consultations on an
informal mode since the cooperating exporting producers had lodged a request for the
initiation of an interim review investigation to review the form of the anti-dumping
measures maintained on imports from Pakistan.
Further to the initiation and conclusion of the interim review requested by the two
cooperating exporting producers, on 27 March 2006, Egypt and Pakistan informed the
Dispute Settlement Body that they had reached a mutually agreed solution. The
agreement reached followed the completion of the interim review investigation by the
Egyptian investigating authority. The interim review investigation was not directly
influenced by the WTO dispute settlement proceedings. However, since its outcome was
acceptable to the cooperating exporting producers, Pakistan and Egypt decided not to
engage in a long and costly procedure.
c.
Measures affecting imports of textile and apparel products
On 23 December 2003, the United States requested consultations with Egypt
concerning the tariffs applied by Egypt to certain textile and apparel products.
The United States claimed that these were inconsistent with the commitments
made by Egypt during the Uruguay Round. During this round of trade negotiations,
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Egypt agreed that it would remove a general prohibition on the importation of apparel
and made up textile products by 1 January 2002 and bound the level of import duties
maintained on certain articles of apparel and clothing.
On 15 January 2004, the European Communities requested to join the
consultations. Egypt accepted this request on 22 January 2004.
Following its consultations with the United States, Egypt explained that the
contested measures were not applicable to imports from WTO Members and later
clarified its regulations. Consequently, on 20 May 2005, Egypt and the United States
informed the Dispute Settlement Body that they had reached a mutually agreed solution.
d.
Import prohibition of canned tuna
On 22 September 2000, Thailand requested consultations with Egypt concerning
the prohibition imposed by Egypt on importation of canned tuna with soybean oil from
Thailand. Thailand claimed that the measures imposed by the Ministry of Economy and
Foreign Trade were inconsistent with provisions of the General Agreement on Tariffs and
Trade of 1994 and the Agreement on Sanitary and Phytosanitary measures.
Egypt took into account some of Thailand’s claims and Thailand decided not to
continue the dispute settlement proceedings any further.
2.
Egypt as a third party: an experience to be renewed
Egypt’s participation is dispute settlement proceedings as a third party has also
been limited but proved useful since it enabled the Ministry of Trade and Industry to gain
a better understanding of WTO dispute settlement rules and procedures.
a.
EC – anti-dumping measures on bed linen from India
This case was the first in which Egypt was ever involved. Because of its limited
expertise and some of the Egyptian exporting producers subject to the anti-dumping
measures challenged were in a situation that was preferable to that of Indian exporting
producers, Egypt decided to join these proceedings as a third party and not as a party.
On 3 August 1998, India requested consultations with the European Communities
in respect of the anti-dumping measures it imposed on imports of cotton-type bed-linen
from Egypt, India and Pakistan. India contended that: the determination of standing; the
initiation of the anti-dumping investigation; the determination of dumping and injury as
well as the explanations of the European Communities’ authorities' findings were
inconsistent with the provisions of the WTO anti-Dumping Agreement; that the European
Communities’ authorities' establishment of the facts was not proper and that their
evaluation of facts was not unbiased and objective and that they had not taken into
account the special situation of India as a developing country.
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Further to the establishment of the Panel on 22 September 1999, Egypt, together
with Japan and the United States, reserved its third-party rights.
In its report circulated on 30 October 2000, the Panel concluded that the European
Communities did not act inconsistently with its obligations under the Anti-Dumping
Agreement in calculating the amount for profit in constructing normal value; considering
all imports from India, Egypt and Pakistan as dumped in the analysis of injury caused by
dumped imports; considering information for producers comprising the domestic industry
but not among the sampled producers in analyzing the state of the industry; examining
the accuracy and adequacy of the evidence prior to initiation; establishing industry
support for the application; and, providing public notice of its final determination. The
Panel, however, also concluded that the European Communities acted inconsistently with
its obligations in determining the existence of margins of dumping on the basis of a
methodology incorporating the practice of zeroing; failing to evaluate all relevant factors
having a bearing on the state of the domestic industry, and specifically all the factors set
forth in the Anti-Dumping Agreement; considering information for producers not part of
the domestic industry as defined by the investigating authority in analyzing the state of
the industry; and failing to explore possibilities of constructive remedies before applying
anti-dumping duties.
On 1 December 2000, the European Communities appealed the Panel’s findings.
In its report circulated on 1 March 2001, the Appellate Body upheld the finding of the
Panel that the practice of "zeroing" when establishing "the existence of margins of
dumping" is inconsistent with the WTO Anti-Dumping Agreement but, reversed the
findings of the Panel that the method for calculating amounts for administrative, selling
and general costs and profits provided may be applied where there is data on
administrative, selling and general costs and profits for only one other exporter or
producer; and in calculating the amount for profits a Member may exclude sales by other
exporters or producers that are not made in the ordinary course of trade.
Egypt indirectly benefited from the Panel’s ruling since the anti-dumping
measures maintained on imports of bed linen from Egypt were later terminated and none
have been, since then, re-imposed.
b.
EC – provisional safeguard measures on steel imports
The United States requested consultations with the European Communities further
to the imposition by the latter of provisional steel safeguards on imports of certain steel
products in March 2002. The United States contended that these measures were
inconsistent with the European Communities’ obligations under the WTO Agreement on
Safeguards. This case followed a similar complaint by the European Communities on the
safeguard measures imposed by the United States on imports of similar steel products.
As a major exporter of the steel products concerned and as a country having
cooperated with the European Communities’ authorities in the safeguard investigation
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challenged, Egypt, together with Japan, Korea and Turkey requested to join as third
parties the Panel that was established on 16 September 2002.
No panel report was issued in this case since the European Communities decided
to terminate the measures they had imposed on imports of steel products on 5 December
2003 – just a day after the United States had put an end to its own measures.
c.
Turkey – measures affecting the importation of rice
On 2 November 2005, the United States requested consultations with Turkey
concerning the latter's import restrictions on rice.
The United States claims that Turkey imposes import licensing requirements to
import rice but fails to grant such licenses to import rice at Turkey's bound rate of duty.
According to the request for the establishment of a panel, Turkey also operates a tariffrate quota for rice imports requiring that, in order to import specified quantities of rice at
reduced tariff levels, importers must purchase certain quantities of Turkish rice.
Further to the establishment of a panel on 17 March 2006, in addition to Egypt,
Argentina, Australia, China, the European Communities, Korea, Pakistan and Thailand
reserved their third-party rights.
Egypt decided to join this case as a third party since it is a major exporter of rice
to the world and to Turkey in particular. However, it did not decide to join as a party to
the case since the measures that are being challenged by the United States have, to a great
extend been replaced by other measures. Since the Egyptian rice exporters claim that the
new Turkish rice importation regime is not fully consistent with the provisions of the
WTO Agreements, the Ministry of Trade and Industry is now examining these claims. If
there are sufficient elements justifying the existence of a violation, Egypt could well
decide to request consultations with Turkey on this matter.
In this case, the Ministry of Trade and Industry prepared its submission and the
hearing it attended without any external assistance. It also cooperated with the Egyptian
producers and exporters of rice to gather information. This case confirms that with the
structures that have been put in place, the Ministry of Trade and Industry is able to
represent Egypt in third country dispute settlement proceedings on its own.
The report of the Panel is expected very soon.
d.
Future participation of Egypt as a third-party
Given the reasonable costs associated to the participation of Egypt in WTO
dispute settlement proceedings as a third party, this experience should be renewed and
developed. Whenever Egypt has an interest in a dispute it should request to join as a third
party to gain experience. This may also be useful to ensure that its position as a
developing and African country is taken into consideration.
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With this in mind, the Ministry of Trade and Industry has been closely monitoring
requests for consultations in recent months and is considering joining some disputes if
requests for establishment of a panel are lodged.
Even though Egypt has not lodged any complaints under the WTO dispute
settlement system thus far, in recent months, together with some industries affected by
trade-distortive measures maintained by WTO Members, the Ministry of Trade and
Industry has been considering cases. This exercise is currently undergoing and three –
possibly four – dispute settlement proceedings are considered. The Ministry of Trade and
Industry is gathering evidence and assessing the legal claims that may be raised against
these measures.
III.
Private-public partnership: lodging proceedings under the DSS
As shown in the brief analysis of the cases in which Egypt has participated thus
far, private-public partnership is essential in WTO dispute settlement proceedings. It is
difficult for the Egyptian administration to be aware of violations of WTO Agreements
by other WTO Members but, once violations have been identified, the private sector must
rely on its authorities to bring a case before the WTO dispute settlement system.
In recent years, the Ministry of Trade and Industry has established specialised
authorities and developed informal procedures to assist producers and exporters affected
by infringements to WTO rules to bring their cases forward.
1.
Competent public authorities
a.
The Minister of Trade and Industry
The Minister of Trade and Industry has the decisive role in Egypt with respect to
the participation of Egypt in dispute settlement proceedings. He is the person that can
decide engage Egypt in WTO dispute settlement proceedings.
In order to decide whether or not to initiate and or to participate in a case, the
Minister generally seeks the assistance of his cabinet and of the Trade Agreements
Sector.
b.
The Trade Agreements Sector
The mission of the Trade Agreement Sector is to implement the trade policies of
the Ministry of Trade and Industry in order to promote trade expansion and sustainable
economic growth through the negotiation and administration of bilateral, regional and
multilateral trade agreements. This includes the enforcement of Egypt’s rights under all
trade agreements.
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To accomplish this mission, TAS performs the following functions:
-
Coordinates all WTO-related matters for Egypt;
-
Facilitates compliance with WTO membership-related obligations;
-
Protects the Egyptian economy from unfair trade practices and other
injurious activities;
-
Negotiates and
agreements; and,
-
Promotes public awareness on all issues related to trade agreements.
administers
bilateral,
regional,
and
multilateral
Within, the Trade Agreements Sector, two departments are more closely
associated to WTO dispute settlement proceedings: the Central Department of WTO
Affairs and the Legal Department.
-
The Central Department of WTO Affairs
The mission of the Central Department of WTO Affairs is to provide leadership in
coordinating and integrating all issues related to Egypt’s full and effective participation in
the WTO.
The Central Department of WTO Affairs has a staff of over 40 highly trained
economists, trade specialists, and lawyers fully conversant in the WTO agreements. This
staff regularly works on issues that include: dispute settlement, intellectual property
rights, government procurement, trade facilitation, agriculture, sanitary and phytosanitary
measures, technical barriers to trade, non-agricultural market access, customs valuation,
trade in services, WTO accessions, trade policy reviews, trade and development and trade
and environment.
The expertise developed by the Central Department on WTO Affairs since its
establishment in 2002 is essential to analyse claims raised by Egyptian producers and
exporters and to provide support for the assessment of substantive issues during dispute
settlement proceedings.
-
The Legal Department
The Legal Department was established after the rebar case, in part, to enable the
Ministry of Trade and Industry to ensure its defence in WTO settlement proceedings. In
addition to providing legal assistance to all the departments of the Trade Agreements
Sector, the Legal Department is directly responsible for the handling of WTO dispute
settlement proceedings. Independently or in association with external legal counsels, the
Legal Department coordinates the actions of all the authorities involved in dispute
settlement proceedings and draft submissions and prepares meeting.
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In the last two years, the members of the Legal Department have been developing
their expertise and experience by working abroad in foreign law firms and by being
provided with regular legal training both in Egypt and abroad.
In addition, the Commercial Office and the Permanent Delegation of Egypt to the
WTO in Geneva are involved in WTO dispute settlement proceedings. They
communicate with the WTO Secretariat and with the WTO Members concerned, may
provide logistic assistance to the Cairo-based officials and are present at all the meetings
held in Geneva.
2.
Procedural aspects: from the identification of claims to the initiation of
proceedings
A distinction must be made between two types of situations: cases where Egypt is
a respondent and cases where Egypt is a complainant.
a.
Respondent cases
Where Egypt is a respondent, issues are fairly straight-forward. Even though the
assistance of the private sector is also important, Egypt has no other option than to defend
its interests within the WTO dispute settlement system by seeking a mutually acceptable
solution or by defending its rights within the dispute settlement procedure framework.
b.
Complaints
For cases which may be brought by Egypt, things are slightly different. Any entity
in Egypt that considers that its interests are being negatively affected further to the
violation of provisions of a WTO Agreement may contact the Trade Agreements Sector.
Once aware of possible violations, the Central Department of WTO Affairs and
the Legal Department will work jointly to assess the validity of the claims brought before
them. The Central Department of WTO Affairs and the Legal Department will also
attempt to collect evidence of the alleged violations and to identify possible claims that
may be brought in addition to those initially raised. The duration of this initial phase will
depend, to a great extent, on the cooperation of the private sector and of its level of
preparation. If the private sector has had a preliminary analysis made by competent
specialists and provides the Trade Agreements Sector with all the necessary evidence, a
recommendation to initiate a case may be shortly presented to the Minister of Trade and
Industry. On the contrary, if the claims made are vague and if the Trade Agreements
Sector is provided with no or little assistance, this first phase may be a lengthy process
and may not result in a positive outcome as the Trade Agreements Sector may not have
sufficient elements to recommend to the Minister of Trade and Industry to engage in
dispute settlement proceedings.
Once the Minister of Trade and Industry has agreed to the initiation of dispute
settlement proceedings, these will be handled by the Legal Department together with the
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Central Department for WTO Affairs and, possibly, an external legal counsel. These will
keep the office of the Minister of Trade and Industry as well as the Egyptian industry
concerned of all developments and may seek the assistance of the latter where necessary.
3.
Practical considerations
Questions from the private sector concerning legal assistance, issues of cost are
recurring.
a.
Legal assistance
Thus far, in the majority of cases, the Ministry of Trade and Industry has been
assisted by external legal counsels. This can be explained by the fact that the Ministry of
Trade and Industry had limited expertise with the WTO dispute settlement rules after
their entry into force and has been gaining a better understanding of these only in the last
few years.
In addition, most of the cases have given rise to complex legal issues and the
assistance of external counsels, both to address procedural and substantive issues has
been felt necessary.
However, with the establishment of the Central Department for WTO Affairs and
the Legal Department, the Ministry of Trade and Industry is likely to be less dependent
on outside assistance in future proceedings. Even though such assistance will certainly be
required for cases in coming years, the expertise developed by these two departments
have and will enable them to play a greater role in dispute settlement proceedings. As
indicated earlier, in the on-going Turkey rice case, the representation of Egypt has been
made exclusively by these two departments.
b.
Costs
The Ministry of Trade and Industry has borne all the costs related to the WTO
dispute settlement proceedings in which Egypt has participated. It has borne the cost of
all the officials involved in these proceedings as well as the fees of legal external
counsels.
In cases brought at the request of a given Egyptian industry or company, the
Ministry of Trade and Industry may request some support. Indeed, its resources are
limited and it may require assistance to initiate and conduct a case that will more directly
concern and benefit an Egyptian industry or company. The Ministry is unlikely to request
that the costs resulting from the participation of public officials be taken into
consideration but may request that legal and technical assistance be provided.
A company that is currently affected by trade remedy measures maintained in
violation of the WTO Anti-Dumping Agreement has indicated to the Ministry of Trade
and Industry that it could assist it by providing it with the necessary legal assistance if the
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decision is taken to initiate dispute settlement proceedings. This company has previously
provided the Ministry of Trade and Industry with an assessment of the legality of the
trade remedy measures that are being maintained on its products.
c.
Economic impact
In determining whether or not to actively participate in dispute settlement
proceedings, the Minister of Trade and Industry will perform a basic cost-benefit
analysis. Since its resources are limited, the Minister of Trade and Industry must ensure
that the cases that Egypt is involved in have an actual benefit for the Egyptian trade and
economy. Unlike developed countries, Egypt cannot afford to engage itself in dispute
settlement proceedings for systemic reasons. The Minister of Trade and Industry must
continue to have a pragmatic approach.
The same approach must be followed by Egyptian industries and companies that
consider that their interests are being negatively affected by possible violations of WTO
Agreements. If Egyptian industries and companies consider that a case is of vital
importance to them, they should actively assist the Ministry of Trade and Industry by
providing it with all the necessary evidence as well as detailed legal analysis. While the
cost of legal assistance is often significant in absolute terms for industries and companies,
it is often small in relation to the trade at stake.
IV.
Conclusion: Enhancing Egypt’s participation in the DSS
An analysis of the Egypt’s limited participation to the WTO dispute settlement
system shows an evolution over the years.
This evolution is particularly significant since the establishment of the Central
Department for WTO Affairs and the Legal Department. The development of these
structures has enabled the Ministry of Trade and Industry to start building its own
expertise on WTO dispute settlement rules and procedures so as to be in a position to
independently use these for the protection of Egypt’s trade interests in the future.
However, much remains to be done. Within the Ministry of Trade and Industry,
continuous efforts will have to be undertaken to pursue the training of governmental
officials on WTO dispute settlement rules and procedures and on WTO rules, in general.
Capacity building and training will continue to be necessary in addition to external legal
assistance to complete what has already been undertaken. Officials will also have to
participate more actively in dispute settlement proceedings that Egypt could decide to
join as a third party.
On the private-public partnership, more will also have to be done. The Ministry of
Trade and Industry will have to reinforce its cooperation with Chambers of Commerce,
the Federation of Egyptian Industries and other important actors such as the American
Chamber of Commerce and its Trade-Related Assistance Center (TRAC) in order to
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assist their members in identifying possible violations of WTO Agreements. Also,
thoughts will have to be given to the establishment of a formal procedure enabling private
entities to raise cases with the Ministry of Trade and Industry.
Last but not least, much remains to be done on the private front. Companies,
industries and their legal counsels continue to lack basic knowledge on WTO issues in
general and WTO dispute settlement rules and procedures in particular. While WTO rules
should not become the primary source of interests of companies, industries and their legal
counsels, more attention should be given to them because they constitute a non negligible
part of the environment in which they operate and unawareness of these can affect their
position and interests in the global trading community.
The use by Egypt of the WTO dispute settlement system should not be considered
as an objective in itself by Egypt but has one integral part of the WTO system and as one
of the elements available to it to have its trade-related rights enforced.