BUILDING A STRONG CASE: HOW TO MAKE LEGAL ARGUMENTS FOR TRADE - PDF document

2017-07-13 Session 3 BUILDING A STRONG CASE: HOW TO MAKE LEGAL ARGUMENTS FOR TRADE DEFENSE Bogor, 18-20 July 2017 Alexandre Larouche-Maltais Senior Trade & Investment Expert Conference Board of Canada Partner: Project Executed by: Outline: Building a Strong Case - How to Make Legal Arguments for Trade Defense Crafting a legal argument – A four-step approach 1.Know and distinguish relevant facts 2.Research, research, and research Part 1 3.Brainstorm on all possible arguments 4. Play devil’s advocate Winning a trade remedy case– Some tips • Keep in mind your objective and audience Part 2 • Typical anti-dumping case • Typical safeguard case Presenting a written and oral argument • Simple and effective structure Part 3 • Topic sentences and signposting • Address your weak points 1

2017-07-13 PART 1 CRAFTING A LEGAL ARGUMENT Know and distinguish relevant facts 1. 2. Research, research, and research Brainstorm on all possible arguments 3. Play devil’s advocate 4. 1. Know and distinguish relevant facts What to do… And what not to do… • Read carefully case material : • Do not disregard “unfavorable” identify relevant facts only after facts : you may either explain why reading the compromise several they are irrelevant or why they do times. Make sure you understand not weaken your argument all details. • Think of similar cases : Identify previous cases with similar factual • Do not make unreasonable background: assumptions : if certain facts are missing, you cannot build your • Summarize key facts and learn case on unsupported favorable them by heart – or use a cheat assumptions sheet 2

2017-07-13 2. Research, research, and research • DSB clarifies provisions • DSB clarifies provisions • Almost exclusively • Almost exclusively of WTO agreements of WTO agreements treaty-based treaty-based • No stare decisis, but • No stare decisis, but • Custom plays a • Custom plays a seeks coherence and seeks coherence and minimal role minimal role predictability predictability WTO Cases Treaties Other Doctrine IOs • Technical/scientific • Technical/scientific Almost no formal role, Almost no formal role, questions of health, questions of health, but AB members do but AB members do environmental environmental read writings of read writings of protection, safety, protection, safety, scholars before scholars before economics, or economics, or deciding cases deciding cases translation. translation. Source: Pauwelyn, Sources of International Trade Law: Mantras and Controversies at the WTO, 2016 2. Research, research, and research GATT 1947 and GATT 1994 Anti-dumping Agreement Subsidies and Countervailing Measures Agreement “Treaty interpretation is Agreement on Safeguards predominantly textual , with Dispute Settlement almost no Understanding reference to the objective or Vienna Convention on the Law of underlying Treaties (VCLT) values or telos of the WTO treaty.” Source: Pauwelyn, Sources of International Trade Law: Mantras and Controversies at the WTO, 2016 3

2017-07-13 2. Research, research, and research Cases WTO Analytical Index — Guide to WTO Law and Practice 2. Research, research, and research Cases World Trade Law 4

2017-07-13 2. Research, research, and research • Use doctrine to check whether your arguments are credible • Quote “teachings of the most highly qualified publicists” only as a last resort World Trade Law Doctrine • Look for references – especially cases – quoted in the doctrine 3. Brainstorm on all possible arguments Step 1: • Intuitively, who you think should win this case? • Based on your current knowledge, think Think of some arguments Step 2: • Share your impressions with your colleagues • Discuss with them to improve your initial Discuss arguments Step 3: • Make a list of arguments supporting your position • Agree on which arguments are “stronger” Prioritize and which other ones are “weaker” Source: Kee, The Art of Argument: A Guide to Mooting, Cambridge University Press, 2006 5

2017-07-13 4. Play devil’s advocate Step 4: • Switch side: put yourself in the shoes of your opponent • Find counterarguments against your Switch initial side Step 5: • Share your findings with your colleagues and discuss with them • Pretend that you must judge the two Argue sides now: who has the best arguments? • Improve your arguments Repeat • Repeat Step 1 to 5, at least 3 times Source: Kee, The Art of Argument: A Guide to Mooting, Cambridge University Press, 2006 PART 2 WINNING A TRADE REMEDY CASE • Keep in mind your objective and audience Typical anti-dumping case • • Typical safeguard case 6

2017-07-13 Keep in mind your objective and audience Objective: Audience: Winning the case Panelists or AB Members • Be pragmatic: in real life or in a • A central objective of the WTO moot court, it’s unlikely that one DSB is to provide security and side will win all points/arguments. predictability to the multilateral Focus on winning on key issues . trading system • Argue on all issues , but do not • “Recommendations and rulings of waste too much time/words on the DSB cannot add to or diminish weak points the rights and obligations provided in the covered agreements.” Thus, • Adapt your strategy : Depending the DSB must apply existing law, on whether you are representing without making law the Applicant or the Respondent, your strategy will have to be totally • Regardless which side you are different. representing, as counsel, you better rely upon WTO • Always keep in mind on which jurisprudence rather than other side is put the burden of proof “sources of law” Source: WTO, “Functions, objectives Source: Kee, The Art of Argument: and key features of the dispute A Guide to Mooting, Cambridge settlement system, WTO Website University Press, 2006 Typical anti-dumping case Applicant Respondent • The Respondent is the Party • The Applicant is the Party in which imposing anti-dumping territory the exporter(s) are measures subjected to anti-dumping measures imposed by the Respondent • The Respondent’s objective is to show that its measures are consistent with the AD • The Applicant 's objective is to Agreement and GATT (1994) demonstrate that the Article VI Respondent’s measures violate the AD Agreement or Article VI GATT (1994) • The Respondent hopes to maintain its AD measures protecting its domestic industry • The Applicant hopes to eliminate from the Applicant ’s dumped the Respondent’s measures so products that its trader(s) can export without AD duties 7

2017-07-13 Two types of requirements for the application of anti-dumping measures Detailed requirements for the initiation and conduct Cumulative of investigations; the application and Substantive Conditions for Procedural duration of requirements the Application of requirements provisional and AD Measures definitive AD measures; and the review of AD measures This means that the Applicant has two different “angles of attack” Anti-dumping case: reminder • Has dumping happened? Burden of • Imports of goods at a price below normal value proof is put on • “Normal value”  Export price the Applicant Dumping • Has the domestic industry been injured? • “Objective examination” of whether “it causes or threatens material injury or materially retards the The answer to Injury establishment of a domestic industry” all questions must be “yes” otherwise, • Is there a causal link between the two? Respondent • Examination of “all relevant evidence” of whether loses the there is a causal link between dumped imports and Causation case! injury to domestic industry Source: Guzman and Pauwelyn, “International Trade Law” Wolters Kluwer, 2009 8