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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.

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.

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 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 Anti-Dumping Agreement when determining what “facts available” should be used for scrap and monthly interests costs. The Panel then confirmed that nothing in the WTO Anti-Dumping 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 Anti-Dumping 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.

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, 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.

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 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 tariff-rate 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.

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.

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 administers bilateral, regional, and multilateral agreements; and,

– Promotes public awareness on all issues related to trade agreements.

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 s