Anna Kvinge, Political Science - summa cum laude

A n n a K v i n g e | 1

Norway’s Internationalism: Third Party Participation,

Advocacy, and the Role of Advanced Small Markets in the

World Trade Organization.

by Anna Kvinge

I. Introduction

Third party participation is not a new concept under the World Trade Organization

(WTO). It was already established and used under the General Agreement on Tariffs and Trade.

However, under the WTO, the practice of third party participation, which is when a WTO

Member1 is neither the complainant nor the defendant in a case but presents its views and

arguments in favor of one of the disputing parties, has been questioned. The concerns are about

whether or not it is beneficial for members to participate as third parties or if it helps the party

who initiated the dispute. Certain Members such as the United States or the European Union,

have participated as a third party in over 130 cases, while other countries, such as the Republic

of Korea, China, Canada and India among others, have participated in over 100 cases as a third

party. Given that some scholars state that third party participation does not necessarily help the

case when it is brought up to the Dispute Settlement Body (DSB),2 it begs the question of why

there are still so many Members exercising their third-party rights when a case proceeds into the

panel hearing within the WTO Dispute Settlement process. Therefore, in what follows I

1 On both the official World Trade Organization and in the majority of the documents written by the World Trade

Organization, Members and scholars, the word “member(s)” is written with capital m, which is why I will also be writing member(s) with a capital m. I will follow their lead and capitalize Member(s) throughout this paper. 2 Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." In Ernst-

Ulrich Petersmann and Mark A. Pollack (eds.), Transatlantic Economic Disputes: The EU, the US, and the WTO. Oxford: Oxford University Press, 2003. Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." In Chantal Thomas and Joel P. Trachtman (eds.), Developing Countries in the WTO Legal System. New York: Oxford, 2009 pg. 21, 23


ask:“Why do Members choose to be a third party to some cases and not others?” and “How do

Members decide in which disputes to be part of?”

The DSB hears cases on a range of issues from cereals to renewable energy. I will be

focusing my research on anti-dumping and dumping calculations. Since the World Trade

Organization was established in 1995, eighteen cases have been brought to the WTO Dispute

Settlement that focus on the zeroing methodology used in calculating the dumping rates with

regards to foreign export goods. Dumping is when a company exports a product at a lower price

than the same product costs in its own home market. Zeroing is a calculation device used to

establish the anti-dumping duty that a country has to pay, a method that increases (often

substantially) the margin of dumping of the exporter, and thus increases the amount of anti-

dumping duty that the exporter has to pay.3 Governments take action in order to protect the

country’s own domestic industry from the “dumping” of a product. The imports, which are

priced lower abroad than they are in the home market of the product, are then taken into account

and calculated under the zeroing formula.4 Given that every country has a right to impose anti-

dumping duties on products from foreign markets that enter the domestic market at a lower price

than valued on the foreign market, there has been a lot of controversy and discussion regarding

the fairness of zeroing as a method of calculating.

Out of the eighteen cases that were brought up to the WTO Dispute Settlement with

regards to zeroing, sixteen cases have been filed against the United States in the span of fourteen

years,5 whereas the other two cases were against the European Communities (EC).

6 In the cases

3 “What is Zeroing?” Pg. 1

4 I will be explaining the zeroing formula in Part III when addressing the zeroing cases.

5 The first case was brought up in 1999 and the latest case began in 2013.

6 The first case was brought up in 1998 and the second in 2000.


against the United States, there have been twenty-three Members who have participated in these

cases as third party.7

For the cases brought against the United States, Norway has participated as a third party

in six of these sixteen cases, a high number for such a small Member state. This number is

almost on the same high level to countries such as India, Brazil and Mexico, all of which are

significantly larger countries.8 Further, Norway’s overall participation as a third party in the DSB

is extremely frequent; as of April 2016 the country has been a third party in a total of seventy

two cases. This significant number is similar to that of Turkey, Mexico, Australia, or Thailand,

and exceeds other countries that are bigger than Norway, such as Argentina and Chile.

Therefore, I focus on Norway, an advanced small market nation, as a case study in order to

examine why smaller Members of the WTO continue to join cases as third parties and to discern

how they chose cases to (not) support. Within this paper I use the term “advanced small markets”

to describe developed countries that have strong but small economies. I focus on Norway’s

participation as a third party in four of the sixteen cases against the United States, and I also

consider one case in which Norway did not participate as third party. I then use the oral

statements and the written submissions Norway submitted as a third party in these cases, together

with Norway’s Trade Policy Reviews (1996-2012) to answer my research questions.

FIGURE 1: Cases Under Consideration:

Complainant Case topic Norway as 3rd party

DS294 European Communities Zeroing (general - 21cases, most products steel) Yes

DS322 Japan Zeroing (general + Sunset Review) Yes

DS350 European Communities Continued Zeroing Yes

DS404 Viet Nam Shrimp No

DS429 Viet Nam Shrimp II Yes

7 It is twenty-three Members because I am counting the European Communities and the European Union as one

Member. 8 India has been a third party in 116 cases, Brazil in 99 cases and Mexico in 75 cases, as of 30 April 2016.

“DISPUTE SETTLEMENT: THE DISPUTE Disputes by country/territory.”


In addition to reviewing documents Norway submitted as a third party in disputes and

Norway’s Trade Policy Reviews, I conducted an interview with two lawyers, Linn Edvartsen and

Camilla Høvding Blom, from the department on the European Economic Area (EEA)- and trade

law in the Norwegian Ministry of Foreign Affairs in August 2015. The lawyers stated that

Norway has participated as a third party in so many disputes at the DSB because that is the only

way other WTO Members have access to the documents of the disputes. Therefore, Norway’s

participation as a third party is only to get access to the dispute documents – in order to stay on

top of international trade. I, however, argue that advanced small market choose to participate as a

third party for a variety of reasons. These reasons include: a) they have a strong (trade/economic)

connection to the complainant of the case; b) the case topic is generally broad and therefore is

applicable to various Members and other cases; c) the third party Member is using the DSU to

advocate for greater support and involvement of smaller, perhaps developing, countries in the

process and procedures of the WTO; or d) push for legal precedent to be followed by all WTO

Members in international trade. The two final reasons – suggests countries like Norway may be

acting out of a kind of benevolent internationalism – contradicts assumptions about the

fundamentally selfish economic motivations behind WTO Member actions. By using Norway as

a case study, we can better understand the decisions taken by advanced small markets to

participate as third parties in disputes at the DSU. A close analysis of Norway as a third party

participant in the Zeroing cases against the United States provides us with further information on

how an advanced small market Member expands on the use of the WTO Dispute Settlement.

I argue further that by choosing to participate in dispute cases as a third party Norway’s

government is not being manipulated by industries in Norway or domestic politics. Rather, the


small group of people working in the Ministry of Foreign Affairs (MFA) in the department of the

European Economic Area (EEA)- and trade law are, through Norway’s participation as third

party in dispute cases at the WTO, working toward a vision of a more equitable world. This

small group of people is acting as internationalists, which I define as a group of people working

in their own legal capacity with little or no EEA-influence of domestic politics, with a goal of

promoting greater cooperation among nations and peoples. These internationalists do this in

order to improve the process of the World Trade Organization and to defend the place of the

smaller (and weaker/less developed) nations in the WTO and the Dispute Settlement process. In

addition, I argue that the internationalists of Norway focus on the legal precedent made in the

cases brought to the Dispute Settlement, where they argue for every country to be held

responsible by the WTO to the precedent set by Panels and the Appellate Body of the World

Trade Organization, so that all countries are in line with international rules.

II. Roadmap

In order to examine third party participation by advanced small markets in the World

Trade Organization, I begin this paper by providing a historical background on the General

Agreement on Tariffs and Trade (GATT) before moving on to the historical background of the

World Trade Organization. Together with the general background on the creation of the General

Agreement on Tariffs and Trade I will explain the Dispute Settlement Procedure and third party

participation under GATT, as well as explain Norway’s role in the General Agreement on Tariffs

and Trade. During the background on the World Trade Organization I will also explore the role

of third party participation in the Dispute Settlement Body of the WTO, before I will tackle

Norway’s overall participation in the World Trade Organization.


In section IV I provide information on anti-dumping and the zeroing methodology, before

I move on to section V where I explain my research methods and how I chose Norway as my

special case for this paper. After that, I move into my case study – Norway, where I examine

four arguments of the paper for why advanced small markets participate as third parties in the

Dispute Settlement, before I conclude the paper in section VII.

III. Historical background

i. General Agreement on Tariffs and Trade

The focus of my paper, third party participation in the World Trade Organization was

born in the precursor to the WTO, the General Agreement on Tariffs and Trade (GATT). The

General Agreement on Tariffs and Trade (GATT), a multilateral trading system, was one of three

established international institutions after the end of World War II. These institutions were

established at the Bretton Woods monetary conference held in New Hampshire in July 1944.

Together with the establishment of GATT, the International Monetary Fund (IMF) and the

International Bank for Reconstruction and Development (currently the World Bank) were

established.9 GATT was the outcome of failed negotiations under the United Nations Conference

on Trade and Employment for the creation of the International Trade Organization (ITO),10

which extended beyond trade disciplines to include “rules on employment, commodity

agreements, restrictive business practices, international investment, and services”.11

GATT was

envisioned to be neither a treaty nor an organization, rather a mere trade agreement put into place

by executive order, which meant that the participants of GATT were not members but

9 Irwin, Douglas A., Petros C. Mavroidis, and A. O. Sykes. The Genesis of the GATT. American Law Institute

Reporters' Studies on WTO Law. New York: Cambridge University Press, 2008. Pg. 65 10

From GATT to the WTO and Beyond Research Guide: History and Basic Information. 11

GATT: ‘provisional’ for almost half a century.


contracting parties.12

Therefore GATT had a “de facto” status as an international organization

before the creation of the World Trade Organization, because the nations of the original

signatory expected that the agreement signed would eventually become part of the permanent

ITO Charter.13

The General Agreement was signed on October 30th

1947 by twenty-three nations

in Geneva at the Palais des Nations,14

and began full operation from Geneva in 1948.15

The

founding parties to GATT were members of the Preparatory Committee which was created to

draft the charter of the International Trade Organization by the United Nations Economic and

Social Council in 1946, where a delegation of fifty-six nations met in Havana, Cuba for the UN

Conference on Trade and Employment in 1947 to look over and sign the final draft of the ITO as

a whole.16

Fifty-three of those nations signed the Final Act in March 1948 authenticating the text

of the Havana Charter, but without any commitment from governments to ratification of the text,

the ITO is believed to have been stillborn.17

All of the negotiations for lowering tariffs in trade between nations during the GATT

years were conducted during what is known as rounds of multilateral trade negotiations (MTNs),

of which there were eight completed rounds.18

The first round of multilateral trade negotiations

began before the signing of the General Agreement, but finished in Geneva during the signing of

GATT along with 123 agreements which covered 45 000 tariff items “related to about one-half

of the value of world trade.”19

The basic legal principles of GATT remained much the same for

almost half a century, where continuous efforts to reduce tariffs continued through the trade

12

Irwin, Douglas A.,. Pg. 145 13

From GATT to the WTO and Beyond Research Guide: History and Basic Information. 14

The 23 founding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile, China, Cuba, Czechoslovakia, France, India, Lebanon, Luxembourg, Netherlands, New Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingdom and the United States. 15

WTO/GATT –Chronology of Achievements 16

GATT: ‘provisional’ for almost half a century. 17


From GATT to the WTO and Beyond Research Guide: History and Basic Agreement. 19

Irwin, Douglas A., Pg. 141


rounds, all of which have lasted from five months (Annecy and Geneva II rounds), to the

Uruguay round which lasted eighty-seven months. This round was not only the longest, but also

the final round of GATT.20

Up until the Kennedy Round which was signed by fifty participating

countries accounting for seventy-five per cent of world trade, the negotiation rounds focused

mostly on lowering tariffs.21

However, the Kennedy Round brought an Anti-Dumping

Agreement (ADA) to the table along with a section on development. From there on, the

negotiations began to move away from general tariffs and focus on tackling major trade barriers

in order to improve the system, such as cuts in customs duties.22

The eight round, which lasted

from 1986 to 1994 was the most extensive of the multilateral trade negotiation rounds and led to

the establishment of the World Trade Organization and with it a new set of agreements.23

General Agreement on Tariffs and Trade 1994 was the new and updated version of GATT 1947

and implemented substantial changes which were negotiated during the Uruguay Round and are

still an integral part of the WTO.24

ii. GATT: Dispute Settlement Procedure

With the main focus of GATT concentrated on lowering the tariffs, there was little

attempt to develop a serious and effective system of mechanism that would monitor the

obligations that the nations signed onto. There was an early draft of dispute settlement

procedures that was incorporated in GATT, but it neither had teeth nor was it seen as a force to

20




The Uruguay Round which led to the establishment of the World Trade Organization is an extensive negotiation round which took several years. Given that the concentration of my paper is not on the transition from GATT into the WTO and that it would take an extensive amount in my paper to describe the details of the transition, I refer anyone interested in this topic to: Reshaping the World Trading System: A History of the Uruguay Round by John Croome (1999) Second and Revised Edition. 24

WTO/GATT –Chronology of Achievements


be reckoned with since GATT was considered by the parties to the agreement to be self-

enforcing.25

The goal of the GATT Dispute Settlement Procedure (DSP) contained two types of

disputes. The first type was to settle claims made by one party of GATT assessing that another

party had violated the provisions of the General Agreement, while the second type of dispute was

an objection produced by one party to the practices of another party, practices that are not

prohibited by the GATT, but practices that still have adverse effects on the objecting party.26

The GATT Dispute Settlement Procedure is believed to have been successful during the

first decade of GATT’s existence, after which the effectiveness of the DSP began its decline. As

a result of the growing membership over a period of time and the rapid expansion of the world

economy, the system became overwhelmed and then fell into disrepute and disuse.27

The DSP

was already seen by its members as weak or lacking force. After the initial peak of the DSP the

system was barely used, and was implemented approximately once a year, with the majority of

the complaints brought by the United States.28

However, nations still used the system and over

two-hundred cases were initiated under the GATT Dispute Settlement Procedure over the entire

course of GATTs career.29

As with other parts of GATT, the DSP was expanded throughout the

negotiation rounds. However, it was not until the Tokyo Round which began in 1973 and

finished in 1979 that the type of issues considered by the dispute settlement panels was

significantly expanded.30

What was lacking even after these changes were made was a rule-

oriented approach (‘legalistic approach’) to the disputes processed under GATT which would put

25

DeKieffer, Donald E. "GATT Dispute Settlements: A New Beginning in International and U.S. Trade Law." Northwestern Journal of International Law & Business 2, no. 2 (1980): 317-33. Pg. 317 26

Davey, William J. "Dispute Settlement in GATT." Fordham International Law Journal 11, no. 1 (1987): 51-109. Pg. 67 27

Davey, William J. Pg. 62 28


Kovenock, Dan, and Marie Thursby. "GATT, DISPUTE SETTLEMENT AND COOPERATION*." Economics & Politics 4, no. 2 (1992): 151-70. Pg. 1 30

DeKieffer, Donald E. pg. 318


more pressure on the dispute settlement and GATT itself.31

Other problems that still existed after

the Tokyo Round included the possibility of one party blocking the adaptation of the dispute

settlement panel’s decision, the inefficiency of the system because of the long delays, and the

inability to ensure the implementation of the DSP’s decision together with the lack of retaliatory

measures for non-compliance with the decisions.32

33

The Tokyo Round only partially improved

the DSP.

iii. GATT: Third Party Participation

Among the several rounds of negotiations for the improvement of the DSP, third party

rights were also included. These provisions for the practice of third party participation were

made during the Uruguay Round.34

The opportunity to be heard before the panel as well as to

make a written submission with regards to a case was presented after the Uruguay Round.35

If a

Member has substantial interest in the matter it would notify the Council of the substantial

interest in order to participate as a third party.36

Nonetheless, third parties did matter before this

negotiating round even if it was less clearly stated. Before GATT’s dispute settlement system

became more judicialized in October 1952, there was a system of “working parties,” an informal

system which came together to examine particular disputes over the interpretation of GATT.37

During this informal time, there would be one or two countries supporting each side and a couple

of neutral countries.38

In this informal time third parties “played an important role in helping to

31

Davey, William J. Pg.53, 78 32

Davey, William J. Pg.65 33

Castel, Jg. "THE URUGUAY ROUND AND THE IMPROVEMENTS TO THE GATT DISPUTE SETTLEMENT RULES AND PROCEDURES." International And Comparative Law Quarterly 38 (1989): 834-49. Pg. 836, 841 34

Castel, Jg. Pg. 846 35



Carmody, Chi. "Of Substantial Interest: Third Parties under GATT." Michigan Journal of International Law 18, no. 4 (1997): 615-657. Pg. 625 38

Carmody, Chi. Pg. 624


generate a consensus that became the basis for many decisions.”39

The change from working

parties to panel proceedings under the dispute settlement changed the role of third parties. Third

parties came to have a separate status and distinct interests at stake instead of being presumptive

equals who came up with suggestions for the collective good.40

Further, after the more

institutional establishment of the dispute settlement came the hierarchy of the system with

regards to the interest of a nation to a case, ranging from ‘interest’ to ‘substantial interest’ and in

some cases going to ‘principal supplying interest’. After the Tokyo Round, ‘substantial interest’

not only assumed formal importance which it still holds today under the WTO, but third parties

no longer had any right to intervene in pre-hearing consultations.41

In addition, access to

settlement information and the entitlement to receive the submissions of the litigant before the

hearing became restricted.42

Even thought ‘substantial interest’ holds merit during today’s

participation of third parties under the WTO, under GATT the meaning was not always

considered a necessary condition while at other times it lost all qualification.43

iv. GATT: The Kingdom of Norway

Norway was among the twenty-three countries to sign the General Agreement in Geneva

in 1947, and was present during the Havana Charter for an International Trade Organization.44

It

has been said that the dispute settlement system was widely tested by a variety of nations under

GATT, even though the United States along with the European Communities and Canada has

made the most extensive use of the system.45

From the research I’ve conducted it is unclear

whether or not Norway has been a third party to any of the cases brought under the DSP. Still,

39

Carmody, Chi. Pg. 624 40




Carmody, Chi. Pg. 630-31 44

“United Nations Conference on Trade and Employment.” 45

“Davey, William J. Pg. 82-83


because Norway was among the nations that was a respondent under the GATT Dispute

Settlement Procedure,46

it is likely that Norway has also been a participant in the DSP. Since

Norway was a respondent in cases under the DSP we see that the country was already a strong

user of the Dispute Settlement Procedure, even then.

v. The World Trade Organization

The World Trade Organization was established on January 1st in 1995 through the

negotiations of the Uruguay Round.47

A particularly strong focus has been on whether the

change from GATT to the WTO has been successful and whether or not the change has produced

more successful outcomes to all countries in trade agreements. Mike Moore, former Director-

General of the World Trade Organization, wrote the book, “A World Without Walls: Freedom,

Development, Free Trade and Global Governance” in order to evaluate the changes that the

WTO provided, coming from GATT. 48

He emphasizes how these changes created better

confidence in the system through the various improvements, and how the system has been an

upgrade from GATT. General Agreement on Tariffs and Trade started off in 1947 with twenty-

three countries and has now expanded to one hundred and sixty two members in November 2015

in the WTO.49

Moore writes that the most crucial aspect to this international organization is that

the membership is not imposed on the countries.50

Instead the nations choose to belong to this

organization.51

Having played a significant role in the WTO by having been the Director-General

for three years, he had seen first-hand that it has been in the interest of almost every country in

46


The Uruguay Round negotiations lasted from 1986 until 1994. 48

Moore is a former Prime Minister of New Zealand, who served as the Director-General of the World Trade Organization from 1999 until 2002. 49

“WTO | Understanding the WTO - Members,” 50

Moore, Mike. A World Without Walls: Freedom, Development, Free Trade and Global Governance (Cambridge, United Kingdom: Cambridge University Press, 2003). Pg. 103 51

Moore, Mike Pg. 103


the world to participate “in an open, rules-based multilateral trading system” because otherwise

the countries face an uncertain and less prosperous participation in the world economy.52

Not

only has the membership of the WTO widened, but also the focus of the system’s body of rules

has deepened to not only focus on trading in goods, but also services, intellectual property,

subsidies, textiles and agriculture. The expansion with regards to industrial goods, services and

agriculture occurred during the November 2001 Doha Agenda.53

54

Moore believes that the WTO is unique in the international sphere of trade and

negotiations because it is “the binding nature of its disputes mechanism.”55

One of the two

fundamental concepts of the WTO that connect to the dispute settlement within the organization

is the principle of non-discrimination, which ensures in theory that all members of the WTO are

treated equally no matter who they are, or how strong or small they are. Still, because there are

often no significant consequences for the discrimination, we cannot be certain that there is

none.56

Under the non-discrimination principle there are two rules that are at the core of the

WTO, the ‘most favoured nation’, “which prevents WTO Members from treating products from

one WTO Member better than those from another” and the ‘National Treatment’ rule, “which

obliges governments to treat like goods from foreign and domestic sources equally.”57

Mike Moore states that it is good for nations to bring new cases to the Dispute

Settlement, because, according to him, one of the major flaws of the WTO is that in order to

52

Moore, Mike Pg. 103 53


The Doha Development Round or Doha Development Agenda (DDA) is the latest trade negotiation among the WTO members which officially launched in November, 2001 in order to reform the system through lower trade barriers and revised trade rules, which covers twenty areas of trade. Part of the objective is to improve the system of trading for developing countries, however through many meeting in various parts of the world the negotiations broke down in 2008 and as of 2014 the future of this agenda is uncertain. “WTO | The Doha Round,” World Trade Organization, 55

Moore, Mike. Pg. 101 56

The second concept being the “Consensus decision-making.” 57

Moore, Mike. Pg. 104


create new rules or to clarify existing ones the WTO system relies on a new major negotiation

round. 58

This system makes it difficult to change something within the Dispute System without

Members pushing for new negotiation rounds, which take years and are not always successful.

Even though only a small fraction of all world trade is affected by disputes, Moore points out

that when the system is utilized, the rules are enforced by both big and small Members, which

builds not only the credibility of the WTO, but also the prosperity of each of the countries.

Therefore with the development and move from GATT to the WTO, there was also an extensive

improvement in the Dispute Settlement of the organization. It has been stated by scholars that the

“GATT dispute settlement lacked not only ‘teeth,’ but also a consistent set of rules more

generally,” which explains to us why there was a need for a change as well as why so many

governments and scholars are overjoyed over the new system, even though it may have its own

flaws.59

According to Busch and Reinhardt the greater clarity of law, together with a stricter

timeline, the right to a panel, automatic adoptions of reports and the review by a permanently-

constituted Appellate Body are the improvements of the Dispute Settlement that need to be

praised.60

vi. WTO: Dispute Settlement Body

During GATT and before the 1995 change into the WTO, disputes between nations were

not settled in a manner that explicitly stated strength or created credibility. The panels which met

to examine the complaints from Member states published a report that was not binding, and

therefore did not hold anyone accountable.61

Likewise, the rulings were inconsistent

58


Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." In Ernst-Ulrich Petersmann and Mark A. Pollack (eds.), Transatlantic Economic Disputes: The EU, the US, and the WTO. Oxford: Oxford University Press, 2003. Pg. 466 60

Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." Pg. 467 61

Moore, Mike. Pg. 106


throughout.62

Scholars have stated that “it is not possible to approach dispute settlement in the

WTO in the same way that it was approached under the GATT,” because of its new and

fundamentally different system for the settlement of international trade disputes.63

Other scholars

say that the best kept secret in the WTO is that the dispute settlement still works as it did under

GATT where the bedrock of the system are the consultations.64

Currently the ruling of the WTO

panel is binding in that unless both parties come to an agreement, the WTO allows for

retaliations for violations of WTO rules against politically sensitive industries and regions.65

This

is described as a more ‘legalized’ system of the dispute settlement under the WTO whereas the

old system under GATT could only be described as a more ‘political’ system.66

The permanent

Appellate Body holds not only compulsory jurisdiction, but has additional enforcement

jurisdiction for its cases.67

However, research conducted by the International Centre for Trade

and Sustainable Development (ICTSD) has shown that retaliation options available are more

focused on re-balancing the level of concessions and not as much on inducing compliance with

Member obligations. The opportunities to find a significant retaliatory target which will not

affect the domestic economy are extremely slim for economies with a more narrow trading

profile of a country.68

In “Dispute Settlement in the WTO: the developing country experience,”

the authors state right away that the system does not have adequate opportunity or incentive for

62


Shaffer, Gregory and Melende-Ortiz, Ricardo. Dispute Settlement at the WTO: The Developing Country Experience (Cambridge University Press, 2010) Pg. 344 64

Busch, March and Reinhardt, Eric. "Fixing What Ain't Broke? Third Party Rights, Consultations, and the DSU." In Kim Van der Borght and Dencho Georgiev, (eds.), WTO Dispute Settlement Reform. London: Cameron May, 2006. Pg. 9 65

Alter, Karen J. The New Terrain of International Law : Courts, Politics, Rights. Princeton, New Jersey: Princeton University Press, 2014. Pg 21 66

Shaffer, Gregory and Melende-Ortiz, Ricardo. Dispute Settlement at the WTO: The Developing Country Experience Pg. 342 67

Alter, Karen J. The New Terrain of International Law : Courts, Politics, Rights. Princeton, New Jersey: Princeton University Press, 2014. Pg.169 68

Shaffer, Gregory and Melende-Ortiz, Ricardo. Dispute Settlement at the WTO: The Developing Country Experience (Cambridge University Press, 2010) Pg. xii


the disputing parties “to agree to meaningful compensation,” where the only economies who

have a position to impose ‘effective’ retaliation are those of larger economies.69

The new system under the WTO Dispute Settlement however is constructed through three

main procedures, namely consultation, formal litigation, and implementation. These proceedings

are part of a stronger push for adopting the outcomes of the Dispute Settlement.70

71

Even though

we cannot say with complete certainty that the new system is one hundred percent binding,

through the automatic adoption of the reports by the panel, there is more pressure on the

countries to adopt the decision made.72

A request for consultation is the first step in the Dispute Settlement which is brought by

the complainant, the Member government bringing the case to the Dispute Settlement against the

defendant. The complainant claims the defendant has failed to live up to their trade obligations.

The next sixty days are set aside for consultation and negations between the two sides, with the

goal in mind of finding a mutually satisfactory solution for both parties. In the 2004 publication,

Busch and Reinhardt write that forty-six percent of the disputes end at the consultation stage and

that three-quarters of them end up with partial concessions from the defendant.73

For the rest of

the cases, the complainant has the ability to request a panel proceeding, which is an independent

panel, consistent of three to five people who have a strong background in trade law and are all

agreed to by the member states on a case-by-case basis.74

69

Dispute settlement at the WTO: the developing country experience” Gregory C. Shaffer and Ricardo Melendez-Ortiz pg. xii 70

The consultation stage consists of ‘consolations,’ the formal litigation state consists of ‘panel proceedings’ and the ‘appellate body,’ and the Implementation stage consists of a ‘compliance panel’ and an ‘arbitration panel.’ 71

Busch and Reinhardt, “The WTO Dispute Settlement Mechanism and Developing Countries.” Pg. 1 72

Petersmann and Pollack, Transatlantic Economic Disputes. Pg.467-468 73


Busch and Reinhardt, “The WTO Dispute Settlement Mechanism and Developing Countries.” Pg.2


This second step in the dispute settlement is said by Moore to be one of the ways in

which the WTO has progressed. The independent panel usually listens to two rounds of

testimony, which can and in most of the cases includes third parties. For each dispute that

requires an independent panel a different panel is composed ad hoc, because there are no

permanent panels or panelists in the WTO.75

Further, the panel produces an “interim report” of

the case which includes all of the information on the case together with the conclusion,

recommendations and suggestions for implementations made by the panel. At this point, both

parties to the dispute can negotiate a settlement, where thirteen percent of the cases do.76

However, if they choose not to, the panel issues a final report which is adopted by the World

Trade Organization unless both sides agree not to adopt the report, (something that has yet to

happen) or one of the sides decides to appeal the report. The appeal of the final report of the

interdependent panel is a frequent occurrence and happens in seventy-three percent of the cases,

where the case is then transferred to the Appellate Body. According to Moore, this is the second

important new aspect to the Dispute Settlement change from GATT to WTO. 77

The Appellate Body is a standing body of jurists, “designed to ensure greater consistency

across its rulings” and has to hear testimonies from both parties as well as any third parties

interested in participating.78

The decision of the Appellate Body is final, and they can either

uphold or overturn the independent panel in whole or in part. The case usually ends if the verdict

favors the defendant, while if the verdict favors the complainant, the dispute will proceed to the

75

“DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: Chapter 6 The process — Stages in a typical WTO dispute settlement case,” World Trade Organization, accessed January 28, 2016, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p2_e.htm 76



Busch and Reinhardt, “The WTO Dispute Settlement Mechanism and Developing Countries.” Pg.2


implementation stage.79

If the defendant has not taken measures to comply with the obligations

put in place by the Appellate Body, there is a possibility for the complainant to request a

“compliance” panel which would make certain that all of the obligations are met and then also

request an “arbitration” panel if there is a need for retaliation by the complainant against the

defendant. However, two-thirds of the disputes brought to the Dispute Settlement “are resolved

to the full satisfaction of the complainant.”80

For some countries, the DSB has been extremely effective, while for others it has been

fairly insignificant in terms of gaining power. There has been an unusual interest in considering

how the Dispute Settlement affects specific nations.81

With this in mind there has been an

interest in looking into disputes between specific nations to determine the effectiveness and, in

some cases, lack of importance of the DSB for various countries.

In their paper, “Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement”,

published in 2003, Busch and Reinhardt argue that the superior record of resolving the United

States-European Communities disputes since 1995 to 2002 should not be attributed to the dispute

settlement reforms, but rather to the “expansion of the WTO’s scope in new areas, notably

intellectual property (IP) and traded services.” 82

83

They argue that in high stakes cases with big

nation players like the United States and the European Union, the WTO has not improved in

term of resolving transatlantic disputes than the predecessor, GATT. In this paper, Busch and

Reinhardt argue that there is even more focus on early settlement in the Dispute Settlement under

79

The members of the Appellate Body need to have an extensive expertise in international trade, law and the subject-matter of the agreements covered, as well as not to be affiliated with any government. Even though nationalities of the members are heavy weighted on certain countries such as the United States and Japan, there is representation from various parts of the world such as Uruguay, South Africa and Korea among others. “WTO | Dispute Settlement - Appellate Body Members,” 80

Busch and Reinhardt, “The WTO Dispute Settlement Mechanism and Developing Countries.” Pg.3 81

Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." Pg. 465-66 82

From now on referred to as US-EC 83

Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." Pg. 466


the WTO, which for some cases can come out as problematic because a defendant who is

determined to not be held accountable “can wring at least three years of delays from the system

before facing definitive legal condemnation.”84

This means that those who want and have

sufficient funds have the power to delay the dispute from steadily processing through the three

main stages of the dispute settlement.85

This can often create enough time for the defendant to

change their policy rulings or put in place measures that will weaken or possibly destroy the

entire argument of the complainant. For member states such as the United States or the European

Union, it is easier to use their massive resources in order to wiggle out of a dispute, or rather to

slow the process down in order to change the aspects affected by the dispute. Busch and

Reinhardt do however believe that there are two aspects which are exceptions to this, namely

intellectual protection and traded services, because these areas did not previously exist under

GATT and therefore they expect the WTO dispute settlement to produce clearer decisions under

these areas.86

Under their research of US-EC dispute outcomes between GATT and the WTO,

Busch and Reinhardt found a statistical significance where both the US and EC have made more

concessions under the WTO Dispute Settlement to each other in these areas. This indicates that

the improvement to the dispute settlement has created favorable outcomes, but the outcomes

have not been as large as the system hoped for when it was created.87

In “The Evolution of GATT/WTO Dispute Settlement” Busch and Reinhardt state that

many observers see favourable results achieved by a greater variety of members, particularly

developing countries under the Dispute Settlement “due to the reforms introduced with the DSU

84




Busch, March and Reinhardt, Eric."Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement." Pg. 475


[Dispute Settlement Understanding] and the WTO’s greater clarity of law.”88

The understanding

that the improvements from GATT to the WTO are really significant in the Dispute Settlement

can be understood because of the increased amount of concessions made by the defendant to

some or perhaps all of the demands made by the complainant. According to Busch and Reinhardt

the concession number rose from three-fifths under GATT to four-fifths (of at least partial

concessions) under the World Trade Organization.89

However, the complainants from poor or

developing countries have not received a lot of concessions from the defendants in contrast to the

higher amount of concessions that rich and developed nations have received under the WTO.90

Therefore there is an indication that the improvements from GATT to WTO have only benefitted

a certain part of the Members of the WTO.

vii. WTO: Third Party Participation

Third parties are not specifically defined under the World Trade Organization, nor are

they explicitly defined under international law in general. But in over sixty percent of the

disputes brought under the DSB there is third party involvement.91

Christine Chinkin defines

third parties as “those outside a bilateral relationship, whether formally creates, for example by

treaty or the commencement of proceedings, or occurring through events such as the outbreak of

armed conflict,” where she goes on to further explore that with regards to international

adjudication third parties are “all States other than the applicant or respondent.”92

Nonetheless,

with this definition in mind only WTO Member governments have “direct access to the dispute

settlement system” either as parties or as third parties, where access means that the party has the

88

Busch, March and Reinhardt, Eric. "The Evolution of GATT/WTO Dispute Settlement." Pg. 143 89

Busch, March and Reinhardt, Eric. "The Evolution of GATT/WTO Dispute Settlement." Pg. 154 90

Busch, March and Reinhardt, Eric. "The Evolution of GATT/WTO Dispute Settlement." Pg.160-161 91

Johns, Leslie and Pelc, J. Krzysztof. On the strategic Manipulation of Audiences in WTO Dispute Settlement. (23 June 2011) Pg. 5 92

Chinkin, Christine. Third Parties in International Law. (Oxford: Clarendon Press/New York: Oxford University Press, 1993). Pg. 7-9


ability to participate in a dispute either as the complainant, defendant or third party.93

No non-

governmental actors have the ability to bring disputes to the table at the WTO, neither as private

individuals or companies nor as non-governmental organizations (NGOs).94

However, even with

divergent views on whether or not NGOs should have this opportunity, they are able to file

amicus curiae submissions with the DSB bodies. The panels and the Appellate Body have the

“discretion to accept or reject,” but are under no obligation to consider these submissions.95

Chinkin writes that while third parties to both treaties and international proceedings may

be readily identified, she states that “it may be more complex to identify the parties to a conflict

or dispute.”96

As known from both GATT and the WTO, disputes may not be bilateral in nature,

which complicates the interests of possible third parties where it can range in not only intensity

but also directness.97

The intensity and range of the interest of a third party in a dispute can

create complications for the case itself, which can be considered to be one of the reasons there is

a possible restriction of how a case is filed under the DSB to whether or not third parties are

allowed to join a case. If the complainant invokes (sues under) Article XXII:1 of GATT 1994,

the responsibility admitting any interested third parties is in the hands of the respondent of the

case.98

However, if the complainant chooses to file the dispute under Article XXIII:1 of GATS99

the complainant has the full ability to prevent any legal involvement of a third party under the

93

9.1 Parties and third parties and principle of confidentiality https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s1p1_e.htm 94

1.4 Participants in the dispute settlement system https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c1s4p1_e.htm 95

1.4 Participants in the dispute settlement system https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c1s4p1_e.htm 96

Chinkin, Christine. Pg. 15 97

Chinkin, Christine. Pg. 16-18 98

6.2 Consultations https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s2p1_e.htm 99

General Agreement on Trade in Services (GATS) is a treaty in the WTO that entered into force in 1995 under the establishment of the WTO.


consultations of the DSB.100

Under Article XXII third party participation is easier and is said to

average three participants per case over an average of less than one half of third party

participants for Article XXIII, which is traditionally used for private consultations and makes it

extremely difficult for third parties to participate.101

Nonetheless, in Busch and Reinhardt’s study

of third party participation in the WTO from 1995 until 2002102

where they observed that third

parties were present in almost every case and only nineteen of the five hundred and seven that

requested to join the consultations were rejected.103

This not only portrays that third party

participation is viewed as critical in the function of the WTO, but that there seems to be little

objection to countries reserving their third party rights.

The third parties are not only allowed to make written submissions to assist the case they

are party to, but also have the opportunity to be heard by the panels when they present their

opinion with regards to the case.104

The written submissions will be reflected in the panel report

as well as provided to both parties in the dispute.105

However, they do not receive the interim

report like the main parties do, even though third party views are presented in both the interim

report and the final report of the panel.106

Busch and Reinhardt wrote that third parties not only

participate in the majority of the WTO dispute settlement cases, but that they also typically

100

6.2 Consultations https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s2p1_e.htm 101

“On the Strategic Manipulation of Audiences in WTO Dispute Settlement” Leslie Johns and Krzysztof J. Pelc Pg. 3 102

I understand that the study is old, going only until 2002, which ended fourteen years ago. However, this study has not been updated yet by neither the authors nor other scholars. Therefore I am using this research, which still explains certain aspects of third party participation. 103

Busch, March and Reinhardt, Eric. "Three's a Crowd: Third Parties and WTO Dispute Settlement." Pg. 446,451 104

DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6 The process — Stages in a typical WTO dispute settlement case 105


Busch, March and Reinhardt, Eric. "Fixing What Ain't Broke? Third Party Rights, Consultations, and the DSU." Pg. 3


outnumber both the complainant(s) and the defendant by a substantial margin.107

This shows

that third party participation in the WTO is significant. To become a third party in a WTO

dispute settlement case and have the ability to participate in the panel procedures, a nation

member must have considerable interest in the matter of the dispute. The nation must notify the

Dispute Settlement Body of their substantial interest through the WTO Secretariat within a ten-

day deadline from when the panel was established for the Members to reserve their rights as third

parties in the case.108

For third parties to be part of the consultations under the dispute the Members must have

“substantial trade interest,” which is different from the “substantial interest” that a Member as a

third party must have in order to stand before the panel.109

Third parties who join the main

litigants in consultations under the DSU 4.11 are referred to by Busch and Reinhardt as informal

third parties, where nearly every formal third party began as an informal.110

Unless the

respondent in the dispute case accepts the nation as a third party, it is not possible for that

Member to join the consultations. However, officially the World Trade Organization writes that

“any Member who invokes a systemic interest, in practice, is admitted to a panel procedure as a

third party without any scrutiny whether the interest truly is “substantial”.”111

Then during the

first substantive meeting the third parties receive the complainant and the defendant’s first

107

Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." In Chantal Thomas and Joel P. Trachtman (eds.), Developing Countries in the WTO Legal System. New York: Oxford, 2009. Pg 1 108



Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." Pg. 5 111

DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6 The process — Stages in a typical WTO dispute settlement case


written submission to the panel and present their views to the panel through an Oral Statement.112

Technically third parties do not have any more rights beyond these, however, a panel can extend

the rights of third parties in some individual cases, which the panel often does.113

Conventional wisdom says that by offering a broader perspective on a dispute third

parties influence the verdicts. However, Busch and Reinhardt in their paper “With a Little Help

From Our Friends? Developing Country Complaints and Third Party Participation,” argue that

conventional wisdom misses the real action. The authors state that even though third parties have

an influence on rulings in disputes, the third parties first undermine the early settlement and

prolong the dispute between the complainant and the defendant. Third parties in the dispute

settlement make negotiations more transparent which, according to Busch and Reinhardt

motivates the protagonist to stand still.114

As James Fearon argues, an audience for negotiations

makes the states more prone to dig in their heels and to not move from their position.115

Busch

and Reinhardt argue that third parties damage the cases because disputes which have third parties

present have much smaller chances of ending in early settlement.116

This is even more damaging

when the complainant is a poor nation, because their chance of reaching early settlement is worse

than for developed nations who have third party presence.117

Furthermore, mixed testimony for

both sides in a dispute washes out the influence that third parties have on a case.118

Nonetheless,

112



Fearon, James “Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs” (1998) Journal of Conflict Resolution. Pg. 69, 73, 87 115

Fearon, James Pg. 69, 73, 87 116

Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." Pg. 10, 18 117

Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." Pg. 10, 18 118

Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." Pg. 19


there are those who argue that the presence of third parties during a dispute ensure that the

settlements are consistent with the WTO rules.119

Developing countries, on the other hand, are in

favor of higher and stronger participation of third parties, in consultations as well.120

Japan

proposed that “submissions be shared with all Members so that this information can be used to

help interpret decisions, and be used by others in deciding whether to file their own disputes,”

which will allow for greater transparency and perhaps reduce the need to reserve third party

rights.121

Johns and Pelc’s study on the use of audience in the DSB suggests that there is merit in

the fact that third parties also play the role of insurance in the WTO disputes “by insuring states

against the adverse consequences of failure,” where Members of the WTO manipulate the size of

the audience depending on the case at hand.122

Further, they argue that third parties reduce the

force of panel rulings by lowering the winner’s payoffs and raising the loser’s payoffs compared

to cases with no expressed views of third parties. By generating a cost in the case of success and

a benefit in the case of failure, third parties participate with their own views and expressions and

thus serve as insurance of reduced risk for the overall dispute. 123

This being the view of some

scholars, others empirical records suggest that third parties have little influence over the direction

of the panel or Appellate Body rulings where the complainant wins sixty percent of the rulings

no matter which side receives the majority of third party support or any support at all, and that

119

“On the strategic Manipulation of Audiences in WTO Dispute Settlement.” Leslie Johns and Krzysztof J. Pelc (23 June 2011) Pg. 1 120


Busch, March and Reinhardt, Eric. "With a Little Help From Our Friends? Developing Country Complaints and Third Party Participation." Pg. 22,23 122

Johns, Leslie and Pelc, J. Krzysztof. On the strategic Manipulation of Audiences in WTO Dispute Settlement. (23 June 2011) Pg. 4-5 123

Johns, Leslie and Pelc, J. Krzysztof. Pg. 11


third party participation rather serves to “bolster the credibility of the institution [the WTO

Dispute Settlement].”124

Evans and Shaffer write that, “participating as a third party in disputes of systemic

interest can be a useful way to increase understanding of DSB procedures and style, and

substantive issues of WTO treaty interpretation,” which they go on to describe as being a

“relatively simple and low-cost way to develop capacity.”125

They do state that some legal

capacity is needed in order to have a meaningful input as a third party, but their main focus is on

developing capacity through this kind of participation.

Bown writes that, “the resource costs of merely initiating or participating in a case as

either a complainant or an interested third party (or reserving third party rights) are not large,”126

which is big reason why even developing countries are able to reserve their third party rights.

When a country reserves their third party rights, there is no need to have an entire delegation

present to fully participate. The only opportunities given to third parties is either to present

before the panel or the Appellate Body or submit a written statement presenting their stance on

the issues, or to do both. If a country with limited resources wanted to participate, they would

only need one member in Geneva before the panel or Appellate Body to present their view, and

given that the World Trade Organization has resources for poor countries who have trouble

affording to send a delegate or those who do not even have delegates present at all times, the

opportunity for a country to be part of the DSB to a case as a third party are fully possible.

124

Busch, March and Reinhardt, Eric. "Fixing What Ain't Broke? Third Party Rights, Consultations, and the DSU." Pg. 7-8, 15 125

Shaffer, Gregory and Melende-Ortiz, Ricardo. Dispute Settlement at the WTO: The Developing Country Experience (Cambridge University Press, 2010) Pg. 346-47 126

Bown, Chad. "Participation in WTO Dispute Settlement: Complainants; Interested Parties; and Free Riders." World Bank Economic Review 19, no. 2 (2005): 287-310.Pg. 12


When it comes to the use of a county’s third party rights in a WTO dispute, most of the

conversation has been focused on developing countries and how a considerable number of

developing or even least developing countries have been more and more involved in the DSB as

third parties. Unless the literature focuses on how much influence third parties yield in disputes

or how they sabotage the possibility of settling the disputes, most of the literature is simply

focused on statements such as “how third party rights can be improved in a way that serves the

interests of the developing members.”127

However, even though the participation of developing nations in the DSB as third parties

grows, the other significant portion of the third party participants are developed countries. The

role has not only evolved for developing nations, but that is has also done so for advanced small

markets that are not on the same playing field as the United States, Japan or the European Union.

Further, it is not possible to influence the shaping of policies that might affect a country’s

interests in the long run, unless a Member participates in the Dispute Settlement. The United

States has full capacity to file disputes in the DSB as a complainant, but chooses to not always

do that. The US has participated in one hundred and thirty cases as a third party, twenty-one

cases more than they has brought up as a complainant.128

Scholars have noticed that the

European Union and the United States do not miss the opportunity to be third parties, which is

why they register their third party rights in all cases where they are not the complainant or the

respondent.129

They want to be informed and be part of the system, especially at the Appellate

127

A S A Albashar, Faisal, and Afm Maniruzzaman. "Reforming the WTO Dispute Settlement System: A Rethink of the Third Party Right of Access to Panel and Appeal Processes from Developing Countries' Perspectives." The Journal of World Investment & Trade 11, no. 3 (2010): Vii-373. Pg. 313 128

Disputes by Country/Territory https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm 129

Shaffer, Shaffer. How to make the WTO Dispute Settlement System Work for Developing Countries. (March 2003). International Centre for Trade and Sustainable Development. Pg. 10-11


stage which is where, “the effect on interpreting WTO rules is the greatest.”130

Shaffer writes

that the U.S. and the E.U. participate in every part of the DSB in order to have a say on the

development of the WTO law, which is strategically smart.131

What other way to know how to

improve the system and the WTO law than to partake in it. Other nations ought to only learn

from them. The United States, the European Union and Japan take part in cases as third parties

even if they do not have direct interest in the dispute.132

viii. WTO: The Kingdom of Norway

With the transition from GATT to the WTO, Norway officially became a member of the

World Trade Organization on January 1st 1995 and has since then had an active role in the

organization.133

On December 16th 2015 the Norwegian Minister of Foreign Affairs handed over

the instrument of acceptance for the ratification of the Trade Facilitation Agreement (TFA)134

to

the Director-General, becoming one of sixty-three nations to have formally accepted the TFA.135

This recent ratification of TFA and the donation of NOK 58.5 million to trade-related programs

for developing countries,136

in particular least-developed countries (LDCs), which Norway

130

A S A Albashar, Faisal, and Afm Maniruzzaman. Pg. 317 131

A S A Albashar, Faisal, and Afm Maniruzzaman. Pg. 322 132

Manduna, Calvin. Daring to Dispute: Are there shifting trends in African participation in WTO Dispute Settlement? (tralac Trade Brief, No 3, June 2005). Pg. 5 133

Member Information: Norway and the WTO. https://www.wto.org/english/thewto_e/countries_e/norway_e.htm 134

The Trade Facilitation Agreement focuses on expediting the movement, release and clearance of goods, including those in transit. It contains provisions for technical assistance and capacity building in this area of trade, as well as sets out measures for effective cooperation between customs and other appropriate authorities on customs compliance issues and trade facilitation. Trade Facilitation. https://www.wto.org/english/tratop_e/tradfa_e/tradfa_e.htm 135

WTO receives six additional ratifications for Trade Facilitation Agreement. https://www.wto.org/english/news_e/news15_e/fac_17dec15_e.htm 136

Since 2001, Norway has donated NOK 300,044,180 to WTO trust funds.


pledged on November 11th 2015 portrays Norway’s continuous interest in participating as well

as aiding trade negotiations and development.137

Norway is a strong participant in the World Trade Organization, not only based on

ratified agreements and donations made, but in particularly in the dispute settlement of the WTO.

There has not been one case where Norway has been the respondent to a dispute, but there have

been four cases where Norway was the complainant – three of which have been against the

European Communities138

and one of which was against the United States.139

However, the

major Norwegian participation in the WTO Dispute Settlement has been as a third party in

seventy two cases from 1995 to present day.140

Currently Norway is a third party in over

eighteen ongoing cases at the dispute settlement.141

When it comes to representation in third

party participation at the WTO Dispute Settlement, Busch and Reinhardt have written that the

economic superpowers are not only well represented, but are frequent participants. Countries

such as the United States, the European Union and Japan,142

have each taken part in well over

one hundred cases as a third party with the EU and Japan being the only two WTO Members to

go beyond one hundred and fifty cases each.143

Busch and Reinhardt write that developing

137

Norway donates NOK 58.5 million to boost trading capacity of developing countries and LDCs https://www.wto.org/english/news_e/pres15_e/pr758_e.htm 138

The European Union (EU) was until November 30th

2009 officially known in the World Trade Organization for legal reasons as the European Communities (EC). In the older documents of the WTO the EU was formerly known and referred to as the EC. Therefore throughout this paper I will be using these two names interchangeably, and use EC to refer to text and documents in which the correct name was the European Communities, and the same will be used for the European Union. Member information: The European Union and the WTO. https://www.wto.org/english/thewto_e/countries_e/european_communities_e.htm 139

Disputes by country/territory. https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm 140

Disputes by country/territory. https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm 141

Verserande WTO-tvistesaker kor Noreg er tredjepart. https://www.regjeringen.no/no/tema/naringsliv/handel/ud---innsiktsartikler/noreg_tredjepart/id2414548/ 142


Disputes by country/territory. https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm


countries “account for 52% of all third parties,”144

with the most frequent third parties being

Canada, Brazil, Chile, Australia, India, Korea, Mexico, Switzerland, China, Chinese Taipei and

Norway.145

Furthermore, Norway also participates at the WTO Dispute Settlement in the capacity of

panelists for the various disputes. With the surge of third party participation in the DSB at the

beginning of the World Trade Organization’s establishment, the Council to the Appellate Body

of the WTO, Debra Steger, discussed how the increased third party participation has a possibility

of hindering the system from finding panelists for the disputes.146

Among Switzerland and New

Zealand, Norway was a particularly popular choice in the use of panelists for disputes because of

the country’s position as one of the few nations not a European Union member.147

Norway’s

engagement in the World Trade Organization is not only broad but also extensive.

Norway is a small nation with a strong economy, and was ranked number twenty-six in

the 2014 GDP ranking done by the World Bank,148

significantly lower than countries and

economic superpowers such as the United States, Canada, China, Japan, Brazil, India, Korea,

Mexico and others.149

Nonetheless, Norway’s participation as a third party in the WTO is on the

same level as most of these nations – which is interesting.

IV. Zeroing methodology in Anti-dumping150

Anti-dumping is measurement taken by countries to protect their own industries from

foreign markets. A company is said to be “dumping” a product if it exports the product at a lower

144


Disputes by country/territory. Last accessed 22 March 2016 https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm 146

Carmody, Chi. Pg 641 147

Carmody, Chi. Pg 641 148

“Data: Norway.” http://data.worldbank.org/country/norway 149

“Gross domestic product 2014.” World Development Indicators database, World Bank, 29 December 2015 150

More information (and calculation of zeroing) can be found in the Appendix.


price than the price the company normally charges in its own home market,151

meaning that the

firm sells the exported product at unfairly low prices outside its home market.152

Through the

practice of dumping the domestic industry of the host country suffers material injury when a

product is dumped in its own market.153

According to the World Trade Organization every

country has a right to apply anti-dumping duties on products from foreign markets that enter

their host market at a lower price than it originally costs in its domestic market.154

This

protection is intended to remedy when foreign firms sell their products at prices below the

‘normal’155

value in the host country.156

Some imports which are priced at a lower level than in the products home market are

taken into account under the zeroing formula. Zeroing is a methodology used to calculate anti-

dumping rates, more accurately the calculation of foreign exporter dumping margins.157

‘Zeroing’ is used to calculate whether or not imports are being sold in the country at less than

‘normal’ value.158

This antidumping calculation is used by the United States, where the U.S.

151

Anti-dumping. World Trade Organization. Retrieved from https://www.wto.org/english/tratop_e/adp_e/adp_e.htm 152

Reynolds, Neal J. "Between a Rock and a Hard Place: The Role of the U.S. Courts in Resolving Conflicts between U.S. Law and WTO Dispute Settlement Reports in the Antidumping and Countervailing Duty Area." Tulane Journal of International and Comparative Law 21, no. 2 (2013): 273-90. Pg. 276 153

“Evolving Discretionary Practices of U.S. Antidumping activity.” Bruce A. Blonigen (2006) pg. 874-75 154

What is Zeroing? http://trade.ec.europa.eu/doclib/docs/2012/february/tradoc_149065.pdf Pg. 1 Understanding the WTO: the Agreements. World Trade Organization. https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm8_e.htm Blonigen, Bruce A. "Evolving Discretionary Practices of U.S. Antidumping Activity." Canadian Journal of Economics/Revue Canadienne D'économique 39, no. 3 (2006): 874-900. Pg. 875 155

Normal value is defined as “the average of a set of observations of sales of the product in the home market.” “The implications of ‘zeroing’ for enforcement of US antidumping laws.” William W. Nye (4 December 2009) Journal of Economic Policy Reform Pg. 264 156

Blonigen, Bruce A. Pg. 874-75 157

What is Zeroing? Pg. 1 158

“A WTO Panel Openly Rejects the Appellate Body's "Zeroing" Case Law.” Sungjoon Cho (11 March 2008) American Society of International Law Last accessed 30 April 2016 Last Accessed 29 April 2016 https://www.asil.org/insights/volume/12/issue/3/wto-panel-openly-rejects-appellate-bodys-zeroing-case-law


enforces its own antidumping laws differently than other nations.159

For the past decade the

Appellate Body of the WTO has been consistent in condemning the practice of zeroing as unfair,

and deemed the practice prohibited.160

Those that look at the antidumping laws see them as safeguards which countries apply in

order to favour domestic producers over foreign firms, and not to protect the competitive

process.161

In 1991, Barcelo wrote that these laws were funded on an unfounded fear of

predatory dumping, but currently function as quasi-safeguard laws.162

The United States has been

practicing the methodology of zeroing for a long time, and has not let the World Trade

Organization stop the country from using the methodology. The U.S. has argued over the years

against the WTO antidumping laws. They have argued as follows; first, the panelists that sit on

WTO disputes are often not judges, do not have extensive experience in appellate review, and

follow WTO principles over US Law;163

second, US courts should not give significant weight to

WTO reports in the antidumping area because the Federal Circuit has noted that the final WTO

report is not binding on the members involved in the dispute;164

and finally, decisions made by

the WTO panels may conflict with US statutes and/or judicial precedent.165

China, the European Union, Mexico and Japan have filed WTO disputes regarding the

country’s practicing of zeroing, stating that the methodology is unfair.166

Other countries (see

159

“The implications of ‘zeroing’ for enforcement of US antidumping laws.” William W. Nye (4 December 2009) Journal of Economic Policy Reform Pg. 263-64 160

What is Zeroing? (2012, February 6). European Commission: Trade. Retrieved from http://trade.ec.europa.eu/doclib/docs/2012/february/tradoc_149065.pdf Pg. 1 “Between a Rock and a Hard Palce: The role of the US courts in resolving conflicts between US law and WTO dispute settlement reports in the antidumping and countervailing duty area.” Neal J. Reynolds (2013) Pg. 274 161

“A history of GATT unfair trade remedy law -- confusion of purposes.” John J, Barcelo III (1991) Pg. 313 162

“A history of GATT unfair trade remedy law -- confusion of purposes.” John J, Barcelo III (1991) Pg. 332 163

Reynolds, Neal J. Pg. 278 164



Robertson, Scott. (2009, August 24). Views mixed on WTO ‘zeroing’ ruling. Metal Bulletin Daily: Iron and Steel General.


Figure 2) have also filed cases against the United States use of zeroing. Even though in February

2012 the United States together with Japan and the European Union announced that they had

reached an agreement on settling their zeroing disputes, the United States has not conformed

with the Appellate Body decisions on cases from other WTO Members.167

Therefore we are still

seeing cases brought up to the Dispute Settlement Body against the US with regards to zeroing.

V. Research Methods

Third party participation in the World Trade Organization has grown since the creation of

the WTO in 1995. Almost every case disputed at the Dispute Settlement has at least one and

often several WTO Members as a third party. The enormity of these numbers make it difficult

for me to study every single one of them in order to better understand why certain nations

continuously employ the Dispute Settlement Body through third party participation. Therefore, I

study a special case, Norway’s participation as a third party in the DSB which I apply to the

general use of third party participation by advanced small markets in the Dispute Settlement.

The disputes brought to the World Trade Organization vary not only in the size of the

dispute, but also in topic, with everything from wine to aircraft to ceramic floor tiles.168

I have

chosen anti-dumping, a topic that has been a big issue in the WTO. Over one hundred anti-

dumping cases have been taken to the DSB with regards to anti-dumping.169

This is a large sum

of cases, a number that would not allow me for an in-depth study of each of the cases in this

research project. Therefore I have chosen to focus on a selected part of anti-dumping, namely the

use of zeroing as an anti-dumping calculation measurement. There have only been eighteen

167

“No More Zeroing?: The United States Changes its Antidumping Policy to Comply with the WTO.” Sungjoon Cho (9 March 2012) American Society of International Law Last accessed 30 April 2016 https://www.asil.org/insights/volume/16/issue/8/no-more-zeroing-united-states-changes-its-antidumping-policy-comply-wto 168

“DISPUTE SETTLEMENT: THE DISPUTES Find disputes cases.” 169

“DISPUTE SETTLEMENT: THE DISPUTES Chronological list of disputes cases.”


disputes taken to the DSB with regards to zeroing as a measurement of antidumping, of which

sixteen were brought up against the United States. This narrows my research and allows me to

look deeper into the documents I study.

I focus on what makes a country decide to take part in some disputes as a third party, but

not others. Therefore I have chosen one advanced small market nation as my case study.

Norway, a country with few disputes filed as a complainant, but with more than seventy taken

part in as a third party is a good choice for my research. In the sixteen cases which have been

brought up to the DSB against the United States, Norway has been a third party participant in six

of them (see Figure 2). Out of these six cases I use four of them for my research. The European

Communities were the complainant in two of the cases and the other two were brought up to the

DSB by Japan and Viet Nam. The fifth, supplementary case I look into is another brought by

Viet Nam during which Norway was not a third party participant. This will allow me to

understand why a country takes party in some disputes and not others (given that there have been

several zeroing disputes brought against the United States with regards to shrimp, and Norway

decided to participate as a third party in only one of them).

I am not studying every part of the cases I have selected, but concentrate on the five cases

I have chosen through Norway’s perspective. In order to do this I utilize Oral Statements and

Written Submissions which were given by Norway for the cases during which Norway was a

third party. This allows me to study the Norwegian arguments and focus for choosing to be part

of these cases as a third party. In addition to examining the Oral Statements and Written

Submissions, I am supplementing my arguments with Trade Policy Reviews. These are papers

published by the Norwegian government every four years since 1996 (except for the 2016 one

which have not yet been published). The Trade Policy Reviews are part of the Uruguay Round


agreement and focus on the Members own trade practices and policies, which result in enabling

“outsiders to understand a country’s policies and circumstances.”170

These additional reviews

allow me to examine whether or not the exact same argument presented by Norway in the cases

as a third party are reflected in other documents.

In addition to the Oral Statements, Written Submissions and the Trade Policy Reviews

that I examine for my research, I conducted an interview with two lawyers, Linn Edvartsen and

Camilla Høvding Blom, from the department on the European Economic Area (EEA)- and trade

law in the Norwegian Ministry of Foreign Affairs in August 2015. This interview I have used as

supplementary documentation throughout this research paper for information on Norway’s

participation in the World Trade Organization, in particularly the Dispute Settlement Body.

FIGURE 2: Case Division for Zeroing

Norway not Third Party

Complainant Case topic

DS179 Korea Stainless Steel

DS264 Canada Softwood Lumber

DS335 Ecuador Shrimp

DS343 Thailand Shrimp

DS344 Mexico Stainless Steel

DS382 Brazil Orange Juice

DS383 Thailand PET Bags

DS402 Korea Products (stainless steel+, diamond sawblades+)

DS404 Viet Nam Shrimp

DS422 China Shrimp, Diamond Sawblades

Norway as Third Party

Complainant Case topic

DS294 European Communities Zeroing (general - 21cases, most products steel)

DS322 Japan Zeroing (general + Sunset Review)

DS350 European Communities Continued Zeroing

DS420 Korea Carbon Steel

DS429 Viet Nam Shrimp II

DS471 China Anti-Dumping Methodology

170

Trade policy reviews: ensuring transparency. https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm11_e.htm


VI. Advanced small markets in the Dispute Settlement

Beginning my research, I expected to see that part of Norway’s motivation for third party

participation in the Dispute Settlement would be because of the Norwegian industry. However,

that is far away the case. As I learned from my interview with the lawyers from the Ministry of

Foreign Affairs (MFA), they are not being manipulated by the Norwegian industry in bringing

up cases to the WTO. Camilla Bloom told me that it is the nature of the case that makes Norway

be the complainant in a dispute at the WTO and the few times that Norway has taken up a case to

the DSB, then the case has been very serious. As they pointed out, Norway has a very high

threshold for taking a case to the Dispute Settlement, and that the Norwegian government relies

on settling all of its potential disputes in WTO committees or in bilateral conversations.

As Linn explained, there is of course a dialog, as in any country, that the MFA has with

the Norwegian industry and business together with various government departments. It is the

government that decides which cases to take up in the Dispute Settlement and the industry is not

as involved as it is in the United States or even Canada. Camilla said that in Norway the industry

does not have a tradition to be “hands on deck,” rather it depends on how the society functions.

In Norway, the society is very different from other places.

There was one case which Norway took up to the DSB that had a different ring to it, than

it usually functions in Norway, namely the salmon case, DS337.171

The salmon case, according

to Camilla, was very well known in the Norway through the media. There were a lot of different

opinions, in the Norwegian salmon and fish industry as well, whether or not it was the right

171

DS337 – The DSB received request for consultations on 17 March 2006. The case, which has six Members as third party, was about anti-dumping duty on imports of farmed salmon originating in Norway. “DISPUTE SETTLEMENT: DISPUTE DS337 European Communities — Anti-Dumping Measure on Farmed Salmon from Norway.” https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds337_e.htm


decision to take the case up against the European Union in the WTO Dispute Settlement. As the

MFA lawyers explained to me, there had been problems between Norway and the European

Union regarding anti-dumping duties on salmon for twenty years before Norway finally decided

to take the case up to the DSB. Even then, as Linn pointed out, the case was not urgent and some

people who work at the Ministry of Foreign Affairs have said that Norway could have waited

longer before taking up the case through the World Trade Organization.

Other than the salmon case, I have not found any evidence of lobbying in Norway for

taking up cases to the Dispute Settlement. The last case Norway was a complainant in began in

2009 and even then172

, the seal case was pushed forward by Canada and the Canadian industry.

As Camilla pointed out, the society is different and lobbying as it is known and understood in the

United States and other countries is not part of the Norwegian government. Therefore, there are

other reasons as to why Norway continues to be a frequent third party participant in the Dispute

Settlement Body of the World Trade Organization, which I explore in the rest of this paper.

a. Strong economic/trade connection to the complainant

The first reason why advanced small markets choose to participate as third parties in the

WTO disputes is because the nation has a strong connection to the complainant of the case

through economy or trade, or both. In this section I show how Norway’s strong trade connections

to a WTO Member affect which cases Norway participates in as a third party. I begin by

discussing i) Norway’s focus on still being an influence in the international trade system before I

shift to show how Norway’s strong trade connections with WTO Members draw Norway into

disputes as a third part in order to show support for the complainants through ii) the European

Communities.

172

DS401 - Measures Prohibiting the Importation and Marketing of Seal Products. https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds401_e.htm


i. Influence on the international trade system

One of the main reasons that Norway consistently participates in the World Trade

Organization, specifically as a third party in the Dispute Settlement, is the Norwegian

commitment to open international trade and a transparent global economy. Though the cases

Norway chooses to participate in are not always directly related to country itself, the Ministry of

Foreign Affairs (MFA) considers their involvement crucial for creating a more equitable global

economy. These cases are critical for understanding how and why Norwegian internationalists

see the WTO as a vehicle through which to achieve their goal of reforming the ethics of

international trade and the way the global economy functions.173

In the 2014-15 report to the Parliament,174

the Norwegian Ministry of Foreign Affairs

explicitly states that there is a growing risk that the Norwegian influence in international trade

has been reduced and will continue to decline in the future, while the rest of the international

community is becoming more closely integrated in international trade. The fear of being blocked

from shaping international trade explains why the Norwegian government will take any possible

part in international trade in order to hold its current position – as an influencer and a country

others come to for advice. The ministry states in the report that not only does Norway lack free

trade agreements with six of the ten largest economies in the world, but that Norway is not party

to any of the negotiations with regards to the Pacific and the Atlantic trade agreements.175

This

means that Norway has no way to influence these negotiations whereas the Transatlantic Trade

and Investment Partnership (TTIP)176

will have a great impact on Norway.177

Given that eighty

173

“Globalisation and trade: Trade policy challenges and opportunities for Norway.” Norwegian Ministry of Foreign Affairs. Report to the Storting (white paper) summary. (2014-2015) pg. 3 174

In the sources it says “report to the Storting,” where Storting is Norwegian for the Parliament. 175

Report to the Storting (white paper) summary. (2014-2015) pg. 4 176

The Transatlantic Trade and Investment Partnership (TTIP) is high-standard trade and investment agreement being negotiated between the United States and the European Union.


percent of Norway’s exports go to the European Union and sixty-five percent of Norway’s

imports come from the European Union, the TTIP will have an immense impact on the

Norwegian economy.178

One of the strategies the Norwegian government employs to be present

in international trade is to participate as third parties in the Dispute Settlement Body.

Norway’s trade expansion into new markets is a reason as to why Norway has over the

past years been increasing their participation as a third party in the DSB. Trade expansion into

new markets is difficult when the markets Norway is trying to enter still have trade barriers in

place.179

Given that the Norwegian government states that protectionist measures makes

Norway’s dependence on trade vulnerable, the governments participation in WTO disputes helps

Norway be part of the conversation in shaping trade and the future of trade in these regions. And

as stated by the Ministry, “Norway … is best served by being part of a system based on common

rules that are observed.”180

Furthermore, the Ministry stated in the report to the Parliament that, “export interests of

many developing countries have received too little attention in negotiations.”181

This shows that

the Norwegian government is interested in working with developing Members and assists other

nations in their growth, which is why Norway has a comprehensive system of generalized

preferences for imports from developing nations. According to the World Bank data there are

over twenty developing nations in the region of East Asia and Pacific,182

an area where Norway’s

trade is expanding to. Therefore, Norway’s expansion into these markets together with the

177

“About TTIP.” European Commission on Trade. http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/ Report to the Storting (white paper) summary. (2014-2015) pg. 3, 11, 12 178

“Trenger Norge EØS og tilslutning til TTIP? ” (23 October 2015). State Secretary Elsbeth Tronstad. Last accessed 29 March 2016 https://www.regjeringen.no/no/aktuelt/eos-ttip-tale/id2459102/ 179




“Data: East Asia & Pacific (developing only).” http://data.worldbank.org/region/EAP


country’s participation as a third party in disputes brought by WTO Members from this region

show Norway’s interest in assisting these nations. Norway’s participation as a third party adds

legitimacy to these nations and their arguments at the DSB. By standing up for other nations in

the Dispute Settlement and the WTO, Norway is exercising their power of influence to make

every Member at the World Trade Organization matter. If Norway is worried about their role in

international trade, an advanced small market, then what awaits small (and developing) nations

who do not have Norway’s resources and are not number twenty-six in the World Bank GDP

Ranking.183

Therefore, when the Norwegian government said that an instrument of development

policy that Norway will use is trade,184

the World Trade Organization is an important aiding

factor for this. Moreover, Norway’s interest in implementing and developing agreements that

“are better adapted to the situation in the specific countries,”185

is not only beneficial for the

small (and developing) nations, but for Norway – who’s internationalists are presenting Norway

to be a strong force fighting for the same rights of all nations.

Even though Norway is in favour of the WTO and is a frequent user of the Dispute

Settlement Body through third party participation, like many other nations, the country has some

reservations, especially with regards to further development of the trading system.186

The

Norwegian government considers the strengthening and safeguarding of the system to be the

main trade policy interest together with a further interest to promote Norwegian interests in the

regular work of the WTO.187

In the report to the Parliament it was written that, “the success of

Norwegian companies in the global market is important for the Norwegian economy,”188

which

183

“World Bank: Gross domestic product 2014.” http://databank.worldbank.org/data/download/GDP.pdf 184



Report to the Storting (white paper) summary. (2014-2015) pg. 12-13 187


Report to the Storting (white paper) summary. (2014-2015) pg. 18


means that the Norwegian government, like any other, looks for benefits for its own nation and

its businesses. Furthermore, given that Norway is worried about a lack of participation in the

negotiations of trade agreements Norway’s participation in the WTO is crucial.189

The

government wants to have a word in the conversations with any means possible – from informal

to formal channels.190

ii. Economic and trade connections to the European Communities

The majority of the submissions made by Norway in the cases I examined focused on the

laws of GATT and the WTO as well as on the legal precedent made in previous cases. In

addition, Norway restates the arguments of the complainant and the respondent in their third

party submissions to the Panel(s) or the Appellate Body. What is limited in all of these

submissions is the opinion of the third party. With most of the focus on laws and previous cases,

there is little argumentation made by Norway as a country. Even though the 2005 Oral Statement

by Norway begins by saying, “I would like to thank you for this opportunity to present the

Norwegian view on the case at hand,”191

and the 2009 Written Submission begins with “Norway

welcomes this opportunity to be heard and to present its views as a third party in this appeal

concerning a disagreement…”192

there is almost no Norwegian view throughout these or other

statements and submissions made by Norway. There are a few times with statements like,

“Norway agrees with…”193

or “Norway believes that…,”194

in the 2005 Oral Statement. In other

submissions we also see statements such as, “Norway argues that…,”195

“Norway believes

189



DS294 - Oral Statement (Geneva, 17 March 2005) Pg. 2 192

DS294 - Third Party Submission. (Geneva, 10 March 2009) Pg. 1 193

DS294 - Oral Statement of Norway. (Geneva, 17 March 2005) Pg. 2 194


DS294 - Third Participant Submission by. (Geneva, 13 February 2006) Pg. 5


that…,”196

“Norway supports…”197

or “In Norway’s view…,”198

however, these statements are

rare. In a document of fifteen pages only in five small parts does Norway state what their own

view on the case is. This shows that even though third party participation in the DSB is

important, Norway’s submissions to dispute cases as a third party are not focused on their

individual views. Rather, this shows that the focus of third party participation lies in reiterating

the same points over and over again and to show strong support for the party that the third party

is supporting. By focusing on the laws of the WTO the third party participant is pounding on the

same point the complainant or the defendant is focusing on. In other words, the third party

participant is showing its support for the other Member and is telling either the Panel or the

Appellate Body of why the Member they are supporting is correct. This shows that advanced

small markets participate as third parties in cases to support the dispute party they are connected

to.

In the WTO, there have been seventeen cases in which the European Union was the

complainant and Norway was a third party. There have been thirteen cases where the EU was the

respondent in a case where Norway was a third party, and there have been forty-two cases in

which Norway and the EU were both third parties.199

This shows that there are other strong

connections between Norway and the European Union in addition to the European Free Trade

Association (EFTA). This trade connection is one explanation as to why Norway participates as

a third party in disputes, especially in those which the European Union is the complainant. The

outcome of a dispute in which the European Union is involved in can strongly affect Norway’s

196

DS294 - Third Party Submission by Norway. (Geneva, 10 March 2009) Pg. 2, 10 197

DS294 - Third Party Submission by Norway. (Geneva, 10 March 2009) Pg. 5 198


“DISPUTE SETTLEMENT: THE DISPUTES Find disputes cases.” https://www.wto.org/english/tratop_e/dispu_e/find_dispu_cases_e.htm#results


economy and trade. Therefore, by participating in the cases in which the EU is the complainant,

Norway’s internationalists support a strong trade ally and look out for Norway’s interests.

Norway, one of the few nations not a member of the European Union is strongly

connected to the politico-economic union through the European Free Trade Association (EFTA).

EFTA was founded by Norway and six other nations in 1960.200

Norway shares this free trade

agreement with Iceland, Liechtenstein and Switzerland.201

Given that EFTA promotes free trade

and economic integration and that almost every other country not party to EFTA is part of the

European Union,202

a lot of Norway’s economic interests are intertwined with the EU. Through

this free trade agreement Norway does a lot of trade with the EU (Figure 3). This figure shows

Norway’s biggest export markets for goods and services in 2013 in millions of krona,203

with the

European Union being number one. Furthermore, looking at the difference between number one

- the EU and number two - the United States of America, the export numbers are significantly

different. The number for the European Union is fourteen times larger than the one for the US. In

addition, Norway does not have a free trade agreement with the United States as Norway has

with the EU. This shows Norway’s stronger connection to the European Union from the one with

the United States.

200

The European Free Trade Association. http://www.efta.int/about-efta/european-free-trade-association 201

The European Free Trade Association. http://www.efta.int/about-efta/european-free-trade-association 202

The European Free Trade Association. http://www.efta.int/ 203

Krone is the Norwegian currency, which translates into English as crown. On May 2nd 2016, one US dollar is 8.02 kroner. www.dn.no


FIGURE 3: Norway’s biggest export market for good and services in 2013204

Given the strong trade connection between Norway and the European Union, Norway has

a significant reason for participating in disputes as a third party in support of the European

Union. First, Norway participates in certain cases because the internationalists believe that the

laws of the WTO and the legal precedent made in the disputes under the Dispute Settlement

Body are applicable to all WTO Members. Second, as I was told in my interview with the

lawyers from the Norwegian Ministry of Foreign Affairs the precedent established in some cases

can be extended to other WTO Members at a later point. This was reaffirmed in the 2012 article

in the American Society of International Law where Cho writes that, “countries [will] continue

to challenge U.S. zeroing…in the hope that the United States will recalculate dumping margins

on those products…as it did for the EU and Japan,”205

and again by New Zealand when the U.S.

filed a case against Japan over import restrictions on apples, “The Americans will now sit down

204

Report to the Storting (white paper). (2014-2015) Pg.96 205

“No More Zeroing?: The United States Changes its Antidumping Policy to Comply with the WTO.” Sungjoon Cho. (9 March 2012). American Society of International Law https://www.asil.org/insights/volume/16/issue/8/no-more-zeroing-united-states-changes-its-antidumping-policy-comply-wto


to negotiate a protocol with the Japanese and we will hope to piggy-back on that.”206

This means

that if Norway assists on a case that wins, the rulings made by the Panel or the Appellate Body

can be applicable to the same issue for Norway with the same or another defendant. And third,

there is a great chance that through the EFTA agreement the decisions made in the cases can and

will affect Norwegian businesses. Therefore, Norway wants to be a part and argue for the

complainant, in this case the European Communities, so that the complainants win will be a win

for Norway too.

This support for the complainant is evident throughout in Norway’s submissions as third

party through the strong emphasis on the argument(s) made by the European Communities,

which Norway reiterates. Additionally, Norway utilizes strong language that undermines the

argument of the United States and most importantly has a significant focus on how wrong the US

is (in addition to sometimes ridiculing the US in general). In the 2005 Oral Statement the

Norwegian internationalist presenting says, “I will now turn to the United States’ unfounded

allegations in this case, and briefly explain why they are wrong on all counts.”207

It is important

to note two parts in this sentence. The first part are the words, “unfounded allegations” which

show that not only is the United States wrong, but that the arguments presented are considered

by Norway to be without fact. This is not only demeaning to the argument presented by the US,

but by following that up with “wrong on all accounts,” the Norwegian government is further

undermining the argument of the US by saying that anything and everything they have presented

is one hundred percent wrong. On the same page, Norway goes on to say that, “…The United

States allegations are without merit…”208

before repeating themselves once again in the

206

Johns, Leslie and Pelc, Krzysztof J. Pg. 9 207


DS294 - Oral Statement of Norway .(Geneva, 17 March 2005) Pg. 3


statement that “finally, the United States’ allegations are without merit…”209

This type of attack

on the arguments by the US continues throughout the entire oral statement in a variety of

statements, but the same emphasis is given to the fact that the US “allegations are flawed,”210

and

the arguments the US is referring to are “also false.”211

All of this language undermines the

United States argument. By reiterating these statements over and over again allows the Panel to

focus on how wrong the US argument is. This language also shows the strong support that

Norway is giving to the European Communities in this case.

The Norwegian government is not stating their support for the EC in words during this

Oral Statement, but all of the attacks on the US in this small document of six pages (a lot of

which is white space) portray their support for the EC. In 2006 Oral Statement given by the

internationalists of Norway are mocking the US in the closing statements when they say that,

“The US argument on zeroing is like a house of cards.”212

This statement not only hints at a

funny tone, but also expresses that Norway believes the US argument is shaky at best. Of course

it is not only harsh tones and expressive language that is used by the Norwegian Ministry of

Foreign Affairs to undermine the point made by the US, but easy statements like “Norway

understands that the United States…employs….”213

This is another type of argumentation where

Norway starts out with an easy tone before using an entire paragraph to show how the US is

wrong.

Part of Norway’s tactics in the submission to the DSB is ‘shaming’ of the United States.

Norway writes that, “Norway would stress that the expectations of the United States to be able to

209




DS294 - Oral Statement (opening and closing) by Norway. (Geneva, 1 March 2006) Pg. 5 213

DS294 - Third Participant Submission by Norway (Geneva, 13 February 2006) Pg. 10


use zeroing and a special methodology in assessment reviews cannot override the text,”214

and

other entries such as “the United States should…have stopped…”215

and “the United States was

under an obligation…”216

All of these arguments are focused on what other nations and

especially WTO Members are expecting of the United States. Expectations the United States are

not fulfilling. This embarrassment is done together with Norway’s support for the European

Communities when Norway writes that, “the EC submits that the United States by doing so

violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.”217

This sentence

speaks volumes, because it once again states that the United States have breached WTO laws,

but additionally positions Norway’s argument in line with the argument by the EC. Furthermore,

in the 2005 Oral Statement Norway states that, “Norway finds it of great concern that the United

States is not taking its WTO obligations seriously as regards ‘zeroing.’”218

This shows that

Norway does not see the United States as a serious WTO Member rather as a law and agreement

breaker.

Another way in which we see Norway’s support for the European Communities is with

how much space the Norwegian Ministry of Foreign Affairs dedicates to the arguments made by

the EC versus the amount of space dedicated to the US argument. This is noticeable in the

Written Submissions of 2008 and 2009. The support for the European Communities argument

receives are large passages, whereas the United States argument is barely given two sentences.219

Norway also states that the US is not worth mentioning by writing that, “this…will not be

214

DS294 - Third Participant Submission by Norway (Geneva, 13 February 2006) Pg. 14 215



DS294 - Third Party Submission by Norway (Geneva, 15 February 2008) Pg. 7 218


DS294 - Third Party Submission by Norway (Geneva, 15 February 2008) Pg. 2, 4 DS294 - Third Party Submission by Norway. (Geneva, 10 March 2009) Pg. 5


discussed by Norway.”220

Another way in which Norway shows full support for the arguments

made by the EC is when they write that, “Norway supports the European Communities

arguments under both (i), (ii) and (iii)…”221

This is important to notice, because even though

oftentimes two Members have the same concerns or agendas it does not necessary mean that they

fully agree and will argue the exact same points. Here, on the other hand, we see Norway agree

with everything the European Communities states. This is again restated by Norway later in the

same written submission when they write that, “…it is Norway’s opinion that all subsequent

reviews challenged by the European Communities in this dispute fall within the scope of the

Panel’s jurisdiction…”222

What I have illustrated above is that we clearly see strong support given by Norway for

the arguments presented by the EC through the Oral Statements and Written Submissions. Had

the Norwegian government only been focused on presenting their own view on the case then

they would not have needed to reiterate the point of the European Communities as much as they

did, nor would it necessary to mock or shame the United States.

b. The case topic is generally broad and is applicable to other cases

The second motivation I discuss in terms of why countries choose to take part in the

Dispute Settlement as a third party is the notion that countries participate in cases where the trade

topic is general and broad, thereby making it applicable to more cases for various countries. In

this instance, the cases and outcomes that Norway has argued in, as a third party, can be

applicable to other cases and countries. Therefore, we see yet another way in which Norwegian

internationalists are supporting not only the entire trade system, but other nations. Those nations

that are smaller or weaker, and may not have as much strength in a dispute as the European

220

DS294- Third Party Submission by Norway (Geneva, 15 February 2008) Pg. 2 221

DS294 - Third Party Submission by Norway (Geneva, 10 March 2009) Pg. 5 222

DS294 - Third Party Submission by Norway (Geneva, 10 March 2009) Pg. 9


Union, Japan or the United States, but who can use previous cases and argument to hold their

ground.

Going back to Figure 2, it is evident that four of the six cases in which Norway was a

third party were of a general topic. The cases focus on zeroing, continued zeroing and anti-

dumping methodology, all of which are wide and simply focus on the methodology of

calculating anti-dumping. Almost all of the cases in which Norway was not a third party are very

product specific where the focus is on one or several products such as shrimp, stainless steel,

diamond sawblades among others.

In the DS294 2006 Written Submission the two points that the Norwegian government

focuses on are “the prohibition of all forms of zeroing in all forms of proceedings under the Anti-

dumping Agreement (ADA)” and “the applicability of Article 2.4.2 of the Anti-dumping

Agreement.”223

Both of these points are broad and not product specific. This is even evident

from the language used when we see words such as “all forms” repeated after each other. This

broad focus is continuously seen throughout the written and oral submissions Norway presented

in the cases I examined. In the 2006 Oral Statement Norway says in the introduction that the

focus of the statement will be on “all forms of zeroing in all forms of proceedings under the

[ADA]” as well as dumping “for the product as a whole.”224

This supports my argument that

Norway participates as a third party in disputes at the World Trade Organization because these

topics are broad and can be applicable to Norway or any other WTO Member, and is not linked

to a specific product.

In Norway’s third party submissions that I examined, the language is very general and the

focus is mostly on zeroing itself. We can see this in an example in the 2006 Written Submission

223

DS294 - Third Party Submission by Norway. (Geneva, 13 February 2006) Pg. 4 224

DS294 - Oral Statement at the hearing. (Geneva, 1 March 2006) Pg. 2


with sentence pieces such as these, “the margin of dumping,” “exceptions to this principle,”

“margins of dumping for each exporter for ‘the product’,” and “shall be calculated for the

product as a whole”.225

At the end of the page Norway wrote, “this distorts the picture and

inflates the dumping margin for the product as a whole,”226

which highlights that it is the way

dumping is calculated that is the most important aspect for Norway, and not the product zeroing

is used on. This is further restated when the Norwegian government writes, “in this section

Norway will show that Article 9.3.1 does not permit a methodology that is not provided for in

Article 2.4.2,”227

where all of the focus is on the laws and the methodology itself. This is the type

of focus that is seen through the documents. In the 2006 Oral Closing Statement the first two

points were all general points on “the Anti-dumping Agreement Articles 2.1, 6.10 and 9.3…for

the exporters sales” and how zeroing is “inherently unfair…against both the ‘product as a whole’

and against the ‘fair comparison’ requirement in Article 2.4.”228

This shows how Norway’s

internationalists are concerned with the laws of the WTO and the laws of international law.

The focus on the general subject is further reiterated in both DS350 in which the

complaint was the European Communities and DS322 which was brought by Japan. In the only

written third party submission that Norway submitted in DS350, Norway states on the first page

that the focus of this submission is, “[on] the practice of zeroing in all forms and in all

proceedings” together with the focus “[on] whether the continuation of anti-dumping

measures…is inconsistent with the [ADA].”229

This is then followed throughout the 2007

Written Submission where certain statements or sentences such as, “the Agreement foresees one

single dumping margin for ‘the product’ for each individual exporter,” and “firstly that the duty

225

DS294 - Third Participant Submission by Norway. (Geneva, 13 February 2006) Pg. 9 226



DS294 - Oral Statement (opening and closing) by Norway. (Geneva, 1 March 2006) Pg. 5 229

DS350 – Third Party Submission by Norway (Geneva, 19 September 2007). Pg. 1


cannot be greater than the margin of dumping; secondly that the margin of dumping is in respect

of ‘such product’ encompassing the totality of the product; and thirdly that the margin has to be

calculated in accordance with the specific provisions” reiterate this point.230

This concentration

on general zeroing is supported in both of the 2008 Oral Statements. The focus is on “all forms

of zeroing in all forms of proceedings,”231

“that dumping shall be established for the ‘product as

a whole’ – which is not the case where zeroing is employed,”232

“the issue of zeroing”233

and

“zeroing in periodic reviews is inconsistent with WTO obligations.”234

These same aspects came through very clearly in the Japan case. Statements such as,

“methodologies (or ‘practices’) that prescribe zeroing,”235

“Norway will address the prohibition

of all forms of zeroing in all margin calculations,”236

“there is but one definition of ‘dumping’ in

the [ADA]”237

and “the use of zeroing distorts the process of establishing dumping margins.”238

These small parts that I have extracted from the Oral statements and Written submissions are

only small parts that easily illustrate my argument that these cases, especially the parts which the

Norwegian government has focused on, are very general and have a broad focus on zeroing and

anti-dumping measures. There are pages upon pages, and paragraphs upon paragraphs made by

Norway where the same points are stated over and over again. This allows Norway to state that

they have a substantial interest in the case, in order to participate, because these topics can be

applied to various products. But this also allows for Norway to argue for what they believe in,

the law (international law), and that it should be upheld and followed by all WTO Members.

230

DS350 – Third Party Submission by Norway (Geneva, 19 September 2007). Pg. 7-8 231

DS350 – Oral Statement by Norway (Geneva, 30 January 2008) Pg. 1 232

DS350 – Oral Statement by Norway (Geneva, 30 January 2008) Pg. 1 233

DS350 – Oral Statement by Norway (Geneva, 11 December 2008) Pg. 2 234

DS350 – Oral Statement by Norway (Geneva, 11 December 2008) Pg. 2 235

DS322 – Third Party Intervention by Norway. (Geneva, 21 June 2005) Pg. 2 236

DS322 – Third Participant Submission by Norway (Geneva, 6 November 2006) Pg. 4 237

DS322 – Third Participant Submission by Norway (Geneva, 6 November 2006) Pg. 5 238

DS322 – Third Participant Submission by Norway (Geneva, 6 November 2006) Pg. 8


Furthermore, Norway’s focus on the broad topic of anti-dumping is reiterated also in

Norway’s Trade Policy Reviews. There are three significant parts in the 2000 Trade Policy

Review which focus on the broad importance of anti-dumping. When Norway states that, “some

WTO rules, for example provisions regarding anti-dumping, lack clarity” the internationalists are

taking their focus on their ideal WTO system even further.239

Not only are the group of

Norwegian internationalists in the Ministry of Foreign Affairs stating their arguments and

pushing for them through third party participation in the DSB, but they are also pushing for these

ideas through other branches, such as the trade policy reviews. Already in 2000 Norway was

saying that “The round should also cover issues resulting from a review of the implementation

of the Uruguay Round agreements in such areas as anti-dumping, subsidies and countervailing

measures,”240

and pointed out that “there is still need for further improvement in future rule-

making, for example on anti-dumping.”241

Norway’s internationalists saw a problem with WTO

laws early on, especially in broad topics as anti-dumping. Given that we see Norway being

involved in many disputes which focus on anti-dumping, if not zeroing in particular, we see that

anti-dumping laws in the WTO have been important to Norway. Which is why Norway

continues to be part of the cases which focus on the general topic of anti-dumping, especially

with the latest case (on zeroing) brought by China which is named “Anti-Dumping

Methodology.”

c. Advocate for greater involvement of smaller WTO Members

The third reason for why advanced small markets change to participate as third party is

because of their focus on improving the WTO system for all Members, in particularly to include

all members in the conversation of changing and improving the WTO. The Ministry of Foreign

239

Trade Policy Review (24 May 2000). Pg. 9 240

Trade Policy Review (24 May 2000). Pg. 7 241

Trade Policy Review (24 May 2000). Pg. 9


Affairs have written that “promoting integration among groups of countries within this

[promotion] leading to the formation of blocs or a weakening of broader international

cooperation” is a challenge that needs to be addressed,242

especially with regards to trade and

large international organizations such as the World Trade Organization. If some nations, such as

developing ones, see that they are being left behind or have hard time climbing to the levels of

nations like Australia, Japan, Canada and others, there will be more block formations. These

block formations can lead to problems in international trade. Norway is not advocating for block

formations, but as a positive outlook on alliances – for smaller (and weaker) nations to help each

other out.

The aspect of the WTO where small and medium-sized Members are able to build

alliances when defending their own interests together with the possibility of referencing to

agreed principles is not only of particular importance to Norway, but “helps to prevent the

dominance of the most powerful actors.”243

Additionally, it helps further the Norwegian

internationalist’s larger goal of improving the WTO to include all Members into the conversation

and to improve international trade for all parties, even the small ones.

In the 2005 Oral Statement in DS294 they state, “Norway agrees with Brazil, as stated in

its Third Party Submission…”244

This support and agreement with another WTO Member who is

also a third party is an important part of Norway’s participation in the WTO. It is expected for

Norway to express agreement with one of the disputing parties. However, Norway’s clear

support for the DSB system itself which allows for third party participation is even more

surprising. The Norwegian internationalists explicitly stated their support for another third party,

and whereas I also found evidence in their submissions is for a push for the involvement of other

242



DS294 - Oral Statement of Norway. (Geneva, 17 March 2005) Pg. 2


Members in the Dispute Settlement. In the 2005 Oral Statement the Norwegian government

wrote that, “Norway finds it of great concern that the United States is not taking its WTO

obligations seriously as regards ‘zeroing’. If this Panel takes no action and does not deal with the

‘as such’ claims, then the WTO and all its Members will continue to suffer. The WTO Members

will have to challenge…this very same issue again and again.”245

In these remarks the

internationalists are clearly focused on the effect this case will create on every WTO Member.

This is another reason as to why Norway is a third party in this case. If all WTO Members have

to challenge “[the] very same issue again and again,” it threatens the future of all WTO

Members, as well as the system as a whole - because one Member is undermining all the other

one hundred and sixty one Members.

This same argument and focus on all WTO Members and the outcome these cases will

create for everyone is again brought back by Norway in both Written Submissions and Oral

Statements in other cases. In the 2006 Written Submission in DS294 the MFA writes that,

“Norway would also generally caution against relying on negotiating history in respect of

multilateral agreements encompassing now 150 Members, 30 of whom were not Members

during the Uruguay Round Negotiations.”246

Here there is a strong emphasis in the second part of

the sentence on the Members that were not party to the negotiations that are brought up by this

case. In this instance Norway is an advocate and protector of those thirty Members and is

bringing up their significance in the WTO. If these nations are disregarded and do not have a

voice in this instance, Norway speaks up for them. They proceed by stating that, “these new

Members joined the organization based in the text of the agreements, as interpreted according to

customary rules of treaty interpretation. Special circumspection must therefore be made before

245


DS294 – Third Participant Submission by Norway. (Geneva, 13 February 2006) Pg. 15


relying on purported intentions of certain original Members, where these intentions are not

reproduced in the text.”247

In these sentences it is important to notice two points. The first,

Norway’s emphasis on the fact that the new Members joined the WTO based on rules and

agreements before them. The second is the diminishing status Norway is giving to the original

Members and what they intended to do or create in the first place. These two show that Norway’s

focus is on the rules and laws of now and how they are currently interpreted by all of the WTO

Members, not what some Members might have hoped for in the past. This also demonstrates

Norway’s focus on the future – because these new Members are part of the future of the system

itself. Norway argues for a current and a future WTO system that includes all Members and is

not concentrated on how a few Members initially intended for the system to be. Since the

establishment of GATT, even the establishment of the WTO – years have gone by, changes

made and new Members that have become part of that change. This is what the Norwegian

internationalists argue for.

The Norwegian government continues the Written Submission by stating that, “one

cannot come to the conclusion that it is for each and every Member to choose how to calculate

dumping margins. This could lead to 150 different methodologies.”248

In this instance Norway is

mocking the argument presented by the Majority of the Panel, but also the unfairness of the

system. Because every Member has to follow the same rules and not make them up as they go.

This point is stressed later in the 2006 Oral statement where they say, “if the Appellate Body

were to follow the interpretations advanced by the Majority of the Panel or the United States,

then it would condone the interpretation, which implies that there are no specifics as to the

methodologies to be applied in determining dumping margins…This could lead to 150 different

247

DS294 – Third Participant Submission by Norway. (Geneva, 13 February 2006) Pg. 15 248

DS294 – Third Participant Submission by Norway. (Geneva, 13 February 2006) Pg. 16


methodologies with wildly different results.”249

This is stressing the Norwegian internationalists

view of uniting all 150 WTO Members, and make all of them matter as much as the US. Norway

continues to write that if the Appellate Body follows the Panel and the argument by the United

States, they would “undermine the security and predictability of the Multilateral Trading

System…”250

It is clear that Norway is not acting in their own personal interest, because the

internationalists keep talking about the system and uniting all of the Members. Norway is set on

the improvement of the system, which they argue for through their third party submissions.

In the 2006 Oral Statement Norway points to “the rights and obligations of all parties

involved in an Anti-dumping proceeding, not just the United States…[which] is also evidenced

by the great number of third participants in this [DS294] case.”251

Norway yet again brings up

the importance of all parties, where each and every one of them has the same rights and

obligations. However, they go further by stating that the importance of all Members is evident by

all of the third parties present, of which there were twelve in this case.252

This restates the

importance of third party participants and how they are part of these disputes for a reason. These

disputes – even though they are between two WTO Members have an effect on and are of

concern to other WTO Members.

The obligations of every party in the World Trade Organization is brought up on several

occasions, in cases where Norway states that, “restrictions on international trade – and Anti-

dumping measures is a restriction on international trade – must be based on clear and predictable

249

DS294 – Oral statement (opening and closing) by Norway (Geneva, 1 March 2006) Pg. 3 250



Out of all of the zeroing cases, the twelve WTO Members as third party participants was the largest amount among the sixteen cases brought against the United States, which only surpassed with the latest case brought by China in 2013 with thirteen WTO Members as third party participants.


rules.”253

Here the focus is on the structure of the WTO, and how it is set up. The

internationalists even point out that “the Appellate Body should uphold the security and

predictability for 149 Members, not allow the United States to do as it pleases in violation of the

rights of the other Members.”254

Even though the WTO may not always be looking out for all fo

its Members, the Norwegian government is on it –advocating for the importance of every

Member, no matter how small the Member is.

There are also other ways in which Norway portrays the importance of third parties, and

how it is not the third parties that should feel privileged to be part of these disputes, rather how

the complainant and the defendant of the dispute as well as the system should recognize the

significance of third party participation in the DSB. The 2005 Oral Statement begins by saying,

“I would like to thank you for this opportunity to present the Norwegian view on the case at

hand,”255

and the 2009 Written Submission begins with “Norway welcomes this opportunity to

be heard and to present its views as a third party in this appeal concerning a disagreement…”256

and this way begins almost every third party submission by Norway. This appreciation for being

heard is expressed a lot throughout the cases I have examined and is often presented in similar

ways, such as “Norway welcomes this opportunity to be heard and to present its views as a third

party in this dispute,”257

“Norway would like to thank the members of the Panel for the

opportunity to make a statement at this meeting,”258

“Norway would like to thank you for the

253



DS294 - Oral Statement of Norway (Geneva, 17 March 2005) Pg. 2 256


DS350 – Third Party Submission by Norway (Geneva, 19 September 2007) Pg. 1 DS322 – Third Party Submission by Norway (8 August 2008) Pg. 1 DS429 – Third Party Submission by Norway (Geneva, 22 October 2013) Pg. 1 DS429 – Oral Statement by Norway (Geneva, 11 December 2013) Pg. 2 DS429 – Oral Statement by Norway (Geneva, 2 March 2015) Pg. 1 258

DS350 - Oral Statement by Norway (Geneva, 30 January 2008) Pg. 2 DS322 – Oral Statement by Norway (Geneva, 5 November 2008) Pg. 2


opportunity to make a brief statement at this meeting,”259

and “Norway appreciates the

opportunity to submit its views before the Appellate Body.”260

However, the Norwegian

government does not start every Oral Statement or Written Submission with their gratitude for

the parties of the dispute in allowing Norway to present its views and arguments. In both DS350

and DS429, one brought to the Dispute Settlement by the European Communities and the other

by Viet Nam, the Norwegian government began their statements and submissions by expressions

their gratitude for that they and their opinions are allowed to take part in these cases.

Nonetheless, in DS294 and DS322, one submitted to the DSB by the European Communities and

the other by Japan, not every statement or submission expressed began with gratitude. This

inconsistency can of course be seen as a forgotten mistake by the Norwegian government, but

may also be an expression of rebellion. When the Norwegian government submits seven third

party submissions for the DS322 case, it is hard to believe that Norway simply forgot to thank

the Panel and the Appellate Body in its first three submissions which ranged from 2005 until

2006, but then remembered in 2008 the significance of thanking the listeners. Especially when

during this same time, the Norwegian government was submitting several third party statements

and submissions on cases with regards to zeroing not counting any other topics they were

involved in. The same thing can be said for DS294 where Norway did not include their extensive

gratitude for being allowed to participate as a third party in two out of the five submissions made

by the government.261

Therefore I categorize this as a small rebellion of the Members who

259

DS350 - Oral Statement by Norway (Geneva, 11 December 2008) Pg. 2 DS322 – Oral Statement by Norway (Geneva, 29 June 2009) Pg. 2 260

DS322 – Third Participant Submission by Norway (Geneva, 15 June 2009) Pg. 4 261

Disclaimer: Most of the documents submitted by Norway as a third party in the four cases that I examine throughout my paper were uploaded on the Ministry of Foreign Affairs webpage, however, the DS294 case is considered to be an old case and the third party submissions by Norway are not posted on the website. I contacted the two women who I interview for this paper, and received from them the two Oral Statements and three Written Submissions, however, I cannot say certainly that these five are the only ones Norway submitted for that case.


participate in disputes as third parties. The lack of gratitude in the beginning of the submissions

can express the view that Norway sees third parties are a big part of the DSB who should have

this power. Because they are important to both parties of the case and should not be extensively

grateful for being allowed to take part of a system they are a Member to.

Norway’s focus on the need to improve the World Trade Organization system and on

more inclusion of all its Members is portrayed not only through their Oral Statements and

Written Submissions, but also in their Trade Policy Review’s since 1996. Already in 1996 the

Norwegian government stated that, “it was important to strengthen and clarify the rules on

subsidies in order to reduce the likelihood of differing, national interpretations. The changes to

the dispute settlement system, which ensure that the panel decisions can no longer be vetoed

were vital to the credibility and effective functioning of the WTO.”262

In 1996 it was important

for Norway’s internationalists that rules were clear and that certain WTO Members did not take

the advantage of the system because of their history and power in the organization. Nonetheless,

already then Norway wrote that “there is still room for improvement in future rule-making,”263

which shows that the future of the system was concerning to Norway, but also that improving the

WTO is still part of the conversation for the country. This is a conversation that the Norwegian

government keeps pushing, because in the Trade Policy Review from 2012 we see the same

ideas brought up. The government wrote that, “being a relatively small country with a middle-

sized economy, Norway is dependent on a level playing field in international markets and a

predictable trading environment. Norway has a fundamental interest in a strong multilateral

system with clear rules that minimizes the opportunity for misuse and provides maximum

There might be a few others that were not provided to me. (https://www.regjeringen.no/no/tema/naringsliv/handel/ud---innsiktsartikler/avslutta_saker/id2414621/) 262

Trade Policy Review Norway, Report by the Government. (9 May 1996). Pg. 4 263

Trade Policy Review Norway, Report by the Government. (9 May 1996). Pg. 4


transparency, as well as an efficient dispute settlement.”264

The focus here is not only on the fact

that there is a need for “a strong multilateral system with clear rules [and] maximum

transparency,” for everybody, but is significant because Norway states that it is a “small country

with a middle-sized economy” and that the WTO system is important for the nation. Moreover,

this points toward the fact that the system is not yet “a strong multilateral system [with] clear

rules,” which is what Norway is pushing for.

Another aspect that Norway has pointed towards in their Oral Statements and Written

Submissions and in several Trade Policy Reviews is the participation of developing country

members in the Dispute Settlement, especially as third parties. In the 2000 Trade Policy Review

Norway wrote that, “in Norway’s view, the Dispute Settlement Mechanism has proven its value

over the first years of its operation. Although Norway has only participated as third party in a

few cases, we have noted with satisfaction that not only large industrialized members, but also

developing country members have taken advantage of the mechanism.”265

Here Norway writes

that they have “noted with satisfaction” of the developing countries use of the dispute settlement

which is important enough for them to mention it. Only four years later, in 2004, they write that

“Norway has noted with satisfaction that developing country members are increasingly using the

mechanism to solve their disputes with other members.”266

Norway is invested in every WTO

Member and their participation in the Dispute Settlement Body, but pays special attention to the

weaker Members, the developing nations.

These advanced small markets take part of the dispute settlement through third party

participation in order to change the system, to shape that change and more importantly to include

all of the Members to be equal pieces in shaping the WTO system. Norway is not looking out

264

Trade Policy Review, Report by Norway. (21 August 2012). Pg. 5 265

Trade Policy Review (2000). Pg. 9 266

Trade Policy Review Norway, Report by the Government. (13 September 2004). Pg. 12


for their own interests, but is trying to influence the system, not only for themselves but for those

who cannot speak up at all or in the same capacities because of the lack of resources or power.

d. Legal precedent

Norway is not only a big advocate for international law to apply for all nations and a

fighter for small and weak WTO Members, but Norway advocates a great deal for the doctrine of

stare decisis. This is evident throughout the documents that I examined for the four disputes (out

of six) where Norway was a third party, which I used for my paper. I analyze Norway’s push for

legal precedent in two parts; i) through the older disputes where the complainant was the

European Communities and ii) the more recent disputes where Viet Nam was the complainant in

the case.

i. European Communities disputes

In the oral statements made by Norway and the written submissions presented to either

the Panel or the Appellate Body of the Dispute Settlement, one significant aspect that pops out is

that they are mostly legal documents. The documents are filled with arguments made by the

complainant, the respondent, laws of both the General Agreement on Tariffs and Trade and the

World Trade Organization together with a strong focus on legal precedent from previous cases

on the same topic. This can be seen in the 2005 Oral Statement of the DS294 case where it says,

“Norway sees no reason for this Panel to depart from the well-established understanding that

‘zeroing’ is not permissible under the Anti-dumping Agreement.”267

This is further presented

when the Norwegian government said, “Firstly, because the Appellate Body has clearly stated

that there is only one method of calculating dumping margins…”268

as well as in the 2006

267

DS294- Oral Statement of Norway (Geneva, 17 March 2005) Pg. 1 268

DS294- Oral Statement of Norway (Geneva, 17 March 2005) Pg.3


Written Submission when they that, “…there is but one definition of ‘dumping’ in the Anti-

dumping Agreement…”269

The Norwegian Ministry of Foreign Affairs keeps referring to what has already been

established by law in previous disputes. In addition, the Norwegian government keeps referring

to both WTO and GATT laws, because both of them are applicable under the World Trade

Organization. This is seen throughout the oral statements and the written submissions that

Norway presents as a third party in all of the cases that I examined. The MFA writes that,

“Norway also refers to the provisions of GATT Article VI, which is the basis for the Anti-

Dumping Agreement, and which is still basis for the imposition of anti-dumping duties…”270

and

stated orally before the Appellate Body in 2006 that, “…the interpretations advanced by the

Majority of the Panel and the US, undermine the rights under the GATT and under the Anti-

dumping Agreement of the 149 other Members of the WTO.” 271

Further, in the last submission

in DS294 Norway wrote that, “the purposes of the WTO Agreement [is]…"272

All of this shows

how important international laws and legal precedent was for Norway ten years ago, but this is

also portrayed in the current submissions by Norway as third party in disputes at the DSB.

Norway’s focus on legal precedent is reiterated in the submissions before the Appellate

Body. Here, the internationalists state why the Panel was wrong in some of their decisions and

how the Appellate Body is wrong in their decision. This is seen when the Norwegian government

states that “the Panel limited its interpretation…,”273

“the Majority mistakenly concluded…,”274

269


DS294 -Third Participant Submission by Norway (Geneva, 13 February 2006) Pg. 8 271

DS294 - Oral Statement by Norway (Geneva, 1 March 2006) Pg. 3-4 272

DS294 - Third Party Submission by Norway. (Geneva, 10 March 2009) Pg.10 273

DS294 - Third Participant Submissions by Norway. (Geneva, 13 February 2006) Pg. 5 274

DS294 - Third Participant Submissions by Norway. (Geneva, 13 February 2006) Pg. 5


“the Majority did not understand the…,”275

“the Majority offers no real interpretation…”276

and

“contrary to the Majority of the Panel and the US, Norway considers…”277

In addition to laws

and legal precedent, the Norwegian government is also referring to articles in the Vienna

Convention on the Law of Treaties. 278

The Law of Treaties is a treaty concerning international

law on treaties between states.279

By including the articles from the Law of Treaties the

internationalists in the Norwegian government make certain that all aspects of their argument is

covered and that their argument for precedent is well supported. This continuous reference to

previous laws, rules and decisions show that not only does Norway take their role as a third party

seriously, but Norway supports and advocates for all WTO Members to follow international,

legal precedent.

i. Viet Nam

The last two disputes I looked into were the DS404 and DS429, both were brought to the

Dispute Settlement by Viet Nam and both concerned with shrimp. There have been total five

shrimp cases with regards to the zeroing methodology. Norway is a shrimp producer and

exporter, however, Norway has only been a third party in one shrimp case against the United

States. Viet Nam requested consultations on February 16th 2012 for DS429 against the United

States, only two years after the consultations for DS404 were requested by Viet Nam on the

same topic, anti-dumping measures on certain shrimp from Viet Nam.

Given that Norway is a shrimp producer and exporter, there would be an expectation that

the Norwegian Ministry of Foreign Affairs got involved in the DS429 case as a third party

because of its own shrimp industry. Therefore the expectation would be that Norway would

275

DS 294 - Third Participant Submissions by Norway. (Geneva, 13 February 2006) Pg. 5 276

DS294 - Third Participant Submissions by Norway. (Geneva, 13 February 2006) Pg. 5 277

DS294 - Oral statement (opening and closing) by Norway (1 March 2006) Pg. 2 278

The Vienna Convention was signed at Vienna on May 23, 1969, but did not enter into before January 27, 1980. 279

“Vienna Convention on the Law of Treaties (1969).” Anthony Aust. Encyclopedia Entries. (June 2006).


argue on the topic of shrimp in their Written Submissions and Oral Statements. That is not the

case. On the other hand, from the first written submission Norway presents in the DS429 case,

the focus is once again on the general issues of anti-dumping and zeroing in particularly. It is

clear from the second paragraph when they write that, “Norway will confine itself to discuss the

general issues of the standard of review in the Anti-Dumping Agreement (AD Agreement), the

role of precedent in the WTO dispute settlement system and the use of zeroing.”280

As stated above the entire focus of the three submissions made by Norway in the DS429

case is on zeroing in general, but the internationalists go beyond statements that point out why

zeroing should not be used as a calculation method for anti-dumping. What is seen throughout all

of three submissions by Norway is the focus on precedent with regards to the use of zeroing as a

calculating methodology in dumping cases. In the written submission, the Ministry of Foreign

Affairs write that, “Norway fully shares the interpretation and the approach laid down by the

Appellate Body in this case,”281

where the Norwegian government is referring to the Appellate

Body report in case DS350 where the United States was sued by the European Communities on

Continued Zeroing. In this written submission, Norway not only refers to past cases and the

decisions made in those cases, but is explicitly telling the Panel to obey the previous cases,

which is evident when it is written that, “Norway respectfully asks that the Panel is guided by the

principles laid down by the Appellate Body in US – Continued Zeroing in its considerations in

the present case.”282

The Norwegian internationalists choice to dedicate a large part of the

argument in the Written Submission to precedent reveal that the internationalists are focused on

stare decisis to be a guiding point for the panel(s) and the Appellate Body of the Dispute

Settlement. This is not the first time Norway is pointing out the importance of precedent in their

280

DS429 – Third Party Submission by Norway Geneva, 22 October 2013 Pg. 1 281


DS429 – Third Party Submission by Norway Geneva, 22 October 2013 Pg. 3


third party submissions, which therefore indicates that the Norwegian internationalists, who are

not constrained by the Norwegian industry, choose to push for full adaptation of international

precedent for all Members.

The Norwegian Ministry of Foreign Affairs states in the written statement that, “The

appellate Body has repeatedly submitted that ‘following the Appellate Body’s conclusions in

earlier disputes is not only appropriate, but is what would be expected from panels, especially

where issues are the same.’”283

This shows Norway’s frustration with the lack of subsistent

decisions made by the Panels and the Appellate Body throughout the disputes with regards to

zeroing as a methodology. As well as a lack of full compliance by the United States with the

decisions made by the Panel(s) and the Appellate Body through the Dispute Settlement. The

focus on the use and importance of legal precedent in cases and the Dispute Settlement is not

only stated by Norway as to benefit the complainant Member, but the internationalists keep

coming back and reiterating in all submissions made by Norway as a third party to the focus on

the improvement of the system and the importance of including all WTO Members in the

conversations, to make all of them significant players in the system. This is evident when their

argument states that, “Norway would add that following previous reports also ensures fewer

disputes and preserves both the system and the systemic function of the Appellate Body,” and

when they write that, “Norway recalls the importance given to the security and predictability of

the system.” 284

This statement focuses on the preservation of the system, and on making it

function better through fewer disputes, since a lot of the disputes with regards to zeroing are

focused on the exact same thing. However, without full compliance and adaptation of legal

precedent in cases, the same type of cases with a different name are brought up over and over

283


DS429 – Third Party Submission by Norway Geneva, 22 October 2013 Pg. 4


again in the DSB, as is evident from the two Viet Nam cases. The two cases focus on the exact

same topic, “Anti-Dumping Measures on Certain Shrimp from Viet Nam,” and are differentiated

in name by only a number - two (II) in the end.

After almost seven months exactly since the Panel report was circulated in the first

shrimp case by Viet Nam (DS404) Viet Nam once again filed a dispute against the United States

on the same topic and except for an addition of a few laws (Figure 6). On October 31st 2011, the

United States and Viet Nam agreed on a reasonable period of time, ten months, for the United

States to implement the recommendations and rulings given by the Panel.285

The reasonable

amount of time expired on July 2nd 2012. Viet Nam, however, filed their second complaint

against the United States on the same topic of zeroing and shrimp a few months earlier, on

February 20th 2012. This shows that there is a problem with not only the first case brought up by

Viet Nam, but by the system – if Viet Nam deemed it necessary to bring in a new dispute on the

same topic instead of filing for an appeal. There was no reason to file for an appeal, because the

case was won by Viet Nam, but as in some of the other of the zeroing cases, a win for the

complainant in the system did not mean the United States would not play the system. This is why

Norway has continued to participate in these cases as a third party and focus on not only the

general topic of zeroing, but also on the use of legal precedent in these cases and on making

certain that each WTO Member is just as significant as any other Member. Because, as the

Norwegian government wrote, “The Appellate Body has in several rulings pointed out that the

use of zeroing distorts the process of establishing dumping margins and inflates the dumping

margin for the product as a whole. However, the US does not fully acknowledge this and

285

United States — Anti-dumping Measures on Certain Shrimp from Viet Nam. https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds404_e.htm Last accessed 28 April 2016


Norway therefore sees the need to reiterate the main legal arguments made by the Appellate

Body in this respect.”286

Figure 6: Laws for the two Shrimp cases287

Case: Laws under consideration:

DS404 – Shrimp I

DS429 – Shrimp II

This argument presented in the 2013 Written Submission in DS429 shows not only the

Norwegian frustration with the United States, but their focus that legal precedent was made and

is very clear, as well when they state that, “Norway would like to reiterate that the Appellate

Body has made it clear that the use of zeroing is inconsistent with WTO law.”288

This frustration

is clear the 2013 Oral Statement when the Norwegian internationalists state that they, “would

also like to address the obligation to comply with the recommendations and rulings of the

286

DS429 – Third Party Submission by Norway (Geneva, 22 October 2013) Pg. 8 287

DISPUTE DS404 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds404_e.htm DISPUTE DS429 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds429_e.htm 288

DS429 – Third Party Oral Statement by Norway (Geneva, 11 December 2013) Pg. 2


Dispute Settlement Body (hereinafter the DSB) as laid down in Article 21.3 of the Dispute

Settlement Understanding.”289

The internationalists also point out in the 2013 Oral Statement

that, “Norway recalls that the Appellate Body has clarified that Members have an obligation to

comply with the rulings and recommendations of the DSB no later than by the end of the

reasonable period of time,”290

which they reiterate in the 2015 Oral Statement that “in

accordance with Article 21.3 of the DSU, Members shall comply with the rulings and

recommendations of the DSB ‘immediately’. IF immediate compliance is impracticable, the

Member shall have a reasonable period of time to comply.”291

These last two points are clearly

pointed towards the United States lack of compliance with legal precedent, WTO laws and their

own obligations.

Additionally, Norway connects the importance of legal precedent to the inclusion and the

significance of the entire Membership of the World Trade Organization. This is evident when

they state, “the Panel should remember that panel and Appellate Body reports are adopted by the

whole Membership through their decisions in the DSB.”292

Again, Norway is advocating for the

entire Membership of the WTO, stating that every other WTO Member should not suffer because

one Member is not complying with the decisions made by the DSB, or when the Panels are not

being consistent with the law and precedent of the World Trade Organization. The Norwegian

government stresses why legal precedent is important as well as how lack of legal precedent in

the DSB creates chaos for all Members. This is evident when they state, “Norway further

considers that if it were permissible to depart from previous legal interpretations in adopted

Appellate Body reports, one enters into an unchartered territory [which] exposes the whole

289

DS429 – Third Party Oral Statement by Norway (Geneva, 11 December 2013) Pg. 2 290

DS429 – Third Party Oral Statement by Norway (Geneva, 11 December 2013) Pg. 4 291

DS429 – Third Party Oral Statement by Norway (Geneva, 2 March 2015) Pg. 1 292

DS429 – Third Party Submission by Norway (Geneva, 22 October 2013) Pg. 4


Membership to uncertainty, and would create a situation where all cases could be perpetually

reargued [which] would be contrary to the object and purpose of the dispute settlement

system.”293

The Norwegian government is neither arguing for their own shrimp industry nor any

other industry in Norway or the shrimp industry in Viet Nam, but is entirely focused on two

aspects in the case: legal precedent and the effect this case creates on the entire Membership of

the World Trade Organization. This is evident when the government writes that, “Norway would

like to underline that we do not take a stand on the facts of this particular case.”294

This states

that all Members are significant and will be affected, even weaker nations like Viet Nam and that

they (and other small and weak nations) shall not be disregarded because of such a large and

powerful Member as the United States. This argument shows that Norway is arguing for the

WTO system generally, but with a focus on the entire Membership and especially on the

Members who are often ignored or deemed less important. The Norwegian government and the

internationalists in particular are once again the advocates for the other WTO Members.

Furthermore, the focus of the Norwegian argument lies in “the use of all forms of

zeroing” 295

which is prohibited “for the product as a whole”.296

Even though Norway has stated

its concerns on this topic, the Norwegian government continues to pound on this point by saying

that “Norway finds it pertinent to repeat the legal reasoning behind it” and that “the point of

departure for Norway is that there is but one definition of “dumping” in the AD Agreement.”297

These documents and pieces of statements made by Norway show that the concentration of these

internationalists is not on specific products or any industry in particular, rather the focus in on

293

DS429 – Third Party Submission by Norway (Geneva, 22 October 2013) Pg.4 294




DS429 – Third Party Submission by Norway (Geneva, 22 October 2013) Pg. 5


the Dispute Settlement system with regards to laws and precedent, and the inclusion of all

Member states – no matter their size, legal capacity of power in the global economy.

VII. Conclusion

In this paper I have argued that advanced small markets, like Norway, use the WTO

Dispute Settlement Body as third party participants because a) they have a strong trade

connection to the complainant of the case; b) the topic of the case is broad and applicable to

other cases and WTO Members; c) they advocate through the DSB for greater support and

involvement of smaller countries in the process and procedures of the WTO; and d) push for

legal precedent to be more enforced and followed by all WTO Members in international trade.

Furthermore, given that the Norwegian government is not being manipulated by the

Norwegian industry and is not strongly pushed into disputes at the WTO, because the Norwegian

society is different and lobbying by businesses and industries is not a force within the

government. Therefore, there is another reason for why Norway is such a strong third party

participant in the Dispute Settlement Body. The internationalists in the Ministry of Foreign

Affairs are motivated by a world vision of a more equitable world and are defending small (and

developing) Members of the WTO through their third party participant argumentation in the

DSB. The internationalists focus on strong cooperation in international trade between all nations,

where each country matters equally to the conversation of the current and future international

trade law. These Norwegian internationalists have the freedom to pursue these projects and

participate as third party in the Dispute Settlement Body in order to advocate for the equality of

all WTO Members by concentrating on and lifting up the smaller and weaker members of the

World Trade Organization. Norway’s internationalists are speaking up for other Members, and

help them rise to hold the same confidence and power in international trade as other Members.


However, there are some issues that still remain that need to be studied further. With

more resources at my disposal I would begin with an in depth study of the DS337 salmon case.

This has so far been the only case that has had rigorous involvement and push from the fish

industry, the media, the Ministry of Trade, Industry and Fisheries and perhaps even other parties

currently unknown to me. Since this case involved heavy lobbying inside the Norwegian

government and is so out of normal with how things work on an everyday basis, doing a detailed

study into the case and the lobbying process would create a deeper answer for Norway’s

involvement in the Dispute Settlement under the WTO.

Further, I would conduct interviews in order to understand how other nations see Norway

and Norway’s role in international trade. I would start by going to the World Trade Organization

offices in Geneva and conduct interviews with different representatives for various nations, to

learn what they deem of Norway. Afterword’s I would travel to some East Asia, begin with Viet

Nam, Korea and perhaps Japan to understand how they view Norway. To learn whether or not

these countries really see Norway as their advocate in international trade in the WTO or

elsewhere. I would then travel to Washington DC to find out if Norway’s role as a third party

participant and an advocate for smaller WTO Members is seen as a positive aspect by the

American government, or if this behavior is deemed as unnecessary pain for the United States in

the WTO.

This would only be a first step into my continuous research on why Norway, as an

advanced small market, is a very frequent user of third party participation in the Dispute

Settlement under the World Trade Organization.


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Appendix :

Anna Kvinge, Political Science - summa cum laude

Documents

Transcript of Anna Kvinge, Political Science - summa cum laude