Entrusting FTA Panel Assistance To an "External Body"
I was intrigued by a provision in the dispute settlement chapter of the recently released Australia-EU FTA text that contemplates administrative and legal support to a panel being provided by an "external body" rather than through the ad hoc arrangements that FTAs tend to use:
Article 24.5
Initiation of panel procedures
...
5. The Trade Committee may decide to entrust an external body to provide assistance to panels established under this Chapter, including administrative and legal support. Such decision shall address the conditions of the entrustment, including the costs arising from the entrustment. Where applicable, any panel request shall also be delivered to the external body.
What do they have in mind here in terms of this "external body"? The WTO Secretariat, which many people over the years have suggested could assist with FTA disputes? The Permanent Court of Arbitration, which handled the UK-EU sandeel fishing dispute? Could someone create a new entity that would serve this purpose?
I looked around a bit to see if there have been similar provisions in other trade agreements. This is not necessarily a comprehensive list, but I found several examples.
First, the EU-NZ FTA has the most similar language, as it, too, refers to "providing administrative and legal support":
Article 26.4
Initiation of panel procedures
...
2. The request for the establishment of a panel (hereinafter referred to as "panel request") shall be made by means of a written request delivered to the other Party, and to any external body entrusted pursuant to paragraph 4, if applicable. ...
...
4. The Trade Committee may decide to entrust an external body with assisting panels under this Chapter, including providing administrative and legal support. The Trade Committee's decision shall also address the costs arising from such entrustment.
In addition, there are several agreements that talk only about support for "administrative tasks":
EU - Japan Economic Partnership Agreement (which I blogged about in 2018):
Article 21.25
Administration of the dispute settlement procedure
1. Each Party shall:
(a) designate an office which shall be responsible for the administration of the dispute settlement procedure under this Chapter;
(b) be responsible for the operation and costs of its designated office; and
(c) notify the other Party in writing of the office's location and contact information no later than three months after the date of entry into force of this Agreement.
2. Notwithstanding paragraph 1, the Parties may agree to jointly entrust an external body with providing support for certain administrative tasks for the dispute settlement procedure under this Chapter.
Article 31.17
Administration of the Dispute Settlement Procedure
1. Each Party shall:
(a) designate an office that shall be the Party’s point of contact, and which shall be responsible for providing administrative assistance to panels established under Article 31.6 (Establishment of a Panel); and
(b) notify the other Party of the location of its designated office by the date of entry into force of this Agreement.
2. Notwithstanding paragraph 1, the Parties may agree to jointly entrust an external body with providing support for certain administrative tasks for the dispute settlement procedure under this Chapter.
Article 30.21
Administration of the Dispute Settlement Procedure
1. The Parties may agree to jointly entrust an external body with providing support for certain administrative tasks for the dispute settlement procedure under this Chapter.
2. The expenses of the external body shall be borne by the Parties in equal share, unless the Parties agree otherwise.
It seems clear that some government officials think this idea is worth exploring, as it is has been raised in trade negotiations and made it through to some final texts, and the specific language used has been evolving. Implementing it will be complicated, though, and it remains to be seen if something along these lines can be made operational.