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Abstract
Access to global markets is vital for exporters and importers of all economies, large and small. The World Trade Organization’s (WTO) Dispute Settlement Body (DSB) has jurisdiction to adjudicate disputes under the WTO Agreements where measures of a WTO member impinge upon trade rights, such as by imposing barriers to market access for imported goods and services.
Australia initially made significant use of this complaints’ mechanism, but since 2003 Australia has not initiated a single complaint. Overseas research indicates that the engagement of the private sector can be a key component of enforcement of a member’s WTO rights. This thesis examines the public-private relationship in Australia and compares it to the relationship that exists in the leading WTO litigant, the United States of America. In doing so, it provides the first systematic examination of the nature of the public-private relationship in trade law in Australia.
This thesis develops a model to measure effectiveness. It uses a comparative and an empirical methodology to collect and analyse the research data to test against the effectiveness model. Research data were collected from a series of in-depth interviews from public and private actors engaged in WTO disputes, providing a unique set of insights into the interaction between government and industry in Australia and the United States. Interview data was supplemented with case law, statutes and other contemporaneous primary data. Once collected the data was analysed to provide explicit comparison of functionally equivalent processes and procedures across the two jurisdictions.
The study concludes that Australia’s constitutional and institutional structures, together with its relatively small market size and cultural values, have a significant impact on the effectiveness of the public-private engagement process in trade disputes. By contrast, the legalized U.S. process provided clearly identified objectives to its WTO enforcement program together with transparent and participatory procedures providing legitimization of the enforcement process.
This thesis therefore offers unique insights into weaknesses in Australia’s public-private engagement model. It concludes by identifying a range of measures that would improve the effectiveness of the public-private model and enhance Australia’s protection of its WTO rights.