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The WTO rules are strict: No private parties allowed. That makes the 28 lawyers in the USTR general counsel’s office the de facto champions of American business interests before the dispute settlement body. True, some countries, such as Brazil, Poland, Korea, St. Lucia and Indonesia, do hire outside lawyers to help litigate their cases, turning to D.C. trade lawyers Christopher Parlin and David Christy of Kaye Scholer. But the USTR goes it alone. “These people can do it all, and they do,” says General Counsel Peter Davidson. The office has grown rapidly since the WTO dispute settlement process was created, from just seven or eight lawyers under President George H.W. Bush to the current staff of 25 D.C.-based lawyers, plus three in Geneva. Recent hires have included Rod Hunter, the founding partner of Hunton & Williams’ Brussels office; Victoria Espinel from Covington & Burling; and James Mendenhall from Powell, Goldstein, Frazer & Murphy. The demands of litigating before the WTO are intense. “The WTO puts the Eastern District of Virginia to shame. It’s the true rocket docket,” says Davidson. For example, the first briefs in a case are due three to six weeks after a panel begins its work, and a response is due two to three weeks later. The actual hearing, says A. Jane Bradley, assistant U.S. trade representative for monitoring and enforcement, “is more akin to an appellate argument than a trial.” No witnesses are called, and there is no testimony per se. Depending on the case, USTR lawyers may be on the defensive, sticking up for decisions made by the Commerce Department, the International Trade Commission, or Congress. Or it may be on the offensive, challenging the practices of another country. A successful outcome, such as the one the United States recently achieved after a lengthy fight over banana distribution in Europe, can open markets to U.S. businesses, offering the opportunity for millions of dollars in increased export sales. But private lawyers report that persuading the USTR to file a case on a client’s behalf is no small task. “You have to dot every ‘i’ and cross every ‘t’ before you can convince them to bring cases,” says Gary Horlick of O’Melveny & Myers, who advises the National Cattleman’s Beef Association in the hormone-treated beef case against the European Union. Before filing a complaint, says Bradley, the USTR weighs the strength of the legal and factual arguments, the potential economic impact, broader policy considerations, and whether litigation realistically offers the potential for opening a market. Once the USTR agrees to take a case, outside counsel are barred from participating — or even being present — in the hearings. But that doesn’t mean they are left out in the cold. “We work very closely with U.S. stakeholders,” says Davidson. The USTR has also been active in a behind-the-scenes process at the WTO involving oversight committees. The committees, which cover various trade areas such as intellectual property and agriculture, meet twice a year. The meetings provide an opportunity to bring noncompliance issues to the attention of member countries. Bradley reports the United States has used this forum successfully in addressing trade barriers involving Korean rice and Hungarian beef. “Litigation is only one of several tools,” says Bradley.

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