They're caught in a political 'Catch 22'
THE ISSUE of "port and sherry" - which was a last-minute block to the SA-EU (European Union) free trade pact - has still not receded to its rightfully minor placing in the overall scale-of-things.
The political compromise enacted by Minister of Trade & Industry Alec Erwin to unblock the finalisation of the pact - and entitled "The Davos Package" - still sees raised hackles amongst the port and sherry producers of this country. A part of the wines and spirits industry which, in 10 years time, will no longer be able to use the words "port" or "sherry" as a description of their product - according to the producers' understanding of the departmental summary of the Davos Package.
While forms of compensation from EU sources have been negotiated as part of the compromise, this is not a satisfactory answer for the port and sherry makers.
Said Carl Nel, grape farmer, wine-maker and chairman of the SA Port Producers Association (SAPPA): "Monetary compensation doesn't make up for losing rights to the port and sherry names.
"There is still the question of who will receive this money, and what amounts will be allocated to which sectors of the industry."
SAPPA is also still not sure if the content of the latest convention of the World Trade Organisation (WTO) actually supports the rights of the EU objectors who wish to slap a form of copyright on the actual names "port" and "sherry". These originally having been conjured up by the British as marketing names for wine products they were importing from Portugal via the harbour city of Porto ("port"), and the Jerez ("sherry") area of Spain.
Not that raising this query of the WTO is an easy task for SA's port and sherry producers.
According to Etienne Swanepoel, director of Edward Nathan and Friedland (and editor of Butterworth's Financial Markets Legislation Service), the legal paths open to the private sector in the WTO's Agreement on Intellectual Property Rights (Trips) and the Agreement on Trade of Services, would provide no succour. These not being designed to service the SAPPA complaint.
Nor, he told FTW, would this private sector body have much success with the WTO's dispute settlement body (DSB) - which only deals with government-to-government disputes (no matter that they may have been raised by private bodies in the first place).
And that puts SAPPA in a near-impossible situation - a political Catch 22. This in appealing to the SA government to lodge a complaint with the WTO about a matter which the government itself had raised in co-authoring the compromise in question.
They could, said Swanepoel, "challenge the government's treaty-making capacity" - but, he added, this would see the WTO being of little assistance in resolving the dispute.
Not that SAPPA is looking for a "challenge" to government, according to Nel. "We could see why the compromise was necessary," he said. "Although it's a pity that the port and sherry producers were singled out in the deal.
"However, negotiations are still going on, and we hope to work in co-operation with the government, rather than trying to fight them."
Another point that Nel made was related to the unilateral matter of SA's acceptance of the EU's restriction on the use of the names.
"There is no such agreement between the EU and the US, for example," he said, "nor any other countries of the world. At the moment they can use "port" and "sherry" as they like.
"If they tried it with America, there would be a right stink. Why should we, therefore, be the only ones to have to face such a ban on the use of the names?"
SAPPA is now having to sit down and work out its future strategies, according to Nel. A special meeting is planned, and the tactics to be decided.
Legal advice is being sought on an interpretation of the wording of the compromise, and SAPPA is awaiting the full detail of each of the clauses contained in the executive summary of the deal.
