bodog casino|Welcome Bonus_and supports the negotiation

Courtney Brown — Mon, 14 Feb 2022 05:00:41 +0000

Many WTO Members seek a restoration of a two-tier dispute settlement process with binding results. Over the last 20+ years, the United States has raised concerns about the dispute settlement system and whether panels and the Appellate Body were abiding by the limitations contained in the Dispute Settlement Understanding. As has been widely reported and reviewed, this led to the blockage by the United States of new appointments to the Appellate Body which led to the effective shut down of the second tier review in early December 2019.

The U.S., during the Trump Administration, went to great lengths at Dispute Settlement Body meetings to lay out the deep concerns the U.S. had with what had happened to dispute settlement, culminating in February 2020 with the release of a report from the U.S. Trade Representative’s Office entitled Report on the Appellate Body of the World Trade Organization.

With no functioning Appellate Body, some WTO Members agreed to a temporary arbitration approach that looks similar to the Appellate Body. Called the Multi-party interim appeal arbitration arrangement (MPIA), the MPIA in 2021 covered over 50 WTO Members including the EU and its Member States; Australia; Benin; Brazil; Canada; China; Chile; Colombia; Costa Rica; Ecuador; Guatemala; Hong Kong SAR; Iceland;

Macao SAR; Mexico; Montenegro; New Zealand; Nicaragua; Norway; Pakistan; Peru; Singapore; Switzerland; Ukraine; and Uruguay. Most WTO Members, including the U.S., Japan, Korea, India, Indonesia, Malaysia, the Russian Federation and many others are not parties to the MPIA.

This has led to various actions being taken after a panel report is released — adopting panel reports as is; pursuing any agreed arbitration process between the parties to the dispute, using the MPIA (where both parties are parties to the MPIA), appealing panel reports despite the current inability of the matter to heard on appeal (delaying a final resolution). As of February 14, 2022, some 24 panel reports have been appealed with no final resolution possible prior to a solution. Other reports have been adopted without further action, some have led to bilateral solutions, etc.

Prior to the Appellate Body becoming inoperable for lack of Appellate Body members, there was much discussion on a possible solution to the impasse including a process headed by Amb. David Walker. For the United States, the problem with the approach of other Members was a failure to address the underlying causes of the system having gone off the tracks in so many disputes. For the United States, restating existing obligations contained in the DSU was an insufficient solution as the Appellate Body had felt at liberty to deviate from existing obligations despite clear directions.

As noted, the Biden Administration (still without a Deputy USTR in Geneva because of Senate inaction) has continued the blockage of new appointments to the Appellate Body. USTR Katherine Tai has spoken some on dispute settlement. Her words suggest an alignment with prior Administrations that the system is in need of reform. The question for WTO Members is what approach is needed to address underlying U.S. concerns and ensure that the dispute settlement system moving forward is limited to the parameters established by the Members and supports the negotiation function of the WTO instead of supplanting it.

The Trump Administration had argued consistently that WTO Members needed to engage in an examination of why the system had deviated from the DSU as a necessary prelude to any examination of possible solutions. While many Members talk about being willing to address U.S. concerns, there has been little apparent interest among Members in engaging in the type of review of why the AB deviated so significantly from its limited role, why Members accepted this deviation and many other questions that need to be addressed to have Members reach a common understanding on what needs to be done to have a system of dispute settlement that comports to the limits agreed to by Members.

Last week, the Centre for Trade and Investment Law (CTIL), the Indian Institute of Foreign Trade (IIFT), New Delhi, the Centre for Alternative Dispute Resolution (CADR), Rajiv and the Gandhi National University of Law (RGNUL), Punjab organized a conference on February 10 and 11 entitled “Conference on
‘Dispute Settlement in International Trade Agreements: Prospective Pathways”. One of the last speakers on the second day was Ambassador Dennis Shea, the Trump Administration’s Deputy U.S. Trade Representative and Permanent Representative to the WTO. Amb. Shea provided his recap of the problems with the WTO’s dispute settlement system and identified a series of questions WTO Members need to address if there is to be hope of a resolution to the current impasse at the WTO on dispute settlement. His comments can be found on his Linkedin page, https://www.linkedin.com/feed/update/urn:li:activity:6897931614924414976/, and are copied below.

“Good evening, everyone. Let me begin by thanking Professor Nedumpara, the Centre for Trade and Investment Law, and the Rajiv Gandhi National University of Law for this opportunity to share some thoughts about the World Trade Organization and WTO dispute settlement.

“When the Professor reached out to see if I would be available to be with you this evening, albeit virtually, I jumped at the opportunity. I suppose you can say I began my WTO journey in India. On one of my earliest days as the newly-minted US Ambassador to the WTO, I found myself in New Delhi, a participant in a WTO mini-Ministerial conference hosted by the Indian government. As you can imagine, there was great interest among the assembled to see and meet the person whom the Trump Administration was sending to Geneva. It was also something of a ‘hot seat’ experience as I was peppered with questions about the U.S. position blocking new appointments to the WTO’s Appellate Body. In retrospect, I suppose it was a good warm-up for my subsequent service in Geneva.

“Before I venture any further, I want to acknowledge the cordial relationship that I enjoyed with my Indian counterparts – most notably Ambassador Deepak and Ambassador Navnit – during my service at the WTO. Although we did not see eye-to-eye on many issues, we always maintained a friendly and open relationship, recognizing the strong bonds between our two countries. I would also like to extend my best wishes to Ambassador Bhatia, whom I understand will be speaking shortly. I suspect he may disagree with some of what I may say.

“I thought I’d spend my time highlighting the key elements of the U.S. critique of the Appellate Body and offer some thoughts on the way forward. I use the term ‘U.S. critique’ intentionally. While in Geneva, I tried to convey to my colleagues that concerns about Appellate Body overreach were shared broadly
across the political spectrum in the United States and were not just Trump Administration or Republican Party complaints. In all honesty, I don’t think this point registered fully.

“With the Biden Administration continuing to block Appellate Body appointments for more than a year, it should now be crystal clear that this U.S. critique is deep-seated, broad-based, and bipartisan. In fact, during my service as WTO Ambassador, I never once received a telephone call, email, text, WhatsApp, or
other communication from anyone in the U.S. Congress, Democrat or Republican, complaining about the positions I was taking vis-à-vis the Appellate Body on behalf of the United States. On the contrary, I was often encouraged to keep it up.

“Let me also put all my cards on the table and say that I don’t believe the Appellate Body is ever coming back, in current or modified form. There is simply no political energy in the United States for doing so, and of course, that matters in a consensus organization like the WTO. As the current U.S. Trade Representative Katherine Tai recently stated: ‘Reforming dispute settlement is not restoring the
Appellate Body for its own sake, or going back to the way it used to be. It is about revitalizing the agency
of Members to secure acceptable resolutions.’

“Of course, the WTO membership could conclude that, going forward, a bifurcated system of appellate review is acceptable – with some members participating in the recently-created Multi-Party Interim Appeal Arbitration Arrangement and others, like the United States and India, operating outside of it. But, if the goal is a reformed dispute settlement system in which all members participate, then understanding the U.S. critique of the Appellate Body is essential.

“Let me add that, as part of any re-examination of the WTO dispute settlement system, everything should be on the table – both the appellate stage, if there is to be one, and the panel stage which has received much less attention but merits scrutiny, particularly in light of the growing length of panel proceedings. While engaged in this re-examination, there should be no red lines, just open minds. The first step should be a discussion, not a negotiation.

“Was the Appellate Body designed to be an international court charged with creating a global common law of trade? This question is at the heart of the U.S. critique and, from the U.S. perspective at least, the answer is clearly and unambiguously ‘no.’

“The Appellate Body is not called a ‘court’ in the Dispute Settlement Understanding nor are its members described as ‘judges.’ The DSU envisions Appellate Body members as part-time employees, not necessarily based in Geneva, who would be reimbursed travel and per diem expenses when called upon to hear an appeal from a panel report. Their function was straightforward and limited: to correct egregious errors of law made by dispute settlement panels. The DSU explicitly prohibits the Appellate Body from engaging in fact-finding – that’s the job of the panels – and from adding to or diminishing the rights and obligations provided in the WTO agreements. The WTO membership created the dispute settlement system – of which the Appellate Body was just a part – to help resolve disputes, not to create a body of jurisprudence or impose new rules. The responsibility for issuing authoritative interpretations of the WTO Agreement has always belonged to the WTO members themselves, acting through the General Council or the Ministerial Conference.

“Because of the limited role of the Appellate Body, the DSU requires it to act quickly, completing work within 60 days as a general rule but never beyond a 90-day deadline.

“Unfortunately, the Appellate Body – with the encouragement of some key WTO members and individual Appellate Body members – soon morphed into something completely different.

“It began to regularly engage in fact-finding, adding unnecessary complexity and time to its work. It began to insist that its reports were entitled to be treated as binding precedent and must be followed by panels, absent ‘cogent reasons,’ a standard that appears in no WTO agreement. It routinely rendered advisory opinions on issues not necessary to assist the Dispute Settlement Body in resolving a dispute. It unilaterally declared that it had the authority to allow individuals formerly serving on the Appellate
Body, whose terms had expired, to continue to participate in and decide appeals, a practice that India first objected to in 1996.

“And beginning in 2011, the Appellate Body routinely violated the 90-day rule for completing its reports, and in many cases, did so without even consulting the parties to an appeal. In fact, some appeals took more than one year to complete.

“For more than 20 years, across multiple Administrations, the United States – joined by other similarly concerned WTO members – repeatedly complained about these and other deviations from the clear text of the DSU. We were obviously unsuccessful in effectuating change. During my tenure in Geneva, when I asked my colleagues ‘why’ the Appellate Body felt free to break the rules – the famous ‘why’ question as characterized by the media – I was usually greeted with silence.

“This silence is not surprising. It became clear to me that some WTO members saw the Appellate Body as an independent international court and its members as judges who inherently have more authority to make rules and create jurisprudence. The same members envisaged the body as the centerpiece – the ‘crown jewel’ – of the dispute settlement system, not just one component of that system.

“Some Appellate Body members also viewed themselves as ‘appellate judges’ serving on a ‘World Trade Court’ and commissioned with broad authority to develop ‘a coherent and predictable body of jurisprudence.’ We know all this because they said so.

“In an important 2020 speech at Washington, DC’s Georgetown University, former Appellate Body member Tom Graham described the prevailing ethos of the Appellate Body characterized by three specific attributes:

“First, an orthodoxy of viewpoint, about the role of the Appellate Body as a self-anointed international court, with much broader authority to over-reach the rules and create judge-made law than permitted by the WTO agreements, or intended by the negotiators who created them;

“Second, a mindset that declined to re-examine the premises by which the Appellate Body expanded its role; and

“Third, a group-think that de-legitimized serious systemic criticisms, and those who espoused them.

“In his Georgetown speech, Mr. Graham also described the high degree of control exercised by Appellate Body staff leadership; an over-emphasis on ‘collegiality’ that shaded into peer pressure to conform; an excessive striving for consensus decisions coupled with a discouragement of dissents that led to excessively long and unclear compromise reports; a sense of infallibility; and an undue adherence to precedent – not only with respect to outcomes but also to reasoning, definitions, and obiter dicta that had the effect of ‘baking in mistakes.’

“As far as I know, none of these critical Appellate Body ‘inside-the-tent’ operational issues has ever seriously been discussed at the WTO’s Dispute Settlement Body, the General Council, or even among informal groupings of WTO members.

“The effect of Appellate Body overreach and its accretion of power has been the diminution of the WTO’s negotiating function. Why negotiate when you can achieve a desired outcome through litigation? Not surprisingly, the last successful multilateral negotiation was the Trade Facilitation Agreement,
completed in 2013, and there have been no successful rounds of tariff negotiations since the WTO’s creation.

“While in Geneva, I was often asked ‘what does the U.S. want?’ What the U.S. wanted was a deeper discussion of why the Appellate Body felt free to depart from what WTO Members agreed to and why the WTO membership allowed it to happen. It seems the current U.S. Administration is seeking the same kind of deep-dive discussion, recognizing as we did that simply papering over the differences among WTO members with a few word tweaks to the DSU or with a General Council decision that simply repeats the words already in the DSU just won’t work as a durable solution.

“Going forward, there must be a shared understanding of the proper structure and role of the WTO dispute settlement system and what we all want to get out of it.

“So how would we start such a discussion? Beyond engaging on the substantial critique that I just outlined and what it might mean for any future system, let me suggest several questions. Some of these questions may sound quite basic but are still essential to consider nonetheless:

“What is the purpose of dispute settlement at the WTO? What objectives are we trying to achieve? What benefits do WTO Members hope to derive?

“Do we agree that dispute settlement should support the WTO’s negotiating and monitoring functions and not act to undermine them?

“What attributes do we want WTO arbitrators to possess?

“Is the timeliness of decision-making important? If so, how can we expedite decision-making without compromising fairness and quality?

“Do we even need a second-tier or appellate review at the WTO? If so, why? Has it been the shared experience of WTO members over the past 25 years that the Appellate Body has demonstrated greater expertise and competence than panel members?

“If a second tier is considered important, should a losing party at the panel level have an automatic right to appeal? Or should the lane for these appeals be narrower – perhaps through a mechanism that
allows the WTO membership to set aside erroneous panel opinions in exceptional cases, as suggested by former U.S. Trade Representative Bob Lighthizer?

“What other alternative appellate review structures are possible? For example, does it make sense to expand the roster of first-tier panelists and enlist some of them for ‘appellate duty’ when the need arises? Do we need a permanent and dedicated staff to assist the appellate reviewers or did that type of structure contribute to the Appellate Body exceeding its intended role?

“And what is the appropriate relationship between the WTO membership, acting through the Dispute Settlement Body, and the WTO arbitrators?

“Beyond these questions, there must be a shared understanding of the fundamental norms that underpin the rules-based international trading system. After all, these norms – and the rules they inform and buttress – are what the dispute settlement system is designed to protect.

“For the U.S., the fundamental norms of the WTO include openness, transparency, non-discrimination, and market orientation grounded in the rule of law. It’s this last one – market orientation – that seems to be now in dispute.

“As one of the main architects of the multilateral trading system, the United States has always believed that adherence to market-based policies among trading parties was essential if the system is to work effectively and fairly. We certainly held this belief when we joined the GATT and later when we signed the Marrakesh Declaration with its commitment to ‘open, market-based policies.’ And the U.S. has insisted in literally dozens of WTO accessions that the acceding party undertake domestic reforms to reduce the role of the state in the economy and increase market orientation.

“As former WTO Deputy Director General Alan Wolff has explained: ‘The WTO is not simply about coexistence; differences among members affecting trade which deviate from the principles governing the WTO, its core values, are to be progressively overcome.’

“Not surprisingly, the People’s Republic of China does not believe that market orientation is a core value
of the WTO, arguing instead that market and non-market economies both belong in the organization on
an equal footing. But in 2001, when China acceded to the WTO, there was an expectation that its economy would further open up, liberalize, and embrace market principles.

“Regrettably, this future has not materialized. In fact, we have witnessed significant retrenchment, a process that has been ongoing for well over a decade.

“Today, it’s as if one team is playing rugby and the rest of us are playing cricket.

“As I said in my final remarks at the WTO in 2020, China’s ‘state-led, non-market economic system is incompatible with the WTO and its norms. To believe the WTO can manage this system’s trade disruptive impact under current rules and through the dispute settlement process is fantasy.’

“In my mind, this is the most pressing issue facing the WTO – how to manage this fundamental incompatibility. And to be completely candid, I’m not sure the WTO is equipped to do so.

“What I do know is that, at least from a U.S. perspective, reform of the WTO’s dispute settlement system can only succeed if the market-orientation norm of the WTO is significantly reinforced, not only through changes to the rules that effectively discipline non-market practices both also through a widespread recognition throughout the membership that market orientation is a foundational principle or norm of

the international trading system.
“Thank you for listening. It’s been a privilege to have this opportunity to speak with you today.”

Observations

The EU and many other WTO Members are looking for reform efforts to include the restoration of a two-tier dispute settlement system. The objectives these Members have focus on timing and speed of process. One does not see from these Members a focus on the need for Member discussion of the types of questions that Amb. Shea has outlined above. If, as seems likely, the Biden Administration is supportive of reexamining the dispute settlement system to address the types of concerns Administrations of both parties have raised over the last two decades, pursuing negotiations before a full discussion of the core questions listed above will almost certainly lead to failure.

Similarly, resolving the dispute settlement challenge will not occur in isolation. There is the issue of correcting erroneous decisions of the past as well as the critical need to address the incompatibility of the market economy systems that have typified the GATT and now the WTO and the state controlled economic systems typified by China and others. Convergence of Member economic systems must be agreed and enforced. Coexistence plainly is not working. There are too many aspects of state-controlled economies which are not adequately addressed by the existing multilateral rules. It is not likely that mere modification of the rules or adoption of new rules will solve the incompatibility.

The challenge for the WTO is whether its diversity of Members and need for consensus makes any forward movement on these critical issues possible in the coming months and years. Let’s hope that Amb. Shea’s concern that the WTO may not be capable of meeting the challenge is not correct.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, Current Thoughts on Trade.

To read the full commentary from Current Thoughts on Trade, please click here.

The post bodog casino|Welcome Bonus_change. During my tenure appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Courtney Brown — Thu, 27 Jan 2022 05:00:04 +0000

On January 26, 2022, an arbitration decision was issued on the level of retaliation China is entitled to take for the findings of the Appellate Body that the United States hadn’t brought its countervailing duty determinations on China into conformity with WTO obligations as construed by the Appellate Body. See UNITED STATES – COUNTERVAILING DUTY MEASURES ON CERTAIN PRODUCTS FROM CHINA, RECOURSE TO ARTICLE 22.6 OF THE DSU BY THE UNITED STATES, DECISION BY THE ARBITRATOR, WT/DS437/ARB,

26 January 2022. China sought retaliation rights of $2.4 billion/year. The U.S. had argued for a cap of $120 million/year. The arbitrator concluded retaliation rights were $645.121 million/year. Id at 12.

The original request for consultations was made on May 25, 2012 with a series of panel and Appellate Body reports issued between 2014 and 2019 (original dispute and Art. 21.5 proceedings). The original findings covered a range of issues including a string of issues relating to whether state-owned enterprises were public bodies. See summary of key findings, DS437, United States – Countervailing Duty Measures on Certain Products from China, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds437_e.htm.

The press releases from China and the United States state their respective positions – with China claiming the U.S. violates its WTO obligations and needs to bring itself into compliance, and with the U.S. noting that the underlying decisions reflect the problems with the Appellate Body that the U.S. has long identified and point to the need for reform of both the rules and dispute settlement. See Ministry of Commerce of the People’s Republic of China, bodog sportsbook review http://wto.mofcom.gov.cn/article/newsupdates/202201/20220103240040.shtml; Statement from USTR Spokesperson Adam Hodge on the WTO Arbitration Award Announcement in United States – Countervailing Duty Measures on Certain Products from China, January 26, 2022, https://ustr.gov/about-us/policy- offices/press-office/press-releases/2022/january/statement-ustr-spokesperson-adam-hodge-wto-arbitration- award-announcement-united-states (“The deeply disappointing decision today by the WTO arbitrator reflects erroneous Appellate Body interpretations that damage the ability of WTO Members to defend our workers and businesses from China’s trade-distorting subsidies. Today’s decision reinforces the need to reform WTO rules and dispute settlement, which have been used to shield China’s non-market economic practices and undermine fair, market-oriented competition. The Biden Administration will continue to use all our tools to stand up for the interests of America’s workers,”). businesses, farmers and producers, and strengthen our middle class.

There have been many who have written about the problems of the Appellate Body in its construction of the Subsidies Agreement. See, e.g., Cartland, Michael, Depayre, Gérard &Woznowski, Jan. “Is Something Going Wrong in the WTO bodog sportsbook review Dispute Settlement?” Journal of World Trade 46, no. 5 (2012): 979–1016; Dukgeun Ahn, Why Reform is Needed: WTO ‘Public Body’ Jurisprudence, 12 Global Policy, Supplement 3 at 61-70 ( April 2021)(and articles referenced therein).

USTR Lighthizer during the Trump Administration released in 2020 USTR’s Report on the Appellate Body of the WTO reviewing in great detail the concerns with the operation of the dispute settlement system. The concern about the Appellate Body interpretations preventing the U.S. and other Members from addressing the distortions including subsidies flowing from the Chinese economic system was a major focus in discussing the problems on “public body”. The Biden Administration and Congress have similar ongoing concerns which requires revisions to both the scope of the subsidies agreement and a revamp of the dispute settlement system.

Because of the extent of analysis presented by USTR, below are copied pages 82 – 89 of the 2020 USTR report.

“A. The Appellate Body’s Erroneous Interpretation of ‘Public Body’ Threatens the Ability of WTO Members to Counteract Trade-Distorting Subsidies Provided through SOEs, Undermining the Interests of All Market-Oriented Actors

“• The Appellate Body has adopted an erroneous interpretation of the term ‘public body’ that is not found in the agreed text and is not consistent with the ordinary meaning of that term.

“• The Appellate Body’s narrow interpretation favors non-market economies operating through SOEs over market economies and undermines the ability of WTO Members to counteract subsidies by non-market economies.

“The WTO agreements discipline certain subsidies provided ‘by a government or any public body,’ but the Appellate Body has adopted a narrow interpretation of public body that requires an entity to possess, exercise or be vested with government authority, in order for it to constitute a public body. That requirement is not found in the agreed text, nor is it consistent with the ordinary meaning of the term ‘public body.’ The Appellate Body’s narrow interpretation of public body fails to capture a potentially vast number of government- controlled entities, such as state-owned enterprises (SOEs), that are owned or controlled by foreign governments, and therefore undermines the ability of Members to counteract subsidies that are injuring their workers and businesses. The WTO was created by and for market economies, but the Appellate Body’s public body interpretation favors non-market economies at the expense of market economies and has given rise to confusion among WTO panels and WTO Members.

“1. Interpreted Correctly, the Term “Public Body” Means Any Entity Controlled by the Government

“Article 1.1(a)(1) of the SCM Agreement provides, in relevant part, that ‘a subsidy shall be deemed to exist if … there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as ‘government’).’

“The Subsidies Agreement does not define the term ‘public body,’ but definitions of the words ‘public’ and ‘body’ shed light on the ordinary meaning of the term ‘public body’ in Article 1.1(a)(1). By definition, the noun ‘body’ refers to a group of persons or an entity (as opposed to, for example, the ‘material frame’ of persons). This definition in the sense of ‘an aggregate of individuals’ is: ‘an artificial person created by legal authority; a corporation; an officially constituted organization, an assembly, an institution, a society.’196 Turning to the adjective ‘public,’ the relevant definition that pertains to a ‘body’ as a group of individuals is the first: ‘of or pertaining to the people as a whole; belonging to, affecting, or concerning the community or nation.’197

“Thus, the ordinary meaning of the composite term ‘public body’ according to dictionary definitions would be ‘an artificial person created by legal authority; a corporation; an officially constituted organization’ that is ‘of or pertaining to the people as a whole; belonging to, affecting, or concerning the community or nation.’ These definitions point towards ownership by the community as one meaning of the term ‘public body.’ If an entity ‘belongs to’ or is ‘of’ the community, it also follows that the community can make decisions for, or control, that entity.

“Contrary to the Appellate Body’s interpretation, nothing in these dictionary definitions restricts the meaning of the term ‘public body’ to an entity vested with, or exercising, government authority. Had the drafters of the SCM Agreement intended to convey that meaning, they might have chosen any number of other terms. For example, the drafters might have used ‘governmental body,’ ‘public agency,’ ‘governmental agency,’ or ‘governmental authority.’

“These terms would have, through their ordinary meaning, more clearly conveyed the sense of exercising governmental authority. That they were not chosen sheds light on the different concept captured by the term that was chosen, ‘public body.’

“The ordinary meaning of the terms of a treaty must be understood ‘in their context.’198 Reading the term ‘public body’ in context supports the conclusion that a ‘public body’ is an entity controlled by the government such that the government can use that entity’s resources as its own.

“In Article 1.1(a)(1) of the SCM Agreement, the term ‘public body’ is part of the disjunctive phrase ‘by a government or any public body within the territory of a Member.’ The SCM Agreement thus uses two different terms – ‘a government’ on the one hand and ‘any public body’ on the other hand – to identify the two types of entities that can provide a financial contribution. As a contextual matter, the use of the distinct terms ‘a government’ and ‘any public body’ together this way indicates that the terms have distinct and different meanings.

“Treaty interpretation should give meaning and effect to all terms of a treaty. As the Appellate Body has recognized, provisions of the WTO Agreement should not be interpreted in such a manner that whole clauses or paragraphs of a treaty would be reduced to redundancy or inutility.199 Accordingly, the term ‘public body’ should not be interpreted in a manner that would render it redundant with the word ‘government.’

“The term ‘government,’ as the panel in US – Anti-Dumping and Countervailing Duties (China) found, means, among other things: ‘The governing power in a State; the body or successive bodies of people governing a State; the State as an agent; an administration, a ministry.’200 In Canada – Dairy, the Appellate Body explained that ‘[t]he essence of ‘government’ is . . . that it enjoys the effective power to ‘regulate’, ‘control’ or ‘supervise’ individuals, or otherwise ‘restrain’ their conduct, through the exercise of lawful authority.’201 The Appellate Body further explained that a ‘‘government agency’ is, in our view, an entity which exercises powers vested in it by a ‘government’ for the purpose of performing functions of a ‘governmental’ character, that is, to ‘regulate’, ‘restrain’, ‘supervise’ or ‘control’ the conduct of private citizens.’202

“The term ‘public body,’ therefore, should be interpreted as meaning something other than an entity that performs ‘functions of a ‘governmental’ character, that is, to ‘regulate’, ‘restrain’, ‘supervise’ or ‘control’ the conduct of private citizens.’203 Otherwise, a ‘public body’ is ‘a government,’ or a part of ‘a government,’ and there is no reason for the term ‘public body’ to have been included in Article 1.1(a)(1) of the SCM Agreement.

“In seeking to understand the term ‘public body’ in its context, it is also important to recall that the SCM Agreement is identifying those entities that may make ‘financial contributions.’ Those financial contributions are one part of a definition of ‘subsidy,’ and those subsidies are granted or maintained by WTO Members. A WTO Member can make the financial contribution underlying the subsidy directly through its ‘government’ (narrowly understood). However, it also can make that financial contribution through entities that it controls.

“Article 1.1(a)(1) of the SCM Agreement identifies a variety of actions that constitute financial contributions, including ‘a direct transfer of funds (e.g. grants, loans, and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees),’ foregoing or not collecting ‘government revenue,’ ‘provid[ing] goods or services other than general infrastructure, or purchas[ing] goods,’ and ‘mak[ing] payments to a funding mechanism.’ The ordinary meaning of a ‘financial contribution’ suggested by this list of actions is to convey value. In this ordinary sense, entities controlled by the government can convey value just as the government can, and the value conveyed can be precisely the same as that conveyed by the government.

“Consider, for example, a ‘direct transfer of funds’ by a government to a recipient in the form of a grant. Conveying value in this way is plainly a ‘financial contribution’ within the meaning of the SCM Agreement. If the government formed and controlled a legal entity (for example, a corporation whose shares are all owned by the government), and the entity provided the same grant to a recipient, the same financial contribution has occurred: the government has conveyed value. Whether the funds are provided directly by the government or by an entity controlled by the community through its government, it is a Member’s funds that are being used to make the financial contribution.

“There is no evident reason for the first transaction to fall within the scope of Article 1.1(a)(1) of the SCM Agreement and the second to fall outside the scope. Nor would the term ‘financial contribution’ suggest that a distinction should be drawn between those transactions based on whether the entity or corporation is ‘vested with or exercising governmental authority.’ Rather, the context supplied by ‘financial contribution’ suggests a different common concept between ‘government’ and ‘public body’ than that discerned by the Appellate Body. If a ‘financial contribution’ means to convey something of value, the concept sought to be captured by the SCM Agreement term is the use by a government of its resources, or resources it controls, to convey value to economic actors.

“2. The Appellate Body Has Interpreted the Term ‘Public Body’ Incorrectly

“In US – Anti-Dumping and Countervailing Duties (China) in 2011 and US – Carbon Steel (India) in 2014, the Appellate Body interpreted the term ‘public body’ in Article 1.1(a)(1) of the SCM Agreement incorrectly. The key issue before the Appellate Body in these disputes was whether a wholly or majority government-owned SOE is a ‘public body,’ such that WTO Members can take action to counteract any unfair subsidies the SOEs provide. The Appellate Body recognized that, based on its ordinary meaning, the term ‘public body’ encompassed a ‘rather broad range of potential meanings.’ Nonetheless, the Appellate Body set out a very limited interpretation of the term, concluding that a ‘public body’ ‘must be an entity that possesses, exercises or is vested with governmental authority,’ including because the entity has ‘the effective power to regulate, control or supervise individuals, or otherwise restrain their conduct, through the exercise of lawful authority.’204 Under the Appellate Body’s interpretation, even where a government owns or controls an entity, that would not be sufficient to hold the government responsible for any injurious subsidies it provides.

“The Appellate Body’s ‘government authority’ test significantly limits the ability of governments to effectively combat unfairly subsidized imports and is nowhere reflected in the text of the SCM Agreement. If an entity has no regulatory or supervisory authority, but is nonetheless controlled by the government such that the government can use the entity’s resources as its own – making any transfer of economic resources by that entity a conveyance of the government’s own resources – it would be anomalous to conclude that the financial contribution cannot be deemed a subsidy under Article 1.1(a)(1). On the other hand, if an entity has the power to ‘regulate’ individuals or ‘otherwise restrain their conduct,’ but not the power to provide financial contributions of government resources, its regulatory powers are not relevant to the SCM Agreement. The Appellate Body’s interpretation therefore does not reflect the structure of either Article 1.1(a)(1) or of the SCM Agreement, and the failure of this interpretation to capture a

potentially vast number of government-controlled entities undermines the disciplines of the SCM Agreement.

“The Appellate Body’s interpretation stands in contrast to the approach taken by several WTO panels that interpreted the term ‘public body’ to be an entity controlled by the government. In Korea – Commercial Vessels, for example, the panel concluded that ‘an entity will constitute a ‘public body’ if it is controlled by the government (or other public bodies).’205 In reaching this conclusion, that panel rejected some of the very same arguments China advanced before the panel and the Appellate Body in US – Anti-Dumping and Countervailing Duties (China).

“In EC and certain member States – Large Civil Aircraft, the panel, addressing the status of a government- owned financial institution, explained that, ‘at the time of its 1992 investment in Aerospatiale, Credit Lyonnais was controlled by the French government and was a ‘public body’ for purposes of Article 1.1(a)(1) of the SCM Agreement.’206 Accordingly, the capital contribution made by Credit Lyonnais to Aerospatiale constituted a financial contribution by a public body.207

“In US – Anti-Dumping and Countervailing Duties (China), the panel concluded that ‘a ‘public body’, as that term is used in Article 1.1 of the SCM Agreement, is any entity controlled by a government.’ As noted above, however, in reversing the Panel, the Appellate Body adopted a narrow definition of a ‘public body.’

“During the meeting of the WTO Dispute Settlement Body at which the panel and Appellate Body reports in US – Anti-Dumping and Countervailing Duties (China) were adopted, seven WTO Members (Mexico, Turkey, the European Union, Canada, Australia, Japan and Argentina) joined the United States in raising concerns about the Appellate Body’s interpretation.208

“Commentators have also criticized the Appellate Body’s interpretation. For example, in an article in the Journal of World Trade, Michael Cartland, Gérard Depayre, and Jan Woznowski – each of whom participated in the Negotiating Group on subsidies and countervailing measures in the Uruguay Round – present a detailed discussion of the Appellate Body report in US – Anti-Dumping and Countervailing Duties (China) and raise a host of concerns with the Appellate Body’s interpretation of the term ‘public body,’ calling the analysis ‘internally contradictory’ and ‘disingenuous.’209

“3. The Appellate Body’s Non-Textual Interpretation Has Created Significant Uncertainty and Led Panels to Reach Absurd Results

“In US – Anti-Dumping and Countervailing Duties (China), the Appellate Body left open the possibility that ‘meaningful control’ over an entity could be sufficient to show that the entity ‘possesses, exercises or is vested with governmental authority,’ and in US – Carbon Steel (India), the Appellate Body appeared to confirm that an SOE’s authority over government resources could support a public body finding.

“However, the Appellate Body’s non-textual interpretation has created significant uncertainty as to the precise scope of Article 1.1(a)(1), and recent attempts by panels to apply the so-called ‘government authority’ test have only exacerbated the problem, confirming the fundamental errors in the Appellate Body’s approach.

“The panel’s findings in US – Pipes & Tubes CVD (Turkey), for example, illustrate the hazard
introduced by the Appellate Body’s approach to public body in US – Carbon Steel (India), and in
particular a suggestion in that report that there must be a demonstration that the government ‘in
fact exercised control over the [entity] and its conduct.’210 Citing to this report, the panel in Pipes & Tubes found that the ability of the government to intervene in an entity’s critical operations and key decisions was not relevant to a public body determination, and required evidence that the government had actually exercised that control with respect to the subsidization in question. Similarly, the panel found that the existence of commercial conduct could preclude a finding that an entity is a ‘public body,’ because it could reflect the absence of a governmental function on the part of the entity and therefore a lack of governmental authority.

“As the United States has explained, properly interpreted, the issue under Article 1.1(a)(1) is not whether the nature of the behavior or the conduct of the entity is governmental. Rather, the question is whether the entity engaging in the conduct is governmental or pertaining or belonging to the people, i.e., whether the entity is ‘a government or any public body.’ If the entity is governmental, or public, all of its activities are attributable to the government in question. Were this not the case, a government could shield its activities from the disciplines of the SCM Agreement simply by setting up an SOE and allowing it to engage in some commercial conduct, even where there is evidence that the government has the ability to intervene and control the entity whenever it chooses. This cannot be the case.

“If a government undertakes the activities described in Article 1.1(a)(1), there is a conveyance of value from a WTO Member to a recipient. There is an equivalent conveyance when there is an entity whose resources the WTO Member can control and use, and the entity engages in the same activities. The interpretation set out by the Appellate Body, however, allows WTO Members to evade their obligations under the SCM Agreement simply by establishing an entity that is private in form, but not in substance.

“The interpretation therefore significantly restricts the ability of WTO Members to counteract trade-distorting subsidies provided through SOEs, posing a significant threat to the interests of all market-oriented actors.

“The interpretation also fails to maintain the textual distinction in Article 1.1(a)(1) between a ‘public body’ and a ‘private body.’ Contrary to the panel’s application of the Appellate Body’s standard in US – Pipes & Tubes CVD (Turkey), focus on the specific conduct of an entity would be relevant when examining whether there was government entrustment or direction of a private body under Article 1.1(a)(1)(iv) of the SCM Agreement. That is, a private body may provide a subsidy if the government entrusts or direct the private body ‘to carry out one or more of the functions illustrated in (i) to (iii).’ The panel’s approach demonstrates the uncertainty introduced by the Appellate Body’s interpretation, which risks conflating the public body analysis with that of government entrustment and direction of a private entity, and renders the term ‘public body’ effectively meaningless.

“4. The Appellate Body Has Continued Its Incorrect Approach to ‘Public Body” in a Recent Appellate Report concerning the Imposition by the United States of Countervailing Duties on Subsidized Imports from China

“Although the Appellate Body recently had an opportunity to correct its flawed approach, it did not do so and, instead, stuck with an approach that has no basis in the text of the Subsidies Agreement. In US – Countervailing Measures (China) (21.5), all three members of the Division on appeal rejected China’s extremely narrow definition of ‘public body.’ However, two members of the Division reiterated the Appellate Body’s flawed approach. The third member dissented on this point, stating that ‘the majority has repeated an unclear and inaccurate statement of the criteria for determining whether an entity is a public body, and [the dissenting member] disagree[d] with the majority’s implication that a clearer articulation of the criteria is neither warranted nor necessary.’211

“The dissent continued that ‘the continuing lack of clarity as to what is a ‘public body’ represents an undue emphasis on ‘precedent’, which has locked in a flawed interpretation that has grown more confusing with each iteration, as litigants and Appellate Body Divisions repeated the original flaw while trying to navigate around it.’212

“The ‘original mistake’, as the dissent put it,213 was the Appellate Body’s attempt, in US – Anti-Dumping and Countervailing Duties (China) (DS379), to define the term ‘public body’ as ‘an entity that possesses, exercises or is vested with governmental authority,’ including because the entity has ‘the effective power to regulate, control or supervise individuals, or otherwise restrain their conduct, through the exercise of lawful authority.”214 Under the Appellate Body’s interpretation, even where a government owns or controls an entity, that would not be sufficient to hold the government responsible for any injurious subsidies the entity provides.

“5. The Appellate Body’s Interpretation Limits the Ability of Investigating Authorities to Address Unfairly Subsidized Imports

“The Appellate Body’s ‘governmental authority’ test significantly limits the ability of governments to combat unfairly subsidized imports. The Appellate Body’s approach is nowhere reflected in the text of the Subsidies Agreement. If an entity has no regulatory or supervisory authority, but is nonetheless controlled by the government – making any transfer of economic resources by that entity a conveyance of the government’s own resources – it would make no sense to conclude that this transfer of public resources is not a financial contribution under Article 1.1(a)(1).

“On the other hand, if an entity has the power to ‘regulate’ individuals or ‘otherwise restrain their conduct,’ but not the power to provide financial contributions of government resources, its regulatory powers are not relevant to the Subsidies Agreement. The Appellate Body’s interpretation therefore does not reflect the structure of either Article 1.1(a)(1) or of the Subsidies Agreement.

“The failure of the Appellate Body’s interpretation to capture a potentially vast number of SOEs and other entities that are owned or controlled by foreign governments undermines the ability of Members to effectively counteract subsidies that are injuring their workers and businesses. The WTO was created by and for market economies, but the Appellate Body’s public body interpretation favors non-market economies at the expense of market economies.

“195 For example, this Report does not discuss the dispute US – Continued Dumping and Subsidy Offset Act Of 2000, in which the Appellate Body’s interpretation of the Subsidies Agreement in effect created a new category of prohibited subsidies that was neither negotiated nor agreed to by WTO Members; or other examples, such as US – Gambling, US – Cotton, US – FSC.

“196 The New Shorter Oxford English Dictionary at 253 (1993).

“197 Id. at 253.

“198 Vienna Convention on the Law of Treaties, Article 31.

“199 US – Offset Act (Byrd Amendment) (AB), para. 271 (2003). See also US – Gasoline (AB) at p. 23 (1996).

“200 US – Anti-Dumping and Countervailing Duties (China) (Panel), para. 8.57 (citing Shorter Oxford English Dictionary, L. Brown (ed.) (Claredon Press, 1993), Vol. I, p. 1123) (2011).

“201 Canada – Dairy (AB), para. 97 (1999).

“202 Id.

“203 Id.

“204 US – Anti-Dumping and Countervailing Duties (China) (AB), para. 290 (2011) (citing Canada – Dairy (AB), para. 97).

204 US – Anti-Dumping and Countervailing Duties (China) (AB), para. 290 (2011) (citing Canada – Dairy (AB), para. 97).

“205 Korea – Commercial Vessels (Panel), para. 7.50 (2005). See also id., paras. 7.172, 7.353, and 7.356 (2005)(finding that the Korean Development Bank and the Industrial Bank of Korea were public bodies because they were totally, or near totally, owned by the Government of Korea).

“206 EC – Large Civil Aircraft (Panel), para. 7.1359 (2011). “207 Id.

“208 See Dispute Settlement Body, Minutes of the Meeting Held on March 25 2011, WT/DSB/M/294, paras. 103-127. See also Joint Statement of the Trilateral Meeting of the Trade Ministers of Japan, the United States and the European Union, para. 6 (January 14, 2020) (‘The Ministers observed that many subsidies are granted through State Enterprises and discussed the importance of ensuring that these subsidizing entities are captured by the term ‘public body.’ The Ministers agreed that the interpretation of ‘public body’ by the WTO Appellate Body in several reports undermines the effectiveness of WTO subsidy rules. To determine that an entity is a public body, it is not necessary to find that the entity “possesses, exercises or is vested with governmental authority.’).

“209 Cartland, Michael, Depayre, Gérard &Woznowski, Jan. “Is Something Going Wrong in the WTO bodog sportsbook review Dispute Settlement?” Journal of World Trade 46, no. 5 (2012): 979–1016, at 996.

“210 US – Carbon Steel (India) (AB), para. 4.37 (2014) (first emphasis in original, second emphasis added). “211 US – Countervailing Measures (China) (Article 21.5) (AB), para. 5.243 (2015) (separate opinion of one

Division member). “212 Id. at para. 5.244. “213 Id. at para. 5.245.

“214 US – Anti-Dumping and Countervailing Duties (China) (AB), para. 2.90 (2015) (citing Canada – Dairy (AB), para. 97).’195 For example, this Report does not discuss the dispute US – Continued Dumping and Subsidy Offset Act Of 2000, in which the Appellate Body’s interpretation of the Subsidies Agreement in effect created a new category of prohibited subsidies that was neither negotiated nor agreed to by WTO Members; or other examples, such as US – Gambling, US – Cotton, US – FSC.”196 The New Shorter Oxford English Dictionary at 253 (1993).’197 Id. at 253.”

Observations

In prior posts I have reviewed the challenges for the relevance of the WTO if Members don’t work on convergence of economic systems versus coexistence. That China’s system is at odds with market economy principles has raised concerns in the U.S., EU, Japan, Canada, Australia and other WTO Members. The Appellate Body has compounded the problems for market economies in dealing with state-driven economies (non-market economies) by permitting a wide array of subsidy practices to be not addressable through the narrow interpretation of public body.

Such erroneous interpretations and the inability to achieve correction through negotiations have led to shutting down of the Appellate Body and have exacerbated the inability of Members to get balanced rules negotiated. A multilateral trading system which doesn’t achieve a level trading environment in fact cannot survive as the basis for global engagement.

While in Geneva there is much talk about reform of both the rules and the dispute settlement system, the path forward to achieving balance in fact is hard to discern.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, Current Thoughts on Trade.

To read the full commentary from Current Thoughts on Trade, please click here.

The post bodog online casino|Welcome Bonus_and is nowhere reflected appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Mon, 07 Dec 2020 15:58:08 +0000

As the incoming Biden administration considers the state of the World Trade Organization (WTO), it will find an organisation in disrepair. Trouble was already brewing before Trump’s term of office, with the failure of the Doha Round negotiations, mounting frustrations with the Appellate Body, and setbacks to the plurilateral trade negotiating agenda.

But the WTO’s decline accelerated dramatically over the past four years, with the United States retreating from leadership, the US–China trade war spilling over to Geneva, and the many excessive trade restrictions imposed worldwide through the COVID-19 crisis. With Director-General Roberto Azevedo’s early departure, the WTO leadership transition has since been less than smooth, with no one serving in an acting capacity and the United States blocking consensus on a new director-general.

There are still glimmers of hope. Middle powers have undertaken important work, such as the recent statement on trade and health issued by Canada, the European Union, Japan, Australia and others. President-elect Biden has also emphasised the importance of working with allies and partners and through international organisations to achieve US foreign and economic policy objectives. And it is hoped that a new director-general will be selected soon to advance the organisation’s important work.

With a long list of issues requiring attention, the Biden team needs to sort out its priorities and separate what can be accomplished and how soon. When the new administration considers near-term objectives, it should be mindful of the upcoming 2021 WTO Ministerial Conference. To demonstrate commitment to repairing and revitalising global rules-based trade, there are a series of immediate actions that could be taken early in the new administration’s tenure.

First, by lifting the US reservation on Ngozi Okonjo-Iweala for director-general, the Biden administration stands to gain immediate international goodwill. The move would allow Geneva to shift its focus towards substance in the lead up to the Ministerial Conference. Dr. Okonjo-Iweala is highly qualified, having risen to the top of contention, and the sooner the United States joins in the consensus to select the Nigerian candidate, the sooner attention can be redirected towards the substantive agenda.

An early visit to Geneva by the new US Trade Representative (USTR) would help set the tone for US engagement in revitalising the WTO. Sessions could be held with the newly-appointed director-general, as well as Geneva ambassadors, to survey first-hand the situation and formulate initial thoughts on priority reform efforts. A visit would be in striking contrast to Trump administration USTR Robert Lighthizer’s WTO engagement. He never once visited Geneva as USTR and frequently skipped mini-ministerial meetings in third countries.

A critical step in fixing the broken dispute settlement mechanism would be for the new administration to table proposals for Appellate Body reform, recognising that success would need to be accompanied by negotiation of new rules in other areas. Since blocking the appointment of new Appellate Body members, the United States has not shared its views on the approach to a concrete reform agenda, instead pressing discussions around the underlying divergent views among delegations.

Meanwhile, other member countries, as well as the former chairman of the WTO Dispute Settlement Body, have put forward ideas aiming to address US concerns. The Biden team should draw from this rich input and the detailed suggestions of other trade experts that have also been floated. Negotiation will be difficult but the paralysis needs to end if a functioning WTO has any chance of surviving.

While the Trump administration identified challenges to the current WTO system posed by non-market economies, particularly China, it fell far short of delivering meaningful results. The Biden team has underscored the importance of working with partners and within international institutions to address these problems. As a first step, the incoming administration should finalise the trilateral work with the European Union and Japan on industrial subsidies, recruit wider international support, and submit a proposal to the WTO for negotiation.

While progress is being made in plurilateral negotiations on e-commerce, a wider agreement is still far from reach. The lack of multilateral rules in this critical sector reinforces the narrative that the WTO is falling into irrelevance. The incoming administration has the opportunity to light a fire under negotiations. It can work with others to step up high-level engagement from capitals. More importantly, it can spur momentum by launching digital trade negotiations among like-minded countries in the Asia Pacific region.

Many in the region have already concluded or are in the process of negotiating digital trade agreements among themselves, building on the Trans-Pacific Partnership platform. If robust regional progress is made, others are likely to become more serious about the WTO talks, not wanting to be left behind.

These suggested actions would help pave the way for the Biden administration to make an early and constructive impact on WTO reform and contribute to the success of the 2021 WTO Ministerial Conference. But this list is not exhaustive; reform to developing country status and trade aspects of other global issues, including in climate change and health, are also overdue.

The United States should not be relied on to pick up the mantle alone. For the WTO reform agenda to succeed, others will also need to step up to the plate and move out of their comfort zones.

To read the original blog post, please click here.

Wendy Cutler is Vice President and Managing Director of the Asia Society Policy Institute Washington DC Office.

The post Bodog Poker|Welcome Bonus_this rich input and the appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Fri, 04 Dec 2020 17:18:19 +0000

Dr. Hong Zhao, the last of the Appellate Body members at the moment, provided farewell remarks on her last day of her first term, November 30, 2020, in a virtual presentation hosted by the CTEI Graduate Institute’s Geneva Trade Platform. See https://www.graduateinstitute.ch/communications/events/professor-dr-hong-zhao-farewell-remarks-and-presentation; https://www.youtube.com/watch?v=8aKPj_Vj6Gc. Dr. Hong Zhao’s prepared remarks have not yet been posted on the CTEI Graduate Institute’s webpage nor on the WTO webpage on the Appellate Body, where remarks of other departing Appellate Body members have been posted. Such postings will presumably occur in the coming days. Hence what follows are my impressions from listening to the farewell remarks of Dr. Zhao.

Dr. Zhao’s remarks were about forty-five minutes in length and were followed by a short question and answer period. As the last current Appellate Body member, Dr. Zhao spent a good deal of her presentation walking through potential causes for the current controversy over the Appellate Body with a focus on a conflict of ideas on dispute settlement held by WTO Members and on different styles of dispute settlement (activism vs. restraint). She also reviewed areas for future action to get the WTO dispute settlement system back and functioning. Her comments were quite interesting. While she often laid out what Dr. Zhao believed are competing views within the WTO Membership, in general she provided a justification for past Appellate Body actions while also providing some steps Members could take going forward to resolve the present impasse.

Disagreement with some of her observations about the WTO Appellate Body

Her remarks made clear that Dr. Zhao views the Appellate Body as a court, that the objectives of consistency and predictability have justified the approach pursued by the Appellate Body, and that the objective of resolving disputes has justified the creation of rights and obligations even if the agreements are silent on the question before the Appellate Body. Nonetheless, Dr. Zhao emphasized, in light of the serious challenges facing the WTO, the need for WTO Members to come together to save both the dispute settlement system and the WTO itself.

The U.S. has stated that the Appellate Body and panels are not courts and that position has been supported by the European Union and Canada, each of whom has acknowledged that WTO dispute settlement does not involve courts. So there is a stark difference in the understanding of the role of the Appellate Body and panels between Dr. Zhao and at least some major Members of the WTO. What isn’t explored in Dr. Zhao’s comments is how the nature of dispute settlement changes if courts are not involved.

Similarly, recognizing the longstanding problems of the negotiating function at the WTO, Dr. Zhao does not perceive that a resolution of a dispute could include a decision that there are no rights or obligations on a particular point and hence the dispute (in total or on that particular issue) is resolved against the party who requested a panel and/or appeal. Consistency and predictability are obviously encouraged if efforts to achieve through a dispute an outcome not specified in one of the underlying agreements are denied. So too is the need of Members to pursue issues not covered by agreements in new negotiations.

Dr. Zhao also seems to excuse the failure of the Appellate Body to review and revise construction of provisions in subsequent cases when there are reasons to do so, instead putting the responsibility for dealing with erroneous decisions in the hands of the WTO membership through binding interpretations or new negotiations, despite the failure of the WTO membership to achieve either resolution. While the WTO has serious problems because the negotiating function has been largely impotent over the last 25 years, certainly on addressing errors from the Appellate Body, it is unfortunate that Dr. Zhao didn’t acknowledge the failure of the Appellate Body to resolve matters on a case-by-case basis and to not view prior reports as precedential and/or at least subject to review and revision.

Actions Members could take going forward to resolve the impasse

Dr. Zhao’s view is that the restoration of the Appellate Body as part of a resolution of various dispute settlement system issues should be the first order of business for the WTO Members. She encourages Members to bring out issues of concern with the dispute settlement system to the table for consideration.

Dr. Zhao had many proposed “to do” actions including the following:

(1) restore/implement the process for appointing new Appellate Body members,

(2) have the Appellate Body focus on not creating rights or obligations as they consider appeals,

(3) reinforce case-by-case resolution of disputes,

(4) not engage in rulemaking during dispute settlement,

(5) have Appellate Body exercise restraint in their reports (vs. activism),

(6) avoid obiter dicta in reports,

(7) improve communications with parties when reports can’t be generated in 90 days,

(8) give Appellate Body members a one term 7-8 year term,

(9) rotate Appellate Body Secretariat personnel.

Dr. Zhao also supports improving implementation steps after dispute settlement and strengthening panel proceedings by going to a fixed group of panelists (30 in number) with terms of 5-6 years, encouraging Members to join MPIA until the Appellate Body is restored, improve transparency of panel proceedings for WTO Members, provide technical assistance to developing and least developed countries and permitting Members to present their argument in their national languages.

Conclusion

Each departing Appellate Body member has provided their thoughts on the operation of the Appellate Body in farewell remarks. Dr. Zhao’s farewell remarks reflect a lot of thought about the system as she experienced it and reflect an examination of potential causes of friction in the system and provide suggestions for what types of steps Members could take to bring a two-step dispute settlement system back into play at the WTO.

There are WTO Members who want to have a quick resolution of the current impasse either through the lifting of the blockage on appointing new AB members or (more realistically) by solving U.S. problems and removing the blockage. Some have argued for a more expansive review of dispute settlement including addressing issues during panel proceedings, etc. While any approach can be pursued by Members if they so wish, the latter approach will certainly extend the period when there is no functioning Appellate Body. Indeed, the dispute settlement review which started twenty years ago has never been concluded and would suggest significant additional delay if full blown dispute settlement system review is the focus.

As to specific proposals on addressing the Appellate Body, some suggestions by Dr. Zhao have been nonstarters for the United States (extending terms from four to seven or eight years) while many others appear to reflect the need to resolve U.S. concerns. The devil is, of course, in the detail and likely includes a necessary agreement by Members on the underlying purpose of dispute settlement and clarifying DSU Article 3.2 and 19.2 by providing guidance on what constitutes the creation of rights or obligations.

Still, Dr. Zhao should be congratulated for recognizing that the status quo ante is not a viable approach and for providing her perspective on changes or clarifications that could be part of the solution to the current impasse.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

To read the original blog post, please click here.

The post bodog casino|Welcome Bonus_Body, where remarks of appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Sun, 18 Oct 2020 13:53:34 +0000

At the recent Informal Trade Negotiations Committee and Informal Heads of Delegation meeting on October 12 and the General Council meeting on October 13, WTO Members continued to line up on opposite sides of major reform proposals from the United States and others.

While the U.S. and other supporters of change in developing country status for special and differential treatment (“S&DT”) have not included least developed countries (where there is no dispute on the need for assistance), China, India, and South Africa hide behind a Doha Development Agenda item on S&DT on existing agreements and proposals put forward by the G90 in an effort to avoid their need to justify any special and differential treatment in new agreements or ongoing negotiations. The concept that Members who have advanced economically rapidly over the last twenty-five years are going to get additional S&DT benefits on existing agreements while not permitting a better differentiation of which WTO Members have actual needs is not one likely to move forward and will exacerbate the negotiating impasse at the WTO. There is a good summary of the S&DT debate at the General Council meeting on October 13 in the October 14 issues of Washington Trade Daily. https://files.constantcontact.com/ef5f8ffe501/7ce1179a-5882-4f55-96ce-84eea151fa27.pdf.

The U.S., EU and China statements at the General Council meeting and the U.S. and EU statements at the informal TNC and Heads of Delegation meeting the day before are available on each country’s WTO website.

Developing Country criteria; Special and Differential Treatment

Below are excerpts from the October 13 General Council meeting on agenda item 6, “Procedures to strengthen the negotiating function of the WTO — Statement by the United States (WT/GC/W/757/Rev.10 and WT/GC/W/764/Rev.1).”

Statement by U.S. Amb. Dennis Shea:

“At the HODs meeting yesterday, I spoke about the paralysis of the WTO’s negotiating function.

“In our view, the root causes are complex and varied. They include:

“- Appellate Body overreach, which enticed many Members to disfavor negotiation and instead pursue litigation to achieve desired outcomes;

“- A chronic lack of transparency by many Members, especially some major players, which is distorting our grasp of key issues and undermining the foundation for negotiations; and

“- Certain Members’ unjustifed claim of automatic entitlement to blanket special and differential treatment (S&D), which ensures that ambition levels remain far too weak to produce negotiated outcomes. Members cannot find trade-offs or build coalitions when significant players use S&D to avoid making meaningful offers.

“As we’ve discussed our S&D reform proposal with Members, we have heard three criticisms.

“First, certain advanced, wealthy, or influential Members claim they have an automatic, permanent, and sacrosanct entitlement to blanket S&D. We disagree. Our approach to S&D eligibility can and must evolve to reflect the trade and development reality of today.

“Second, some Members argue for a different solution – the “case-by-case” approach, where each Member is asked to contribute to the full extent of its capabilities to a set of disciplines. But we know from experience—it’s called the Doha Round—that this approach does not work when some Members are not willing to take on obligations commensurate with their role in the global economy.

“- Some Members point to the Trade Facilitation Agreement (TFA) as a successful case-by-case approach to S&D, but the TFA is not a readily or generally applicable model moving forward. Recall that under the TFA, a Member may lose competitiveness if other Members fully implement the agreement and it does not. Most trade agreements operate differently, in that a Member is likely to believe it will be better off if other Members fully implement the obligations and it does not.

“Third, some Members say it is folly to try to create categories of Members. This is an odd criticism, given that categories already exist. Today, there are three categories – first, those Members to which all obligations apply; second, the LDCs that enjoy enhanced flexibilities; and third, the majority of Members – around 90 – that claim entitlement to blanket S&D as self-declared developing countries.

“So the starting point is not categorization, but what to do with this last category of Members that represent significantly divergent economies. These Members simply do not fit the same mold or have the same needs. The more economically advanced of these countries are clearly capable of negotiating the flexibilities they need, rather than availing themselves of blanket S&D.

“As just one example, China’s global merchandise exports are 14 times greater than the combined exports of all 49 countries that the UN categorizes as LDCs. Its economy is more than 11 times the economies of all 49 LDCs combined. China’s per capita income is more than five times higher than that of the LDC average – a remarkable development since 1995, when China’s per capita income was within $900 of the LDC’s average.

“China even admitted at the General Council meeting in July that China is not in the same position as Benin or Liberia. It is helpful that China recognizes that it should not receive the same flexibilities as LDCs. But does that mean that China believes it is in the same position as Pakistan or Kenya? Because today, China claims the right to seek the same blanket S&D as these and other lower-income countries.

“In 1995, China’s per capita income was nearly 20 percent smaller than that of Kenya and more than 25 percent smaller than that of Pakistan. Today, China’s per capita income is nearly four times that of Kenya, and more than triple that of Pakistan.

“The failure to differentiate some of this organization’s most advanced, wealthy, or influential Members from LDCs and others diminishes the value of special and differential treatment to those who need it most. It also imperils our ability to reach new agreements that could provide greater opportunities for the WTO’s poorest Members who are least integrated into the global trading system.

“This issue, and the need for reform, is not going away. We look forward to continuing our engagement with Members.”

U.S. Mission to International Organizations in Geneva, WTO General Council Meeting, October 13, 2020, item 6, https://geneva.usmission.gov/2020/10/13/statement-by-ambassador-shea-at-the-wto-item-6/.

Statement by EU Ambassador Joao Aguiar Machado:

“PROCEDURES TO STRENGTHEN THE NEGOTIATING FUNCTION OF THE WTO – STATEMENT BY THE UNITED STATES”

“The EU reconfirms that development is a central pillar of this organisation.

“The current distinction between developed and developing countries no longer reflects the reality of the rapid economic growth in some developing countries. We should therefore continue to work on special and differential treatment with a view to ensuring that flexibilities are made available to those members who actually need them to enable them to fully benefit from their membership to this Organisation.

“The European Union firmly believes that if this organisation is to prosper, special and differential treatment must become much more granular, in function of an individual Member’s demonstrated needs and capacities. Future differentiation should be designed in terms of specific individual country needs at the sectoral or activity level rather than calling for a block exemption of a large category of Members. Furthermore, the EU considers that each developing country’s need for SDT should be assessed on a case-by-case and evidence-based basis. The notable exception should be the LDCs who deserve particular treatment and who in any case have graduation mechanism.

“We are open to looking into special and differential treatment (SDT) provisions in future agreements, such as the ongoing negotiations on fisheries subsidies. We expect to have a discussion with Members as to what development concern is raised by the provisions under discussion and what flexibility is necessary in order to eventually allow the affected Members to fully implement the agreement. It is only where special and differential treatment responds to a specific need that it can be truly effective. In this context, we call on advanced WTO Members claiming developing country status to undertake full commitments in ongoing and future WTO negotiations. As mentioned previously, this should particularly be the case for members of the G20, which represent the world’s most important economies.

EU Statements by Ambassador Joao Aguiar Machado at the General Council meeting, 13 October 2020, https://eeas.europa.eu/delegations/world-trade-organization-wto/86935/eu-statements-ambassador-jo%C3%A3o-aguiar-machado-general-council-meeting-13-october-2020_en

Statement of China Amb. Zhang Xiangchen on item 6:

“Thank you, Mr. Chairman.

“I have repeated many times that, the debate on criteria to differentiate developing members is totally meaningless, as it is a systematic and directional mistake. Development is one of the key objectives of the WTO, which is also an important attraction for many countries choosing to join in this Organization. As WTO members, our focus on development should be on how to translate the concept of development into practice rather than anything else.

“To be specific, our collective efforts should be focused on how to effectively enforce the existing special and differential treatment (S&DT) provisions, and negotiate meaningful bodog online casino S&DT for the developing members, for example in the fisheries subsidy negotiations. For the existing S&DT provisions, there should be assurance that developing members in need could truly benefit from and fully integrate into the multilateral trading system.

“Mr. Chairman, we did a preliminary review on the current 155 S&DT provisions contained in the 16 WTO agreements, finding that at least 105 provisions are too vague to operate, accounting for 67.7%; for the remaining 50 provisions, at least half of them are related to transitional period or technical assistance. So, there are only 25 S&DT provisions in existing WTO agreements that are directly linked to individual Members’ rights and obligations, accounting for 16.1% of the total. It is therefore fair to say, the overwhelming majority of current S&DT provisions are only pie in the sky. There has never been an almighty blank check.

“It is a long-standing consensus to make S&DT provisions more “precise, effective, and operational”, which is also a commitment across WTO Agreements. That is the very reason why developing members requested to discuss more than 200 ‘Implementation Issues’ aiming at rebalancing the imbalanced rules from the Uruguay Round, and G90 put forward their written proposals. I fully endorse the statement made by the Ambassador of South Africa. Actually, recalling the past 20 years, G90 has been compromising by reducing their 88 original requests, to 25 in Nairobi, and to 10 in Buenos Aires, demonstrating their utmost sincerity and restraint. Such reduction is not because their request was wrong, rather it is because they do hope all Members could be engaged and thus show flexibility.

For the current 10 proposals, some are to fill the loopholes of existing provisions, such as proposing procedural arrangement to invoke Article 18 of GATT; some are to restore good practices in multilateral rules, such as treating subsidies granted by LDCs and developing members facing certain constraints as non-actionable subsidies according to Article 8 of ASCM; some are to allow developing members to have longer time-frames for transitions or comments, such as granting 180 days for members facing capacity constraints to make comments on SPS measures notified by developed members, whereas the current practice is 90 days; some are to urge developed members to honor their already-committed obligations, including technology transfer. G90 has made comprehensive responses both orally and in writing to all questions from members on their proposals. However, no progress has been made due to certain Members’ reluctance to engage.

“Mr. Chairman, the WTO is a rule-based organization. If we want to win back people’s confidence in this organization, the most fundamental thing is to treat existing rules and implement promised commitments, with respect and awe. To make existing S&DT provisions “more precise, effective and operational” is the clear commitment and unfinished mission of all members, which is also the most urgent task in the area of development. I call upon all members to show our sincerity by meaningfully engaging in the discussion of the G90 proposal and carefully responding to practical concerns of developing members, rather than wasting time and resources on no outcome debates.

“Mr. Chairman, since China was mentioned specifically, I would like to make a comment to respond. China standing against to the differentiation of developing members does not mean we want to enjoy the same favorable treatment as small economies and LDCs. What we want is only to safeguard our institutional right of S&DT.

“In practice, according to our accession agreement, China has 14 specific S&DT provisions among all 155 articles, accounting only for 9%. Among the 14, 6 provisions are traditionally “obligations” of the developed members, such as providing translations of documents in WTO official languages upon request, only 8 provisions are so called meaningful “rights”, such as relatively higher tariffs for certain goods.

“Even in such circumstances, China always shows restraint in invoking S&DT provisions. Obviously, China did not request to have the same S&DT as Benin, Liberia, Kenya or Pakistan, which was proclaimed by the United States. On the contrary, as a large trading nation, we recognize the responsibility China should bear. Our approach is to address different issues according to their specific situations and make contributions within our capability. As we did in the ITA expansion negotiations, China is the largest contributor among all the participants. We will continue to do that in the future.

“Thank you, Mr. Chairman.”

Source: Ministry of Commerce website, Permanent Mission of the People’s Republic of China to the World Trade Organization, Statement by H.E. Ambassador Zhang Xiangchen of China at the General Council Meeting (Item 6 and 7) October 13, 2020, http://wto2.mofcom.gov.cn/article/chinaviewpoins/202010/20201003007644.shtml.

The two documents that are the basis of agenda item 6 are embedded below.

W757R1 W764R1

Market-Oriented Conditions

The U.S. with support from Japan and Brazil and with concurrence of the EU put forward again the importance for market-oriented conditions to the global trading system. Not surprisingly, China led the opposition. Below are the formal statements of the U.S., EU and China on agenda item 7, “Importance of Market-Oriented Conditions to the World Trading System, Joint Statement by Brazil, Japan, and the United States (WT/GC/W/803/Rev.1)

Statement of U.S. Amb. Dennis Shea:

“The United States, Brazil, and Japan have requested this agenda item to continue addressing the importance of market-oriented conditions to the global trading system.

“As a result of our work together, Brazil, Japan, and the United States have released a joint statement (WT/GC/W/803/REV.1). The statement reflects the importance we attach to market-oriented conditions for the world trading system and further elaborates the draft General Council decision circulated earlier this year.

“The joint Brazil-Japan-U.S. statement reflects our shared belief in the core principles of the WTO, to include that market-oriented conditions are fundamental to a free, fair, and mutually advantageous world trading system.

“We affirm a number of criteria that reflect the market-oriented conditions and disciplines to which our own enterprises are subject.

“And, we affirm that all Members’ enterprises should operate under these conditions to ensure a level playing field for our citizens, workers, and businesses.

“When Brazil and the United States first introduced the joint statement in July, we invited the support and engagement of Members who wish to become co-sponsors.

“We are pleased to report that, since that time, we have been able to hold consultations with a number of supportive Members. We were also pleased to welcome Japan’s decision to become a co-sponsor of the joint statement, and we are thankful for their efforts to engage with other Members on this important matter. The views that we have heard in small group discussions confirm that the joint statement reflects our shared values as WTO Members.

“We will continue to invite supportive Members to participate in one of our small groups as the discussions intensify.

“We see this discussion as necessary in the context of achieving meaningful WTO reform. To achieve such reform, WTO Members must continue moving toward – and not away from – more open, market-oriented policies and conditions.

“But as was made clear in recent G20 discussions, and reflected in the Riyadh Initiative Annex to the Trade Ministers’ Communique, not all WTO Members agree that “market-oriented policies” is a principle of the WTO.

“One Member in particular could not reaffirm the principles of the Marrakesh Declaration or even bring itself to reference the Declaration, and went on to dispute that its accession commitments tied it to any market-oriented policies.

“The usefulness of the recent G20 exercise was to clearly articulate this division in the Membership, and that some do not agree with the core values of the institution. This crystalizes for us the importance of reaffirming those core values.

“The Brazil-Japan-U.S. joint statement recalls that the WTO was established to promote Member economies’ participation in a world trading system ‘based on open, market-oriented policies and the commitments set out in the Uruguay Round Agreements and Decisions’.1

“The market-based reforms that GATT parties and acceding Members undertook during that process helped to ensure that their participation was indeed based on open, market-oriented conditions. These Members’ reform efforts demonstrated their commitment to an international trading system that depends on the operation of market-oriented conditions in each of our economies.

“Ensuring that market-oriented conditions exist for market participants is critical to realizing the benefits of the international trading system that come from our mutual commitment to these rules. This common foundation is necessary to ensure a level playing field for all Members.

“Some Members have argued that our efforts to affirm the importance of market-oriented conditions are a pretext for questioning Members’ choice of different economic models. They argue that the WTO provides no basis for discussing those choices.

“However, that is not the discussion we are proposing to have, and these Members may have misunderstood our purpose. What we have argued is that market-oriented conditions provide a level playing field and therefore are necessary conditions for fair trade. And, we have not heard any Member argue for a different position. Do any Members really believe that fair trade can result when special advantages are given to domestic entities under these conditions?

“Take, for example, the joint statement elements on financing and investment. Where a Member’s economic conditions generally ensure market-determined financing and investment decisions, it would mean that receipt of state-directed or politically-directed financing confers an
unfair advantage. This is not a question of debating different economic models, but rather reflects a shared understanding of fair play.

“To this end, the Brazil-Japan-U.S. joint statement affirms that Members’ enterprises should operate under market-oriented conditions and notes the elements that indicate and ensure those conditions for market participants. We encourage Members to review these elements in detail as our discussions advance.

“As we see it, the continued relevance of the WTO will depend on whether it can deliver on the promises of a world trading system based on open, market-oriented policies. The success of our reform efforts will depend on our ability to ensure the fundamental premise of free, fair, and mutually advantageous trade remains intact.

“1.Marrakesh Declaration of 15 April 1994, fifth preambular paragraph.”

U.S. Mission to International Organizations in Geneva, WTO General Council Meeting, October 13, 2020, item 7, https://geneva.usmission.gov/2020/10/13/statement-by-ambassador-shea-at-the-wto-item-7/.

Statement of EU Amb. Joao Aguiar Machado:

“IMPORTANCE OF MARKET-ORIENTED CONDITIONS TO THE WORLD TRADING SYSTEM – JOINT STATEMENT BY BRAZIL, JAPAN, AND THE UNITED STATES”

“The EU has repeatedly stated that market-oriented conditions are central to allowing a level-playing field. EU has also repeatedly expressed its concerns with non-market-oriented policies and practices that have resulted in distortions to the world trading system.

“The role of the WTO – and therefore the role of all of us, as Members – is to ensure that there are effective rules in place to eliminate these distortions and to ensure a level-playing field. There are clearly gaps in the WTO rulebook that do not enable us to do so. These gaps must be addressed through the negotiation of new or updated rules to address the issues raised in the statement of the United States and its co-sponsors.”

Statement of China Amb. Zhang Xiangchen on item 7:

“Thank you, Mr. Chairman,

“It is true that the multilateral trading system is built on the basis of market economy, and all the WTO rules reflect the prevailing practices of market economy and are binding on all Members. There is also no doubt that in the past 40years, China persistently deepens its reform and opening up to the world in the direction of market economy, which is exactly the basis of our accession to the WTO and the reason for our firm support for the multilateral trading system.

“However, the challenge we are facing is not what Marrakesh Declaration says, but what some Members are doing. By the way, with regard to Marrakesh Declaration, when we talk about open and market-oriented policies, we should not forget Article 5, which I quote “Ministers recall that the results of the negotiations embody provisions conferring differential and more favorable treatment for developing economies, including special attention to the particular situation of least-developed countries”. Those words are equally important. Unfortunately, now some Members have selective amnesia.

“I have no intention to repeat what I have said at the previous meeting that ‘common sense issues like market orientation do not need to be discussed at the General Council’, and simply dismiss the whole discussion. Albert Einstein, a scientist who had worked in Bern, once said, ‘Success is equal to hard work plus correct method plus less empty talk’. Chinese people have also believed in ’empty talks harm the country’ since ancient times. So, my questions are: what is the purpose of this proposal? what are the follow-up measures to be taken in the next step? What puzzles me even more is that, at this moment, if we cannot prevent a Member’s government from forcing foreign companies to sell their equities and technology to its national companies in any way, how can we sit here comfortably and discuss and tell the world what the market orientated conditions are?

“Mr. Chairman, we need to bear in mind that for more than three years, we have failed to take effective actions to stop unilateralist and protectionist measures that undermine the market rules from raging around the world, and this organization we work for has been widely criticized for falling short of such actions. We should feel ashamed. However, at least, we could still argue that it is not because we do not want to, but because we are not capable enough. But now, why should we talk empty about the market-oriented conditions to give more reasons for the international community to laugh at us, for being not only incapable, but also naive?

“When a principle or a system is broken, what we should do is to take concrete actions to try to fix it rather than verbally repeating the importance and correctness of the rules to show the innocence of someone who broke the rules.

“Ambassador Shea once said that ‘when the state puts its thumb – or even its fist – on the scale to distort competition and drive preferred outcomes to benefit certain domestic actors, that is unfair.’ I couldn’t agree with him more about that. But it is a common sense that if you ask others to do something, you should do it first.

“Let me give you some specific examples. When a country, on the grounds of national security, arbitrarily and frequently imposes tariffs on foreign goods or deprives foreign services of market access, that is unfair. When a country uses tariffs as a leverage to force its trading partners to concede in trade negotiations, the market is distorted. When a country blatantly violates fundamental trade rules and at the same time blocks the independent and neutral adjudications, the level playing field is gone. Instead of chanting the empty slogan of ‘market-oriented conditions’, it’s better for us to take concrete actions to address the above wrongful practices which undermine the fair competition and market-oriented conditions.

“Thank you, Mr. Chairman.”

The joint document discussed is embedded below.

W803R1

Conclusion

The WTO is in crisis. None of its three core functions are operating as intended. The negotiating function is barely operational for various reasons including the move by many Members to try to achieve through litigation what they haven’t pursued or achieved through negotiations. The excesses of the Appellate Body has led to its temporary inoperability.

Moreover, the changing reality of competition internationally is that many WTO Members who have claimed developing country status have rapidly developed yet have not generally denounced special and differential treatment nor have they taken up greater liberalization commitments commensurate with their level of economic development. S&DT is treated as a perpetual right versus a temporary assist for Members with demonstrable needs. Self-selection is not the norm in other international organizations and makes no sense where not rooted in factual criteria which are reviewed over time with countries which advance accepting full obligations as appropriate.

The rise of countries like China which have many aspects of their economies which create distortions not covered by existing WTO rules calls out for leadership by those countries to work within the system to adopt new rules so that all trade distorting practices are addressable within the system. China appears intent of ensuring that the WTO is not able to address its acts, policies and practices which distort trade but which are not presently addressable by WTO agreements.

Similarly, the functioning of the WTO Committees in terms of notifications and review is problematic in at least many of the Committees. Without timely, complete and accurate information, trading partners are unable to understand how other Members are conducting themselves and where potential problems may exist. Subsidies notifications have been an area of particular concern but it is not the only area.

The recent General Council meeting showed the continuing deep divide of core reform concerns of the United States and others. A WTO incapable of reform will drift into irrelevance.

With the selection process of the next Director-General starting the last round of consultations on Monday, October 19, WTO Members not only need to decide who will lead the Secretariat but whether the WTO is important enough to have Members come together on the common vision of the organization and develop a willingness to find a road forward. The odds of success seem small at the moment.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

To read the original blog post, please click here.

The post bodog poker review|Most Popular_Statement by U.S. Amb. appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Wed, 14 Oct 2020 13:57:10 +0000

While most attention on the WTO’s dispute settlement system has focused on the operation of the Appellate Body, the timeliness of disputes is often driven by the actions of the panel. Under Article 12 of the Dispute Settlement Understanding (DSU), panel are to render their reports within six months (3 months in urgent matters) and no longer than nine months after the panel is composed. Few if any panels in recent years have remotely come close to a nine month report deadline.

With the COVID-19 pandemic and the resulting limitations on in person meetings at the WTO and travel restrictions, the panel process has been further complicated. At the recent Dispute Settlement Body (DSB) meeting of September 28, Australia had put on the agenda the issue of “COVID-19 and dispute settlement”. Agenda item 9 of Proposed Agenda for the 28 September 2020 Dispute Settlement Body meeting, WT/DSB/W/670.

The subsequent press release on the DSB meeting contained the following description of the discussion of Australia’s issue on COVID-19 and dispute settlement.

Statement by Australia on COVID-19 and dispute settlement

“On behalf of 14 members (Australia; Brazil; Canada; Ecuador; Guatemala; Hong Kong, China; Mexico; New Zealand; Norway; Peru; Singapore; Switzerland; Ukraine; and the United Kingdom), Australia made a statement expressing concern about delays in dispute settlement proceedings resulting from the COVID-19 pandemic.”

“While it is encouraging that DSB meetings have been able to resume at the WTO, ongoing restrictions affecting international travel and immigration place in question the feasibility of physical participation of panelists and capital-based delegates at meetings in Geneva into the future, Australia noted. During 2020, various governments, private sector organizations, and domestic and international adjudicative bodies worldwide have adapted their usual ways of working to continue operating in these difficult conditions; WTO members must ensure the dispute settlement system does the same.”

“Australia urged panels to consider, in consultation with parties, flexible, alternative arrangements to ensure dispute proceedings can continue to progress in a timely manner despite the challenge of current restrictions. Australia recalled that Article 12.1 of the WTO’s Dispute Settlement Understanding (DSU) affords panels discretion in the working procedures they adopt in individual disputes, and that panels, after consulting in parties, may determine alternative arrangements that would best serve the satisfactory settlement of the matters. Some panels have already adjusted their procedures to hold substantive meetings virtually through video conferencing technology; Australia welcomed these developments but, to ensure the equitable operation of the dispute settlement system, WTO members must find solutions to enable all current and future matters to move forward in one way or another.”

“Several delegations took the floor to comment. Japan said that while virtual meetings are an option, face to face meetings were preferable, and that each panel should consult with parties on how to proceed in order to strike an appropriate balance between prompt settlement of disputes and protection of due process. India said oral hearings were an intrinsic aspect of due process rights guaranteed by the DSU and that panels cannot truncate these rights without the agreement of the parties in a dispute.”

“The United States encouraged each panel to consult with the parties on how to proceed, bearing in mind the views of the parties and the relevant provisions of the DSU. China said it was fundamental to provide certainty in dispute settlement in order to avoid any undue delay; it noted some panels have adopted flexible procedures as a response. The EU said that the discretion of panels is not completely unfettered and that they must ensure the prompt settlement of disputes, a principle that was valid for all disputes. Both South Africa and Nigeria (for the African Group) noted the asymmetrical impact of the COVID-19 pandemic on developing country members.”

WTO Dispute Settlement, 28 September 2020, Panel established to review China’s compliance with farm subsidy ruling, https://www.wto.org/english/news_e/news20_e/dsb_28sep20_e.htm.

The fact that Australia and others raised the issue at the DSB is certainly welcome, although the comments of Members at the DSB meeting indicates that there are both an array of problems facing different Members and arguably mixed motives for some in concerns about alternative approaches to in person meetings.

First, panels have regularly used the existence of the pandemic as a justification for a lengthy delay in the likely release of a panel report. See, e.g., India – Additional Duties on Certain Products from the United States, WT/DS585/4 (4 June 2020)(panel composed on 7 January 2020, because of pandemic, report to parties not before the second quarter of 2021); India – Measures Concerning Sugar and Sugarcane, WT/DS579/9; WT/DS580/9; WT/DS581/10 (29 April 2020)(complainants are Guatemala, Australia and Brazil)(panels composed on 28 October 2019, report to the parties not before the second quarter of 2021).

Thus, the issue of delay caused by the pandemic is an important one to address to maintain the timely operation of panels. While many developing countries may have greater challenges in terms of internal infrastructure for alternative means of handling disputes remotely, the claim of due process concerns at least for some Members is suspect particularly if the functioning of administrative and judicial activities in-country are being handled remotely/virtually as is true in many countries. For example, in the United States, arguments at federal courts are handled remotely, including at the highest court in the land. No Member should be allowed bodog online casino to delay panel proceedings on due process grounds where their own administrative and court proceedings are handled remotely during the pandemic. The Secretariat should seek transparency from Members on how their agencies and courts are handling matters during the pandemic.

Certainly, WTO Members should identify challenges they face to being able to engage in remote/virtual hearings if in person events are not possible. Where problems exist, the WTO Secretariat in conjunction with other organizations should look to see what technical assistance can be provided to permit active participation. Similarly, if issues affect the ability of panelists to handle matters remotely, there should be a review of options that may exist to facilitate panelists ability to participate. Again, the Secretariat should seek information from Members on challenges they face in participating in dispute proceedings and should have information on potential panelists on the same types of issues.

While the basic premises that panels should consult with parties is clearly the correct path to follow (contrary to the current practice of many panels and that reviewed in detail about the Appellate Body), there is the question of what happens when there is a difference among the parties as to how to proceed. The good offices of the Director-General can be used to possibly bridge the differences. Delay should only be permitted when the concerns of the party objecting to proceeding cannot be reasonably overcome.

It will be interesting to see if Members press for a prompt resolution to the concerns raised at the last DSB meeting or simply let the problems continue to fester and delay the operation of panels.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

To read the original blog post, click here.

The post bodog poker review|Most Popular_with parties on how to appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Thu, 01 Oct 2020 15:59:42 +0000

The Graduate Institute of Geneva and other groups have organized an ambitious week of programs that started on September 28 and carries on through October 2 with both various plenary sessions and with breakout sessions where multiple events are happening during the same time period.

On Monday, September 28, after an opening plenary on rethinking trade at 1 p.m., there were three ninety minute breakout sessions at 3:00 p.m., including a session on WTO Dispute Settlement – Where Do We Stand? The dispute settlement session was organized by Gabrielle Marceau of the WTO Secretariat and the University of Geneva. The current Chair of the Dispute Settlement Body, H.E. Dacio Castillo of Honduras served as moderator of a panel that included five other Ambassadors/Permanent Representatives to the WTO and two highly respected international trade professionals. Specifically, the panel consisted of EU Ambassador Joao Aguiar Machado, Canadian Ambassador Stephen de Boer, U.S. Ambassador Dennis Shea, Mexican Ambassador Angel Villalobos Rodriguez and Chinese Ambassador Zhang Xiangchen. Ms. Claudia Orozco who had been part of the Colombia Mission, the most frequently selected panelists in WTO disputes and now an arbitrator in the MPIA (Multi-Party Interim Arbitration Arrangement to which 24 WTO Members have signed up pending the resolution of the WTO impasse) was a sixth panelist. Mr. Jorge Miranda, a Senior International Trade Adviser for Cassidy Levy Kent LLP in Washington, D.C., a past Rules Division official and a frequent writer and speaker on WTO dispute settlement was the seventh panelist.

It was an impressive panel with certain understandable limitations. WTO Members at a public event like this will provide a good overview of their existing positions on the topic but are not going to provide clarity of where solutions may be if different from what has been presented previously by their government. Not surprisingly, none of the Ambassadors deviated from that expected framework of comments. Similarly, the observations of panelists who are not speaking for WTO Members can be helpful in identifying possible paths forward but obviously only if Members opt to proceed in one or more of the suggested routes.

I start this post by looking at the positions stated by each panelist in their opening statement, their comments about other statements and their answers to questions. I then present some observations about the positions taken and whether Members are merely talking past each other or testing their priorities against the practical realities that surround the WTO dispute settlement system.

Opening Statements

H.E. Stephen de Boer, Canada

The first panelist to speak was Ambassador de Boer of Canada. He identified three themes to his comments: (1) the key role played by the dispute settlement system in the WTO; (2) the importance of the Appellate Body (AB) in that system; and (3) the role of the Multi Party Interim Arbitration Arrangement (MPIA) at the current time.

Amb. de Boer reviewed the elements of the Dispute Settlement Understanding (DSU) adopted as part of the Uruguay Round package that came into force in 1995 when the WTO commenced. The DSU provided for binding dispute settlement absent a negative consensus. This was a major improvement over the GATT dispute settlement approach where the losing party could block adoption of a panel decision. Canada is a very strong supporter of the rule of law. Amb. de Boer commented that it is not surprising that panels may err. The two-tier dispute settlement process is designed to address possible erroneous panel interpretations by appeal to the Appellate Body.

At the present time, the lack of a functioning Appellate Body makes the WTO system more uncertain. First, a party or parties unhappy with a panel decision can file an appeal which, with the AB not having three members, means the appeal is into a void where no outcome is possible until the restoration of the AB. If one is left with just panel decisions, there is a higher risk of erroneous decisions which in turn makes the system more uncertain for business. In Canada’s view, the fact that a Member may disagree with specific decisions is not a reason to undermine the dispute settlement system. As the saying goes, justice delayed is justice denied. Hence timeliness of the dispute settlement system is important.

On timeliness, Canada would note that much more of the delay in disputes is at the panel stage. Delays flow from increased complexity of case. Canada believes that dispute settlement reform needs to include a review of timeliness of both panels and the AB.

Canada’s priority is to find multilateral solutions to the dispute settlement system which would of course include the United States.

Canada was pleased to participate in the creation of the MPIA, which now has 24 Member participants.

H.E. Joao Aguiar Machado, European Union

Amb. Machado started by noting that the WTO’s dispute settlement system is not in a good place and is essentially paralyzed. While all Members do not agree on how we got here, we need to agree on where we go from here.

The top priority for the EU is to find a solution to the impasse. The EU supported the Walker proposal (Amb. David Walker, NZ, serving as a facilitator to the General Council in 2019). It proved not to be sufficient. The EU is open to meaningful reform. However, Members need to move forward not backwards in terms of the type of reform considered.

It is important that agreed rules of the WTO are enforceable. This is critical for predictability and certainty in the system.

For the EU, any reformed dispute settlement system must be binding, two-tiered, and guarantee impartiality of adjudicators.

The EU agrees that panels and the Appellate Body are not courts and that panelists and AB members are not judges. It is the role of WTO Members, not adjudicators, to establish new rules.

On the MPIA, it is the intent of the 24 Members participating to establish an interim mechanism to preserve a second-tier dispute settlement step while the AB is inoperable. The MPIA is open to the participation of all Members, is temporary in nature and is not an attempt at reform of the WTO AB which would require involvement of all Members. However, there are enhancements including the use of a pool of arbitrators.

H.E. Dennis Shea, United States

Amb. Shea reviewed that there is little doubt where the United States stands on the dispute settlement system. Over three years in Dispute Settlement Body meetings, the U.S. has reviewed how the Appellate Body has violated the DSU both procedurally and substantively. Then USTR in February of this year put out a 174 page report on the Appellate Body of the WTO [https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf] which pulled the U.S. concerns together in a single document.

The U.S. was very active in the Walker process in 2019. Unfortunately, very little of what the U.S. offered in comments on the draft proposal was taken on board in what was presented to the General Council. The U.S. has raised questions about the utility of the proposals since much of the language put forward was simply a repetition of what is already in the DSU which has been disregarded by the AB. We don’t have answers to why the AB disregarded the specific DSU language limiting the role of the AB or why it felt free to disregard the limits on its authority.

The AB is not an international court, and AB members are not judges. Role of the AB is not to create a body of jurisprudence but rather simply to make recommendations to help the Dispute Settlement Body (DSB) resolve a given dispute. The AB’s role is limited.

Unfortunately, some Members see the AB as an independent international court and the AB members as judges who have the ability to create jurisprudence.

On the MPIA entered into by Canada, the EU, China and others, they have incorporated into an arbitration process some of the worst aspects of the AB practices including awards that are precedential, arbitrators engaging in fact finding and more.

The U.S. fundamentally differs on the role of the Appellate Body from that approach and from the approach of those viewing the AB as a type of court.

In a recent Wall Street Journal piece by USTR Robert Lighthizer, he proposed a single-stage dispute process similar to commercial arbitration with a process to put aside erroneous decisions. What do other panelists think of that approach?

In the meantime, the WTO dispute settlement system continues to function. There have been eight panel requests made in the last five DSB meetings. Parties are considering how to handle panel reports, such as by agreeing not to appeal panel reports. The central objective of the dispute settlement system remains the same — to resolve a dispute between Members.

H.E. Angel Villalobos Rodriguez, Mexico

Amb. Villalobos’s comments were short and quite dispirited. He indicated that he was not optimistic for the future of the WTO dispute settlement system based on Amb. Shea’s comments. Amb. Villalobos feels that the dispute settlement system has become a “zombie”.

In talking about efforts in 2019 to address U.S. concerns with the Appellate Body, Amb. Villalobos noted that a large number of Members had come forward with proposals to deal with various aspects of U.S. concerns and that had resulted in the Walker proposal in late 2019 to the General Council which the U.S. had prevented from being adopted to address a range of U.S. concerns.

The impasse on the Appellate Body has led many countries including Mexico to come together in the MPIA. But the MPIA is intended to be temporary only.

Amb. Villalobos believes the WTO will have a more difficult road in the future to restore the two-tiered dispute settlement system.

While the dispute settlement system has been viewed by many as the crown jewel of the WTO, the present situation may be the beginning of the end for the crown jewel.

H.E. Zhang Xiangchen, China

Amb. Zhang views the Appellate Body and the WTO’s dispute settlement system as being on shaky ground. He is not optimistic that Members can reach agreement on substantive issues. However, that doesn’t mean that Members can’t work at improving the system.

When he looks at some of the concerns raised, such as issuing reports/decisions in 90 days, the problem is not entirely the fault of the Appellate Body. There have been a large number of appeals, many more than was envisioned when the WTO was created. Appeals are much more complicated. Thus, Members share some of the “blame”.

Is overreach a problem? Yes for many countries including China. Amb. Zhang cited the cases involving export duties where the Appellate Body viewed China did not have the right to put forward Art. XX defenses. In his view, Amb. Zhang believes that all negotiators know that there are ambiguous provisions in many agreements. These ambiguities have to be addressed in appeals and obviously are problems for the AB.

No matter how serious problems may be with the Appellate Body, the AB has solved many problems for parties which have improved certainty and predictability.

Going back to the system as it was in the 1990s would be problematic as rules will have no enforcement teeth. This lack of enforceability will hurt negotiations going forward.

Ms. Claudia Orozco, International Trade Law Advisor and Arbitrator for MPIA

Ms. Orozco believes that there is a serious crisis, not of the Appellate Body only, but of the dispute settlement system at the WTO and therefore of the rule of law.

The WTO dispute settlement system is intended to ensure that commitments under WTO Agreements are binding on all parties and that disputes are resolved by third party adjudicators.

The current challenges around the Appellate Body are a serious risk to the dispute settlement system and is leading to reduced use of the dispute settlment system.

A second consequence is likely to be erosion of the monitoring function within the WTO if Members can’t resolve the Appellate Body issues. The purpose of monitoring is to understand actions of trading partners. Greater information on actions can result in disputes if problems can’t otherwise be resolved. Where there is no binding dispute settlement system, Members will likely be less focused on notifications.

The third consequence of the AB impasse will be the erosion of the negotiating function, as there will less interest in new rules if they cannot be enforced.

In short, the impasse if not resolved, will affect the credibility and relevance of the WTO.

Are there solutions? Ms. Orozco believes Members need to look at the history of the WTO over the last twenty-five years. In her view, the AB’s role needs to be narrowed down as 25 years of history show that panels typically don’t make major errors of interpretation which was the intended function of the AB. Thus, questions for Members should include:

— how to narrow the focus of the AB;

— what changes are needed to permit the AB to meet the 90 day deadline;

— based on problems in the first 25 years, what type of experience should AB members have (e.g., experience with disputes in the WTO; experience in implementation of agreements);

–should more than three members of the AB participate in appeals where issues are of first impression;

–what is the role of the AB Secretariat vs. the role of AB members (e.g., should there be rotation of AB Secretariat staff).

The WTO dispute settlement system is critical to commercial players where predictability and certainty are key. Lack of predictability and certainty harm willingness to invest and to trade.

Mr. Jorge Miranda, Senior International Trade Adviser, Cassidy Levy Kent LLP

Mr. Miranda stated that the Appellate Body has made some outstanding achievements but has made major errors in the trade remedy area. The errors coupled with the AB refusal to reconsider legal issues. Without a change in approach, it is hard to see progress.

Mr. Miranda’s comments reflect his views as a co-author in a paper [Jorge Mirand and Manuel Sanchez-Miranda, “How the WTO Appellate Body Drove Itself Into a Corner,” https:ssrn.com/abstract=3596217].

Mr. Miranda reviewed two of the five cases reviewed in the paper showing the serious errors by the Appellate. The first was the fasteners case [European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011] where the AB addressed an issue that was not part of the terms of reference and had not been briefed by the parties. This was a major problem as the issue addressed would potentially be subject to a dispute at the WTO.

A second case was a subsidy case and involved the interpretation of the term “public body” [United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011]. Mr. Miranda’s comments focused on the fact that most public bodies in the context of countervailing duty investigations are commercial enterprises. The AB’s decision requires the existence of governmental powers to regulate, control or supervise, but ignored the entrepreneurial functions mentioned in the Subsidies and Countervailing Measure Agreement (Art. 1.1(a)(1)) where no other authority is required.

While Mr. Miranda recognizes the fact that all adjudicators can err, the problem with the WTO AB is its inflexibility and refusal to reconsider interpretations in later cases regardless of arguments put forward.

Mr. Miranda reviews the U.S. system of stare decisis and ability of court’s to reconsider prior decisions in certain circumstances. He also reviews the Mexican system where there need to be multiple decisions on the same issue before there is precedent.

By contrast, the Appellate Body views its interpretation as cast in stone at the first decision. He believes the AB needs to be more flexible in how it views prior decisions/interpretations.

Reactions to Opening Statements of Other Panelists

H.E. Joao Aguiar Machado, European Union

Amb. Machado reiterated the EU view that the AB is not a court. The EU view is that it is in the interest of the WTO membership that rulings are of high quality and that the rulings have consequences. Thus, to the EU, it is important to have a two-tier dispute settlement system so parties can address legal errors in any panel report. The EU is open to discuss how best to get a two-tier system back.

Amb. Machado believes that it is unfair to claim that the MPIA incorporates the worst elements of the AB. The MPIA results in arbitration decisions. The MPIA is not an attempt to create AB reform. Since the MPIA is an interim arbitration process while awaiting the return of the AB, it is understandable that the parties to the MPIA drew on the AB, which is the only second-tier system that has existed over the last 25 years. While the MPIA parties have introduced efficiencies in how MPIA operates, this is not an attempt to reform the AB as any reform would need all Members.

At end of the day, the EU needs a system that is efficient, binding, independent and of the highest quality.

H.E. Angel Villalobos Rodriguez, Mexico

Amb. Villalobos sees fragmentation of approach facing the WTO dispute settlement system — the MPIA for some; other approaches for others. The fragmentation may last a long time. If so, such fragmentation will weaken the appetite to negotiate, and the increased uncertainty and unpredictability will weaken investment and trade.

Amb. Villalobos noted that a large percentage of disputes are resolved at the consultation stage and that a sizeable portion of cases that do go forward to the panel stage are resolved without appeal.

There are typically not good alternatives for Members to WTO dispute settlement. Regional trade agreements often don’t have dispute settlement on trade remedies (though USMCA between the U.S., Mexico and Canada does) and typically don’t have strong Secretariats.

H.E. Zhang Xiangchen, China

Amb. Zhang noted that the paralysis of the AB is a major challenge to the trading system. Binding rulings from impartial adjudicators are important for predictability and certainty. Regional free trade agreements and any dispute settlement contained therein cannot replace the WTO.

In looking at the path forward, the accountability of the AB can be addressed through peer review and oversight by the WTO Members.

Mr. Jorge Miranda, Senior International Trade Adviser, Cassidy Levy Kent LLP

Regional agreements can’t compete with the WTO dispute settlement system. None have an Appellate Body.

The fact that there are problems with the WTO dispute settlement system, in Mr. Miranda’s opinion, is not a major issue.

On the issue of oversight, there should be a way to address without affecting the independence and impartiality of the AB.

H.E. Stephen de Boer, Canada

It is important to go back to first principles. Members placed great importance on certainty. Fact that any Member believes it didn’t get the right result in a given dispute is not a basis to abandon the system. In a November 2016 statement by then Chairman of the Appellate Body, Thomas Graham, he noted that overreach is in the eye of the beholder. [Thomas Graham, 22 November 2016, Speaking Up: The State of the Appellate Body, https://www.wto.org/english/news_e/news16_e/ab_22nov16_e.pdf%5D. The dispute settlement system is different than individual disputes or cases.

The fact that there continue to be some disputes filed is not a sign that the system is well. The impasse will have an effect on negotiations.

Canada is willing to talk about change but needs an effective and enforceable system.

Ms. Claida Orzco, International Trade Law Advisor and MPIA Arbitrator

There is agreement that the crisis is very problematic. We must remember that everything the WTO does is for the private sector which needs certainty and predictability.

It is important to solve the problem. That includes looking at how to achieve decisions within 90 days, limiting the role of the AB to focus on issues relevant to a dispute’s resolution, identifying the relevant the credentials for AB Members.

As the AB was created to correct manifest errors in legal interpretations, history over the last 25 years shows that is not a significant problem. This implies, Members can reduce the role of the AB.

H.E. Dennis Shea, United States

The WTO membership needs to understand that there is a problem with the operation of the dispute settlement system. Efforts of the U.S. over the last three years has finally gotten a recognition by many that there are problems. So that is some progress.

Some Members view the role of the AB as that of a court with the ability to establish rules. The U.S. does not view the AB as a court and views rule making as the sole responsibility of the WTO Members.

While Canada has talked about the need for certainty, the U.S. views certainty as the AB completing its work in 90 days, not investigating facts, and not creating obligations.

While some view the current situation as undermining the ability to negotiate, the United States has viewed the operation of the Appellate Body as leading Members to litigate rather than negotiate.

On the issue of precedent, in 1996, the AB indicated its decisions were not precedential. Twelve years later in 2008, it viewed its decisions as precedential absent cogent reasons.

The U.S. disagrees that the AB is a higher source in dispute settlement. The AB has a limited role only.

In 2020, Thomas Graham gave his farewell speech as an Appellate Body member at Georgetown and listed areas where in his experience the Appellate Body was acting like a court. [see https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.wto.org%2Fenglish%2Ftratop_e%2Fdispu_e%2Ffarwellspeechtgaham_e.htm&data=02%7C01%7C%7C892aebd466894f3d774908d86571205c%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637370883824924668&sdata=QPkC0ep1OHLIwTtUPpDgTAWV9cfx%2FoDB812iMg%2FrTKk%3D&reserved=0]

Answers to Questions

H.E. Joao Aguiar Machado, European Union

In responding to a question about why a two-tier system of dispute settlement is necessary since other organizations make due with a single tier, Amb. Machado stated that a two-tier system of dispute settlement is important in the WTO since disputes are often dealing with national legislation. The second level of review is needed to review potential errors of law, so Members can go back to their legislatures for domestic changes to bring themselves into compliance with WTO obligations.

In looking at the length of time to resolve disputes, Amb. Machado noted that disputes have become very complex which has contributed to the delays. Members need to take some responsibility to reduce the number of issues in appeals versus the historic approach.

While the EU will discuss reforms, the EU will not agree to have the dispute settlement go back to the GATT system.

H.E. Angel Villalobos Rodriguez, Mexico

Amb. Villalobos responded to a question on likely effect of the current impasse by stating that with no Appellate Body, the appetite of Members for new rules will be reduced.

H.E. Stephen de Boer, Canada

Amb. de Boer indicated that Canada doesn’t view the AB as a court or members as judges.

Canada believes any reforms to the dispute settlement system can only look forward; specifically, reforms of the dispute settlement system can’t look at past decisions.

Amb. de Boer reiterated his opening statement point that delay in the dispute settlement system is not limited to the AB process and so reform should look at the entire dispute settlement system to ensure timely reports and decisions.

Looking at USTR Liighthizer’s Wall Street Journal article, Amb. de Boer stated that it appears to be the first expression of what U.S. wants. Going back to the GATT system seems to be Amb. Lighthizer’s objective.

H.E. Zhang Xiangchen, China

Amb. Zhang stated that a two-tiered system of dispute settlement was adopted in the Uruguay Round as a response to problems with the GATT system of resolving disputes. Amb. Zhang indicated that 90% of Members believe the WTO needs a two-tier system for disputes.

On the question of the recent panel decision on U.S. tariffs imposed on China pursuant to a section 301 investigation, China agrees with the panel report that the U.S. actions violated MFN obligations. China urges the U.S. to bring its actions into conformance with its obligations.

H.E. Dennis Shea, United States

In response to an inquiry about why Members would negotiate new rules where Bodog Poker enforcement is not guaranteed, Amb. Shea noted that the U.S. (and many other Members) are actively engaged in negotiations, whether multilateral (fisheries subsidies) or plurilateral (e-commerce). Thus, it is possible for negotiations for new rules to proceed in the current circumstances.

Ms. Claudia Orozco, International Trade Law Advisor and MPIA Arbitrator

Ms. Orozco noted that the concern if rules are not enforceable is that there would be less interest in negotiating new rules. Her hope was that that concern would not materialize.

On a question about the Secretariat, Ms. Orozco noted that some reforms, like rotation of personnel at senior position, time limits for Secretariat personnel might be useful as in the past the head of the AB Secretariat had served longer than any AB member. The WTO also needs oversight of the AB by Members and some form of response where a problem arises and repeats itself (e.g. repeated failure to complete reports in 90 days).

Mr. Jorge Miranda, Senior International Trade Adviser, Cassidy Levy Kent LLP

Mr. Miranda took the view that any type of adjudicatory system would have the adjudicators looking back at what they had done previously. Key, in his view, is to have more flexibility than the AB has shown as to relevance of prior decisions.

Observations

As an outside observer, I provide some comments for what they are worth.

While stating that they don’t view the AB as a court or AB members as judges, the EU and Canada do not identify how that point of agreement with the United States translates into a view of AB reports. If not a court, presumably the AB is not to create law or rules. Yet that is what the AB has repeatedly done. Should the prior reports of the AB have any value? Any value other than their pursuasiveness would seem inappropriate.
Wouldn’t the issue of overreach be addressed in part by clarifying what is meant by creating rights or obligations? For example, many of the overreach issues of concern to the U.S. (and possibly others) flow from gap filling, construing silence or adopting a single interpretation on ambiguous language. Clarifying the language in DSU 3.2 and 19.2 to indicate that examples of creating rights or obligations would include gap filling, construing silence or providing a single interpretation of ambiguous language would thus increase certainty and predictability and leave rulemaking to the WTO Members as intended.
Ms. Orozco stated that the AB role should be reduced as typically panels have not made manifest errors in legal interpretation based on a review of the first twenty-five years of decision. The AB was done at the end of the Uruguay Round negotiations and was largely a safeguard against wildly erroneous decisions by a panel if adoption of reports was to be automatic. Does the experience of the first 25 years reduce the need for a two-tier system? Reasons for wanting a two-tier system going forward include automaticity of adoption, independence of adjudicator, opportunity to correct errors from a panel report. But automaticity need not be tied to having a two-tier system. Particularly where purpose of dispute settlement is to help find a resolution to the dispute between parties versus an effort to create law through “clarifying” agreements, a single level could be made automatic. There is nothing about a single level of dispute settlement that doesn’t permit independence (whether panels are staffed as they are now or through a different approach as has been suggested by some). Even the opportunities to correct errors could be addressable in a single-tier if there were a process (such as suggested by USTR Lighthizer) for addressing erroneous decisions.
Both Canada and the European Union talk about any reform process as being forward looking only and not addressing the harm caused by the long history of AB deviation from obligations. Since the entire purpose of the dispute settlement system is to resolve disputes to permit a restoration of rights and obligations of Members, the notion that a system which has changed the rights and obligations of Members over 25 years cannot be addressed as part of reform is at least bizarre. There is no question that it is easier to simply adopt changes to the DSU and move forward but that basically legitimizes a wide range of erroneous decisions which have significantly changed the balance of rights and obligations for many Members. While the challenge of finding a path to address the past as part of the reform is real, there are undoubtedly ways to do so. I had suggested one approach in a prior post. See July 12, 2020, WTO Appellate Body reform – revisiting thoughts on how to address U.S. concerns, https://currentthoughtsontrade.com/2020/07/12/wtos-appellate-body-reform-revisiting-thoughts-on-how-to-address-u-s-concerns/.
The concern about wrongly decided Appellate Body reports is real and not really addressed by most of the panelists. Amb. Lighthizer in his Wall Street Journal piece has a proposal which would change the system to one-tier resembling commercial arbitration and with an ability of Members to correct erroneous decisions. This proposal may reflect U.S. concerns that other WTO Members haven’t meaningfully addressed the problem of erroneous AB decisions (whether overreach or faulty legal analysis). See August 24, 2020: USTR Lighthizer’s Op Ed in the Wall Street Journal – How to Set World Trade Straight, https://currentthoughtsontrade.com/2020/08/24/ustr-lighthizers-op-ed-in-the-wall-street-journal-how-to-set-world-trade-straight/. If one looks at Mr. Miranda’s paper, there is little doubt that there are decisions from the AB that are pretty clearly wrongly decided. Efforts in the AB reform process to confirm that there are no precedents doesn’t move the ball very far where prior decisions remain as a body for review without means to get the AB to recognize its mistakes in subsequent cases, for the WTO Membership to correct the AB or through other means.
The concept that the current situation will adversely affect willingness of Members to negotiate is interesting particularly when juxtaposed with the last twenty-five years of very limited success in negotiations at the WTO. So while there may be some merit in the concern (which is a supposition at this point), it is hard to imagine a less productive negotiating function than what has existed with a functioning dispute settlement system over the last 25 years. The U.S. view that the current system and willingness of the AB to create rights that can’t be found in the agreements is factually the more compelling. I have travelled to Geneva over the last thirty years and have been told in private by virtually every major WTO Member that they know there are issues that before the WTO they would have teed up for negotiations, but because of the activity of the AB, they chose to see if they could get through dispute settlement even though knowing their trading partners had never agreed to what was being sought. So in my mind, there is no doubt that a major contributor to the dysfunction of the negotiating function at the WTO has been the willingness of the Appellate Body to create rights and obligations that cannot be found in the Agreements that sovereign states agreed to.
On the MPIA, while there is understanding by all Members that the MPIA is intended to be temporary, there is little doubt that the MPIA includes aspects of the AB that the U.S. has viewed as very problematic. While the EU professes that there is no effort at reform in the MPIA, the MPIA includes aspects that the EU may want as reforms to the dispute settlement system. Finally, other Members have found other approaches to handle disputes in an era when the AB is not functioning. While that is not true for all disputes, the Members choosing to appeal into a void include the EU, a participant of MPIA, on a panel decision adverse to its interests brought by the Russian Federation. See August 29, 2020, WTO Dispute Settlement Body meeting of August 28, 2020 – how disputes are being handled in the absence of reform of the Appellate Body, https://currentthoughtsontrade.com/2020/08/29/wto-dispute-settlement-body-meeting-of-july-28-2020-how-disputes-are-being-handled-in-the-absence-of-reform-of-the-appellate-body/.

Conclusion

The program on WTO Dispute Settlement – where do we stand? was an interesting update from a number of the major WTO Members, the Chairman of the Dispute Settlement Body and two well respected private sector advisers.

While all seem to recognize that the United States has serious concerns that it has articulated for decades but has spelled out in detail in the last three years, there has been little movement on the substantive issues during the last fifteen months. The gap between having a binding system that resolves disputes between parties but doesn’t create jurisprudence and a binding system that creates jurisprudence is wide. While many talk the talk that the Appellate Body is not a court and its members are not judges, there hasn’t been an apparent active effort to translate that into a framework to compare with the U.S. view of the role of the system.

Without a willingness to actually have the Appellate Body serve the very limited role for which it was created, the future for the WTO dispute settlement system will likely look like the hodgepodge of approaches that are presently in play.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

To read the original blog post, click here

The post bodog sportsbook review|Most Popular_There have been a large appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Rachel Accorsi — Sat, 29 Aug 2020 16:53:10 +0000

No forward movement has been made on resolving the impasse of the WTO’s Appellate Body which effectively ceased to operate for new appeals after December 10, 2019 when the number of active Appellate Body members fell below the minimum of three needed to hear appeals. At every monthly Dispute Settlement Body meeting, one of the Members presents the proposal to start the process of selecting new Appellate Body members and the U.S. indicates it is not in a position to agree to that action.

While the impasse continues, Members are dealing with how to proceed on specific disputes that have been filed and how to deal with panel decisions that get issued. For the EU and 22 other Members who are parties to the multi-party interim appeal arrangement (MPIA), disputes involving two members of the MPIA are handled through the MPIA after a panel decision if one or both parties are dissatisfied with the panel decision. Current members of the MPIA are Australia, Benin, Brazil, Canada, China, Chile, Colombia, Costa Rica, Ecuador, the European Union, Guatemala, Hong Kong (China), Iceland, Mexico, Montenegro, New Zealand, Nicaragua, Norway, Pakistan, Singapore, Switzerland, Ukraine and Uruguay. This means that more than 110 WTO Members are not parties to the MPIA including the United States, Japan, Korea, India, Indonesia, Malaysia, Argentina, Peru, Egypt, South Africa, Saudi Arabia, the Russian Federation and many others.

Disputes between all other WTO Members or between other Members and one of the MPIA members require the parties to the dispute either before the panel decision or afterwards to decide how they will proceed. Concerns of many WTO Members is that a party dissatisfied with a panel decision will take an appeal which will effectively stop resolution of the matter as an appeal cannot be heard while there is no functioning Appellate Body.

MPIA members can take appeals where they are in a dispute with a non-MPIA member instead of seeking resolution through other means. For example, the Russian Federation is not a member of the MPIA. Their dispute with the EU on its antidumping methodology resulted in a panel decision that the EU found problematic. The EU filed an appeal on August 28, 2020. See WTO, Dispute Settlement, EU appeals panel report on EU dumping methodologies, duties on Russian imports, https://www.wto.org/english/news_e/news20_e/ds494apl_28aug20_e.htm. When raised at the August 28 dispute settlement body (DSB) meeting, Russia provided the following comment:

“The Russian Federation made a statement regarding the European Union’s appeal of the panel ruling in in DS494 (https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds494_e.htm) (EU — Cost Adjustment Methodologies and Certain Anti-Dumping Measures on Imports from Russia). Russia said it was disappointed with the EU’s decision and that that the EU’s action, in the absence of a functioning Appellate Body, essentially meant that the matter was being appealed “into the void.” The EU was seeking to escape its obligations by not trying to resolve the dispute, Russia said.” https://www.wto.org/english/news_e/news20_e/dsb_28aug20_e.htm.

Interestingly, the EU has been working to be able to retaliate on any WTO Member who is not a party to the MPIA who appeals from a panel decision where the EU is a party. Presumably they understand that their action will encourage countries like the Russian Federation to take unilateral action against the EU where the EU appeals a panel decision instead of seeking a mutually agreeable solution.

The United States has reviewed at prior DSB meetings that there are many ways for Members to resolve disputes between themselves. At the recent DSB meeting, the U.S. in its prepared statement, after reviewing its ongoing concerns with the Appellate Body and the need to understand why the Appellate Body ignored the clear limits on its authority under the Dispute Settlement Understanding, provided examples of how Members are resolving disputes since December 10, 2019:

“As discussions among Members continue, the dispute settlement system continues to function.

“The central objective of that system remains unchanged: to assist the parties to find a solution to their dispute. As before, Members have many methods to resolve a dispute, including through bilateral engagement, alternative dispute procedures, and third-party adjudication.

“As noted at prior meetings of the DSB, Members are experimenting and deciding what makes the most sense for their own disputes.

“For instance, in Indonesia – Safeguard on Certain Iron or Steel Products (DS490/DS496), Chinese Taipei, Indonesia, and Vietnam reached procedural understandings that included an agreement not to appeal any compliance panel report.

“Similarly, in the dispute United States – Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea (DS488), Korea and the United States agreed not to appeal the report of any compliance panel.

“Australia and Indonesia have agreed not to appeal the panel report in the dispute Australia – Anti-Dumping Measures on A4 Copy Paper (DS529).

“Parties should make efforts to find a positive solution to their dispute, consistent with the aim of the WTO dispute settlement system.

“The United States will continue to insist that WTO rules be followed by the WTO dispute settlement system. We will continue our efforts and our discussions with Members and with the Chair to seek a solution on these important issues.

“3 ‘Understanding between Indonesia and Chinese Taipei regarding Procedures under Articles 21 and 22 of the DSU’, (WT/DS490/3) (April 11, 2019), para. 7 (‘The parties agree that if, on the date of the circulation of the panel report under Article 21.5 of the DSU, the Appellate Body is composed of fewer than three Members available to serve on a division in an appeal in these proceedings, they will not appeal that report under Articles 16.4 and 17 of the DSU.’) and ‘Understanding between Indonesia and Viet Nam regarding Procedures under Articles 21 and 22 of the DSU’, WT/DS496/14 (March 22, 2019), para. 7 (‘The parties agree that if, on the date of the circulation of the panel report under Article 21.5 of the DSU, the Appellate Body is composed of fewer than three Members available to serve on a division in an appeal in these proceedings, they will not appeal that report under Articles 16.4 and 17 of the DSU.’).

“4 ‘Understanding between the Republic of Korea and the United States regarding Procedures under Articles 21 and 22 of the DSU’, (WT/DS488/16) (February 6, 2020), para. 4 (‘Following circulation of the report of the Article 21.5 panel, either party may request adoption of the Article 21.5 panel report at a meeting of the DSB within 60 days of circulation of the report. Each party to the dispute agrees not to appeal the report of the Article 21.5 panel pursuant to Article 16.4 of the DSU.’).

“5 Minutes of the Meeting of the Dispute Settlement Body on January 27, 2020 (WT/DSB/M/440), paras. 4.2 (‘Indonesia also wished to thank Australia for working together with Indonesia in a spirit of cooperation in order to reach an agreement not to appeal the Panel Report’ and 4.3 (‘Australia and Indonesia had agreed not to appeal the Panel Report and to engage in good faith negotiations of a reasonable period of time for Australia to bring its measures into conformity with the DSB’s recommendations and rulings, in accordance with Article 21.3(b) of the DSU.’).”

Statements by the United States at the Meeting of the WTO Dispute Settle- ment Body, Geneva, August 28, 2020 at 14, https://geneva.usmission.gov/wp-content/uploads/sites/290/Aug28.DSB_.Stmt_.as-deliv.fin_.public.pdf.

Thus, there are ways for WTO Members to resolve disputes between themselves even with the Appellate Body inoperative. Some countries, like Australia, have sought positive resolutions where the other disputing party is not a member of MPIA. To date, the European Union has not sought resolution with members who are not party to the MPIA but have rather filed appeals so cases will sit in limbo until such time as the impasse is resolved.

Concluding comments

While each of the eight candidates to become the next Director-General of the WTO believe resolution of the dispute settlement system impasse is an important priority for the WTO, they differ in how quickly they believe Members will be able to overcome the impasse — Dr. Jesus Seade (Mexico) believes it can be resolved in the first 100 days. Amb. Tudor Ulianovschi believes that the challenges presented will not be resolved ahead of the 12th Ministerial Conference in 2021 but will be resolved sometime thereafter. Most other candidates hold out hope that the impasse can be resolved by the next Ministerial in 2021. Thus, the current situation of no functioning Appellate Body may continue for some time.

The U.S. Trade Representative Robert Lighthizer in an Op Ed last week in the Wall Street Journal suggested that reform of the dispute settlement system is critical but may involve changing the system from its existing two-tiered configuration under the DSU to a one-tier process more like commercial arbitration. If that is the path that the United States pursues, resolution of the current situation will take years. See August 24, 2020, USTR Lighthizer’s Op Ed in the Wall Street Journal – How to Set World Trade Straight, https://currentthoughtsontrade.com/2020/08/24/ustr-lighthizers-op-ed-in-the-wall-street-journal-how-to-set-world-trade-straight/.

Similarly, if dispute settlement reform is lumped into the broader WTO reform being discussed, the timing will be significantly delayed if reform of the WTO is to be meaningful and return the organization to a place of relevance in the 21st century.

With the queue of panel decisions that are yet due this year involving some high profile issues (e.g., national security actions by the United States on steel and aluminum and retaliation taken by many trading partners) and with the recent panel report on the U.S. countervailing duty order on Canadian softwood lumber, pressure will likely build on WTO Members to find a lasting solution to the current impasse. Increased pressure suggests heightened tensions in an organization already suffering from distrust among Members and, as a result, largely nonfunctioning pillars of negotiation, notification/monitoring, dispute settlement. In short, 2021 promises to be a challenging environment for the WTO Members and the incoming Director-General.

To view the original post, click here

The post bodog online casino|Welcome Bonus_by the WTO dispute settlement appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Ann Marie Caton — Sun, 09 Aug 2020 18:15:27 +0000

At the June 17 hearings before the U.S. House and Ways Committee and the U.S. Senate Finance Committee, the U.S. Trade Representative Robert Lighthizer testified about the Trump Administration’s 2020 trade agenda. While there were few questions during the hearing that were addressed to dispute settlement at the WTO, the Committees forwarded follow-up questions to Amb. Lighthizer for responses. Several dealt with WTO dispute settlement, in particular, reform of the Appellate Body (“AB”).

For example, Senate Finance Chairman Chuck Grassley (question 4) and Ranking Member Ron Wyden (question 16) each inquired about the next steps by the U.S. to achieving AB reform. Both Chairman and Ranking Member are strong supporters of achieving Appellate Body reform and limiting the Appellate

Body to the role envisioned in the Dispute Settlement Understanding. Amb. Lighthizer’s answer to them was the same. Both questions asked and Amb. Lighthizer’s answers are provided below.

Chairman Grassley, Question 4
I’m a strong supporter of reforming the WTO Appellate Body, but I’m worried that we still have not made any concrete proposal of our own for reforming dispute settlement. A number of allies who have been supportive of WTO reform have told me that they are discouraged by the continued lack of a proposal from the United States. Unfortunately, many of these countries are now signing up for the EU’s alternative: the Multiparty Interim Arbitration Arrangement.

I believe we need to do more than identify problems. We need to propose and build consensus for solutions that will carry out what Congress understood it approved in 1995: binding dispute settlement on certain rules carefully negotiated by Members, not discovered by appointed judges. Accordingly, we need solutions that address overreach and other problems like the AB’s failure to follow the 90 day rule.

“What efforts are you taking to develop a proposal that we can rally our allies around, and will you commit to working with Congress on it – as is required by the constitution and the law?“

Ranking Member Wyden Question 16

For more than a year, this Administration blocked approval for new Appellate Body Members in an effort to draw attention to concerns regarding the WTO dispute resolution system. I share these concerns, and I want them to be addressed. Last December these concerns captured the world’s attention when the Appellate Body became unable to hear new cases after the retirement of two judges le only one remaining judge. The United States has yet to put forward a reform proposal despite opposing other WTO members’ reform suggestions.

“What are the next steps in addressing the problems at the WTO?“

Amb. Lighthizer Answer: The Administration is committed to working with any interested WTO Member to find solutions to the failure of the Appellate Body to follow WTO rules. This means first understanding what is the root of the problem: Why has the Appellate Body consistently broken WTO rules – that is, those rules agreed by WTO Members in the Uruguay Round and approved by the Congress in the Uruguay Round Agreements Act – despite every effort by U.S. Administrations to get it to stop.

By exercising our right not to approve new members to the Appellate Body, the Administration has forced the WTO to engage in a long-overdue debate on this problem. My voice also comprehensively detailed the Appellate Body’s pervasive rule-breaking in its Report on the Appellate Body earlier this year.1 The Report details the concerns expressed by the United States for more than 20 years and the repeated failure of the Appellate Body to apply the rules of the WTO agreements in a manner that adheres to the text of those agreements. The Report also highlights several examples of how the Appellate Body has altered WTO Members’ rights and obligations through erroneous interpretations of WTO agreements.

Appellate Body overreaching has unfairly taken away U.S. rights and advantaged China. Through a series of deeply flawed reports, the Appellate Body has eroded the U.S. ability under WTO rules to counteract economic distortions caused by China’s non-market practices that harm our workers and businesses. For example, the Appellate Body’s erroneous interpretation of “public body” threatens the ability of WTO Members to counteract trade-distorting subsidies provided through state-owned enterprises, favoring non-market economies at the expense of market economies.

The dispute settlement system should support, rather than weaken, the WTO as a forum for discussion, monitoring, and negotiation. The Appellate Body has facilitated efforts by some Members to obtain through litigation what they have not achieved – and could not achieve — through negotiation. If WTO Members believe in a rules-based trading system, then we must ensure the dispute settlement system follows the rules that WTO Members established. Without understanding the problem of why the Appellate Body has not followed the rules Members agreed to for it, simply writing new rules or affirming the existing rules in whatever form will not fix the problem. This is why we have continued to insist that Members need to understand why the Appellate Body does not consider itself bound by the rules so that we can find real, lasting solutions.

Unfortunately, some of our trading partners – prominently, the EU and China – continue to deny that the Appellate Body has broken the rules. Rather than seeking reform in the areas of concern raised by the United States and other WTO Members, the EU and China have pursued an arbitration arrangement that incorporates and exacerbates some of the worst aspects of the Bodog Poker Appellate Body’s practices. The numerous departures from agreed WTO rules in the EU-China arrangement highlight a fundamental difference among WTO Members: Some Members prefer an appellate “court” with expansive powers to write new rules and impose new obligations on the United States, instead of the more narrow appellate review as agreed to by Members in the DSU.

The United States continues to engage with our trading partners and remains committed to working with any WTO Member that acknowledges U.S. concerns and is willing to work together to find real solutions and reform. I look forward to continuing to work with you and the Committee on these important issues.

1 United States Trade Representative, Report on the Appellate Body of the World Trade Organization, February 2020, available here.

In the questions from the House Ways and Means Committee members, one question dealt with WTO reform, and the answer from Amb. Lighthizer included not only reform of the WTO generally but also the need for addressing Appellate Body overreach. See question 1 from Rep. Jason Smith:

Rep. Jason Smith

The World Trade Organization (WTO) is in urgent need of reform and modernization. For too long, the WTO has been le stagnant, unable to adapt to the challenges presented by a rapidly changing global economy. As a result, American manufacturing and other critical U.S. industries have suffered the consequences of a body that has time and again, sought to diminish US. sovereignty. I am pleased that you and President Trump have taken on this task and have put forth a vision for a reformed WTO that will better serve the interests of America and our allies. With that in mind, what steps are you and your team taking this year to advance the necessary solutions the WTO system desperately needs?

Answer: We continue to engage extensively with WTO Members to pursue meaningful reform of the WTO. The United States is pleased that Brazil, Costa Rica, Korea, and Singapore have responded to our reform initiatives by agreeing to forego special and differential treatment in future WTO negotiations. We are continuing to work to ensure all countries are contributing to the WTO commensurate with their role in the global economy. The United States is also leading an effort to bring the WTO back to upholding its core principle of market orientation to ensure a level playing field for U.S. workers, farmers, and businesses. We have also advanced work on transparency, ensuring timely notifications that can help get the WTO back to its core function of negotiating new trade rules.

Additionally, we cannot allow overreaching by the Appellate Body to continue to weaken our ability under WTO rules to address the harm to our workers and businesses caused by non-market practices such as China’s economic distortions. WTO Members must come to terms with the failings of the Appellate Body and understand the causes if we are to achieve lasting and effective reform of the WTO dispute settlement system. The United States will continue to engage with any WTO Member in order to restore the WTO dispute settlement system to the role given to it by WTO Members and to ensure that dispute settlement supports, rather than weakens, the WTO. The United States led a group of 11 Members to issue a statement calling for transparency in dispute settlement through open meetings and public submissions, and we will continue to work to persuade Members who did not join the statement (such as the EU, China, and India) to support greater transparency.”

No movement at the WTO

Now that the Appellate Body has been without three members for nearly eight months, one would have expected that negotiations would be intense to find a solution acceptable to the United States and the membership. But other than certain Members seeking at each Dispute Settlement Body meeting to get agreement to start looking for new Appellate Body members (which is blocked by the United States), there is no indication that any meaningful activities are being pursued in 2020 to resolve the longstanding concerns of the United States.

With Director-General Azevedo’s announcement on May 14 that he would step down as the Director- General at the end of August 2020, much attention within the WTO in recent months has understandably been focused on finding a new Director-General. The selection process will likely continue until early November. This makes it unlikely that any major effort to address U.S. concerns will happen in the remainder of 2020.

Similarly, as we are less than three months from U.S. Presidential elections, many WTO Members will likely prefer to wait to see the results of the election before engaging with the U.S. on its core concerns.

Some major Members, like the EU, keep talking about looking for permanent solutions. See August 3, 2020, European Commission, Directorate-General for Trade, The WTO multi-party interim appeal arrangement gest operational, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2176 “Commissioner for Trade Phil Hogan said: ‘With the agreed pool of arbitrators, the interim appeal arrangement for the WTO disputes is now up and running. * * * It shows that participating WTO members are willing to take concrete action to preserve as independent dispute settlement system with an appeal function. We can now turn our attention to finding a solution to the underlying problems through reform of the WTO Appellate Body and other aspects of the WTO system that need improvement.’” (emphasis added).

However, it has been the EU’s failure to recognize the departure of the Appellate Body from its limited role and the EU’s embrace of an Appellate Body creating rights and obligations that are not part of existing agreements that have significantly contributed to the problems identified by the United States. While Europe has shown some flexibility on addressing process issues, it has not acknowledged the serious overreach problems that the U.S. and many other Members have identified over the years. Thus, the EU concept of permanent solutions to the Appellate Body reform effort ignores core concerns of the U.S.

Conclusion

The U.S. has documented over the last several years the pervasive problems with the WTO’s dispute settlement system, particularly the actions of the Appellate Body. Since the Dispute Settlement Understanding already makes clear the proper role for the Appellate Body and the limitation on panels and the Appellate Body not to create rights or obligations, the U.S. insistence on Members focusing on why the Appellate Body has felt free to ignore the limits on its authority is understandable as a first step to determining what needs to be done to get the dispute settlement system back to what was agreed to by Members at the creation of the WTO. The U.S. concerns also explain its lack of support for a mere reaffirmation of the original Dispute Settlement Understanding language.

In prior posts, I have put forward thoughts on how one could make the original language self-executing or enforceable by Members to a dispute and hence address U.S. concerns if other countries will not focus on why the Appellate Body has been willing to ignore limits on its authority. See, e.g., July 12, 2020, WTO Appellate Body reform – revisiting thoughts on how to address U.S. concerns, https://currentthoughtsontrade.com/2020/07/12/wtos-appellate-body-reform-revisiting-thoughts-on-how-to-address-u-s-concerns/.

Absent an agreement among Members as to the reasons for Appellate Body departure from its limited role, Members will need to make modifications to the Agreement or to what is contained in binding interpretations that actually prevent future departures from the correct, limited role of the Appellate Body.

Don’t hold your breath that Members will find solutions any time soon.

View the original post, here.

The post bodog sportsbook review|Most Popular_of an Appellate Body creating appeared first on Bodog.

bodog casino|Welcome Bonus_and supports the negotiation

Brian Carpenter — Tue, 04 Aug 2020 15:52:04 +0000

On July 29, 2020, the United States Senate Finance Committee held a hearing on WTO Reform: Making Global Rules Work for Global Challenges. The hearing had four witnesses, including two prior Appellate Body Members (Jennifer Hillman and Thomas Graham) and two others.

Senators generally agreed that the dispute settlement system was in need of reform to address long standing U.S. concerns about overreach and other matters. At the same time, Senators view the WTO as an important organization where U.S. leadership is important to address problems and changing needs.

While most U.S. agricultural interests were perceived to have been generally upheld well through dispute settlement, concern was expressed with the COOL decision affecting the labeling of meat from animals imported into the United States.

There was broad concern about the problems created by Appellate Body overreach in the areas of trade remedies. For some, there is a belief, confirmed by at least one of the former Appellate Body members, that there has been a bias against trade remedy use by the U.S.

The hearing lasted about two hours and can be seen here. https://www.finance.senate.gov/hearings/wto-reform-making-global-rules-work-for-global-challenges. The prepared statements of the Senate Finance Committee Chairman and Ranking Member and of the witnesses are available for download from the same link.

Written comments to the Committee are accepted for two weeks (til August 12). I am submitting written comments today and provide them in the embedded document below.

As I note in my comments, U.S. concerns center around overreach – the creation of rights and obligations not contained in the agreements themselves. Such concerns can be addressed through clarifying that DSU Art. 3.2 and 19.2 prevent panels and the Appellate Body from filling gaps, construing silence and construing ambiguous provisions. Any clarification of those articles must be accompanied by an ability to correct prior decisions. My prior blogs have provided one suggestion which would address not just U.S. but other Member concerns about overreach.

On the other issues of concern to the U.S., any resolution must provide a means for the DSU terms to be enforced by Members where panels or the Appellate Body wonder afield.

To read the original post, click here

The post bodog sportsbook review|Most Popularbodog sportsbook review appeared first on Bodog.