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Despite the challenging circumstances and the actions of some countries in staking out seemingly extreme positions, the WTO announced a number of agreements in the early morning hours of June 17. The WTO press release on the 17th described the results as follows, “WTO members secure unprecedented package of trade outcomes at MC12”. Members and the WTO not surprisingly use glowing terms to describe affirmative outcomes. That is reflected in the WTO press release. Nonetheless, the list of agreed texts is interesting and reflects some important forward movement, even if the fisheries subsidies agreement is a partial agreement only with an important section removed and subject to further negotiations.

“WTO members secure unprecedented package of trade outcomes at MC12

“WTO members successfully concluded the 12th Ministerial Conference (MC12) in Geneva on 17 June, securing multilaterally negotiated outcomes on a series of key trade initiatives. The ‘Geneva Package’ confirms the historical importance of the multilateral trading system and underlines the important role of the WTO in addressing the world’s most pressing issues, especially at a time when global solutions are critical.

“Round-the-clock negotiations among delegations produced the ‘Geneva Package’, which contains a series of unprecedented decisions on fisheries subsidies, WTO response to emergencies, including a waiver of certain requirements concerning compulsory licensing for COVID-19 vaccines, food safety and agriculture, and WTO reform.

“’The package of agreements you have reached will make a difference to the lives of people around the world. The outcomes demonstrate that the WTO is, in fact, capable of responding to the emergencies of our time,’ said WTO Director-General Ngozi Okonjo-Iweala. ‘They show the world that WTO members can come together, across geopolitical fault lines, to address problems of the global commons, and to reinforce and reinvigorate this institution. They give us cause to hope that strategic competition will be able to exist alongside growing strategic cooperation.’

“DG Okonjo-Iweala expressed her conviction that ‘trade is part of the solution to the crises of our time’ and noted that the WTO ‘can and must do more to help the world respond to the pandemic, tackle environmental challenges and foster greater socio-economic inclusion.’

“The package adopted by members include:

“o an outcome document (WT/MIN(22)/W/16/Rev.1);

“o a package on WTO response to emergencies, comprising:

“o a Ministerial Declaration on the Emergency Response to Food Insecurity (WT/MIN(22)/W/17/Rev.1);

“o a Ministerial Decision on World Food Programme (WFP) Food Purchases Exemptions from Export Prohibitions or Restrictions (WT/MIN(22)/W/18);

“o a Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future
Pandemics (WT/MIN(22)/W/13); and

“o Ministerial Decision on the Agreement on Trade-related Aspects of Intellectual Property Rights (WT/MIN(22)/W/15/Rev.2)

“o a Decision on the E-commerce Moratorium and Work Programme (WT/MIN(22)/W/23)

“o an Agreement on Fisheries Subsidies (WT/MIN(22)/W/22).

“In addition, ministers adopted two decisions – on the Work Programme on Small Economies (WT/MIN(21)/W/3) and on the TRIPS non-violation and situation complaints (WT/MIN(21)/W/4) — and a Sanitary and Phytosanitary Declaration for the Twelfth WTO Ministerial Conference: Responding to Modern SPS Challenges (WT/MIN(22)/W/3/Rev.3).

“All documents can be found here (https://www.wto.org/english/thewto_e/minist_e/mc12_e/documents_e.htm).

“Acknowledging the ‘vital importance of agriculture,’ DG Okonjo-Iweala noted that differences on some issues, including public stockholding for food security purposes, domestic support, cotton and market access ‘meant that we could not achieve consensus on a new roadmap for future work.’ However, she added, ‘members found a renewed sense of purpose: they are determined to keep at it on the basis of existing mandates, with a view to reaching positive outcomes at MC13.’”

Food Security

The efforts to address food security concerns resulted in adopting two of the documents that had been forwarded (with some revisions) to ministers ahead of the Conference but did not include the Draft Ministerial Decision on Agriculture (WT/MIN(22)/W/22) based on sharp differences on the elements needing to be addressed.

Response to the COVID-19 Pandemic and Possible TRIPS Waiver

Similarly, Members agreed to the Ministerial Decision on the Agreement on Trade-related Aspects of Intellectual Property Right — clarifying flexibilities to address compulsory licensing of patented vaccines during the COVID-19 pandemic (for a period of five years from adoption) with a decision in six months to extend the flexibilities to therapeutics and diagnostics for the pandemic. The last modification was to the language as to who was eligible, with the U.S. and China agreeing to language that made all developing countries eligible, encouraged developing countries who export vaccines to opt out and language from a General Council meeting where China had indicated it would opt out. The TRIPS decision and the Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics are the two documents agreed to which address the WTO’s response to the Pandemic.

As I have reviewed in prior posts, the more important of the two documents is the non TRIPS one. In 2022, the world has massive unused capacity for COVID vaccines, making greater access to vaccines not about availability of product nor even geographical diversity of production. As reported in a prior post, a number of facilities which produce COVID vaccines have closed or are in danger of closing from a lack of orders. See May1, 2022: Financial Times article from May 1, 2022 reaxirms current excess capacity for COVID-19 vaccines, https://currentthoughtsontrade.com/2022/05/01/financial-times-article-from-may-1-2022-reaxirms-currentexcess-capacity-for-covid-19-vaccines/; April 30, 2022: World Trade Organization 12th Ministerial Conference — the possible response to the COVID-19 pandemic amid the declining demand for vaccines, https://currentthoughtsontrade.com/2022/04/30/world-trade-organization-12th-ministerial-conference-the-possible-response-to-the-covid-19-pandemic-amid-the-declining-demand-for-vaccines/.

The latest data from the UNICEF COVID Dashboard on COVID-19 vaccine deliveries over time (by month) show the dramatic decline in vaccine deliveries globally since December 2021. See COVID-19 Vaccine Market Dashboard, https://www.unicef.org/supply/covid-19-vaccine-market-dashboard, accessed June 17, 2022. Had vaccines been delivered just at the rate of December 2021 in January – May 2022 (ignoring expansions announced for 2022), 4.74 billion additional doses would have shipped by the end of May.

Fisheries Subsidies

The most disappointing document is the only new “agreement” — the Agreement on Fisheries Subsidies. The agreement reached deletes the bulk of Article 5 from the document forwarded to ministers (” SUBSIDIES CONTRIBUTING TO OVERCAPACITY AND OVERFISHING”), replacing it with an Article 5 (Other Subsidies) which is limited to barring Members from granting or maintaining subsidies “provided to fishing or fishing related activities outside of the jurisdiction of a costal Member or a coastal non-Member and outside the competence of a relevant RFMO/A.” While India was reported to be protecting the interests of developing and LDC countries by insisting on a 25 year period and a 200 mile zone for subsidizing low income, resource-poor and livelihood fishing or fishing related activities under the prior dray of Article 5.5(c), the vast majority of developing and LDC countries would have had a total exclusion from the subsidy provisions of Article 5 underprior dray Article 5.5(b)(i) because of the size of their marine capture production [“A developing country Member may grant or maintain the subsidies referred to in Article 5.1 to fishing and fishing related activities if its share of the annual global volume of marine capture production does not exceed [0.8] per cent as per the most recent published FAO data as circulated by the WTO Secretariat.”). India was not eligible for the prior Art. 5.5(b)(i) provision based on its percent of global volume of marine capture production. See June 11, 2022: WTO 12th Ministerial Conference — Dray documents forwarded to Ministers for Consideration; a review of the Fisheries Subsidies latest text, https://currentthoughtsontrade.com/2022/06/11/wto-12th-ministerialconference-dray-documents-forwarded-to-ministers-for-consideration-a-review-of-the-fisheries-subsidieslatest-text/ (India in 2018 had 3.62 million tonnes of marine capture production out of a global total of 84.41 million tonnes (4.29%)).

Members agreed to continue negotiating on the subsidies contributing to overcapacity and overfishing and included a new Article 12 (Termination of Agreement if Comprehensive Disciplines are Not Adopted) that would terminate the agreement if comprehensive disciplines are not adopted within four years of the agreementʼs entry into force.

As European Commission Executive Vice-President Dombrovskis stated at the conclusion of the 12th WTO Ministerial Conference, 17 June 2022, https://ec.europa.eu/commission/commissioners/2019-2024/dombrovskis/announcements/statement-executive-vice-president-dombrovskis-conclusion-12th-wtoministerial-conference_en 

“Fisheries

“Today we have taken a truly significant step. This is the first time that we have established a multilateral agreement at the WTO to support sustainability and clamping down on subsidies that lead to over-fishing.

“Under international law, it will now be illegal to subsidise vessels involved in illegal and unregulated fishing, subsidise fishing in unregulated areas of the high seas.

“Given that we did not yet fully deliver on our mandate under the UN Sustainability Development Goals, the EU will continue to work with our partners towards multilateral sustainability disciplines on those subsidies not covered by this first agreement.”

E-commerce moratorium on customs duties until MC13

An important result for companies engaged in e-commerce was the extension of the moratorium on the imposition of customs duties until the 13th Ministerial Conference as part of a decision to continue and “reinvigorate the Work Programme on Electronic Commerce”. The extension is good only to 31 March 2024 unless the General Council takes a further decision to extend.

TRIPS non-violation disputes

At past Ministerial Conference the e-commerce customs duty moratorium had been extended at the same time as Members agreed to extend the period when non-violation complaints would not be brought under the TRIPS Agreement. The General Council had agreed in November to forward to the 12th Ministerial Conference the extension of the ban on bringing non-violation TRIPS cases until the 13th Ministerial Conference. It was adopted as noted above.

Work Programme on Small Economies

The decision adopted continues the work programme on small economies and the evaluation of challenges such economies face and any actions that may be appropriate to be considered by various WTO bodies.

Ministerial Declaration on Sanitary and Phytosanitary Work

The declaration reviews the important work of the SPS Committee and the need to have the SPS Agreement fully implemented and how the SPS Agreement can support a number of themes flowing from changes to the world agriculture scene:

“How to facilitate global food security and more sustainable food systems, including through sustainable growth and innovation in agricultural production and international trade, and through the use of international standards, guidelines, and recommendations developed by the Codex Alimentarius Commission, the World Organisation for Animal Health and the International Plant Protection Convention as the basis of harmonized SPS measures to protect human, animal or plant life or health.

“How to support basing SPS measures on scientific evidence and principles, including where international standards, guidelines, or recommendations do not exist or are not appropriate; and how to promote the use by Members of principles employed by the international standard setting bodies for considering scientific uncertainty in risk analysis.

“How to enhance the safe international trade in food, animals and plants and products thereof through the adaptation of SPS measures to regional conditions, bodog casino including pest- or disease-free areas and areas of low pest or disease prevalence which can strengthen Members’ ability to protect plant and animal life or health through efforts to limit the spread of pests such as the Mediterranean fruit fly, diseases such as African swine fever, disease-carrying organisms, or disease-causing organisms.

“How to encourage cooperation with observer organizations that support the work of the SPS Committee and the international standard setting bodies through technical exchanges and assistance in the context of this work programme

“How to increase participation of and support for the special needs of developing and least developed country Members in the development and application of SPS measures; and in particular, to increase awareness of and sensitivity to the impacts of SPS measures on the export possibilities of such Members.

“Other topics as identified over the course of the work programme or as a result of emerging sanitary or phytosanitary challenges or risks worldwide.”

The SPS Committee has been recognized by many as performing very useful work in helping Members understand developments, improve implementation of obligations and reduce disputes. The adopted declaration should help ensure positive momentum within the Committee.

MC12 Outcome Document

The outcome document offers an abbreviated discussion of WTO reform (paras. 3 & 4), indicating a fully functioning dispute settlement system will be achieved by 2024. The document reaffirms the role of special and differential treatment for developing countries and LDCs (without addressing U.S. and other developed country concerns about lack of differentiation or graduation from developing, etc.). The outcome document includes a range of paragraphs addressing needs of LDCs including for countries who graduate from LDC status. The bulk of the document focuses on prior commitments for assistance to LDCs and developing countries. Considering the critical need for reform of the WTO, the outcome document is disappointing in the lack of focus on the needs of the organization going forward.

Consider the comments of EC Executive Vice-President Dombrovskis earlier today on the importance of the reform effort.

“WTO Reform

“The difficult discussions over the last five days confirm the EU’s strong belief that the WTO is in an urgent
need of root-and-branch reform.

“A full reboot is the only way it can remain relevant and reactive to 21st century challenges. I remind that you that the EU published a clear WTO reform roadmap one year ago to show the way forward.

“The WTO must be able to resolve disputes effectively. It must provide a trust-based and constructive forum for negotiations, and be the guardian of the international rules-based system.

“Ultimately, it is also about restoring the trust and political buy-in of its members.

“We will now get to work immediately on this essential reform, with a view to getting it agreed by the next Ministerial, MC13.”

Statement by Executive Vice-President Dombrovskis at Conclusion of 12th WTO Ministerial Conference, 17 June 2022, https://ec.europa.eu/commission/commissioners/2019-2024/dombrovskis/announcements/statement-executive-vice-president-dombrovskis-conclusion-12th-wtoministerial-conference_en. While the outcome document notes that reform will be discussed, it is hard to imagine agreement on an agenda and actual reforms being accomplished by the 13th Ministerial Conference. This is equally true for resolving dispute settlement, at least if U.S. longstanding concerns are actually going to be addressed.

Interestingly, a major push for many WTO Members since the 11th Ministerial Conference in Buenos Aires has been plurilateral work on so-called Joint Statement Initiatives (JSIs) . India and South Africa have opposed addressing results from JSIs within the WTO. There was no mention by DG Okonjo-Iweala or in the released documents of the work undertaken on the JSIs or the concluded work on services. Without a change to consensus decision making, JSIs offer the main alternative within the WTO for responding to emerging challenges to global trade. One can expect resolution of the role of open plurilaterals to be a major issue in establishing a reform agenda.

Conclusion

Today is a day for celebrating that that a dysfunctional organization and membership were able to come together for a group of decisions that at least suggest multilateralism can play a role going forward to address important issues confronting the global trading system, nations, and workers/citizens. As Director-General Ngozi Okonjo-Iweala stated last Sunday, an agreement on two issues is better than one on one issue, an agreement on one issue is better than no agreement. Today’s outcome is significant by the low standards created by the WTO over its 26+ years of existence. There are some positive results that have emerged. Hopefully the announced results will improve the lives of people around the world.

But the agreement and decisions/declarations are collectively relatively small in what is actually achieved and have taken way too long to achieve. Food security may be the most important, and the decision not to block shipments to the World Food Programme is potentially important. But the response to the pandemic while having some useful elements in terms of transparency and urging greater cooperation is dependent on the willingness of Members to act. The TRIPS decision will have virtually no real world benefit during the COVID19 pandemic as the current challenge is lack of demand for vaccines not a lack of availability.

The extension of the e-commerce moratorium on customs duties will have ongoing importance to ecommerce companies and consumers globally but should have been easy to extend versus being the increasingly divisive issue it has become.

After 21 years, the fisheries subsidies agreement is at best a modest agreement with a major part of the subsidies disciplines removed from the package and kicked down the road for further negotiations. Bottom line – what was achieved is better than no deal. For that, we should be thankful. To all those who made the outcome possible, have a relaxed weekend and enjoy a toast to a successful ministerial. Multilateral challenges will be awaiting you again next week.

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.

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Yesterday’s article in The Globe and Mail had Director-General Ngozi Okonjo-Iweala talking about it still being possible to bring in the first two issues listed above without commenting on other items before the Members. See The Globe and Mail, Global agreement on COVID-19 vaccine rights waiver within reach, WTO chief says, June 8, 2022, https://www.theglobeandmail.com/world/article-global-agreement-on-covid-19-vaccine-rightswaiver-within-reach-WTO/ (“An international agreement on waiving intellectual property rights for COVID-19 vaccines is within reach ahead of a global trade meeting next week, the head of the World Trade Organization said on Wednesday. In a telephone interview, Director-General Ngozi Okonjo-Iweala also said an agreement could be reached on fishing subsidies in time for the meeting, when 120 trade ministers from around the world gather at the body’s Geneva headquarters.”).

As reviewed in prior posts, there are a range of matters that have been discussed including a number of joint statement initiatives (at least one of which is concluded among willing Members). See May 11, 2022: Less than five weeks to the WTO’s 12th Ministerial Conference — what are likely deliverables?, https://currentthoughtsontrade.com/2022/05/11/less-than-five-weeks-to-the-wtos-12th-ministerialconference-what-are-likely-deliverables/. How many of the issues that have been being worked on will result in actual outcomes or simply be included in a future work program is the question heading into next week. Most bets would say the Ministerial Conference will be lucky to achieve even modest success.

There are a host of documents that are posted on the WTO webcite as documents for the Ministerial. See WTO, MINISTERIAL CONFERENCES: TWELFTH WTO MINISTERIAL CONFERENCE, https://www.wto.org/english/thewto_e/minist_e/mc12_e/documents_e.htm. There is a dray text and revision for fisheries subsidies (but not the current iteration). There is no dray text for the pandemic response as yet although both the IP flexibility dray forwarded to the membership in recent weeks and the broader package of provisions have been in the public domain, but donʼt reflect recent negotiations. The agricultural negotiating group chair’s dray of a text from November 2021 is on the webcite but again doesnʼt reflect developments from 2022. There are lists of issues various developing country groups and least developed countries would like to see as well as a Brazilian paper proposing having ministerial meetings every year versus the current every two years (which has twice slipped to only once in four years). While all these documents provide some background on issues of interest to at least some of the Members, the core documents will likely be those added by Sunday reflecting hoped for outcomes.

The world needs the WTO to be successful next week. Fisheries subsidies are a major problem and fish stocks globally have paid the price of the inaction by WTO Members. The pandemic has raised important issues for trade playing a more important role in minimizing negative effects and improving equitable access to vaccines. And the food insecurity issues which have been grossly worsened by the ongoing Russian war in Ukraine are critical for tens of millions of the world’s population, with trade being an important element to addressing the current issue. And the WTO is in need of fundamental reform if it is to be able to address changing global needs in a timely manner, something it has been unable to do in its first twenty 27 years.

The divisions among WTO Members on the path forward for the WTO and the opposition of many to working with the Russian Federation argue for a minimalist package in fact at next week’s Ministerial Conference. Even a minimalist package may prove illusive in today’s world. Let’s hope for a meaningful success next week.

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.

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EC President von der Leyen’s statement at Davos is copied in part below (section dealing with food security) and includes both the EU view on the challenges being faced bodog casino as well as steps the EU is taking to try to reduce the severity of the food insecurity crisis. See European Commission, Special Address by President von der Leyen at the World Economic Forum, Davos, 24 May 2022, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_22_3282.

“We are witnessing how Russia is weaponising its energy supplies. And indeed, this is having global repercussions. Unfortunately, we are seeing the same pattern emerging in food security. Ukraine is one of the world’s most fertile countries. Even its flag symbolises the most common Ukrainian landscape: a yellow field of grain under a blue sky. Now, those fields of grain have been scorched. In Russian-occupied Ukraine, the Kremlin’s army is confiscating grain stocks and machinery. For some, this brought back memories from a dark past – the times of the Soviet crop seizures and the devastating famine of the 1930s. Today, Russia’s artillery is bombarding grain warehouses in Ukraine – deliberately. And Russian warships in the Black Sea are blockading Ukrainian ships full of wheat and sunflower seeds. The consequences of these shameful acts are there for everyone to see. Global wheat prices are skyrocketing. And it is the fragile countries and vulnerable populations that suffer most. Bread prices in Lebanon have increased by 70%, and food shipments from Odessa could not reach Somalia. And on top of this, Russia is now hoarding its own food exports as a form of blackmail – holding back supplies to increase global prices, or trading wheat in exchange for political support. This is: using hunger and grain to wield power. 

“And again, our answer is and must be to mobilise greater collaboration and support at the European and global level. First, Europe is working hard to get grain to global markets, out of Ukraine. You must know that there are currently 20 million tons of wheat stuck in Ukraine. The usual export was 5 million tons of wheat per month. Now, it is down to 200,000 to 1 million tons. By getting it out, we can provide Ukrainians with the needed revenues, and the World Food Programme with supplies it so badly needs. To do this, we are opening solidarity lanes, we are linking Ukraine’s borders to our ports, we are financing different modes of transportation so that Ukraine’s grain can reach the most vulnerable countries in the world. Second, we are stepping up our own production to ease pressure on global food markets. And we are working with the World Food Programme so that available stocks and additional products can reach vulnerable countries at affordable prices. Global cooperation is the antidote against Russia’s blackmail.

“Third, we are supporting Africa in becoming less dependent on food imports. Only 50 years ago, Africa produced all the food it needed. For centuries, countries like Egypt were the granaries of the world. Then climate change made water scarce, and the desert swallowed hundreds of kilometres of fertile land, year after year. Today, Africa is heavily dependent on food imports, and this makes it vulnerable. Therefore, an initiative to boost Africa’s own production capacity will be critical to strengthen the continent’s resilience. The challenge is to adapt farming to a warmer and drier age. Innovative technologies will be crucial to leapfrog. Companies around the world are already testing high-tech solutions for climate-smart agriculture. For example, precision irrigation operating on power from renewable; or vertical farming; or nanotechnologies, which can cut the use of fossil fuels when producing fertilisers.

“Ladies and Gentlemen,

“The signs of a growing food crisis are obvious. We have to act urgently. But there are also solutions, today and on the horizon.

“This is why – again, an example of cooperation – I am working with President El-Sisi to address the repercussions of the war with an event on food security and the solutions coming from Europe and the region. It is time to end the unhealthy dependencies. It is time to create new connections. It is time to replace the old chains with new bonds. Let us overcome these huge challenges in cooperation, and that is in the Davos spirit.”

The New York Times article provides excerpts from Mr. Beasley’s comments. “’It’s a perfect storm within a perfect storm,’ said David Beasley, the executive director of the World Food Program, a United Nations agency. ‘If we don’t get the port of Odesa open, it will compound our problems.’ Calling the situation ‘absolutely critical,’ he warned, ‘We will have famines around the world.’”

The UN World Food Programme has a press release on its webcite that addresses the food security crisis caused by the war in Ukraine. See UN World Food Programme, Failing to open Ukrainian ports means declaring war on global food security, WFP Chief warns UN Security Council, 19 May 2022, https://www.wfp.org/news/failing-open-ukrainian-ports-means-declaring-war-global-food-security-wfpchief-warns-un. The release is copied below.

“NEW YORK – The UN World Food Programme (WFP) Executive Director, David Beasley, addressed the United Nations Security Council today on the impact of the war in Ukraine on global food security. Here are selected highlights from his remarks:

“’We truly are in an unprecedented crisis. Food pricing is our number one problem right now, as a result of all this perfect storm for 2022. But by 2023 it very well will be a food availability problem. When a country like Ukraine that grows enough food for 400 million people is out of the market, it creates market volatility, which we are now seeing

“’In 2007 and 2008, we all witnessed what happened when pricing gets out of control. There were over 40 nations with political unrest, riots and protests. We’re already seeing riots and protesting taking place as we speak. Sri Lanka, Indonesia, Pakistan, Peru… We’ve seen destabilizing dynamics already in the Sahel from Burkina Faso, Mali, Chad… these are only signs of things to come. And we have enough historical experience to understand the consequences when we failed to act. When a nation that is the breadbasket of the world becomes a nation with the longest bread lines of the world, we know we have a problem.

“’As the Secretary General clearly spoke, we’re now reaching about 4 million people inside Ukraine. In fact, we’re scaling up to 900,000 on cash-based transfers as we speak. That will put liquidity back into the marketplace, but that does not solve the problem outside of Ukraine. That’s why we’ve got to get these ports running. We’ve got to empty the silos so that we can help stabilize the food crisis that we’re facing around the world.

“’Truly, failure to open those ports in Odesa region will be a declaration of war on global food security. And it will result in famine and destabilization and mass migration around the world.

“’Leaders of the world, it’s time that we do every possible thing that we can to bring the markets to stability because things will get worse, but I do have hope. We averted famine. We averted destabilization over the past many years because many of you in this room stepped up and we delivered. And we can do that again. But we’ve got things that have to happen. Getting the ports open, stabilizing the markets, increasing production around the world. We’ll get through this storm, but we must act and we must act with urgency.’”

See also, reliefweb, War in Ukraine: WFP renews call to open Black Sea ports amid fears for global hunger, originally posted on May 20, 2022, updated May 22, 2022, https://reliefweb.int/report/world/war-ukraine-wfp-renews-call-open-black-sea ports-amid-fears-global-hunger#:~:text=The%20World%20Food%20Programme%20(WFP,of%20lives%20%E2%80%93%20around%2 0the%20world (“In impassioned pleas to the specially convened ‘call to action’ group on 18 May, attended by US Secretary of State Antony Blinken and the UN Secretary-General António Guterres, Beasley added: ‘The silos are full. Why are the silos full? Because the ports are not operating … It is absolutely essential that we allow these ports to open because this is not just about Ukraine, this is about the poorest of the poor around the world who are on the brink of starvation as we speak’”.). 

As reviewed in earlier posts, there are production issues on grains in a number of other countries flowing from heat or draught or low inventories. Challenges in other countries are complicating the ability to substitute products from other countries for the large volumes not being shipped from Ukraine. See May 16, 2022: Wheat prices spike following Indian export ban, https://currentthoughtsontrade.com/2022/05/16/wheatprices-spike-following-indian-export-ban/; May 15, 2022: India bans exports of wheat, complicating efforts to address global food security problems posed by Russia’s war in Ukraine, https://currentthoughtsontrade.com/2022/05/15/india-bans-exports-of-wheat-complicating-efforts-toaddress-global-food-security-problems-posed-by-russias-war-in-ukraine/; April 19, 2022: Recent estimates of global effects from Russian invasion of Ukraine, https://currentthoughtsontrade.com/2022/04/19/recentestimates-of-global-effects-from-russian-invasion-of-ukraine/; April 19, 2022: Recent estimates of global effects from Russian invasion of Ukraine,
https://currentthoughtsontrade.com/2022/04/19/recent-estimates-of-global-effects-from-russian-invasionof-ukraine/.

While many countries are expressing the desire to help out in the crisis and while the WTO and other multilateral organizations are taking or talking about some actions that are available to them, the crisis is likely to significantly worsen in the coming months as there is little likelihood that Russia will permit the reopening of the Black Sea ports to Ukrainian wheat and other products. The crisis will likely exceed the level of the challenges from the 2007-2008 period and will reduce global GDP growth, including forcing some areas into recession, will increase starvation and malnourishment and result in increased political instability in a number of countries around the world. Expect larger parts of the global community to view Russia as a pariah state. While trade is an important part of the answer, the war started by Russia is not controllable by global trade rules in fact. We are in for a challenging period with much of the harm born by those least able to handle the harm being inflicted.

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.

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The discussion with the former DG of the WTO was wide ranging and pointed up the near impossibility of achieving consensus among the 164 WTO Members as there is no common vision of the organization’s mission and a widely split view of Members on whether reform is needed and even whether some Members prefer a non-functioning organization. Much of the discussion with former DG Azevedo is summarized in an Inside U.S. Trade article from May 13. Inside U.S. Trade’s World Trade Online, Former WTO director-general: Finding consensus largely ‘impossible’, May 13, 2022, https://insidetrade.com/daily-news/former-wto-director-general-finding-consensus-largely-%E2%80%98impossible%E2%80%99.

The moderator asked Azevedo about the Appellate Body and the topic of dispute settlement reform was taken up in the second segment with the lead being taken by the former AB member Thomas Graham.

Today’s post looks at the discussion of dispute settlement and what implications the views presented may have for meaningful progress at the 12th Ministerial Conference in terms of agreeing on a work program for dispute settlement reform.

In the discussion with former Director-General Roberto Azevedo, the topic of dispute settlement came up in two contexts. The first had to do with a discussion of the need for reform including the U.S. perceived need for tools to address Chinese distortions from their economic system . Azevedo noted that reform would be difficult on a consensus basis in general and dealing with China’s practices specifically. Azevedo mentioned the Appellate Body had complicated the operation of the WTO as they had “legislated too much” in his view. He noted that the Appellate Body should have had “greater circumspection” and limited their decision to the minimum needed. In his view, the actions of the Appellate Body did not facilitate the ability of Members to achieve a political bargain.

The second context in which dispute settlement arose was in the discussion bodog casino of the 12th Ministerial Conference which starts in Geneva on June 12th. While Mr. Azevedo didn’t view the outcome of the 12th Ministerial as a “make or break” moment for the WTO, he did view whether dispute settlement is addressed meaningfully as suggesting “success” or continued problems. For him, getting dispute settlement moving was the important element regardless of the specifics that are to be worked out by Members.

I have in prior posts noted the likelihood that if there is a WTO reform work program, it is likely that the U.S. would agree to having dispute settlement included in such a work program even though the lack of movement by other Members to address underlying U.S. concerns raised questions about the likelihood of a successful process. April 28, 2022: WTO Reform and the 12th Ministerial Conference — What Is likely on Dispute Settlement?, https://currentthoughtsontrade.com/2022/04/28/wto-reform-and-the-12th-ministerialconference-what-is-likely-on dispute-settlement/. As I stated in that post,

“The Biden Administration, like the Trump Administration, believes that the operation of the dispute settlement system is in need of significant reform. The Trump Administration characterized the challenge as getting Members to explore why the Appellate Body felt at liberty to disregard the clear limitations on its authority in the Dispute Settlement Understanding and why Members had not moved earlier to ensure the limited role for the Appellate Body was respected. The Trump Administration also expressed concern that the dispute settlement system was not permitting Members to address the massive distortions caused to the global trading system from state-directed economies such as China. The Trump Administration was also not committed to a two-tier review system in light of the problems with the Appellate Body

“The Biden Administration has expressed similar concerns although Amb. Pagán’s comments appear to change the focus from why did the Appellate Body view itself as permitted to deviate from its limited role to a review of what Members “real interests” are. It is unclear if the different language reflects a change in focus or just a rearticulation of the need to find reforms that will deliver a dispute settlement system that is limited to and achieves the objectives Members have articulated.”

In last week’s program, Thomas Graham gave a forceful argument for why blocking appointment of new Appellate Body members was correct in both 2017 and in 2022. As he notes, “the blockage was meant to force a discussion among Members of the U.S. critique that has been building for 20 years and is deeply bipartisan and, at a minimum, solidly sound on the text and the negotiating history. The discussion was badly needed and it still hasn’t occurred.”

Mr. Graham views the critique provided by the U.S. as not widely understood. Basically it is that “the Appellate Body was negotiated and authorized only to be a modest check on occasional egregious errors by panels in applying the specific rules. And it made itself into an international court issuing broad interpretations and requiring adherence to precedence. That coincides incidentally with what former Director-General Azevedo said in his critique which I wanted to applaud of the Appellate Body. By doing this, the Appellate Body altered the rights and obligations negotiated by Member governments and expressed in the Agreements without any way to check or reign them in.”

“As an aside, there is all the talk about restarting the dispute settlement system. There is a dispute settlement system – panels. And if people don’t like it, they can go to arbitration under Article 25, or they can go to other arbitration, or they can use the good offices of the Director-General which is within the Dispute Settlement Understanding. So there is a live question which Dennis you’ve raised yourself on several occasions on whether a second tier is actually even needed.”

Mr. Graham reviewed that during 2019, the last year of the Appellate Body’s operation, at each monthly Dispute Settlement Body meeting, Amb. Shea sought to have Members discuss the how and why of the Appellate Body deviating so much from its limited role. The only response was the Amb. Walker (NZ; Chair of the DSB) process. “The only thing that could be agreed upon by most but not all Members, still not even unanimous, were procedural things (conclude cases in 90 days and hortatory words (don’t overreach). That simply demonstrated actually the accuracy of the U.S. critique. That is consistent with what I observed inside the Appellate Body as well. The U.S. critique, for lack of a better way to put it, was treated with disdain and dismissed. It was frequently said they’re just mad about zeroing; they’re just mad about a few cases. To which I would reply, you are right that they are mad about that and other things because of what it shows about how the Appellate Body is operating. Real reform of the dispute settlement system would require starting from scratch and confronting the kinds of questions that Dennis and the U.S. and a few others have been asking. Does the WTO really need a second tier of dispute settlement? And if so, what should be the purpose and what should it be? And until those discussions start, nothing is going to happen. I am not even optimistic that some path to dispute settlement can come out of the Ministerial because if one is not going to go to those fundamentals on the dispute settlement system, then the rules become important and need to be more express because you can’t stand on the dispute settlement system to interpret the rules as they are correctly. They are going to have to be done together.”

William Reinsch expressed the view that it was important to restart the appointment of Appellate Body members on the theory that the problem with the AB was one of personnel which arguably the U.S. could handle through the appointment process versus structural and hence requiring reexamination of the dispute settlement process. In the alternative, he would support a system where panel decisions are binding. The key in his view is a binding system of dispute settlement. Nazak Nikakhar took the position that a second tier of review was needed because of the possibility of erroneously decided panel cases citing a panel decision involving Russia and Ukraine and limiting the authority of Members to take action for national security reasons without WTO review.

With less than four weeks to the start of the WTO’s 12th Ministerial, WTO Members are struggling to see what deliverables are possible. WTO reform is one of the core topics needing some definition. While dispute settlement reform will likely be part of the reform package (if one is agreed) what that means and whether a meaningful work program can be envisioned and developed are open questions.

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.

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While many WTO Members are urging the WTO membership to avoid imposition of export restraints at the present time to reduce food insecurity, a number of countries have shut down exports to protect their domestic consumers. India, which is the world’s second largest producer of wheat and had been looked to to help reduce the challenges in Africa and Asia from Ukraine’s inability to get grain harvested or exported, has faced very high temperatures this spring. In the last days, it has reversed its position of increasing exports to help countries in need to the position of shutting off exports immediately with the exception of volumes under contract and with a possible willingness to work with countries with food security issues. See Reuters, India bans wheat exports as heat wave hurts crop, domestic prices soar, May 15, 2022, https://www.reuters.com/markets/commodities/india-prohibits-wheat-exports-with-immediate-effect-2022-05-14/ (“India banned wheat exports on Saturday days after saying it was targeting record shipments this year, as a scorching heat wave curtailed output and domestic prices hit a record high. The government said it would still allow exports backed by already issued letters of credit and to countries that request supplies ‘to meet their food security needs’.”); Washington Post, India bans wheat exports amid soaring global prices, May 14, 2022, https://www.washingtonpost.com/world/2022/05/14/india-wheat-banukraine/ (“In a Commerce Ministry order, Indian officials said they made the decision after considering India’s own needs and those of neighboring countries. India’s food security was ‘at risk’ because of surging international prices, the ministry said. The announcement was an abrupt reversal weeks after Indian officials and international analysts talked up the possibility of India’s significantly ratcheting up exports to fill the gap created partly by the war in Ukraine. International food prices have soared to record highs in recent months, putting pressure on billions of people, particularly the world’s poorest, officials at the United Nations have warned.”); ABC News, India open to exporting wheat to needy nations despite ban, May
15, 2022, https://abcnews.go.com/International/wireStory/india-open-exporting-wheat-needy-nations-ban84728532  (“India on Sunday said it would keep a window open to export wheat to food-deficit countries at the government level despite restrictions announced two days earlier. India’s Commerce Secretary B.V.R. Subrahmanyam told reporters the government will also allow private companies to meet previous commitments to export nearly 4.3 million tons of wheat until July. India exported 1 million tons of wheat in April.”); The Times of India, Explained: Why India has banned wheat exports despite big trade plans, May 14, 2022, https://timesofindia.indiatimes.com/business/india-business/explained-why-did-india-ban-wheat-exportsdespite-big-trade-plans/articleshow/91565703.cms; Hindustan Times, G7 criticises India decision to stop wheat exports: Germany, May 14, 2022, https://www.hindustantimes.com/world-news/g7-criticises-india-decision-to-stop-wheat-exports-germany101652533657311.html (“‘If everyone starts to impose export restrictions or to close markets, that would worsen the crisis,’ German agriculture minister Cem Ozdemir said at a press conference in Stuttgart.”). 

Press accounts indicate that China’s wheat production for this year is uncertain because of weather considerations as well. See New York Times, War and Weather Sent Food Prices Soaring. Now, China’s Harvest Is Uncertain, May 12, 2022, https://www.nytimes.com/2022/05/11/business/china-wheat-food-pricesinflation.html  (“Ukraine’s wheat exports have been mostly halted since Russia’s invasion, while drought has damaged crops in India and the United States. China’s upcoming harvest is another concern.”).

The U.S. Department of Agriculture develops periodic forecasts for production and consumption of major agricultural crops. USDA released its latest global forecast for various crops for 2022-2023 including wheat on May 12, 2022. See USDA, World Agricultural Supply and Demand Estimates, May 12, 2022, https://www.usda.gov/oce/commodity/wasde/wasde0522.pdf. The description of wheat supply and demand is copied below.

“WHEAT: The outlook for 2022/23 U.S. wheat is for reduced supplies, exports, domestic use stocks, and higher prices. U.S. 2022/23 wheat supplies are projected down 3 percent, as lower beginning stocks more than offset a larger harvest. All wheat production for 2022/23 is projected at 1,729 million bushels, up 83 million from last year, as higher yields more than offset a slight decrease in harvested area. The all wheat yield, projected at 46.6 bushels per acre, is up 2.3 bushels from last year. The first survey-based forecast for 2022/23 winter wheat production is down 8 percent from last year as lower Hard Red Winter and Soft Red Winter production more than offset an increase in White Wheat production. Abandonment for Winter Wheat is the highest since 2002 with the highest levels in Texas and Oklahoma. Spring Wheat production for 2022/23 is projected to rebound significantly from last year’s drought-reduced Hard Red Spring and Durum crops primarily on return-to-trend yields.

“Total 2022/23 domestic use is projected down 1 percent on lower feed and residual use more than offsetting higher food use. Exports are projected at 775 million bushels, down from revised 2021/22 exports and would be the lowest since 1971/72. Projected 2022/23 ending stocks are 6 percent lower than last year at 619 million bushels, the lowest level in nine years. The projected 2022/23 season-average farm price (SAFP) is a record $10.75 per bushel, up $3.05 from last year’s revised SAFP. Wheat cash and futures prices are expected to remain sharply elevated through bodog casino the first part of the marketing year when the largest proportion of U.S. wheat is marketed.

“The global wheat outlook for 2022/23 is for lower supplies and consumption, increased trade, and lower ending stocks. Global production is forecast at 774.8 million tons, 4.5 million lower than in 2021/22. Reduced production in Ukraine, Australia, and Morocco is only partly offset by increases in Canada, Russia, and the United States. Production in Ukraine is forecast at 21.5 million tons in 2022/23, 11.5 million lower than 2021/22 due to the ongoing war. Canada’s production is forecast to rebound to 33.0 million tons in 2022/23, up significantly from last year’s drought-affected crop.

“Projected 2022/23 world use is slightly lower at 787.5 million tons, as increases for food use are more than offset by declining feed and residual use. The largest feed and residual use reductions are in China, the European Union, and Australia as well as a sizeable decline in food use in India. Projected 2022/23 global trade is a record 204.9 million tons, up 5.0 million from last year. Imports are projected to rise on increased exportable supplies from Russia and Canada more than offsetting reductions for Ukraine and Australia. Russia is projected as the leading 2022/23 wheat exporter at 39.0 million tons, followed by the European Union, Australia, Canada, and the United States. Ukraine’s 2022/23 export forecast is 10.0 million tons, down sharply from last year on reduced production and significant logistical constraints for exports. India is expected to remain a significant wheat exporter in 2022/23. Projected 2022/23 world ending stocks are reduced 5 percent to 267.0 million tons and would be the lowest level in six years. The largest change is for India, where stocks are forecast to decline to 16.4 million tons, a five-year low.” 

With likely reduced availability of product globally and with reduced stocks of wheat on hand, the G7, led by the EU and US, are working to find ways to help Ukraine move its wheat production to export despite Russia’s closure of the Black Sea. Such efforts if successful will reduce the global damage done on food security on products like wheat. As reviewed in my last post,

“The EU is working to facilitate movement of Ukrainian agricultural products by land through EU member states. But the main challenges are the blockage of Black Sea ports by Russia and the reported theft of agricultural products and equipment from Ukrainian farms and depots. See, e.g., CNN, Russians steal vast amounts of Ukrainian grain and equipment, threatening this year’s harvest, May 5, 2022, https://www.cnn.com/2022/05/05/europe/russia-ukraine-grain-theft-cmd-intl/index.html; Voice of America, Russian Blockade of Ukrainian Sea Ports Sends Food Prices Soaring, May 7, 2022, https://www.voanews.com/a/russian-blockade-of-ukrainian-sea-ports-sends-food-pricessoaring/6561914.html; Politico, EU plans to help Ukraine’s food exports dodge Black Sea blockade, EU farm chief warns Russia wants to portray itself as feeding the poor, while it destroys Ukraine’s farmland. May 10, 2022, https://www.politico.eu/article/eu-plans-to-boost-ukraines-food-exports-black-sea-blockade/.”

May 11, 2022: Less than five weeks to the WTO’s 12th Ministerial Conference — what are likely deliverables?, https://currentthoughtsontrade.com/2022/05/11/less-than-five-weeks-to-the-wtos-12th-ministerialconference-what-are-likely-deliverables/.

Hopefully, India will in fact work to facilitate exports to many of the nations dependent on wheat from Ukraine in the coming months to help reduce the food insecurity flowing from Russia’s war in Ukraine. But the announcement on Friday of banning exports is a concerning signal and will likely lead to even higher prices for wheat in the coming weeks and months.

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.

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“One potential MC12 deliverable is a WTO response to the current and future pandemics, including intellectual property issues, where members will discuss possible elements of a compromise at a time to be determined by the Chair of the TRIPS Council, the DG said. Other potential deliverables include concluding an agreement on fisheries subsidies, achieving outcomes on agriculture and making progress on reforming the WTO in addition to various initiatives members are taking forward, she added.

“The Director-General pointed to the threat of a global crisis in food security, with prices for food, fertilizer and energy rising sharply from already high levels. She suggested members could use MC12 as a platform to take actions on these issues separately from the ongoing agriculture negotiations.”

A WTO Response to the COVID-19 Pandemic

The WTO achieving a response to the COVID-19 pandemic became more likely with the release of the draft text from the EU, US, India and China. I reviewed the main changes from the earlier draft in a recent post. May 4, 2022: Access to vaccines – the public release of the text from the U.S., EU, India and South Africa to the full WTO Membership for consideration by the Council for Trade Related Aspects of Intellectual Property Rights, https://currentthoughtsontrade.com/2022/05/04/access-to-vaccinesthe-public-release-of-the-text-from-the-u-s-eu-india-and-south-africa-to-the-full-wto-membership-forconsideration-by-the-council-for-trade-related-aspects-of-intellectual-prop/. While Members were not ready to sign off on the draft language and were awaiting instructions from capitals on positions to take, it is clear that the text will be the basis for negotiations. Moreover, as reflected in the WTO press release on the May 10 General Council session, China indicated it would not avail itself of the flexibilities on vaccines in the proposal. As reviewed in my May 4th post, China’s action will facilitate agreement on the text as it will permit adoption of language that makes the provisions available to all developing countries but encourages countries with strong export capabilities to not avail themselves of the provisions. China has self-identified itself as a developing country, but has been the largest manufacturer and exporter of COVID-19 vaccines, The U.S. and EU had drafted language that would have excluded China’s eligibility (as the only developing countries with exports of more than 10% of global totals in 2021). China’s position permits broader eligibility, hence avoiding what China would view as discriminatory language aimed at it. The implicit quid pro quo for using the broader language was China indicating it would not utilize the provisions.

However, there are remaining issues needing resolution in the draft text including whether diagnostics and therapeutics will be included in the provisions immediately versus subject to a separate determination to include within six months. And there is the broader set of issues including transparency, export restrictions, trade facilitation important to many countries as part of any WTO response to the pandemic. The European Union reviewed its views on the broader issues during the General Council meeting. See European Union interventions at the General Council, 09-10 May 2022, https://www.eeas.europa.eu/delegations/world-tradeorganization-wto/european-union-interventions-general-council-09-10-may_en?s=69

“Item 4. A. WTO RESPONSE TO THE PANDEMIC – REPORT BY THE CHAIR

“The European Union thanks the Facilitator for his report.

“The European Union has been a strong proponent of the WTO response to the pandemic from the onset of discussions that members had in this forum. We argued for a holistic approach, which would encompass all the necessary elements of the response, including intellectual property.

“Now that we have made a substantial step forward in the TRIPS Council, it is high time we had a fresh look at other elements of the pandemic, such as transparency, export restrictions, or trade facilitation. The “strategic pause” allowed us to reflect deeper on how to move the process forward and arrive at a multilateral outcome demonstrating that the WTO can meaningfully contribute to a response to the crisis and learn from it. In that regard, we also note the statement of Brazil in document WT/GC/W/845 on various aspects of the response to the pandemic.

“The European Union and the United States have invested great efforts into allowing progress towards a credible outcome. We have reached a common understanding on the minimum or the landing zone that could be the final outcome in a number of areas, acknowledging that other Members have additional issues of interest that they would like to see reflected in the text. Our new compromise paper presents the essentials of the Walker text, which we value the most, in a condensed format. We are encouraged by the positive feedback we have received so far and we will take account of the comments received.

“The new paper attempts to propose a balance that would be acceptable to all members. Even if slightly shorter on ambition than the Walker text, we believe that it still maintains the credibility of the WTO.

“As MC12 will start in a month time, we do not have the luxury of time. Our collective interest is to engage in a spirit of self-restraint and in a consensus-oriented mode.

“We are hopeful that all members will be able to engage constructively so that we could all resume and promptly finalize the negotiating process before Ministers arrive in Geneva.”

To get to a final agreement on a WTO response to the pandemic will require significant effort, but is looking hopeful at the moment.

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.

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“12. Our unprecedented package of coordinated sanctions has already significantly hindered Russia’s war of aggression by limiting access to financial channels and ability to pursue their objectives. These restrictive measures are already having a significant impact on all Russian economic sectors – financial, trade, defence, technology, and energy – and will intensify pressure on Russia over time. We will continue to impose severe and immediate economic costs on President Putin’s regime for this unjustifiable war. We collectively commit to taking the following measures, consistent with our respective legal authorities and processes:

“a. First, we commit to phase out our dependency on Russian energy, including by phasing out or banning the import of Russian oil. We will ensure that we do so in a timely and orderly fashion, and in ways that provide time for the world to secure alternative supplies. As we do so, we will work together and with our partners to ensure stable and sustainable global energy supplies and affordable prices for consumers, including by accelerating reduction of our overall reliance on fossil fuels and our transition to clean energy in accordance with our climate objectives.

“b. Second, we will take measures to prohibit or otherwise prevent the provision of key services on which Russia depends. This will reinforce Russia’s isolation across all sectors of its economy.

“c. Third, we will continue to take action against Russian banks connected to the global economy and systemically critical to the Russian financial system. We have already severely impaired Russia’s ability to finance its war of aggression by targeting its Central Bank and its largest financial institutions.

“d. Fourth, we will continue our efforts to fight off the Russian regime’s attempts to spread its propaganda. Respectable private companies should not provide revenue to the Russian regime or to its affiliates feeding the Russian war machine.

“e. Fifth, we will continue and elevate our campaign against the financial elites and family members, who support President Putin in his war effort and squander the resources bodog sportsbook review of the Russian people. Consistent with our national authorities, we will impose sanctions on additional individuals.”

The U.S. released a fact sheet on its new sanctions. See White House Briefing Room, FACT SHEET: United States and G7 Partners Impose Severe Costs for Putin’s War Against Ukraine, May 8, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/08/fact-sheet-united-states-andg7-partners-impose-severe-costs-for-putins-war-against-ukraine/. In the fact sheet, the U.S. outlines the sanctions it is imposing in this latest round.

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.

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There are only two changes from the draft document reviewed in mid-March. The first is the most important and concerns the definition of “an eligible member.” Originally, footnote 1 consisted of the following – “For the purpose of this Decision, developing country Members who exported more than 10 percent of world exports of COVID-19 vaccine doses in 2022 are not eligible Members.” From public data, this language would have excluded China from being an eligible Member. In the footnote 1 forwarded to the Membership on May 3, there are two bracketed sentences, the second of which is what was in the earlier draft. The other bracketed option would make all developing countries “eligible Members” — “[For the purpose of this Decision, all developing country Members are eligible Members. Developing country Members with capacity to export vaccines are encouraged to opt out from this Decision.]” Should China opt out of the Decision, the resulting potentially eligible countries would be the same. The opt out language could also arguably get additional Members who have significant vaccine producing and exporting capacity to voluntarily opt out as well (e.g., India).

The second change is the bracketing of paragraph 3.(a) with an additional footnote indicating that “This paragraph is under further consideration as to whether to keep or delete.” The paragraph (which is unchanged from the earlier draft other than the addition of brackets) reads,

“(a) [With respect to Article 31(a), an eligible Member may issue a single authorization to use the subject matter of multiple patents necessary for the production or supply of a COVID-19 vaccine. The authorization shall list all patents covered. In the determination of the relevant patents, an eligible member may be assisted by WIPOʼs patent landscaping work, including on underlying technologies on COVID-19 vaccines, and by other relevant sources. An eligible Member may update the authorization to include other patents.]”

It was reported that China was pushing to be included in the small group discussions and took exception to the footnote 1 language which would exclude only it. Presumably the alternative bracketed language in footnote 1 is designed to address Chinaʼs concerns. However, it is less likely that the U.S. will accept a final package if China doesnʼt opt out of the decision.

Consistent with the earlier draft, the Decision, if adopted would remain in effect for either three or five years (numbers are bracketed alternatives).

Many NGOs have raised concerns about the lack of immediate coverage of therapeutics and diagnostics. Paragraph 8 continues to read, “No later than six months from the date of this Decision, Members will decide on its extension to cover the production and distribution of COVID-19 diagnostics and therapeutics.” Thus, a decision on coverage of therapeutics and diagnostics will occur, absent a change in language in the text, by the end of 2022, if the decision is adopted.

If the text is accepted by the WTO membership (or modified in ways acceptable to all), then there should be an agreed WTO response to the pandemic at the 12th Ministerial. For reasons noted in recent posts, the value of such a response will be more in the other aspects of the response (keeping markets open, limits on export restraints, transparency, etc.) than on the document dealing with access to vaccines via TRIPS actions. Nonetheless, an agreed response, including the vaccine TRIPS provisions, would be an important accomplishment in the current times.

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. 

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