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One possibility: the US can step back, its global reputation enhanced by having fought the good fight, and focus on other issues. The WTO will have failed the test of “relevance” or “doing good” in today’s world (expressions of USTR Katherine Tai).  While keeping an open mind about efforts of others, the Administration never was that invested in making big changes to revitalize the WTO, at least of the kind that the EU, for instance, has been proposing-such as the ill-timed demand for tighter disciplines on subsidies at a moment when governments are spending flat out to prevent economic collapse from the pandemic. (On subsidies reform, the US is supposedly in agreement with the EU in principle but is much more focused now on doing industrial policy as opposed to curbing it).

On the vaccine front, the Biden Administration would have a range of options, some more unilateral while others would focus on cooperation mechanisms such COVAX.  Senator  Elizabeth Warren, former professor at Harvard Law School, has long argued that the federal US government has sufficient legal authority to break patents where overriding public health concerns are at issue.  She is probably referring to “march in” rights in the Bayh Dole Act, which allow the government to engage in compulsory licensing where federal funding has been involved in a patented innovation; one of the criteria is that “action is necessary to alleviate health or safety needs which are not reasonably satisfied by the contractor, assignee, or their licensees.” The pandemic seems to be the test case for these provisions, which have so far not been applied, as I far as I can learn. I’m not an IP lawyer but I’m sure that any effort of the Administration to move in this direction for purposes of alleviating global needs would be heavily debated and litigated. As a non-expert on US IP law, I offer no view of who would win the court case, but I’m pretty sure that pharma won’t prevail in the moral debate. Mobility of people is a major part of the spread of the virus, and soAmerican “health and safety needs” are compromised if the rest of the world can’t get reasonable access to vaccines.  Once it has the intellectual property, the Administration can ensure it is freely available to any country or manufacturer that wants to move into production, and can do so safely and reliably. This solution isn’t as comprehensive as a waiver, as it could only apply to those vaccines invented with US federal funding in the picture. Still, combined with US technical assistance, and help on ingredients, it could go fairly far.  

But there is another choice-disruptive in its own way. The US could decide to push the WTO beyond its current consensus-based approach. Ambassador Tai has made it crystal clear that the US will try first for consensus in Geneva. But this pronouncement also sets the scene for the US if need be declaring at some point that a consensus “cannot” be reached and therefore that, in accordance with the terms of the WTO Agreement (Article IX:1), the matter at issue “shall” be decided by voting.  Yes, “shall”, not might or should. In this case (a waiver) a supermajority of 3/4 would be required. If there were any situation that could push the WTO beyond consensus decision making, it would be the exceptional challenge of the pandemic, one shared by the peoples of all WTO Members. Since the consensus practice gives a veto that de facto will be most easily exercised by the major powers, breaking the practice almost certainly needs to be supported by a major power like the US (here India might be on board too). The nice thing about moving in this direction in the specific circumstances of the pandemic is that it could be presented as a truly unique recourse to unused but totally valid treaty provisions, thus as a limited & fully legal departure from custom, but also serving as a first tentative step in an institutional shift that might lead to faster, more successful negotiations at the WTO and increasing global relevance.

Robert Howse is Professor of International Law at New York University Law School. Professor Howse has been a member of the faculty of the World Trade Institute, Berne, Master’s in International Law and Economics Programme.

To read the original commentary from the World Trade Law Blog, please visit here.

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The next director-general of the World Trade Organization faces Herculean challenges. Hercules succeeded at his tasks in the end by trying new tactics, so perhaps fresh approaches should be tried for trade too. The World Economic Forum’s trade community has thoughts on 12 almost impossible tasks to tackle in 2021

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Dealing with Brexit has shown how difficult and important it is to get trade paperwork and systems understood and working properly. The same holds true worldwide, not least in poorer nations. A committed global push on trade facilitation, building on the WTO agreement in force since 2017, would spark more economic growth than eliminating all the tariffs in the world. Trade facilitation is also critical for vaccine delivery.

February

Digital trade and e-commerce have been a lifesaver through the pandemic. Yet we have to find a way to give access to more people, confidently share data abroad and connect e-payment systems across borders. The WTO e-commerce negotiations should be finalized, while more advanced options exist in the Digital Economy Partnership Agreement, to help consumers and budding entrepreneurs navigate digital borders.

March

Fears around shortages of food and medical supplies gripped societies in 2020. Export restrictions were brought in and local production advocated. Rather than slide into protectionism, the case should be made for supply chain resilience through diversity of supply, coupled with improved transparency into the production and stocks of critical goods. New TradeTech can help manage supply chain visibility and risk. 

April

A helpful response to the COVID-triggered economic downturn has been government involvement in their economies, through subsidies, procurement, publicly owned businesses and other means. But if maintained too long, some of these could have harmful cross-border spill-overs and delay recovery. The time is ripe for a global conversation about best-practices for industrial policy and sustainable recovery. Ending harmful fisheries subsidies would be one way to start.

May

More than 130 countries have been working through the OECD/G20 on updates to international tax rules. These would help reduce avoidance, build confidence in tax systems and head off disputes. Much focus has been on corporate and digital taxes, but there is also scope for action on VAT or sales tax schemes as well as co-operation on wealth taxes.

What is the World Economic Forum doing on trade facilitation?

The Global Alliance for Trade Facilitation is a collaboration of international organisations, governments and businesses led by the Center for International Private Enterprise, the International Chamber of Commerce and the World Economic Forum, in cooperation with Gesellschaft für Internationale Zusammenarbeit.

It aims to help governments in developing and least developed countries implement the World Trade Organization’s Trade Facilitation Agreement by bringing together governments and businesses to identify opportunities to address delays and unnecessary red-tape at borders. 

For example, in Colombia, the Alliance worked with the National Food and Drug Surveillance Institute and business to introduce a risk management system that can facilitate trade while protecting public health, cutting the average rate of physical inspections of food and beverages by 30% and delivering $8.8 million in savings for importers in the first 18 months of operation.

June

Many complaints about trade injustice come down to a sense of unfair competition, not least in the digital world. By empowering competition policy co-ordination and best practice on an international scale, the risks of exploitative or exclusionary behaviour would be reduced, while innovation could flourish.

July

In this traditional travel month, the fate of families separated by sudden border closures and the labyrinthine nature of visa processes for many will be more acute. People have fewer rights to travel internationally than boxes do. Stepping outside traditional trade policy limits, and addressing the need for fair and transparent rules for post-pandemic travel, a program for e-visas and travel rights would give trade a human face. Not to mention support cross-border education, tourism and other services that were pummelled in 2020.

August

Global foreign investment has been falling for a decade, but is a great way to spread knowledge and is essential for development. Delivering on the WTO’s investment facilitationtalks could, as with their trade counterpart, remove the frictional barriers that impede investment, particularly by smaller firms.

September

Re-using, repairing, re-purposing and re-cycling can cut waste and resource use. But only 8.6% of today’s production uses recyclables and few reverse supply chains are able to function cross border, limiting economies of scale. September’s World Circular Economy Forum is a chance to help responsible circular production strategies work internationally, for plastics, electronics and more.

October

With vaccine roll-outs having hopefully reached many of the world’s most vulnerable populations, intellectual property and drug-pricing conversations may simmer. To prepare for coming health challenges, robust conversations must be had about securing affordable access and supporting innovation, likely through a mixture of policy responses.

November

As countries gather in Glasgow to advance the Paris Agreement on Climate Change they should align trade tools with climate ambition. Tariffs could be lowered on products helpful for tackling emissions and trade in green services made easier. Fears of carbon leakage as a reason for inaction should be neutralized, whether through emissions trading system links, border adjustments or other means.

December

Time to work on the institution of the WTO itself. Keeping the WTO viable for global deliberation and mediation will help limit inevitable tensions. It has room to grow as a hub and clearing house for best practice, information sharing and regional deals beyond its current role.

To view the original blog post by The European Sting in collaboration with the World Economic Forum, please click here. 

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“the ability to be maintained at a certain rate or level”, and as

“Sustainable development&bodog sportsbook review #8221; – “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Sustainability of the WTO

Applying the first of these two definitions of sustainability: the WTO must not continue as it is.  It must succeed as a forum for negotiations, where agreements evolve and be relevant; it must be a place where disputes are settled; and it must be a fount of information on every subject that a national trade policy maker requires to make informed decisions.  Continued underinvestment in the institution is not acceptable.  Maintaining the status quo can only lead to further disaffection. 

The economic history of the last seven decades has validated the wisdom of the founders in their decision to create the multilateral trading system. There is only one sensible world order and it includes a global framework for rules-based trade.  However, stasis will not suffice.  It is necessary to respond now to the challenges before us – dealing with the pandemic, supporting the needed economic recovery, taking responsibility for stewardship of the planet and its peoples, and WTO institutional reform. 

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development, … .

There is no better place to start a conversation on this subject than to examine the activities of the WTO in relation to the UN’s 17 Sustainable Development Goals (SDGs) which aim to transform our world by the year 2030:

• GOAL 1: No Poverty
• GOAL 2: Zero Hunger
• GOAL 3: Good Health and Well-being
• GOAL 4: Quality Education
• GOAL 5: Gender Equality
• GOAL 6: Clean Water and Sanitation
• GOAL 7: Affordable and Clean Energy
• GOAL 8: Decent Work and Economic Growth
• GOAL 9: Industry, Innovation and Infrastructure
• GOAL 10: Reduced Inequalities
• GOAL 11: Sustainable Cities and Communities
• GOAL 12: Responsible Consumption and Production
• GOAL 13: Climate Action
• GOAL 14: Life Below Water
• GOAL 15: Life on Land
• GOAL 16: Peace, Justice and  Strong Institutions
• GOAL 17: Partnerships for the Goals

The SDGs explicitly identify trade, alongside finance, technology and capacity building, as a means of implementation, that is, as a tool to achieve the SDGs. This perspective closely mirrors the WTO’s founding charter, where global co-operation in trade is a means to unleash growth, alleviate poverty, raise living standards and ensure full employment, while also protecting the environment.

In a 2018 publication, Mainstreaming trade to achieve the sustainable development goals, the WTO looked at how its work could support efforts to fulfill the SDGs. That report emphasized nine of the seventeen SDGs, in the sections which are summarized here:

How trade contributes to delivering key Sustainable Development Goals

SDG 1: No Poverty

WTO 2018: There is increasing evidence that well planned and strategically executed trade policy initiatives can impact positively on sustainable poverty reduction. Trade opening has also generated higher living standards through greater productivity, increased competition and more choice for consumers and better prices in the marketplace.

The UN cites two specific goals:

• By 2030, eradicate extreme poverty for all people everywhere, currently measured as people living on less than $1.25 a day.
• By 2030, reduce at least by half the proportion of men, women and children of all ages living in poverty in all its dimensions according to national definitions.

It should be beyond doubt that by these two agreed measures, the trading system has contributed toward this goal.  Progress has been made toward lifting hundreds of millions of people out of poverty.  Trade contributes to higher living standards through productivity increases, made it possible by access to global markets and sources of supply.  Decades of empirical evidence indicate that the countries that have sustained high per capita growth rates long enough to transform people’s living standards and life prospects used the global economy to drive growth.

Broadly open global markets provided demand far larger than the home market, to be sure, but also served as a source of ideas, technology, and knowhow. While the years before the pandemic saw substantial progress on reducing poverty, the countries that lagged behind were generally those that had been unable to break into world markets for goods and services, or only managed to export unprocessed minerals.

Today, trade plays an important role in the economy of developing countries. To have an idea, trade now represents 34% of developing countries’ GDP on average – compared to 20% for advanced countries. Fueled by trade, real GDP per person in emerging economies more than doubled from 1995 to 2019 and facilitated rapid, broad-based economic expansion that has narrowed the income gap between countries and within them.

And, in addition to accelerating economic growth, trade also makes available the necessary resources to implement other development targets in the social and environmental spheres.

There are two groups of challenges to this claim.  There are growing voices against globalization as a creator of income inequality within and perhaps among countries.  There is also criticism that economic growth is potentially incompatible with environmental goals.

Neither set of criticisms is borne out by the facts.  Widely differing levels of income inequality in countries similarly exposed to globalization suggest trade is not the determining factor.

SDG 2: Zero Hunger

WTO 2018: Eliminating subsidies that cause distortions in agriculture markets will lead to fairer more competitive markets helping both farmers and consumers while contributing to food security. The WTO’s 2015 decision on export competition eliminated export subsidies in agriculture, thereby delivering on Target 2.B of this goal.

A well-functioning multilateral trading system is imperative for the realization of SDG 2. In remarks at the FAO in 2017, I made the following points

It is widely acknowledged that trade openness can make a positive contribution to each of the four dimensions of food security as espoused by the FAO, namely availability, access, utilization and stability. Trade openness increases the availability of food by enabling products to flow from surplus to deficit areas, connecting the “land of the plenty to the land of the few”. It enhances access as it contributes to faster economic growth, higher incomes and higher purchasing power. Indeed, in response to the transmission of unbiased price signals, it encourages an effective allocation of resources based on comparative advantages, thus limiting inefficiencies.

Trade openness also facilitates utilisation and improved nutrition by increasing the diversity of national diets and accelerating the diffusion of sound SPS regulations around the world. Lastly, it enhances food availability and reduces price volatility, as risks associated with domestic food production are greater than pooled production of countries worldwide.

In addition, the elimination of export subsidies has levelled the playing field and provided opportunities for farmers in developing countries to compete. This has increased their incomes and enhanced their living standards.  

By making more affordable goods available at home, trade enables poor households to purchase more with their income, particularly essential foodstuffs. Better and less distorted access to foreign markets for agricultural goods that the rural poor farmers produce also opens new employment opportunities for them.

One lesson from COVID-19 is that stockpiling and on-shoring with added domestic investment are not a sufficient substitute for trade flows. 

As my colleague, DDG Xiaozhun Yi recently noted, 

The trade coverage of the regular import-facilitating measures stood at USD 731.3 billion (up from USD 544.7 billion in the previous period) while that of import restrictions came in at USD 440.9 billion (down from USD 746.9 billion). This is a positive development. This drop was likely a result of the sharp decline in overall global trade flows, the diversion of governments’ attention towards fighting the pandemic – through trade policy as well as other areas, and a general commitment to keep trade flowing.

The export restrictions on food seen in the Spring have been substantially rolled back.

SDG 3: Good Health and Well-being

WTO 2018: One of the main objectives under SDG 3 is to ensure access to affordable medicines for all. An important amendment to the WTO’s TRIPS Agreement recently entered into force. This measure will make it easier for developing countries to have a secure legal pathway to access affordable medicines in line with Target 3.B of this goal.

The COVID-19 pandemic taught us that trade can be responsive to human health and well-being.  There was more than a doubling of trade in goods relevant to fighting the disease from 2Q 2019 to 2Q 2020. 

The next challenge will be the distribution of the vaccines. Trade is playing – and will continue to play – a key role in the manufacturing and distribution of vaccines around the world.  Leveraging supply chains for everything from pharmaceutical glass, syringes and refrigeration equipment to the vaccines themselves, where possible, would help scale up production more efficiently than trying to do everything domestically.  The trading system must help deal with any cross-border logistics challenges that exist.

WTO Agreements give Members ample space to pursue health protection objectives and promotes cooperation in the pursuit of health. In the area of food safety and animal and plant health, the SPS Agreement requires that measures be based on science and Members are strongly encouraged to follow international standards. The TBT Agreement also strongly encourages that health protection regulations for drugs, PPE or medical devices be based on relevant international standards. The TBT and SPS Agreements also promote regulatory cooperation among trade partners – such as mutual recognition of certification – which can help increase global access to essential health products.

To this should be added an immediate update of the Pharmaceutical and Information Technology Agreements to cover, among other goods, all those which will facilitate the international movement of vaccines, medicines, equipment (including production equipment), PPE, and IT equipment relevant to fighting COVID-19.  Not only should duty-free treatment be provided but also trade facilitation measures to lower the costs of trade and speed delivery of essential goods.  Medical services should be covered in a companion agreement with the same objective.

SDG 5: Gender Equality

WTO 2018: Trade can create opportunities for women’s employment and economic development. Through trade, job opportunities for women have increased significantly. Jobs in export sectors also tend to have better pay and conditions. Export sectors are an important job provider for women in developing countries.

A group of WTO Members agreed to establish an Informal Working Group on Trade and Gender on 23 September 2020, marking the next phase of an initiative started in 2017 to increase the participation of women in trade. The online meeting to launch the new WTO working group was held at the invitation of Iceland and Botswana.

Women’s empowerment through trade is an important part of the WTO’s current narrative.  There will undoubtedly be a further effort to make this more concrete for MC12, the 2021 WTO Ministerial Conference.  Given that internet access is a boon for micro, small and medium enterprises, in which tend to be disproportionately represented as workers and entrepreneurs, the flexibilities offered by e-commerce should continue to be a great equalizer in these areas, where individual initiative and ingenuity is the first key to market entry.  The e-commerce talks as well as those aimed at making the trading system more responsive to the needs of micro, small and medium enterprises should prove beneficial to the empowerment of women through trade. 

Moreover, the choice of the first woman Director- General of the WTO provides a role model for women advancing in the field of trade policy. 

SDG 8: Decent Work and Economic Growth

WTO 2018: Trade-led inclusive economic growth enhances a country’s income-generating capacity, which is one of the essential prerequisites for achieving sustainable development. The WTO’s Aid for Trade initiative can make a big difference in supplementing domestic efforts in building trade capacity, and SDG 8 contains a specific target for countries to increase support under this initiative.

Trade is very important in the attainment of SDG 8 as it is generally described in the Agenda 2030 as an engine for inclusive economic growth and poverty reduction.

Opening up to trade affects growth positively through a number of channels. Trade improves resource allocation. It allows each country to specialize in the production of the good or service it can produce relatively cheaper and import the other goods and services, thus exploiting comparative advantages. By extending the size of the market in which the firm operates beyond national border, trade allows firms to exploit economies of scale and become more productive.  Trade also affects long-term growth since it gives access to more advanced technological inputs available in the global market and because it enhances the incentives to innovate.

The rise of populism in the industrialized countries indicates that providing opportunities for decent work and experiencing the fruits of economic growth are not solely a concern for developing countries.   David Riccardo’s voice now has increasing competition among economists who focus on a rising tide not necessarily lifting all boats.  

Technological progress and trade have been key engines of global prosperity. Resistance to innovation and retreat from global integration are not options that will help eliminate extreme poverty. At the same time, policymakers need to ensure that benefits are spread more widely. A reallocation of resources is often necessary to reap the substantial benefits from trade.  Governments need to be better prepared for disruptions, including those caused by the pandemic, and enable their peoples to take advantage of new opportunities.

Like other structural change – notably change triggered by technological progress – trade can create adjustment pressures for certain segments in society, both in developing and developed countries. It is therefore important to have in place appropriate complementary domestic policies to ensure that the gains from trade are more evenly shared and the trade-related adjustment costs affecting certain regions and individuals are mitigated. This can contribute to make the gains from trade truly inclusive and sustainable.  

The global rules for trade must be seen to deliver fairness.  The WTO needs to be widely known for providing a level playing field for trade.  Factory workers, farmers, designers of apps, must all feel that they can rely on the rules of the trading system to provide opportunities to serve markets abroad as well as being able to source what they need from suppliers whether at home or abroad.  Trade must be able to flow on the basis of competitive merit.  The core underlying principle of the WTO, although unstated, is that market forces are to determine competitive outcomes. 

In sports, another area of international competition with roots in antiquity, the Olympics have long strived to provide equality of opportunity to the extent possible.  To counter crimped nationalistic views but allow scope for pride and dignity that comes from excelling on a world platform, the trading rules have to be improved.  The system needs to be widely seen as rewarding those who excel in the marketplace on equal terms to the extent that this can be achieved.  The WTO must combine the heritage from Ancient Greece of the agora, the marketplace, with that of the Olympic stadium. 

SDG 8 contains a lot more to unpack. For example, it includes as a target “endeavour to decouple economic growth from environmental degradation”, as well as youth unemployment.  WTO Members are addressing the former (see environmental sections of these remarks) but not directly as far as I know, the latter.  

One of the targets of SDG 8 is to “encourage the formalization and growth of micro-, small- and medium-sized enterprises, including through access to financial services”.  There is a current WTO Joint Statement Initiative (JSI) launched at 11th Ministerial Conference at Buenos Aires in December 2017 aimed at assuring improved participation of MSMEs in the multilateral trading system.  Work has progressed very substantially over the last three years and is seen as particularly relevant to the contribution that the WTO can make to economic recovery from the current pandemic.

Trade finance is also a focus of the WTO, particularly for Micro, Small and Medium Sized Enterprises.  The WTO, the International Chamber of Commerce (ICC) and B20 Saudi Arabia issued a joint statement on 9 July pointing to the diminishing availability of trade finance. Warning that gaps between trade finance supply and demand could seriously impede the ability of trade to support post COVID-19 economic recovery, they are urging private and public-sector actors to work together to address shortages.

Another of the targets of SDG 8 reads:

• take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms

Forced labor is not a topic on the current WTO agenda, but it has been discussed.  Although the  WTO has not taken a multilateral decision to address this issue, this does not prevent individual governments from adopting and taking measures that they deem necessary. GATT Article XX General Exceptions permits measures dealing with products relating to prison labour and measures necessary to protect human life. On core labor standards, WTO Members have sought coherence and recognized the role of the ILO in its Singapore Ministerial Declaration.  The WTO General Council in 2003 agreed on a waiver that gives legal certainty to domestic measures taken under the Kimberley Process aimed at curbing trade in conflict diamonds, the mining of which often involves forced labor.

SDG 9: Industry, Innovation and Infrastructure

WTO 2018: Trade produces dynamic gains in the economy by increasing competition and the transfer of technology, knowledge and innovation. Open markets have been identified as a key determinant of trade and investment between developing and developed countries allowing for the transfer of technologies which result in industrialization and development, helping to achieve SDG 9.

The WTO deserves good grades on fulfilling this SDG even were the benefits of the system were limited to the movement of goods across borders.  The products covered by the information technology agreement foster the global availability the tools that connect budding inventors, innovative individuals, making possible the world wide web.  The WTO provides more than that, however, as noted in the WTO’s “World Trade Report 2020 government policies to promote innovation in the digital age”

Open and transparent trade policies contribute to innovation through improved access to foreign markets and increased competition, which provide firms with incentives to invest more in R&D. This is true for both developed and developing economies: a study of 27 emerging economies shows that both competition from foreign firms and linkages with foreign firms, through importing, exporting or supplying multinationals, increase product innovation, the adoption of new technologies and quality upgrading….

The basic set of GATT and WTO agreements provide a framework that foster “the development of an ICT-enabled economy in countries across all levels of development”.  The framework provides for non-discrimination, transparency, reciprocity and the prohibition of unnecessarily trade Bodog Poker restrictive measures.  This framework includes the Information Technology Agreement (ITA), the Technical Barriers to Trade (TBT) Agreement, the Government Procurement Agreement (GPA), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Innovation will be key to advancing sustainability.  Just as we needed to innovate our way out of the COVID-19 crisis – with adaptable supply chains, digitalized economies, and turbocharged vaccine development – we will also need to innovate our way out of the current environmental crisis.  A striking example of this –is the way renewable energy, especially solar power, is fast becoming cheaper and more cost effective than fossil fuels. This could be the gamechanger in climate battle. And it is at least partly thanks to trade/globalization’s role in spreading renewable technologies, fuelling innovation and driving down production costs. It turns out that the very things many people thought needed ‘fixing’ or ‘resetting’ at the beginning of the pandemic – globalization, free markets, supply chains, corporate innovation – are actually what got us through the crisis, delivered a vaccine, and could provide us with the tools to fight climate change or plastics pollution.

The links between development, technology and trade have been widely recognized. For most developing economies, accessing and deploying new technologies is the primary source of economic growth. Imported capital goods and technical intermediate inputs can directly improve productivity by being placed into production processes. There is significant evidence that global value chains are a powerful channel of technology dissemination. 

Supply chain linkages intensify contacts between foreign firms and domestic suppliers and therefore open up channels for flows of knowledge and know-how. When a foreign firm and a local supplier are part of the same production chain, they need to interact and coordinate to guarantee a smooth functioning of the chain. Face-to-face communication with key foreign personnel will facilitate the transfer of non-codified knowledge and increase domestic innovative capacity. Also, foreign outsourcing firms are more willing to transfer the know-how and technology required for an efficient production of the outsourced input, because they will eventually be the consumer of that input. Offshoring of tradable services has also been key in the development of these industries in the developing world. 

SDG 10: Reduced Inequalities

WTO 2018: At the global level, changes in development patterns have been transforming prospects of the world’s poorest people, decreasing inequality between countries. WTO rules try to reduce the impact of existing inequalities through the principle of Special and Differential Treatment for Developing Countries. This allows the use of flexibilities by developing and least-developed countries to take into account their capacity constraints.

A rising tide lifts most if not all boats, but some boats ride higher in the water than others.  Within industrialized countries, there are wide variations of participation in income and sharing of the benefits of trade.  This is mainly due to domestic policies, not international trade agreements.  But trade agreements can be made more responsive to this set of problems.   Political support for open international trade depends substantially on finding answers to questions of income inequality.  One obvious area of response is the availability of trade remedies under the WTO agreements.  These were conceptually important to the structure of the GATT and the WTO.  Trade remedies were designed to offset unfair and injurious practices and to smooth adjustment to international competition.  That basic concept was lost sight of during the last several decades, and costs are now being incurred.  When trade remedies become unavailable and job losses occur, domestic support for the “rules-based” trading system is undermined. (See also the discussion of level playing field issues under SDG 8). 

Productivity gains from new technologies are reducing the demand for labor in more traditional sectors, such as agriculture or manufacturing. This so-called “fourth industrial revolution” is not going to make all jobs disappear, but it is bringing about enormous changes. While these processes have brought progress overall, it is important to recognize that not everybody has been able to benefit and participate.

This is a challenge facing governments and societies everywhere – in both developed and developing economies. Sustainable and balanced economic progress will hinge on the ability of economies to adjust to changes and promote greater inclusiveness. There is not a ‘one size fits all’ recipe, approaches need to be tailored to a country’s specific situation and mainstreamed into development policy objectives to ensure that trade is inclusive, that it benefits the largest possible sections of the population and that those who may be losing out are provided assistance to adjust.

A challenge that the WTO faces is how to balance the rights and obligations across its diverse membership. In the past this has mostly been done by the adoption of special and differential treatment provisions in the WTO Agreements that in many cases give developing countries flexibilities in undertaking commitments. Views have varied among Members over the potential benefits of these provisions.  Many believe that special and differential treatment, particularly for the least developed, needs additional elements to be effective.  Being freer of obligations for those with limited capacity to participate beneficially in world trade does not convey an advantage.  Moreover, if there are no new agreements, there is only a stock of S&DT that may not deliver much more that is of use.  The entire approach to development needs fresh thinking. 

SDG 14: Life Below Water

WTO 2018: The WTO plays an important role in supporting global, regional and local efforts to tackle environmental degradation of our oceans under SDG 14. The Decision on Fisheries Subsidies taken by WTO members in December 2017 is a step forward in multilateral efforts to comply with SDG Target 14.6, committing members to prohibit subsidies that contribute to overcapacity and overfishing, and eliminate subsidies that contribute to illegal, unreported and unregulated fishing, with special and differential treatment for developing and least-developed countries. Members committed to fulfilling this commitment by the 12th Ministerial Conference.

There is currently active engagement of WTO Members in negotiations to reach this goal.  While the trade aspect of the negotiations is certainly an important element, it is worth highlighting that the principal objective in the negotiating mandate is an environmental one. This is a first for the WTO.  A successful conclusion of these negotiations will demonstrate the importance and flexibility of the multilateral trading system in pursuing global aims that go beyond the purely economic.

SDG 17: Partnerships for the Goals

WTO 2018: SDG 17 recognizes trade as a means of implementation for the 2030 Agenda. The targets under this goal call for: countries to promote a universal, rules-based, open, non-discriminatory and equitable multilateral trading system; the increase of developing countries’ exports and doubling the share of exports of least-developed countries (LDCs); and the implementation of duty-free and quota-free market access for LDCs with transparent and simple rules of origin for exported goods. The WTO is the key channel for delivering these goals.

The UN states the following with respect to trade and SDG 17:

The 2030 Agenda for Sustainable Development defines international trade as “an engine for inclusive economic growth and poverty reduction, [that] contributes to the promotion of sustainable development”. The adoption of Agenda 2030 commits UN member states to continue to promote “meaningful” trade liberalization over the next 15 years to help maximize the contribution of trade to the success of the sustainable development agenda. In this context, international trade is expected to play its role as a means of implementation for the achievement of the SDGs.

As major institutional stakeholders on trade and the SDGs issues, UNCTAD, WTO, and International Trade Center monitor trends, analyze policy and build analytical capacity for making international trade an engine for sustainable development.

The WTO works closely with FAO with respect to achieving SDG 2.  With respect to accessions, the WTO works closely with the World Bank, the IMF and regional development banks and UN agencies.  With respect to the environment, the WTO works with UNEP.  These are a small fraction of the collaborative efforts that support the attainment of the Sustainable Development Goals. 

In order to further support efforts at the national level to achieve the SDGs and to ensure that the benefits of trade are spread more widely, the WTO together with our partners in the Geneva Trade hub, UNCTAD and ITC, also recently launched the SDG Trade Monitor, at SDGTRADE.ORG. This website is an online repository of trade-specific development indicators including MFN and preferential tariff rates, amongst others. This database will allow policymakers, trade professionals and researchers to explore the relationship between trade and sustainable development, and to support data driven trade policies.

By implementing responsive, data-driven polices trade can serve as a driver of development, there are impressive figures to confirm that this is the case. For instance, developing countries’ share of global trade has jumped from 25% in 1995 to 43% in 2017. This has happened not just because of growth in the large emerging markets of China, India and Brazil but also because of increased participation by small, former LDCs such as Samoa, Cabo Verde and the Maldives. All of these countries have graduated from LDC to developing country status and Vanuatu is expected to do so very soon. These countries mainstreamed their trade policies to tackle capacity constraints, using trade and attracting FDI, to advance their economic growth and development which, in turn, helped them to achieve the required social benchmarks they needed to graduate from the ranks of the world’s “least developed countries”.

Recent WTO negotiating outcomes also prove that the system does deliver for development. Successes include the Trade Facilitation Agreement, the expansion of the Information Technology Agreement, the amendment of the TRIPS Agreement easing access to medicines and the agreement to abolish agricultural export subsidies.

The different approaches represented in each of these agreements show that the system can rise to the level of being adaptable and dynamic in its response to emerging challenges. Members must now show sufficient flexibility in their negotiations on fisheries subsidies, WTO reform, and e-commerce, if these subjects with important implications for SDG attainment are to move to a successful conclusion.

This adaptability will also be crucial to an effective response to COVID-19, which is likely to have a severe negative impact on the achievement of the 2030 SDG Agenda.

The Environmental Dimension

The WTO is at the dawn of a new era of addressing deepened and broadened environmental concerns of its Members.  The remaining 8 SDGs, those not highlighted in the 2018 WTO publication cited throughout the preceding sections of this narrative are front and center in the emerging WTO focus.  

Trade policies, pursued through WTO agreements, have a huge potential to support environmental sustainability. For example, reviving and quickly concluding an Environmental Goods and Services Agreement (EGSA) would serve SDG goals 6 and 7, Clean Water and Sanitation, and Affordable and Clean Energy; SDG Goal 11 Sustainable Cities and Communities; Goal 12 Responsible Consumption and Production and Goal 13 Climate Action.

A study by the World Bank found that eliminating import barriers in the top 18 developing countries ranked by emissions of greenhouse gases would increase imports by 63% for energy-efficient lighting, 23% for wind power generation, 14% for solar power generation and close to 5% for clean coal technology. At the same time, more open trade in environmental goods and services can help domestic companies to tap into a rapidly growing global market estimated at US$ 2 trillion per year by 2020.

An EGSA and expansion of the Information Technology Agreement (ITA), together with an increase in the coverage of GATS, would address  in several respects these goals, making more available the goods, for example, to enable cleaner transportation and cleaner air and water, and better handling of waste.  Using trade to assist in creating the circular economy; dealing with plastic waste, all would make cities more livable.  Climate would be addressed directly as Members consider initiatives for curb fossil fuel subsidies. 

Just last month, during WTO Trade and Environment Week, several Members took an important step forward for expanding the contribution of trade to the SDGs by launching two initiatives. The first consists of “structured discussions” on trade and environmental sustainability launched by 50 WTO Members.  The second is the informal dialogue on plastic pollution and sustainable plastics trade launched by 8 WTO Members.  

The structured discussions seek to identify areas of common interest and work towards concrete deliverables on trade and sustainability. The group plans to have its first meeting in early 2021. The initiative seeks to build on past efforts by WTO Members to address issues such as circular economy, natural disasters, climate change, fossil fuel subsidies reform, the conservation and sustainable use of biodiversity and the Blue economy, among other issues that are at the core of the SDGs 7 on clean energy, 12 on sustainable production and consumption, 13 on climate change and 15 on life on land.

Trade and Environment Week also saw the inaugural meeting of the WTO informal dialogue on plastics pollution and sustainable plastics trade. The dialogue seeks to identify areas where the WTO can complement global efforts to fight plastic pollution, for example by improving transparency and coherence of plastic-related trade measures, promoting best practices and tracking trade in plastics, exploring areas for collective action and cooperating with other international processes. These efforts could make a tangible contribution to achieve not only SDG12 on sustainable production and consumption, but also SDG 14 on ocean health, SDG 15 on life on land, SDG 11 on sustainable cities and SDG 8 on decent work, among other SDGs.

One area of great potential for constructive bilateral and multilateral discussions is trade and climate change. The WTO, and in particular its Committee on Trade and Environment (CTE) has a standing mandate to discuss trade and environmental measures with potential significant trade effects and to arrive at coherent, most fit-for-purpose solutions.  Several countries have recently started to look at the adoption of border carbon adjustment measures (BCAs) to support their ambitious climate mitigation plans.  The European Union expects to have a concrete proposal by next June and a measure in place by January 2023, at the latest, Canada, in its recently announced 2020 Fall Economic Statement, and Mexico, in its nationally determined contribution, has also shown interest in such measures. It is my understanding that the next Administration in the United States also envisages a BCA as part of its climate ambition.

It would be an understatement to say that these discussions will not be easy and the potential for trade conflict and retaliation is ever present. To avoid a counterproductive clash over climate-related trade measures, we need to have serious and constructive discussions at the WTO on how to ensure that trade-related measures adopted – and trade more broadly – contribute effectively to transatlantic ambitions on climate change but are also fair and well calibrated in terms of their trade impact. It is worth noting that discussions on the EU plan to adopt a BCA have already started at the WTO, including inquiries in the form of specific trade concerns in three different Committees.  The new US Administration could ensure that discussions move forward in a proactive and constructive way, adding the US unique perspective and expertise to the table.

In the same vein, other trade and climate topics, such as fossil fuel subsidy reform or facilitating trade in low carbon technologies also seem to offer constructive avenues for transatlantic cooperation. If the recent trend of ambitious carbon neutrality pledges continues, the multilateral trading system will certainly have to play its role in addressing the intersection between climate action and the cross-border flow of goods and services. Transatlantic co-operation on these topics could become an important driver of concrete action on these important issues, all of which have big implications for achieving SDG 13

Goal 4 Quality Education

This goal is addressed in a myriad of ways by the WTO.  ITA makes more available computers, smart phones and tablets.  E-commerce talks and the moratorium on imposing customs duties on electronic transmission facilitate international transfer of the tools to educate.  The Enhanced Integrated Framework (EIF) helps to increase capacity of the least developed through the spread of technology and information.  The Cotton Consultative Forum for Development is currently working on identifying projects to assist cotton farmers in least developed countries to gain the knowledge as well as the means necessary to increase the value that they can get from cotton by-products.  The WTO is active in providing technical assistance to acceding countries, and more generally to developing and least-developed countries with respect to the full range of WTO agreements. 

Trade in education services can help to increase the supply of education and investment in the sector, particularly in higher education, thereby, contributing to enhancing access and quality in education. In this context, the General Agreement on Trade in Services (GATS), which aims at progressively liberalizing trade in services, including trade in education services, is a means of promoting economic growth and development. Leading universities can more easily establish campuses in countries making commitments to openness in this sector.   The GATS provides enough flexibility to craft commitments reflecting countries’ needs and priorities in a way that allows them to reap the benefits of opening trade in education with the aim of achieving the SDGs.

Goal 15, Life on Land

Promote sustainable use of terrestrial ecosystems.  Being able to have efficient use of land depends very much on trade.  Standards must be known, transparency is needed, they must not be protectionist, developing countries must be helped to meet international standards.  The WTO and other partner international organizations have set up the Standards and Trade Development Facility (STDF).  The STDF promotes improved food safety and animal and plant health capacity in developing countries by convening and connecting diverse stakeholders from across its projects, and by piloting and learning from innovative, collaborative and cross-cutting approaches.  Technical assistance can help lessen the use of pesticides and herbicides, including through the fund-raising efforts of the Director-General’s Consultative Framework for Cotton Development Assistance.  Curbing subsidies yields more environmentally friendly use of land for crops.

Goal 16, Peace, Justice and Strong Institutions

It should not be surprising that the multilateral trading system, conceived during a 30-year war that took place in two great catastrophic phases separately mainly by a deep economic depression, was intended to be an antidote to conflict.  It was designed to maintain peace.

These roots were over time forgotten – something that historians might come across –  until these last few years, when conflict-affected countries, Afghanistan, Liberia, countries of bodog poker review the Middle East and of the Horn of Africa sought entry into the WTO.  For them, the contribution of integration into the global economy, of thereby increasing the likelihood of stability, the precondition for economic development, the link of trade to peace, the cause of trade for peace, is real, immediate and profound.  These fragile countries appreciate the relevance of the multilateral rules-based trading system as a mechanism for peacebuilding through promoting good governance and the rule of law, reducing poverty and achieving economic growth.

Conclusion

The bottom line:  A new edition of a book on the WTO and the SDGs should spell out how all 17 goals either are or can be served by the WTO and its agreements. But more than a book, we need WTO Members to engage and conclude negotiations that have a direct impact on achieving the SDGs.  I have already spoken about the negotiations to discipline fisheries subsidies, the specific goal of SDG 14.6 on a result on that subject would speak volumes, and you can all push for its successful conclusion.

Trade is one of the best anti-poverty tools in history. By boosting economic growth, trade was a catalyst for reaching the Millennium Development Goal of cutting extreme poverty in half – well ahead of the 2015 deadline.

Trade must play its full part in achieving the 2030 sustainable development goals.  To help deliver on these goals and maximize the power of trade in tackling poverty and hunger, making our economies more sustainable and inclusive, WTO Members must put sustainable development at the core of WTO reform efforts. A reform process that results in tangible progress in fully aligning trade and sustainability would be a major contribution the WTO could make to advancing the issues we are discussing here today.

To read the original blog post, please click here.

Ambassador Alan Wm. Wolff is Deputy Director-General of the World Trade Organization.

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“Trade for Peace: the Past

“Contemplating the relationship between trade and peace has a long history. In AD 100, Plutarch wrote that sea trade allowed one to cooperate and ‘redress defects’ in their relationships through mutual exchange. In the 1700s, Montesquieu specified that peace is a ‘natural’ consequence of trade. The legal and theological underpinnings for this philosophy were provided by Hugo Grotius, who held that the purpose of free trade was to unite the world in peace.

“This history, as well as current relations among nations, provide fresh evidence for a proven correlation between peace and open trade. Trade does not guarantee peace, but it is an essential foundation for the economic stability that makes peace more possible. Peaceful relations in turn make the expansion of trade achievable. As China’s Premier, Li Keqiang recently said, ‘without a peaceful and stable environment, nothing would be possible.’ This is recognized as being all too true for a number of the countries, no strangers to conflict, who have recently joined the WTO as well as several who seek to do so.

“The conceptual linkage between trade and peace provided the foundation for the multilateral trading system. The 1948 Havana Charter for the International Trade Organization (ITO) was drafted immediately after two devastating world wars and the Great Depression. The purpose of the founders, to use trade to promote peace is reflected in the Charter’s opening words: ‘to create conditions of stability and well-being which are necessary for peaceful and friendly relations among nations’.

“The idea of using trade as an integral part of the management of relations between nations had been championed by Woodrow Wilson a few decades earlier in his Fourteen Points at the Paris Peace Conference after the First World War. The points were agreed to by all the nations attending the conference and implemented by none. But the thread was not lost. It was picked up by Secretary of State Cordell Hull who served Franklin Roosevelt between 1933 and 1944. Hull believed that one ‘could not separate the idea of commerce from the idea of war and peace’. ‘[I]f we could increase commercial exchanges among nations over lowered trade and tariff barriers and remove international obstacles to trade, we would go a long way toward eliminating war itself.’ He sought through bilateral trade agreements, which were concluded on a most-favored-nation basis, that is, they were nondiscriminatory, to deliver on the promise of the trade and peace linkage that he held dear.

“While the Havana Charter failed to create the ITO, the cause of peace was served by the coming into force of the General Agreement of Trade and Tariffs (GATT) which, in the absence of the ITO, served as an ad hoc arrangement of rules for international trade until it was eventually transformed into the WTO in 1995.

“For over seven decades, the rules-based multilateral trade system has provided an enabling environment to foster unprecedent levels of economic prosperity and poverty reduction in modern human history.

“There is academic and empirical evidence that the attainment of peace and security is supported by international cooperation through trade and economic interlinkages. (Indeed, there will be a dedicated discussion on this subject at Session 4 of the Trade for Peace Week). The contribution to the advancement of peace through the creation of the European Union, the largest and most impressive of the post-WWII economic integration projects, was recognised by the award of the Nobel Peace Prize in 2012.

“The Capstone Research Project, which the WTO Secretariat conducted with the Graduate Institute last year, identified 157 peace agreements concluded over the last century as containing economic clauses. These largely pertain to the removal of impediments to free movement of goods, people and services; economic reconstruction through industries, investments, and entrepreneurial enterprises; and improvement in the standard of living through economic reconstruction activities. Only ten of 300 trade agreements examined make explicit reference to peace. The cause of peace may be served, but homage to the express linkage that motivated the founders of the multilateral trading system largely disappeared. If we believe that trade does serve as an enabler for peace, a subject which is at the core of our discussions this week, the trade and peace communities should consider bringing this connection to the attention of trade negotiators and peace negotiators whenever conflict-affected nations are involved.

“Trade for Peace: The Present

“Peace was not explicitly referenced in the Marrakesh Agreement Establishing the WTO in 1995 or the launch of the Doha Development Round in 2001. The trade and peace linkage had either been taken for granted or was no longer seen as very relevant. This is remarkable especially given the recent end of the Cold War, which had threatened global annihilation through the use of nuclear weapons. But the vision did not die. Three years ago, a group of fragile and conflict-affected LDCs in the process of accession — Comoros, Sao Tomé and Principe, Somalia, South Sudan and Timor-Leste — came together, together with recently acceded LDCs — Afghanistan, Liberia and Yemen, and made the case that trade and economic integration can be employed to promote inclusive and sustainable peace, particularly for their countries. During the WTO’s 11th Ministerial Conference in Buenos Aires in December 2017, these LDC Ministers established the g7+ WTO Accessions Group.

“I was privileged to be part of the launch of the Group. These very poor, war-torn countries — reminded us of the original raison d’être for the multilateral trading system — to contribute to global peace and stability. I said at that time that:

“‘conflict or post-conflict status is not the usual topic for WTO members, not even at Ministerial Conferences. However, the pursuit by these countries of WTO membership, despite the challenges, reminds us of the critical contribution that the multilateral trading system can make to the peace and stability of nations.’

“Today, the WTO has 164 Members and 23 countries are in the process of joining the Organization. Nearly half of the acceding countries are categorized as fragile and conflict affected according to the World Bank’s definition. In addition to the LDCs in the g7+ WTO Accessions Group, Iraq, Lebanon, Libya and Syria — are all struggling to restore stability and focus on their much-needed economic recovery, which has been severely hampered by the recent pandemics. For these countries, the promotion of a just and sustainable peace is a fundamental motivation for becoming a WTO Member.

“The Trade for Peace through WTO Accessions Initiative is essentially a partnership between the trade, humanitarian and peace communities to assist those fragile and conflict affected countries in re-building institutions and economies that can serve as a foundation for a lasting peace. At the core, the accession process is about building domestic institutions on the pillars of non-discrimination, transparency and the rule of law. These precepts are designed to promote economic stability, create a conducive business environment through secure and predictable market conditions, encourage the movement of labour and investments and support integration into global value chains.

“Since the launch of the initiative, thanks to our partners from the peace community who are participating in the Trade for Peace Week, the WTO has deepened the understanding and increased the sensitivity towards particular challenges confronted by countries which are fragile and conflict-affected. Over the last two years, the WTO Secretariat has organised several activities with the peace community as part of the Trade for Peace initiative, involving the Geneva Peacebuilding Platform, the g7+ Secretariat, the Institute for Economics and Peace, the ILO and the World Bank. It has also involved actors from the private sector such as Nespresso.

“Among the most memorable of these events was the panel session in which the former leader of Timor Leste, Xanana Gusmão, participated in during the 2018 Public Forum in Geneva. He described the enormous economic potential of fragile and conflict affected states, indicating that: ‘trade, investment and cooperation among the countries in the world bring about prosperity and development. Trade is a peaceful alternative to war. . . We, the fragile and conflict affected countries are committed to promote ‘Trade for Peace’.’

“Another memorable occasion was listening to a panel discussion during the African Dialogue on WTO Accessions in Djibouti in which the ambassadors of Sudan and South Sudan, sitting next to each other, told us ‘where there is trade there is peace’. At the same event, Ambassador Mohammed Haqjo of Afghanistan, who has served as coordinator of the g7+ WTO Accessions Group from its inception, stressed that ‘economic cooperation and peacebuilding are gradual processes that should evolve concurrently’.

“There is much more that the trade and peace communities can and must do together to improve the conditions of fragile and conflict-affected countries. The Trade for Peace Week is expanding the Trade for Peace partnership, bringing in new ‘peace friends’ to the WTO, such as the International Committee of the Red Cross (ICRC), the UN Peacebuilding Commission, the UN Office for Coordination of Humanitarian Affairs (UNOCHA) and Interpeace. The WTO also welcomes our traditional friends to join us in the Trade for Peace efforts, including from the ITC, ICC,UN Technology Bank, UN Economic Commission for Africa, African Union and UNDP.

“We are fortunate to be joined by individuals, whether from governments or the private sector, who have direct experience in using trade and economic opportunities to promote peace in fragile and conflict-affected countries — with experience in Afghanistan, Ethiopia, Iraq, Lebanon, Liberia, Libya, Sierra Leone, Solomon Islands, Somalia, South Sudan, Sudan, Timor-Leste and Yemen. I am confident that through the ten programs this week, they will bring a wealth of expertise and their unique contributions to the table, promoting interdisciplinary approaches to achieving inclusive and sustainable peace through trade.

“Trade for Peace: the future

“Trade for Peace is part of our future. Two weeks ago, on 19 November, I spoke at the WTO’s 25th anniversary event. Of the nine points I listed as being relevant to the question of ‘What will the future of the WTO be like?’, my first two are very much relevant for the Trade for Peace Week. They are:

” ‘Our Membership, already accounting for 98% of world trade, will become universal through accessions.

“The WTO of the future will promote peace by creating economic conditions that bring greater stability to fragile and conflict-affected lands.’

“I continued:

“‘While dealing with current crises, we must anticipate future ones and put into place institutional and substantive changes needed to carry out our mission … We have the joint responsibility to make sure that the world trading system which has been entrusted to us is left, when our time of service comes to an end, in better condition than that in which we found it.’ [I am fully convinced that] ‘the nations of the world will ultimately come together in a spirit of international cooperation to create a stronger multilateral trading system, more responsive to the concerns of humankind, more fit for purpose.’

“The Trade for Peace initiative can contribute to making the trading system of the future more agile, responsive, humane and fit for purpose to support the well-being of humanity. The COVID-19 pandemic has exposed the vulnerability of multilateralism to protectionism, isolationism and nationalism, demonstrated by the initial reports of disruptions in access to medical supplies. The WTO of the future will need new forms of multilateral cooperation to deal with future crises, that can effectively respond to the needs of a wide diversity of members including those participating in the g7+ WTO Accessions Group.

“What are some possible next steps for contributions from the Trade for Peace platform? The following ideas emerged in conversations with our partners leading up to this week:

“create a White Paper on Trade and Peace, which could include the best practices of the use of trade policy instruments to promote positive peace.

“create a White Paper on Trade and Peace, which could include the best practices of the use of trade policy instruments to promote positive peace.

“establish a permanent platform (e.g., a Working Group or Commission on Trade for Peace) to bring together trade experts and peacebuilders to explore a new agenda for the Trade for Peace initiative; and

“develop training materials on trade for peace, which could be used by trade practitioners and peace builders to deepen understanding of the use of trade as an instrument for inclusive and sustainable peace.

“We are hoping that participants will elaborate on these ideas and bring new ones to the table during their discussions throughout the week. The week-long discussions should help illuminate a clear path forward to upgrade the Trade for Peace initiative to a more structured WTO cooperation with our partners in the humanitarian and peace communities and beyond.”

At the conclusion of the Trade for Peace Week on December 4, DDG Wolff provided his thoughts on the week and restated actions that the WTO and those interested in peace could pursue moving forward. His statement is embedded below.

A few thoughts

As 2020 comes to a close, there are many challenges to the multilateral trading system with relatively little good news. After nineteen years of negotiations, WTO Members have still not closed an agreement on fisheries subsidies. An outdated WTO rule book and widely divergent interests of WTO Members has rendered forward movement through negotiations on nearly all issues challenging if not impossible. True, there has been some progress in the first 25 years (the Trade Facilitation Agreement, the Information Technology Agreement and update), but most WTO Members are largely focused on plurilateral negotiations (e.g., e-commerce) or engaged in FTAs versus multilateral agreements. The dispute settlement system is at an impasse with fundamentally different views of what the system is supposed to achieve and limited actual ability to correct errant decisions or interpretations. Unilateral actions have been taken by an increasing number of WTO Members outside of the WTO rules. And the COVID-19 pandemic has seen some but limited cooperation and collaboration among WTO Members.

For the last three years, it has been nations suffering longstanding conflict and economic hardship that have grasped the promise of the multilateral trading system to provide a forum to promote the trade for peace message that has historically helped nations find a path to stability and peace. And it appears that it has been the WTO Secretariat, working with other organizations and groups, that has fashioned a potential game plan to reintroduce the core message of trade for peace back into the multilateral trading system.

As WTO Members look at reform in 2021, they should explore whether there isn’t a role for the Secretariat to tee up issues for consideration by the Members to help Members get past the current gridlock on even studying or debating matters of substantial importance where one or more Members would prefer no examination. WTO Members should also consider the budget of the WTO Secretariat to both permit greater monitoring of implementation of obligations by Members and also to do the analysis and outreach to other organizations to help on the range of issues that are facing the membership but not being addressed in a timely manner. Trade and environment issues, changes to rules to address needs of WTO Members in pandemics, updating of the rules to ensure they address all distortions to markets and reflect current trading situations, and the various Joint Statement Initiatives are all examples.

This should be a season of hope. All WTO Members and all those seeking to accede can contribute to restoring hope through their actions. The trade for peace initiative is an excellent example of the importance conceptually of the multilateral trading system for the larger cause of peace and stability. Let’s hope Members can restore the relevance of the WTO for the collective good and as an aid to peace and stability.

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

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While both U.S. proposed modification documents are presently restricted (and hence not available to the public), the notices constitute USTR following the requirements of Executive Order 13944 of August 6, 2020 to take steps within 30 days after the Food and Drug Administration had published its list of drugs and active pharmaceutical ingredients that are essential. See Executive Order 13944 of August 6, 2020, Combating Public Health Emergencies and Strengthening National Security by Ensuring Essential Medicines, Medical Counter- measures, and Critical Inputs Are Made in the United States, 85 Fed. Reg. 49,929 – 49-934 (August 14, 2020). USTR’s obligations extend beyond the WTO and include any trade agreements with government procurement commitments. But for purposes of this post, I am focusing just on the WTO Agreement on Government Procurement (1994 and Revised). The Executive Order is embedded below but is an effort to address perceived supply chain problems and “over reliance” on imported product including active pharmaceutical ingredients (“APIs”).

While the United States is a major pharmaceutical research and development country, U.S. pharmaceutical companies have moved much API production offshore as well as finished product production. China and India are the largest suppliers of APIs to the United States. With the challenges of the COVID-19 pandemic, the Trump Administration has pursued efforts to onshore manufacturing of essential medical products including through the Executive Order 13944. See, e.g., Datex, Onshoring U.S. Pharmaceutical Manufacturing:COVID-19, Congress and Puerto Rico Pharma Hub, Ideas for returning pharmaceutical manufacturing to the U.S., https://www.datexcorp.com/onshoring-u-s-pharmaceutical-manufacturing-covid-19-congress-and-puerto-rico-pharma-hub/; Fierce Pharma, June 3, 2020, U.S. seeks to onshore drug production in response to COVID-19. Is pharma even interested?, https://www.fiercepharma.com/manufacturing/pharma-pushes-back-u-s-legislation-to-bring-drug-manufacturing-stateside; Policy & Medicine, August 26, 2020, Trump Signs Executive Order Regarding Medical Supply Chain, https://www.policymed.com/2020/09/trump-signs-executive-order-regarding-medical-supply-chain.html.

While onshoring is not supported by pharmaceutical companies and has been cited as not likely cost-effective or necessary to address the current or future pandemics, to date both the Trump Administration and President-elect Biden have expressed support for at least some onshoring to ensure greater availability of medicines and materials. See, e.g., S&P Global Market Intelligence, October 15, 2020, US drug onshoring is more complex than Trump, Biden political pitches –experts, https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/us-drug-onshoring-is-more-complex-than-trump-biden-political-pitches-8211-experts-60714320.

Deputy Director-General Alan Wolff in a statement to the World Economic Forum on November 12, 2020 reviewed some of the reasons for WTO Members not to put excessive reliance on onshoring and to use supply chains and strengthen them. See WTO, 12 November 2020, DDG Wolff calls for new initiatives to cut tariffs on medical supplies and equipment, https://www.wto.org/english/news_e/news20_e/ddgaw_12nov20_e.htm.

“On the feasibility of localization

“Trade this year has proved to be essential to meet the world’s needs for medical supplies. National stockpiles proved inadequate. Investment was only part of the answer.

“Trade played a critical role in meeting the vastly increased demand for medical goods and medicines. WTO data show that trade in personal protective equipment (PPE) more than doubled from May 2019 to May 2020. It was a key factor in creating supply resilience, even though some shortages persist even in advanced economies.

“Purely domestic supply chains would have been unable to meet a surge in demand of the suddenness and magnitude experienced. Export controls may have exacerbated the problems, even though many have been subsequently rolled back.

“It appears that the shock persisted in policymakers’ minds in many countries, following initial calls for re-shoring manufacturing production for key products.

“Supporters of localization tend to portray it as risk-free. This is wrong. Concentrating industry at home might insulate it from turbulence elsewhere, but the domestic sources of supplies are more vulnerable to localized disruptions, such as from a hurricane or an outbreak of disease. In addition, the economics dictate that complete self-sufficiency is unworkable for any country, rich or poor.

“Deep and diversified international markets offer the most promising and cost-effective path to supply resilience. But its viability will hinge on whether countries and their citizens feel that international markets can be trusted in a crisis

“On reliance on global supply chains

“Economics will be the key determinant of the resilience of international supply chain.

“If countries can be confident that they will be able to rely on international markets for imports when they need them, they will have less reason to restrict exports.

“The preliminary evidence suggests that moves to diversify supply chains have primarily seen production shift from one low-cost country to another.

“Increasingly sophisticated machines have already been diminishing the importance of labor cost arbitrage in the choice of manufacturing location.

“Productivity will be a key determinant of which firms are able to go compete internationally.

“A few years ago, the Brookings Institution looked at five key determinants of the manufacturing environment: 1) overall policies and regulations; 2) tax policy; 3) energy, transportation, and health costs; 4) workforce quality; and 5) infrastructure and innovation. It is instructive that when the study made recommendations for how to improve the manufacturing environment, at the top of their list was political and economic predictability, including open trade policies.

“On shoring and near-shoring have to obey these economic rules if they are going to play an increasing role in national choices.”

U.S. commitments in Annex 1 of the 1994 GPA and the Revised GPA

The U.S. commitments under the GPA include purchases by the Departments of Health and Human Services and of Defense. The two sets of Annex 1 obligations (1994 GPA; revised GPA) are embedded below.

The Food and Drug Administration list of essential pharmaceutical and other medical products is embedded below and constitutes what is presumably being proposed for withdrawal from coverage of the GPA 1994 and revised GPA in the U.S. Annex coverage. It is a long list of products, if, as assumed, it is the FDA list that has been put forward.

Modification of Annexes under the WTO 1994 GPA and under the WTO revised GPA

While the WTO’s Agreement on Government Procurement envisions expanded coverage over time by signatories, both the original agreement and the revised agreement provide for possible modifications of the Agreement with rebalancing of benefits for other countries or retaliation where action is taken without rebalancing. The 1994 Agreement in Article XXIV:6 provides for rectifications and modifications of commitments:

“Article XXIV: Final Provisions

* * *

“6.     Rectifications or Modifications

“(a)    Rectifications, transfers of an entity from one Annex to another or, in exceptional cases, other modifications relating to Appendices I through IV shall be notified to the Committee, along with information as to the likely consequences of the change for the mutually agreed coverage provided in this Agreement. If the rectifications, transfers or other modifications are of a purely formal or minor nature, they shall become effective provided there is no objection within 30 days. In other cases, the Chairman of the Committee shall promptly convene a meeting of the Committee. The Committee shall consider the proposal and any claim for compensatory adjustments, with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Agreement prior to such notification. In the event of agreement not being reached, the matter may be pursued in accordance with the provisions contained in Article XXII.

“(b)    Where a Party wishes, in exercise of its rights, to withdraw an entity from Appendix I on the grounds that government control or influence over it has been effectively eliminated, that Party shall notify the Committee. Such modification shall become effective the day after the end of the following meeting of the Committee, provided that the meeting is no sooner than 30 days from the date of notification and no objection has been made. In the event of an objection, the matter may be pursued in accordance with the procedures on consultations and dispute settlement contained in Article XXII. In considering the proposed modification to Appendix I and any consequential compensatory adjustment, allowance shall be made for the market-opening effects of the removal of government control or influence.”

The revised Agreement has more detailed provisions for modifications and rectifications contained in Article XIX:

“Article XIX — Modifications and Rectifications to Coverage Notification of Proposed Modification

“1. A Party shall notify the Committee of any proposed rectification, transfer of an entity from one annex to another, withdrawal of an entity or other modification of its annexes to Appendix I (any of which is hereinafter referred to as ‘modification’). The Party proposing the modification (hereinafter referred to as ‘modifying Party’) shall include in the notification:

“a. for any proposed withdrawal of an entity from its annexes to Appendix I in exercise of its rights on the grounds that government control or influence over the entity’s covered procurement has been effectively eliminated, evidence of such elimination; or

“b. for any other proposed modification, information as to the likely consequences of the change for the mutually agreed coverage provided for in this Agreement.

“Objection to Notification

“2. Any Party whose rights under this Agreement may be affected by a proposed modification notified under paragraph 1 may notify the Committee of any objection to the proposed modification. Such objections shall be made within 45 days from the date of the circulation to the Parties of the notification, and shall set out reasons for the objection.

“Consultations

“3. The modifying Party and any Party making an objection (hereinafter referred to as “objecting Party”) shall make every attempt to resolve the objection through consultations. In such consultations, the modifying and objecting Parties shall consider the proposed modification:

“a. in the case of a notification under paragraph 1(a), in accordance with any indicative criteria adopted pursuant to paragraph 8(b), indicating the effective elimination of government control or influence over an entity’s covered procurement; and

“b. in the case of a notification under paragraph 1(b), in accordance with any criteria adopted pursuant to paragraph 8(c), relating to the level of compensatory adjustments to be offered for modifications, with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Agreement.

“Revised Modification

“4. Where the modifying Party and any objecting Party resolve the objection through consultations, and the modifying Party revises its proposed modification as a result of those consultations, the modifying Party shall notify the Committee in accordance with paragraph 1,and any such revised modification shall only be effective after fulfilling the requirements of this Article.

“Implementation of Modifications

“5. A proposed modification shall become effective only where:

“a. no Party submits to the Committee a written objection to the proposed modification within 45 days from the date of circulation of the notification of the proposed modification under paragraph 1;

“b. all objecting Parties have notified the Committee that they withdraw their objections to the proposed modification; or

“c. 150 days from the date of circulation of the notification of the proposed modification under paragraph 1 have elapsed, and the modifying Party has informed the Committee in writing of its intention to implement the modification.

“Withdrawal of Substantially Equivalent Coverage

“6. Where a modification becomes effective pursuant to paragraph 5(c), any objecting Party may withdraw substantially equivalent coverage. Notwithstanding Article IV:1(b), a withdrawal pursuant to this paragraph may be implemented solely with respect to the modifying Party. Any objecting Party shall inform the Committee in writing of any such withdrawal at least 30 days before the withdrawal becomes effective. A withdrawal pursuant to this paragraph shall be consistent with any criteria relating to the level of compensatory adjustment adopted by the Committee pursuant to paragraph 8(c).

“Arbitration Procedures to Facilitate Resolution of Objections

“7. Where the Committee has adopted arbitration procedures to facilitate the resolution of objections pursuant to paragraph 8, a modifying or any objecting Party may invoke the arbitration procedures within 120 days of circulation of the notification of the proposed modification:

“a. Where no Party has invoked the arbitration procedures within the time-period:

“i. notwithstanding paragraph 5(c), the proposed modification shall become effective where 130 days from the date of circulation of the notification of the proposed modification under paragraph 1 have elapsed, and the modifying Party has informed the Committee in writing of its intention to implement the modification; and

“ii. no objecting Party may withdraw coverage pursuant to paragraph 6.

“b. Where a modifying Party or objecting Party has invoked the arbitration procedures:

“i. notwithstanding paragraph 5(c), the proposed modification shall not become effective before the completion of the arbitration procedures;

“ii. any objecting Party that intends to enforce a right to compensation, or to withdraw substantially equivalent coverage pursuant to paragraph 6, shall participate in the arbitration proceedings;

“iii. a modifying Party should comply with the results of the arbitration procedures in making any modification effective pursuant to paragraph 5(c); and

“iv. where a modifying Party does not comply with the results of the arbitration procedures in making any modification effective pursuant to paragraph 5(c), any objecting Party may withdraw substantially equivalent coverage pursuant to paragraph 6, provided that any such withdrawal is consistent with the result of the arbitration procedures.

“Committee Responsibilities

“8. The Committee shall adopt:

“a. arbitration procedures to facilitate resolution of objections under paragraph 2;

“b. indicative criteria that demonstrate the effective elimination of government control or influence over an entity’s covered procurement; and

“c. criteria for determining the level of compensatory adjustment to be offered for modifications made pursuant to paragraph 1(b) and of substantially equivalent coverage under paragraph 6.”

Likely consultations with trading partners will extend into Biden Administration

Considering the list of other GPA signatories, it is certain that a number of signatories will seek compensation from the United States or will pursue retaliation if the U.S. proposed modifications take effect. Assuming a desire by one or more signatories to seek rebalancing and/or to pursue retaliation, the timing of implementation of the modifications appear to vary based on the relevant Agreement but will almost certain extend into the Biden Administration after January 20.

Thus, while the incoming Biden Administration intends to have its focus on domestic challenges in the early part of its first term, the modification of U.S. WTO GPA commitments is another example of an important trade issue that will require focus in the early days of the new Administration.

Conclusion

During the COVID-19 pandemic there has been concern both within the Trump Administration and in the U.S. Congress about the shortages of personal protective equipment and the high reliance on offshore production of APIs and essential medicines for the treatment of patients with COVID-19 in the United States. The concern on domestic capabilities is held by both Republicans and Democrats and has been identified as an issue of importance to the incoming Biden Administration. While there is opposition from the pharmaceutical companies and certainly concerns from economists and some policy professionals about over reliance on onshoring, the United States has been taking some actions to encourage onshoring. The Executive Order 13944 addresses U.S. government procurement of essential medicines and other medical goods.

Action last week by USTR in submitting proposed modifications to its Annex 1 commitments under the 1994 GPA and the revised GPA is a necessary step to comply with WTO obligations if a change in coverage is to occur. Because of the likely actions of trading partners in the coming weeks and months, the Biden Administration, if it chooses to move forward with the Trump Administration initiative, will face an important WTO task in the early months of the new Administration to negotiate a rebalancing of commitments or face retaliation by WTO GPA partners. Similar obligations and needs will be present in FTAs that include government procurement commitments as well. This increases the importance for the Biden Administration to fill the USTR posts early as well.

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

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My post of November 2 had raised a number of question presented by the proposed waiver:

” The proposal raises a series of questions that should be addressed to understand whether the waiver is appropriate. These questions include whether such a broad waiver request is appropriate or envisioned by Article IX:3 and 4 of the Marrakesh Agreement? Shouldn’t those requesting a waiver be required to demonstrate that the existing flexibilities within the TRIPS Agreement are inadequate to address concerns they may have? Can two Members request a waiver of obligations for all WTO Members? Can a waiver request be considered where the product scope is lacking clarity, and the uses/needs of the waiver are very broad and potentially open to differing views? To what extent is there a need for those seeking a waiver to present a factual record of actions being taken by governments, companies and international organizations to provide access to medical goods during the pandemic including to developing and least developed countries? Shouldn’t those seeking a waiver identify the extent of existing licenses by major pharmaceutical companies with them or other WTO Members for the production of vaccines or therapeutics to address COVID-19?”

The supplemental information provided by South Africa identifies various patent pending matters and identifies what it describes as restrictive actions by some companies and some patent litigation by certain companies. As such the communication provides some information of possible relevance in examining the proposed waiver. However, there is little if any information provided on most questions that seem important to an informed discussion of the proposed waiver.

On November 27, Australia, bodog casino Canada, Chile and Mexico filed a communication entitled “Questions on Intellectual-Property Challenges Experienced by Members in Relation to COVID-19”. IP/C/W/671. While the entire communication is embedded below, paragraphs 3 and 4 are copied below and present a framework for the consideration of the proposed waiver and seek factual answers to a series of questions which would help understand if there are in fact any significant barriers being confronted by WTO Members in addressing the pandemic.

“3. The co-sponsors of this communication remain of the view that these important, challenging, and complex issues merit further reflection and significant consideration, in order to identify any specific and concrete IP-related challenges faced by Members in addressing COVID-19. In addition, we take note that IP rights are one part of a broad discussion informing the availability and accessibility of treatments for COVID-19. Indeed, as the Doha Declaration on the TRIPS Agreement and Public Health emphasizes, the TRIPS Agreement itself is part of the wider national and international effort to address public health problems. With respect to COVID-19, this broader response includes significant investments through procurement mechanisms like the Access to COVID-19 Tools Accelerator and the COVAX Facility and Advance Market Commitment, as well as work within the WTO and elsewhere to safeguard and protect global supply chains.

“4. The co-sponsors of this communication are actively committed to a comprehensive, global
approach that leverages the entire multilateral trading system in place to supporting the research, development, manufacturing, and distribution of safe and effective COVID-19 diagnostics, equipment, therapeutics, and vaccines. The co-sponsors also reaffirm their support for the TRIPS Agreement, including the flexibilities it provides, and for the Doha Declaration on the TRIPS Agreement and Public Health. In this context, we invite consideration of how the existing legal framework under the TRIPS Agreement, including the flexibilities affirmed under the Doha Declaration on the TRIPS Agreement and Public Health, have operated thus far in the context of Members’ efforts to address the COVID-19 pandemic. We are also committed to fully understanding the nature and scope of any concrete IP barriers experienced by Members related to or arising from the TRIPS Agreement, and such that would constitute impediments to the fight against COVID-19. To that end, and with a view to facilitating a consensual, evidence-based approach, the co-sponsors of this communication therefore respectfully submit the following questions to Members for their consideration and response.”

The communication from Australia, bodog casino Canada, Chile and Mexico then provides eight questions designed to develop a factual record of challenges faced on procurement of products, local production, compulsory licenses, as well as copyright-related challenges, industrial-designs-related challenges, and challenges from undisclosed information. The questions also include an inquiry as to “what specific legal amendments or actions would the proponents seek to enact for the prevention, containment, and treatment of COVID-19 that are not – or may not be – consistent with the TRIPS Agreement and its flexibilities?”

There is a meeting of the Council for Trade-Related Aspects of Intellectual Property Rights scheduled for December 11 at the WTO. It is assumed that the only item on the agenda will be the consideration of the proposed TRIPS waiver submitted by India and South Africa and joined by four other countries. A recommendation should be forwarded to the General Council by December 31. While the proposed waiver may receive support from many WTO Members, it will be opposed by many as well as not justified and undermining the existing WTO TRIPS Agreement and built-in flexibilities. The communication from Australia, bodog casino Canada, Chile and Mexico provides a possible path forward by seeking to gather factual information that would permit Members to identify what challenges actually exist and what existing tools are available for addressing the existing challenges so that the need for any waiver is limited to what is actually needed instead of being the very broad waiver proposal for all countries regardless of actual problems faced.

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

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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

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The Appellate Body (“AB”) has ceased functioning with the United States blocking the appointment of new AB members based on longstanding problems with the Dispute Settlement system that have not been addressed. There are fundamental differences among major Members in what the proper role of the dispute settlement system is. Because the AB’s view of its role has differed from that of at least some of the Members, many delegations have opted to litigate instead of negotiate on issues which are not covered by the actual language of existing agreements.

The negotiating function of the WTO has had limited success in the first 25 years of the WTO reflecting deep differences among Members in priorities and the core function of the WTO. The inability to update rules or develop new rules to address 21st century commercial realities has called into question the ongoing relevance of the organization Members have failed to honor agreement directions for periodic liberalization updates in agriculture and services trade. Members have also taken decades to tackle issues of pressing time sensitivity, such as fisheries subsidies.

And there are problems in the timeliness and completeness of notifications required by many agreements and the quality of the work of many of the Committees.

A bright spot for an organization in trouble has been the success of bringing additional countries and territories into the organization. Of the 164 members at present, 36 have joined since the WTO opened in 1995 and some 23 countries or territories are in the accession process at the moment. Some 98% of global trade is now covered by WTO Members. While there are many reasons for countries or territories to join the WTO, including integrating into the global economy and improving the competitiveness of the economy (Deputy Director-General Alan Wolff describes the benefits of accession as being a catalyst for domestic reform and economic growth), there is no doubt that accessions are of benefit to the global trading system and bring the benefits of liberalization in the acceding country or territory to the existing WTO membership. Indeed, commitments of acceding Members in terms of tariff liberalization and other obligations typically are far higher than the commitments of existing Members at the same economic stage of development. Yet, accession is of great benefit to acceding countries. See WTO press release, 8 November 2020, DDG Wolff: WTO accession is a catalyst for domestic reform and economic growth, https://www.wto.org/english/news_e/news20_e/ddgaw_06nov20_e.htm. DDG Wolff, in speaking to Arab countries in the accession process made the following comments:

“Furthermore, during the last eight months, the world has experienced unprecedented levels of disruptions in people’s daily lives and their economic activities due to Covid-19. The world is not near the end of this crisis. Despite these challenging times, trade has played a key role in addressing local shortages of food, medical supplies and other essentials during the pandemic.

“Trade will have to play an even greater role in supporting recovery of the global economy going forward. In this context, we should recognise the important role played by Saudi Arabia in steering the G20 during this difficult year, urging collective and multilateral cooperation. The Riyadh Initiative is a praiseworthy effort endorsed by the G20 nations.

“The Arab region has not escaped the dire economic consequences of this pandemic. For some, the steep fall in oil prices has aggravated existing problems. A crisis, however, also presents opportunities for closer international cooperation to limit the harm from the pandemic and to spur the recovery.

“These issues demonstrate that more, not less, global and regional trade integration is required. Integration into the world economy goes hand in hand with necessary domestic reforms. This is where WTO accession makes particularly valuable contributions. Those engaged in the reform-driven accession process are likely to experience a quicker recovery and greater resilience in the future.

“Based on evidence from the 36 accessions which have been successfully completed, the WTO accession process has served as an effective external anchor for domestic reforms, acting as a catalyst in realizing the potential of their economies. According to the last WTO Director-General’s Annual Report on WTO Accessions, Article XII Members have registered higher growth rates of GDP and trade (exports and imports), as well as increased flows of inward FDI stocks, in the years following their accession compared to the rest of the world. These results indicate that integrated, open economies tend to grow faster. In addition, by signalling a government’s commitment to international rules, WTO membership appears to also encourage the inflow of foreign investment.

“The accession process has been used by resource-based countries to diversify their economies. Economic diversification is one of the major priorities for the governments in the Arab region. Our 2016 study examined whether countries’ export structures became more diversified after gaining WTO membership. This was true for about half of the recently acceded
Members, which increased the number of exported products, measured in HS chapters, accounting for more than 60% of their exports after accession. This was achieved often through rebranding their economies with WTO membership and attracting increased FDI.”

From 1995-2016, the thirty-six countries or territories that joined the WTO included many of the major economies that were not original Members of the WTO. These included China, Chinese Taipei, Saudi Arabia, Vietnam, Ukraine, and the Russian Federation. The other countries or territories who have joined represent a wide cross-section of geographic regions and levels of development: Ecuador, Bulgaria, Mongolia, Panama, Kyrgyz Republic, Latvia, Estonia, Jordan, Georgia, Albania, Oman, Croatia, Lithuania, Moldova, Armenia, North Macedonia, Nepal, Cambodia, Tonga, Cabo Verde, Montenegro, Samoa, Vanuatu, Lao People’s Democratic Republic, Tajikistan, Yemen, Seychelles, Kazakhstan, Liberia, and Afghanistan. No accessions have been completed since 2016.

The twenty-three countries and territories that are in the process of accession often are countries or territories that have suffered from years of conflict. This has led the WTO to host the first “Trade for Peace Week” from November 30-December 4, 2020. See WTO press release, 25 November 2020, WTO to host first Trade for Peace Week, https://www.wto.org/english/news_e/news20_e/acc_25nov20_e.htm.

“In announcing the Trade for Peace Week, Deputy Director-General Alan Wolff noted: ‘The 2030 Agenda for Sustainable Development recognizes international trade as an engine for inclusive economic growth and poverty reduction that contributes to the promotion of sustainable development. This in turn can facilitate building and maintaining peace. The connection between trade and peace is the raison d’être for the creation of the rules-based multilateral trading system that led to economic recovery and prosperity after the devastation from World War II.’

“Currently, 23 countries are in the process of joining the WTO, and over a half of them suffer from a fragile situation from years of conflicts. Launched in 2017, the Trade for Peace initiative aims to assist fragile and conflict-affected (FCA) countries through WTO accession, with the emphasis on institution building based on the principles of non-discrimination, predictability, transparency and the rule of law. Based on experiences of former FAC countries, WTO accession can help set the conditions to move out of a state of fragility or conflict into a state of stability, economic well-being and peace.”

There are ten events this week. The public can register to participate in the virtual panels. See WTO Accessions, Trade for Peace Week, https://www.wto.org/english/thewto_e/acc_e/t4peace2020_e.htm.

DDG Wolff spoke at one of today’s event and his comments are embedded below. See WTO press release, November 30, 2020, DDG Alan Wolff – DDG Wolff calls for more structured WTO cooperation with humanitarian and peace communities, https://www.wto.org/english/news_e/news20_e/ddgaw_30nov20_e.htm.

The twenty-three countries and territories in the bodog online casino process of accession include: Algeria, Andorra, Azerbaijan, Bahamas, Belarus, Bhutan, Bosnia and Herzegovina, Comoros, Curacao, Equatorial Guinea, Ethiopia, Iran, Iraq, Lebanese Republic, Libya, Sao Tome and Principe, Serbia, Somalia, South Sudan, Sudan, Syrian Arab Republic, Timor-Leste, and Uzbekistan.

Conclusion

The genesis for the GATT and the other Bretton Woods institutions was a desire to provide an infrastructure and global rules to minimize the likelihood of future world wars. Cooperation, collaboration and integration would all reduce the likelihood of global conflict.

The WTO provides the opportunity for countries or territories struggling to escape violence to embark on a path of hope. That is a core mission of the WTO today just as it was for the GATT in the late 1940s.

Moreover, the record over the first twenty-five years of the WTO’s existence has been that those countries and territories who take the challenging steps to become Members of the WTO improve their economies and speed growth, development and foreign direct investment. Accessions also offer real improvements in market access for existing WTO Members. A true win-win situation.

For an organization struggling to maintain relevance amidst deep divisions among Members who seem to have lost the consensus on the core purpose of the organization, the pilgrimage of non-member countries and territories to join the organization is a beacon of hope. Serious reforms and updating of the rule book are desperately needed for a better functioning system where outcomes are based on underlying economic strengths and not the interference of governments. A willingness of Members to refocus on what the purpose of the WTO is in fact and to be supporters of contributing to the maximum of one’s ability will be key to forward movement. Inspiration can be drawn from the efforts of non-members to join.

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

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“Thank you very much, Your Royal Highness, and I thank Saudi Arabia for its leadership.

“With respect to trade, there are three immediate challenges: to utilize trade to help underwrite the economic recovery, to facilitate trade in essential medical products to treat the pandemic, and to reform the institutional framework for world trade.

“First, trade finance for the developing world needs to be restored. The sum needed is very large, in the trillions of dollars. This step has been called for by business and by all the major international development banks along with the WTO. This is not just a development issue. When crops do not move and factories are idled throughout the developing world, the global recovery will be delayed for all. Close co-operation among the international financial institutions, the WTO and the large commercial banks will be needed. A trade finance initiative should be seen as an essential part of improving the outlook for economic recovery.

“Second, it is time for WTO Members to come together to agree on and implement measures to speed the supply of essential medical products worldwide to where they are needed.

“Global trade in pharmaceuticals should be duty-free under an updated Pharmaceutical Agreement.

“Medical equipment should be duty-free in an immediate update of the Information Technology Agreement.

“As new vaccines, therapeutics and diagnostics start to be rolled out, barriers at borders must be reduced, with an international understanding limiting the use of export restrictions, providing for much greater transparency and accelerating improvements in trade facilitation efforts, particularly for the poorest countries.

“Third, and last, the identification of areas of common interest achieved by the Riyadh Initiative on the Future of the WTO should result in immediate serious engagement by WTO Members in a major institutional reform effort. This would involve restoring the WTO’s deliberative and negotiating functions, providing binding dispute settlement seen as legitimate by all and providing for a strong proactive Secretariat. The WTO’s 12th Ministerial Conference next year will be an important landmark for this work. In actively engaging in the reform effort, G20 Members can contribute immeasurably to fulfilling the vision held by the founders of the multilateral trading system seven decades ago and the WTO a quarter century ago.

“Thank you.”

WTO, DDG Wolff urges G20 leaders to back WTO action to support economic rebound, pandemic response and WTO reform, 21 November 2020, https://www.wto.org/english/news_e/news20_e/ddgaw_21nov20_e.htm.

The G20 Leaders Summit is taking place virtually on November 21-22. The results of the Summit will be released later today. While a positive picture on agreed actions by the G20 will be presented, it is hard to imagine the G20 actually embracing the objectives/needs outlined by DDG Wolff.

For example, while it is likely that the G20 will lend support to a trade finance initiative to assist developing countries, the size of the initiative that is actually supported may be far less than the ambitious levels (trillions of dollars) identified as needed by Deputy Director-Wolff.

Similarly, while there is support in some quarters (e.g., the EU) for some of the trade liberalization initiatives identified in DDG Wolff’s second item, it is hard to see WTO Members being willing to reach consensus quickly on any of the three initiatives outlined. Certainly, the Pharmaceutical Agreement should be updated; how long that takes to accomplish is another issue and is unlikely to occur in a timeframe relevant to the COVID-19 pandemic. So too it is unlikely that WTO Members will quickly agree to duty free treatment of medical equipment whether under the Information Technology Agreement or otherwise, although countries needing to import such equipment have to a limited extent unilaterally reduced or eliminated duties during the pandemic. Such voluntary and temporary reductions seem the more promising short term solution. Finally, while individual countries have adopted trade facilitating/streamlining actions to speed the movement of medical goods and the WTO’s notification process has provided fair transparency of government actions, it is unlikely that there will be a quick agreement on limiting the use of export restrictions. There could be agreement on improved transparency and the WTO could work with LDCs and others to help them implement trade facilitation steps useful in speeding movement of medical goods.

On the third objective, “a major institutional reform effort,” while the G20 will undoubtedly support such action and support at least two of the three stated core planks — “restoring the WTO’s deliberative and negotiating functions, providing binding dispute settlement seen as legitimate by all” — the huge differences in objectives/concerns of many of the G20 countries makes any rapid movement towards reform in fact unlikely. For example, the United States, at least under the Trump Administration, has pushed for a fundamental rebalancing of rights and obligations in light of changed economic circumstances, pushed for a determination on whether the organization can function with very different economic systems under a set of rules designed for one type of economy, is seeking a restoration of the limited role envisioned for the WTO dispute settlement system and for panels and the Appellate Body. China has different objectives and opposes most of the U.S. priorities. The EU has very different views from the United States on the dispute settlement system. Thus, even before one looks at the broader WTO Membership, these three major Members have very different views on reform that will make efforts at reform at least time consuming (years not months). DDG Wolff includes in his list of reform efforts “providing for a strong proactive Secretariat.” This is an objective that has been stated by one or more past Directors-General, but it is unclear that there is strong Member support for a stronger Secretariat. Considering the U.S. concerns with the Appellate Body, it is hard to see them wanting a stronger Secretariat at the expense of Members. Indeed, WTO Members have frozen the WTO budget for years, and India has been seeking a reduction in budget resources for the WTO (10% cut has been proposed). The U.S. has also raised questions about Secretariat actions that appear outside of the agreed role of the Secretariat.

Conclusion

The G20 can have and has had an important role in limiting some of the more harmful actions of both G20 countries and of others in time of crisis. The G20 efforts to mobilize agreement on ways to keep markets open, limit market restrictions and support global initiatives to help smaller and more vulnerable countries has been and will continue to be important to reduce the depth of economic contraction and speed of economic rebound. And, of course, the G20 efforts go far beyond trade.

It has been important that the G20 has been open to receiving input from various organizations, including the WTO. The G20 has the ability to act fairly quickly where there is agreement among the countries. On trade, there are some major differences among G20 members not only on WTO reform but also on the need for existing WTO options for temporary export restrictions and willingness for providing greater transparency or to reach quick agreement on trade liberalization actions. Some G20 members have proposed broader WTO actions, and such actions may very well occur in the coming years although whether in time to alter the reality in the field during the COVID-19 pandemic is unlikely. Voluntary actions are obviously available in terms of reducing import restrictions including tariffs on medical goods and medicines/vaccines, and a number of countries have adopted streamlining actions to speed movement of medical goods during the pandemic.

Deputy Director-General Wolff’s statement to the G20 Leaders Summit contains important possible actions that the G20 could take or support. Some support from G20 members will almost certainly be forthcoming. Unfortunately, G20 action will not likely result in complete adoption of DDG Wolff’s proposals, nor will G20 action likely permit rapid implementation within the WTO or other organizations of DDG Wolff’s proposals. But it is useful to have a picture of a highly desirable future even if the audience for the message is unlikely to rise to the occasion for the global good.

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

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