The World Trade Organization’s (WTO) dispute settlement mechanism has not been fully functioning since December 2019. A viable alternative has emerged, but it will need more countries to sign on to help prevent cycles of tariffs and retaliation. 

The United States started blocking the appointment of new judges to the WTO Appellate Body in 2017. Once the Appellate Body fell below three members in December 2019 it could no longer hear new appeals. The United States has cited concerns regarding judicial activism and sovereignty as reasons for the block. With no functioning appeals process, decisions can be appealed without resolution, making it difficult for WTO members to resolve disputes. 

A temporary solution has emerged: arbitration and a speedy appeals process 

Simple arbitration has always been an option. Article 25 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes allows WTO members to use arbitration if the parties agree to a set of rules. But the case record shows that most countries have preferred the full dispute and appeal process. In fact, before the Appellate Body collapsed, the arbitration option was only used once and that was for an EU copyright case against the US involving Irish country music. 

In April 2020, once it became clear the Appellate Body was no longer functional, the European Union led an effort to set up an alternative system called the Multi-Party Interim Appeal-Arbitration Arrangement (MPIA). The agreement offers members access to an independent arbitration and appeal process for dispute settlement once the panel report is complete. So far 53 members have signed up, including Australia, Brazil, Canada, China, Japan, Mexico, and New Zealand, among others. The United States is noticeably absent. 

To use the MPIA process, the parties must agree to utilize that appellate arbitration process before they know the panel’s ruling. This is necessary otherwise the losing party can appeal into the void leaving the other party with no resolution. In other words, the parties either agree to accept the panel’s ruling and not appeal or they agree to an arbitration and appeals process within the MPIA framework. 

The MPIA arbitration process operates under a strict 90-day deadline, which is shorter than the traditional appeals process. It is possible, however, that MPIA cases could drag on during the implementation or negotiated solution phase. There have been 13 cases so far. Of these, two have been completed, three have been resolved without appeal, and eight are ongoing. 

James Bacchus and Simon Lester found that the WTO appeals process in cases between 2015 and 2019 took 117 to 170 days. The entire dispute process however includes extensive panel meetings and reviews and cases can drag on for several years. The European Commission’s regime for importing bananas was challenged by the United States and several other countries— the case began in 1996 and was not settled until 2012. Another well-known dispute involved government subsidies for large civil aircraft (namely, Boeing and Airbus). The US initiated a case against the EU in 2004, and that same year the EU initiated a case against the US. Both cases were resolved 17 years later with a 2021 agreement.

Recent cases 

The first case to use Article 25 arbitration since the Appellate Body collapse was the EU case against Turkey regarding its discriminatory practices in pharmaceuticals. Initial consultations were requested in 2019, but the panel was not composed until 2020 and by that time the Appellate Body has stopped fully functioning. At issue was Turkey’s “localization requirement” that forced foreign pharmaceutical companies to produce their products in Turkey to qualify for reimbursement under Turkish social security schemes. The EU argued that these measures discriminated against foreign pharmaceutical products and were incompatible with Turkey’s WTO commitments. The WTO panel ruled in favor of the EU. Turkey wanted to appeal but since it was not a member of MPIA, both parties agreed to send the case to non-WTO arbitrators and abide by their findings. (MPIA members agreed to a pool of 10 standing arbitrators and for each case three are randomly selected). This was the first time a WTO dispute appeal had been resolved in this way. The arbitrators supported some of Turkey’s arguments but agreed with the main WTO panel’s key finding that the localization requirement breached global trading rules. They advised Turkey to adjust its measures accordingly and a status report by Turkey indicates they are doing so. 

The first MPIA case was the EU case against Colombia and its antidumping duties on frozen fries. The initial ruling was in favor of the EU and Colombia appealed. Within 90 days, the MPIA panel found in favor of the EU and determined that Colombia’s duties violated WTO rules and unfairly restricted access to the Colombian market. 

Options facing WTO members that have a complaint 

Even without a fully functioning appellate body, WTO members still have options to resolve disputes. One option is simple arbitration under Article 25 and remains available to all WTO members. A second option is arbitration and appeals under MPIA for parties that have signed onto that agreement. Even if all the parties in a dispute have not signed on, it is still possible to use MPIA as long as everyone agrees to a clearly defined set of issues to be resolved and a set of rules and procedures for arbitration. A third option is to go through with consultations and a panel report and hope a resolution can be achieved. 

Requests for WTO DSU consultations have dropped off substantially since 2019 (figure 1). A few countries have filed even in the absence of a fully functioning appeals process. There have been some cases that have been resolved (e.g., Australia’s cases against China over duties on wine and barley) and others appealed into the void (e.g., India appealed a ruling against its tariffs on mobile phones; the United States appealed a ruling against its section 301 tariffs on imports from China). 

Absent a shared interest in resolution, there is little recourse for complainants even with a panel report in their favor. The complainant could choose to impose retaliatory tariffs but that can lead to a tit-for-tat tariff war with no resolution. For instance, China imposed retaliatory tariffs against the United States in response to the 301 tariffs. 

A large country may be willing to risk this, but smaller countries tend to be more exposed with less leverage regarding retaliation. Large countries can also be vulnerable though, especially exporters that are heavily reliant on WTO rules. US agricultural exporters are exposed because their market access abroad is heavily reliant on WTO rules like the Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Measures (SPS) agreements. 

Still working it out 

Countries need ways to resolve grievances. Otherwise, there is little use of having trade rules. That is why the dispute settlement mechanism has long been considered the crown jewel of the multilateral trading system. When it stopped fully functioning in 2020, some characterized the moment as an “existential crisis.” 

The EU-led effort on an interim appeal-arbitration process appears to be working well so far, at least as a temporary fix while WTO members discuss broader reform options. But the United States has not signed on, which leaves many in the lurch. 

Experts have suggested other bodog sportsbook review alternatives. For instance, the WTO could pursue a stronger monitoring role or use the “specific trade concerns process” in the WTO TBT and SPS committees to head off disputes before they are filed. Also, regional trade agreements such as USMCA and CPTPP have their own dispute resolution mechanisms. 

U.S. objectives for reform were circulated in July 2023 and include a streamlined dispute settlement process and ending judicial overreach. In September 2023, U.S. Trade Representative Katherine Tai said it is not the Biden Administration’s goal to restore the Appellate Body although recently Deputy USTR Maria Pagan indicated the U.S. is open to a focused appeals process, presumably to avoid judicial overreach. Technical talks for how to reform the dispute settlement process are underway and expected to finish by the end of the year.

Opinions expressed are solely those of the author and not the Yeutter Institute or the University of Nebraska-Lincoln.

Christine McDaniel is a Senior Research Fellow at the Mercatus Center and a Non-Resident Fellow at the Clayton Yeutter Institute of International Trade and Finance at the University of Nebraska-Lincoln

McDaniel_ Arbitration saving WTO for now

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Global trade recovery remains fragile. Geopolitical tensions, spillover from regional conflicts, rising populism and protectionist policies are putting unprecedented pressure on globalisation.

The prospect of a complete breakdown in relations between the United States and China adds weight to any pessimism. Each day brings further threat — or the reality — of unilateral trade measures. While legitimate concerns may undergird these measures, such as climate considerations, the net effect is chipping away at governments’ faith in the global rules-based trading system. This is creating a vicious cycle of more barriers and more protectionism.

Global business priorities have not shifted since the WTO was founded 30 years ago. Cohesive, multilaterally agreed rules for international trade that provide certainty and predictability remain a fundamental demand from traders around the world.

The WTO, despite its flaws, has proven to be the single cohesive vehicle able to attract multilateral participation — from countries across the world at every stage of development — to address global trade challenges. The need for such an institution has grown with time. For example, effective multilateral dialogue at the WTO level is required to resolve the unintended consequences of novel environmental legislation, such as the EU’s carbon border adjustment mechanism and new rules on deforestation, particularly as they affect small businesses in developing countries.

Against growing threats to the system, the urgency of reforming the WTO grows each day. Its rulebook must be updated to meet the challenges and opportunities of the 21st century — its rules enforced and its agreements effectively monitored. Reform must be tackled consistently with an eye towards lowering trade barriers and upholding current commitments. And this must be done in cooperation with the private sector.

The alternative to holistic reform is almost too awful to contemplate. An April 2024 an International Chamber of Commerce (ICC)-commissioned study found that WTO dissolution would have dire consequences for developing economies, decimating their exports by 33 per cent and lowering GDP by 5.1 per cent by 2030.

In that scenario, the trade-led convergence that has enabled developing countries to grow their economies would disappear. This would also hit producers in advanced economies by reducing supplier access, exposing developed countries to increasing volatility and higher consumer prices.

Countries that do not enjoy elevated levels of integration into global supply chains would be further disadvantaged by any erosion of the multilateral trading system. Given the catalytic role of trade in job creation, the implications for global poverty reduction perspective would be profound.

In this age of digital innovation, the world has never been technically better placed to conduct trade more efficiently. Technology underpins all modern supply chains, including the internet of things, big data, machine learning and artificial intelligence. This shift to digital technology calls for the movement of data and information across borders, with all stakeholders depending on seamless and uninterrupted information flows across companies and countries.

To secure supply chain resilience and efficiency, governments must promote policy coherence and harmonised digital rules, increasing the urgency for robust WTO action. As a start, an agreement containing disciplines that will address digital trade barriers and facilitate digital trade must be reached and implemented at the WTO.

Work is already going into accelerating the development of a globally harmonised, digitalised trade environment. The ICC Digital Standards Initiative is engaging the public sector to progress regulatory and institutional reform, and mobilising the private sector on standards harmonisation, adoption and capacity building.

Trade facilitation remains key to functioning supply chains. Delays at borders hinder cross-border trade at every level, both regional and international. Full implementation of the 2017 WTO Trade Facilitation Agreement — which has already increased trade by over US$230 billion — is more relevant than ever.

Low and middle-income countries have come a long way in fulfilling their trade facilitation agreement commitments, but many still require assistance to finish the job. A failure to connect developing economies to global markets threatens to cut them further adrift, stifling economic opportunity and reversing previous gains. Likewise, lack of implementation undermines supply chain optimisation in these countries, hindering competitiveness.

To support low and middle-income countries in this endeavour, the ICC co-leads the Global Alliance for Trade Facilitation with the World Economic Forum and the Center for International Private Enterprise. With the support of the governments of the United States, Germany and Canada, this entity uses the trade facilitation agreement to address obstacles to trade in an inclusive, sustainable way through public–private partnership. The alliance approach to meaningful trade facilitation initiatives involves buy-in and ongoing engagement from both government and business, from project inception through to post-completion, recognising a shared responsibility in promoting frictionless trade.

This spirit of public­–private cooperation must be brought to bear against today’s drift away from agreement and adherence to international rules and regulations. The WTO remains the best conduit for multilateral trade cooperation and future initiatives hinge on its reform and strengthening. Business as the real engine of economic growth and innovation needs to be engaged as a genuine partner — one that delivers on the concept of multi-stakeholder cooperation.

John WH Denton AO is Secretary General of the International Chamber of Commerce (ICC), Paris.

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The world at large thinks of the WTO as a place for the negotiation of trade agreements and where Member countries come to settle trade disputes. The public may be aware that there is a professional Secretariat issuing reports on current developments in world trade. They may know there are a host of committees of WTO Members administering the multilateral trading system that covers 98% of world trade. They have probably read about some of the world’s largest economies joining the WTO during the last quarter-century, events that garnered headlines, such as when China and Russia came into the Organization. They will know that world leaders for several years running have called for reform of the WTO.

What the general public is less likely to know is that much of the reform of the WTO over its 27-year life has taken place in the process of countries joining the Organization after it was founded in 1995. There are 128 original Members of the WTO, formerly GATT Contracting Parties, who signed up to the Uruguay Round Agreements and came in as a group on January 1, 1995. Since then, 36 countries have joined. They now account for about one-sixth of world trade. Twenty-four candidates are in the accessions process at present.

It was this critical area of accessions to the WTO that occupied much of Chiedu’s considerable energy during the last half of his time with the WTO, from 2009 to 2016. It was a key area in which the trading system made continuous progress during the entire span of the WTO’s existence. It has been a mainspring of WTO reform, never dramatic, rarely noted in the headlines, but it was an important agent of change.

Reform through accessions often involves commitments that are only undertaken by the acceding Member and that are not applicable to all Members. The original Members coming over from the GATT did not have to negotiate their entry to the WTO. Entry on day one of the WTO for these countries was relatively easy. All would recognize that once the WTO was established, acceding was and is not an easy process. Each accession is a negotiation and reflects the current trade issues of the day and the need for the country to bring its economy up to the standard that the other Members require of it – a standard that increases over time. From the acceding country’s point of view, the most palpable aspect consists of the requirements insisted upon for its domestic reforms. For the WTO as an institution, what is even more important are the reforms that each accession points to as an updated standard for international conduct, nothing short of a leveling up of the system.

By Alan Wm. Wolff – Distinguished Visiting Fellow at the Peterson Institute for International Economics (PIIE)

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Let’s take these in reverse order. Irrelevant? A survey of the issues which WTO members suggested as worthy of attention at the ministerial conference reveals a potential agenda at least twice in terms of size and scope compared with that of, say, ten years ago.

There is of course the overarching issue of the WTO’s response to the pandemic. Then there are various ongoing negotiations on important subjects like fisheries subsidies, agriculture and others. The future of the moratorium on imposing customs duties on electronic transmissions will have to be addressed. There is a range of what the WTO describes as “member-led“ initiatives on subjects like services domestic regulation, e-commerce and investment facilitation for development. And there is a huge agenda on trade and environment coming down the line. This is not to mention the cause célèbre of WTO reform.

The potential agenda was at one point so extensive that even the energetic director-general Dr. Ngozi Okonjo-Iweala had to plead with members to focus on a limited number of priority issues, otherwise the conference would be unmanageable.

There are many reasons why this should be so, including a sizeable list of legacy issues, geopolitical shifts causing trade friction, and governments wanting to push their domestic agendas on the international stage. The (partially) binding nature of commitments also makes the WTO an attractive forum for many “trade and…” subjects.

But it’s hard to avoid concluding that there is a growing realisation that the big global issues confronting the world today require global solutions. Only the WTO can deliver on that. Preferential trade agreements among groups of countries are all very well but they have limitations in terms of coverage, scope and international coherence. In any case, many of them simply restate basic WTO commitments.

The demand for the WTO’s services is clearly not only still there, but it continues to grow. This is not the agenda of an irrelevant organization.

Let’s turn now to the second charge – that the WTO is dysfunctional.

Any inter-governmental organization of 164 members operating a decision-making system based on consensus is almost by definition going to be inefficient. But what’s the alternative? Are major economies prepared to fall into line on politically sensitive trade rules just because they have been out-voted in Geneva? Some may regard that as a desirable aim in the long term, but in the short term it’s a recipe for disintegration.

That’s not to say that nothing can be done to improve the WTO as an institution. The current system too easily rewards blocking and hostage-taking of issues. Inherited practices in areas such as special and differential treatment, transparency and the committee structure need an overhaul.

The current inability of the dispute settlement system to operate fully is a major issue. This was once known as “the jewel in the crown” of the WTO, but was that really so? Was a system in which there were on average 25 trade disputes per year while negotiations floundered sustainable, or what the founders of the WTO in the Uruguay Round had in mind?

The imbalance, for reasons to do partly with the attitude of governments and partly with the appellate body itself, almost inevitably meant that the system would run into the buffers, as it eventually did. It turned out that the world – or at least some important parts of it – wasn’t ready for a supra-national international trade court. The good news, however, is that we now have the opportunity for a reset of dispute settlement. The exact shape may take some time to emerge but the chief antagonist (the U.S.) is now signalling that it will engage when it thinks the time is right.

Then there is also the inability of the organization to update its rulebook. Here too there may be light at the end of the tunnel. Large groups members, frustrated at their inability to make progress through the normal negotiating channels, have launched a number of “open plurilateral” or “member-led” initiatives at the WTO. All members can participate, even if they do not subscribe to the aims.

A case in point is the initiative on services domestic regulation. Stymied in the official WTO committee, 65 members have developed and agreed a “reference paper” incorporating additional, streamlined disciplines (thereby cutting compliance costs to business) which they intend to implement on an MFN basis through their WTO services schedules.

Other similar, well supported bodog casino initiatives on e-commerce and investment facilitation for development are in the pipeline. Various initiatives on trade and the environment have recently started. These may not all be susceptible of full implementation on the same basis as services domestic regulation but, usually, where there is a will there is a way.

It’s also conceivable that over time these developments will play back into the WTO’s negotiating dynamics, free up the system and possibly even affect the architecture of its constituent agreements.

In addition, there are realistic expectations that the long-running negotiations on fisheries subsidies can be wrapped up at the ministerial conference.

Nor should we forget that the WTO is only a forum, not an actor in itself. Its difficulties essentially reflect conflicting trade policies among its member governments. More honesty is needed in this regard.

For example, there has been a repeated tendency for the G20 (evident again in the G20 trade ministers’ statement of 12 October 2021) to regard the WTO as a broken institution for which there is a procedural fix. While its attention to trade is undeniably helpful, the G20 is long overdue moving beyond ritual protestations of willingness to strengthen the institution to finding common ground or joint leadership on specific issues.

Lastly, there is the meme of the WTO being in crisis. This rested to a significant extent on its near-death experience at the hands of the Trump administration. That threat has receded somewhat with the Biden administration now indicating its willingness to engage in a limited way at the WTO.

We should acknowledge that the WTO is not a major factor in U.S. trade policy. In a possible straw in the wind, some influential actors in Washington have proposed a new “trade compact” among developed market-oriented economies as a competitor to the WTO. On the other hand, it was encouraging to see the U.S. recently joining the services domestic regulation initiative.

The WTO itself plays counter-productively into the “crisis” scenario by ramping up expectations whenever a ministerial conference is on the horizon. It has done so again this year: we are told that it will lose all credibility if the conference does not produce meaningful results on the trade response to the pandemic and fisheries subsidies. Perhaps this is so, but it is also a time-honoured tradition to use these conferences as pressure points to try to force issues to conclusion. Would it be more sensible to treat them as routine stock-taking events and concentrate on producing results incrementally in Geneva?

The “crisis” may not have gone away entirely but it will dissipate if the WTO is seen as relevant and functional (even if still intrinsically somewhat inefficient). There is certainly a very strong case to be made for its continuing relevance, and there are grounds for believing that it is on the way to regaining more functionality.

Unheralded, under-appreciated and often unnoticed, the WTO remains the lodestar around which international trade revolves.

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This article briefly recounts the history of progressive multilateral liberalization and makes the argument that JSIs, far from being alien to the system, reflect the way progress has historically been made.

Anyone who knows the history of the multilateral trading system of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) was not surprised by the failure of the Doha Round.  A critical mistake was made when it was decided that the outcomes of the Doha Round should be decided by consensus and that all Members should be bound by those outcomes (the “single undertaking” approach).  Trying to make progress on this basis was bound to fail and it also reflected a misunderstanding of the origins of the Uruguay Round’s “single undertaking”.

When one revisits the Punta del Este Declaration that launched the Uruguay Round negotiations, it’s clear that there were a number of subjects, such as trade in services and protection of intellectual property rights, listed for negotiation where it was never expected that all of the Contracting Parties would participate in the negotiations and be bound by the outcomes.  How these outcomes would be implemented was left open for decision at the end of the talks. Technically, the services negotiations were not even under GATT auspices. It was decided that from a timing standpoint, the disparate negotiations should move forward as a “single undertaking”.

Progress in the GATT and WTO has almost never been possible on the basis of all member countries being bound by the same rules. In the 1950s only a limited number of governments undertook to be bound by the export subsidy disciplines of GATT Article XVI:4. The Kennedy Round produced the limited-membership Antidumping Code and the Tokyo Round resulted in a large number of limited-membership agreements that were implemented as “codes”. I would argue that even with their limited membership, the codes represented a big step forward in rule-making for important trade issues.

Bringing the codes into the GATT system was problematic.  Developing countries refused (initially) to have the GATT Secretariat administer the codes of which few of them were members. They blocked agreement and funding for this to happen. This led to a negotiation whereby, in order to get the codes into the system, developed countries agreed to the inclusion in GATT of Part IV – Trade and Development, and in particular the so-called “Enabling Clause” in paragraph 8 of Article XXXVI. The ‘Enabling Clause’ is the basis for special and differential treatment, including non-reciprocity and alower level of commitments from developing countries.  For developed countries, this was the price to pay for bringing the codes into the GATT framework.

It was the creation of a new organization – the WTO – at the end of the Uruguay Round, that made it possible to broaden membership in what had been the limited-membership codes and other agreements resulting from the round.  But it was not the WTO Agreement itself that obliged countries to participate. In reality participation was the result of blackmail by the Quad countries (the USA, European Community, Japan and Canada).  At the end of the Round, the Quad countries quit GATT 1947 and said that any country that did not join the WTO and accept all the agreements’ commitments would lose their MFN access to Quad markets. That is why there is a GATT 1994 and a GATT 1947.  It was the blackmail more than the creation of the WTO that enabled a “single undertaking” approach to WTO membership.

After the advent of the WTO, trade liberalization progress on the “multilateral” front came with limited-membership agreements for telecommunications services, financial services, and information technology products. Generally, these are called “critical mass agreements” because enough of a percentage of global trade was covered that participants were willing to accept some free-riding. Non-participants did not object because they received the benefits of the agreements on an MFN basis.

Fast forward to the post-Doha period where we find ourselves now. Over the past twenty years, all significant trade rule-making and liberalization has taken place in the context of bodog casino bilateral and plurilateral trade agreements outside of the WTO. WTO rule-making has been frozen in the 1990s while important trade issues have been subject to updated rules in the plurilaterals.

In recent years, some WTO Members have moved to update WTO rules through new “critical mass” agreement efforts called JSIs. JSIs address electronic commerce, services domestic regulation, and investment facilitation.  Certain countries – chief among them India and South Africa – evidently do not want to see progress in these areas and have opposed JSIs. In February 2021, India and South Africa circulated a paper arguing against the “legality” of JSIs (WT/GC/W/819).

There are a number of points made in this paper that I agree with. If a subset of WTO members negotiates an agreement that would modify rules and then want to “add that agreement to Annex 4” or formalize the agreement “into the WTO framework of rules” or bring the results of their agreement “under the umbrella of the WTO”, this cannot be done outside of the accepted framework of WTO rules and decision-making procedures. Related to this, in another part of their paper they correctly suggest that a proposed Trade in Services Agreement (TISA) involves rule-making and therefore would need to be implemented outside the framework of WTO rules. I don’t see a problem here as it was always my understanding that TISA would have been an agreement concluded pursuant to GATS Article V.

Where I disagree with India and South Africa is with some of the things they put forward in the Annex to their paper. For example, I disagree with their assertion that “even changes to schedules cannot be made unilaterally, as other members have the right to protect the existing balance of rights and obligations”. This is true if you want to make your schedule more trade restrictive but not if you unilaterally modify your schedule to make it more liberal. The certification procedure they refer to in connection with the Information Technology Agreement (ITA) was not a negotiation with all other WTO members. The ITA was essentially negotiated as an early JSI only among a subset of members on a critical mass basis.

So, as long as a JSI only involves changes in schedules (making them more liberal) and does not seek to modify WTO rules or bring the resulting agreement into Annex 4, I don’t see any conflict between JSIs and the legality of decision-making in WTO. With Members like India and South Africa blocking progress at the multilateral level in WTO, other Members have no recourse other than to pursue the JSI route, either as critical mass agreements within the WTO framework or where rule-making is involved, outside the WTO as plurilateral agreements.

Progress in the WTO has been scant over the past two decades, with many questioning its continued relevance as they pursue liberalization through bodog casino bilateral and plurilateral agreements outside the system. In the lead up to WTO’s next Ministerial Conference, it could well be the success or failure of JSIs that determines whether Members will see that WTO has continued relevance.

Andrew Stoler, former WTO Deputy Director-General; former Office of the United States Trade Representative senior trade negotiator; former Executive Director of Institute for International Trade; current advisory board member for European Centre for International Political Economy (ECIPE) and the University of Sydney’s United States Studies Centre.

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On April 29, 2021, the Peterson Institute of International Economics presented an hour virtual program with Mr. Wolff during which he presented his thoughts on “Saving the WTO, A Roadmap to the Future” and answered questions. Mr. Wolff provided a paper, and a slide deck (which he went through during his presentation). Links to the virtual meeting, his paper and his slide deck can be found here: PIIE Virtual Event, The Future of the WTO, April 29, 2021, Chttps://www.piie.com/events/future-wto; Alan Wm. Wolff, Saving the WTO, A Roadmap to the Future of the World Trade Organization, April 29, 2021, https://www.piie.com/sites/default/files/documents/wolff-4-29-2021speech.pdf; Alan Wm. Wolff, presentation slides, Saving the WTO, A Rodmap to the Future, April 29, 2021, https://www.piie.com/sites/default/files/documents/wolff-4-29-2021ppt.pdf.

Mr. Wolff’s paper, slide deck, and presentation reflect his thinking on the importance of the World Trade Organization, the challenges that need to be addressed to get to a future of continued importance for the WTO and reforms that will be required in the structure and operation of the organization. For those with an interest in the multilateral trading system and the challenges defining the current mix of global trade needs, Mr. Wolff’s materials are an important resource and will undoubtedly spark a lot of discussion in Geneva, in capitals and among those caring about a viable trading system. While there are practical aspects of his paper, the paper in total is aspirational. While there are many questions about whether the elements of the roadmap laid out are achievable and while there are some potential missing links or sequencing issues that may prevent forward movement on some items, Mr. Wolff’s vision of what could be is worth careful evaluation.

Mr. Wolff reviews that the WTO governs more than three quarters of world trade, is the basis for the hundreds of free trade agreements and has all Members stating that the system serves their interests. Negotiations, transparency/ implementation and dispute settlement are the core elements. For fragile and conflict-affected countries, membership supports achieving peace through improving opportunities for citizens. Since the late 1940s, the GATT and now the WTO have seen huge increases in trade with billions of lives improved as a result.

While the value of the WTO is encapsulated in the above aspects, there are obviously many problems bodog sportsbook review that plague the current functioning of the WTO. Some are discussed in Mr. Wolff’s paper — e.g., mistrust, limited success of negotiating function, lack of full transparency, breakdown of the dispute settlement system, and changing economic profile of Members and hence obligations Members should assume.

There are eight current major challenges that Mr. Wolff identifies as needing to be addressed to get to the future (slides 8 and 9):

“1. Dealing with the trade aspects of fighting the pandemic.

“2. Using trade to boost the economic recover, with special attention to developing countries.

“3. Making the recovery greener.

“4. Assuring that carbon border adjustment measures are based on cooperation and do not become a source of conflict.

“5. Forestalling fragmentation of the digital economy.

“6. Putting into place binding dispute settlement that is accepted as legitimate by all litigants.

“7. Making the trading system visibly more positive for workers.

“8. Reforming the WTO as an institution.”

Dispute Settlement discussion

There are many specific proposals for actions that are suggested to be taken under each of the topics. Each section of the paper is worth careful review. For purposes of this post, because I have written extensively on dispute settlement, I look at the section of Mr. Wolff’s paper dealing with dispute settlement (pages 14-18). Mr. Wolff’s discussion is copied below.

“Dispute settlement

“• The primary feature that distinguishes the WTO from most other international organizations is the fact that the commitments contained in its agreements are enforceable. Putting into place binding dispute settlement accepted as legitimate by all litigants is essential to restore enforceability.

“There being no Appellate Body (AB) at present, major litigants, including the U.S. and the EU, have used a procedural trick to prevent a dispute settlement panel finding from becoming final. This is informally known as “appealing into the void”. Proceedings are paused indefinitely while the losing party at the panel stage appeals to a body that does not exist except on paper.

“The blocking of appointments is the sole result of one Member, the United States, being dissatisfied with what the Appellate Body was doing and not doing, mostly rendering trade remedies less effective and in some instances totally ineffective. While killing off the Appellate Body was largely a matter of one Member acting against the will of 163 others, there has been a growing recognition that only a serious negotiation is going to resolve the matter. Importantly, an increasing number of Members now concede that the former system had serious imperfections, so that change is necessary.

“There is a far wider and deeper importance to the dispute settlement issue than correcting quasi-judicial overreach, or under-performance. The premise on which the United States entered into its agreements liberalizing trade was that industries and workers suffering harm from facing a more open domestic market or from unfair foreign competition would have a remedy within agreed limits. The erosion of trade remedies — their increasing unavailability and increasing ineffectiveness when available — caused a fundamental imbalance as compared with the deal that the United States thought that it had negotiated. In part it is due to this imbalance that a belief has grown in some quarters that the WTO serves capital rather than labor.

“It is the widely held view in the United States, in the Senate, House and Executive Branch, that the Appellate Body sowed the seeds of its own destruction. Domestic experience in the United States with its own Supreme Court is instructive. The Court itself becomes threatened if it becomes politically tone-deaf. This occurred with respect to
New Deal legislation during the 1930s, and it was, observers feel, threatened again during more recent times with the attempted judicial repeal of Obamacare. In the United States, the constitutional system has checks and balances preventing a rule by judges (gouvernance des juges as the problem was known when it was a central cause of the French revolution). In the WTO, there has been neither a legislative nor an executive function available to review and change any outcomes that emerged from the Appellate Body. Kritarchy, rule by judges, is a form or governance that is unsustainable, and that is what occurred, at least with respect to trade remedies. This is unsupportable for an organization consisting of Members prizing sovereignty over their own trade.

“The solution to the WTO dispute settlement problem lies in creating accountability to the Members. This should not take a form that interferes with the independence of its decision-making nor the binding nature of decisions. I support, as do almost all and perhaps ultimately all Members, a binding, independent, two-tier (panel and appellate stage) WTO dispute settlement system. As it may be impossible to create a relevant legislative function which would provide systemic checks and balances, much of the cure of necessity will have to lie in how a new Appellate Body (NAB) is structured.

“The European Union created a multiparty interim arrangement (MPIA). Although not a complete solution in itself, it can provide some ideas for moving forward with changes in the structure of the appellate body and how it functions. The process conducted by then Dispute Settlement Body Chair Ambassador David Walker also yielded elements of a
potential solution. The following suggestions could be considered:

“• Expand the number of Appellate Body members. The EU suggested a roster of 10 for its MPIA (only three serving on any one case) but this number could be expanded to provide greater diversity of representation both in terms of geography and skill sets — including relevant trade remedy experience, as antidumping and subsidies are complex matters.

“• Provide explicitly for a role of the WTO secretariat to seek to narrow differences and make the process more about settling a particular dispute than on seeking to make law.

“• Seek to uphold the primary importance of trade agreements by directing appellate panels to look at negotiating history to discern the intent of the parties.

“• Have strict time limits for appellate review to discourage a de novo examination of the issues at hand.

“• Place emphasis on streamlining written presentations as well as limits on length of decisions to focus on the essential elements needed to settle a dispute.

“• The rules should provide that only issues raised by the parties can be addressed on review.

“• Where the WTO agreements do not cover a specific issue, the matter should be referred to the Members to resolve through rulemaking.

“• Double down on the emphasis that the appellate review is not to expand obligations or limit rights and is to give due deference to domestic decision making where trade remedies are the subject of review.

“• The appellate body should not act as a collegial body on particular cases — appellate panels should be independent of each other.

“• It is necessary to try to provide a suitable oversight role for the Dispute Settlement Body (DSB) which is currently no more than a rubber stamp for appellate decisions.

“Another major problem with WTO dispute settlement is that it takes far too long to get to a result, often taking several years. This is unacceptable in the eyes of ministers of WTO Member countries bringing a case and industries seeking to benefit from it. Strict time limits must be adhered to. Justice delayed can easily become justice denied.

“As for process, I would suggest that the trilateral partners, the EU, the U.S, and Japan, begin working on a solution. The three are used to working with each other. The EU and the U.S. have been the furthest apart on the AB issue, with Japan somewhat in the middle. In parallel, a small working group of friends of the DSB chair or General Council chair, could be constituted to consider ways forward. The trilateral would feed suggestions into the working group, and both could report to the Membership as a whole in the DSB. At this stage bodog sportsbook review a meeting of the whole membership in the name of inclusiveness, would not be productive. Inclusion in a null result is not meaningful inclusion.”

As Mr. Wolff’s paper correctly notes, there have not been effective checks and balance on the Appellate Body which is not supportable over time as it results in obligations not from negotiations but from decisions of the Appellate Body. His suggestions address a number of concerns raised by the U.S., including overreach problems through clarifying what expanding rights and obligations means (e.g., no gap filling), providing deference to administering authorities in trade remedy cases (giving meaning to ADA Art. 17.6(ii), limit issues reviewed to those raised by parties, strict time limits, etc.

Missing from Mr. Wolff’s analysis is the concern raised by the Trump Administration that because economies such as the Chinese economy don’t conform to market-economy principles, the current dispute settlement system doesn’t permit addressing distortions created by such economic systems and permits such economies to block efforts to address such distortions by trading partners under their domestic law. Mr. Wolff while serving as a Deputy Director-General at the WTO reviewed his belief that the WTO system was premised on convergence of economic systems versus the coexistence of different economic systems. He repeated that view during the virtual event on April 29th and in his paper but noted that a number of WTO Members do not support that view. In a consensus based system, those opposed to convergence can block clarification of the need to converge. Mr. Wolff’s paper doesn’t review whether dispute settlement reform can occur without solving that underlying issue (either through achieving convergence or by adopting new rules to achieve more acceptable balance). Indeed, his paper suggests that “Part of the answer to distrust in the area of trade will be putting into place more effective and timely dispute settlement as a means for trade agreement enforcement.” (page 22)

Also missing from Mr. Wolff’s analysis is the need to curb review of factual findings of panels by the Appellate Body (the DSU Article 11 issue) and the need to address rebalancing of rights and obligations to correct for past overreach situations.

Conclusion

Mr. Wolff’s paper and presentation correctly claim that the WTO must be more engaged and respond to the existing challenges through action. While acknowledging the mistrust and problems with the current structure and operation of the WTO, his remarks present a vision of a better functioning global trade system that responds to the needs of its Members, is capable of addressing a changing world through improved transparency, cooperation, updated rules, a revised dispute settlement system and a Secretariat that is able to present ideas for action, independently monitor compliance and more.

For skeptics, it will be easy to point to not only mistrust, but vastly different perspectives by Members on the role of the WTO and the focus of future activities, the current consensus system and its use by many to thwart movement, and the increased activity of Members outside of the WTO to support the view that Mr. Wolff’s vision, however interesting, has no chance of succeeding.

Mr. Wolff quotes President Theodore Roosevelt in his paper (page 5), a quote that he would undoubtedly put forward in response to the skeptics and to urge WTO Members to recommit to the effort.

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust
and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.“

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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“Antidumping and countervailing duty proceedings in the United States are very transparent with full access to information on the record available to parties under administrative protective order and with many opportunities to submit comments, raise questions, seek clarification or respond to additional inquiries flowing from earlier responses. It is quite common for Commerce to receive requests for more time to respond to the initial questionnaire and to any supplemental requests flowing from developments. Responding parties can determine whether or not to submit all information, partial information or no information. Questionnaire responses are often incomplete or adopt interpretations of what has been requested to provide less than complete information. In antidumping investigations, it is not uncommon for respondent data bases to change during the course of the investigation, sometimes markedly. Briefing after the preliminary determination permits challenges to the preliminary determination by all parties, including challenges to use of facts available. While there are always legal issues that are briefed, facts available issues are fact-based issues flowing from whether parties cooperated, withheld information, failed to supply requested information, etc., and if so, what alternative information is available that can be used.

“The ADA provides special provisions on dispute settlement in Article 17.6. The approach on review of facts is laid out in Article 17.6(i) of the ADA (there is no counterpart in the ASCM for the reason that Art. 17.6 of the ADA was added at the end of the Uruguay Round without chance to consider adopting a parallel provision in the ASCM). Art. 17.6(i) states:

“‘17.6  In examining the matter referred to in paragraph 5:

“‘(i)   in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;’

“Article 17.6 was added to the ADA at the end of the Uruguay Round at the insistence of the United States which was interested in seeing that very complicated and detailed administrative proceedings were not second guessed by panels or the Appellate Body which would not have been involved in the proceeding or have access to all materials. Art. 17.6(i) deals with providing deference to administering authorities on facts. Art. 17.6(ii) does the same for legal interpretations for provisions subject to more than one meaning.

“The panel report, following other panel and Appellate Body reports that have been problematic from the U.S. perspective, doesn’t view Art. 17.6(i) as being deferential to an investigating authority as long as the authority hasn’t conducted the investigation in a biased or non-objective manner or somehow established facts improperly. See WT/DS539/R at para. 7.23 – 7.36 (after a review of the meaning of ADA Art. 6.8 and Annex II, the panel sums its view of the panel’s task to be the following: ‘In sum, we consider that the terms of Article 6.8, interpreted in light of their context and object and purpose, require investigating authorities to select – in an unbiased and objective manner – those facts available that constitute reasonable replacements for the missing ‘necessary’ information in the specific facts and circumstances of a given case. In doing so, investigating authorities must take into account all facts that are properly available to them. In selecting the replacement facts, Article 6.8 does not require investigating authorities to select those facts that are most ‘favourable’ to the non-cooperating party. Investigating authorities may take into account the procedural circumstances in which information is missing, but Article 6.8 does not condone the selection of replacement facts for the purpose of punishing interested parties.’).

“In reading the panel report, the Commerce Department is not given deference for its decisions of what facts available should be used. Thus, that violations were found for how Commerce determined facts available in each of the six proceedings reflect the panel reaching a different conclusion than Commerce. But while the panel may have reached a different result than Commerce, that by itself does not constitute a basis under Art. 17.6(i) to find a violation.

“Conclusion

“The constant limiting by panel and Appellate Body reports of the ability to utilize trade remedy agreements is, of course, the main substantive concern that the United States has with the operation of the WTO’s Dispute Settlement system, although there are examples of the same problem in other areas covered by panel or AB reports as well. Last week’s panel report on Korea’s challenge to U.S. antidumping and countervailing duty proceedings on the use of facts available continues to undermine the legitimacy of WTO dispute settlement.

“Accordingly, the Biden Administration should file an appeal from last week’s panel decision and ensure that any eventual resolution of the Appellate Body impasse includes a restoration of rights that have narrowed or eliminated under the trade remedy or trade defense agreements (ADA, ASCM and safeguard).”

Today’s appeal

A Dispute Settlement Body meeting was scheduled for today with only one item on its agenda, consideration of the panel report in DS539. The WTO has reported on its website that the United States filed an appeal of the panel report today, March 19, 2021. WT/DS539/9. While the notice of appeal is not yet up on the WTO website, the U.S. has presumably indicated it is challenging the erroneous interpretation of ADA 17.6(i) among other issues.

The U.S. appeal is the ninth such appeal to the Appellate Body after December 10, 2019 when the Appellate Body ceased to have at least three members (and hence is unable to hear new appeals) and the eighteenth appeal that awaits the restoration of an Appellate Body for an appeal to be heard/completed.

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 WTO has been in the clutches of a slow-moving crisis for years. At its heart are a series of disputes about the role of the WTO’s Appellate Body, the final arbiter in the WTO’s Dispute Settlement System. Today, the Appellate Body sits empty, severely undermining the capacity of the WTO to resolve trade disputes.

Since the start of the Trump administration, the United States has refused to appoint any new members to the body, effectively allowing countries to avoid compliance with WTO rulings. The primary driver of this drastic action has been American frustration at perceived judicial overreach. U.S. policymakers, starting with the George W. Bush administration, have repeatedly voiced their displeasure with Appellate Body decisions, contending that certain decisions have reached beyond the text of existing WTO agreements.

In particular, U.S. complaints have focused on WTO rulings that criticize the United States’ use of antidumping and countervailing duties. These tariffs are intended to protect American firms against subsidized or predatorily priced goods and have become an increasingly important part of the American trade arsenal. Another area of concern has been the narrow way in which the Appellate Body has defined “public bodies,” a ruling that makes it harder to apply tariffs against goods produced by state-owned enterprises in China and elsewhere. Finally, the slow speed of the Appellate Body decision-making—which allows violations to continue for years—has been a continual source of agitation.

Some policymakers, like former bodog sportsbook review|Most Popular_of an Appellate, have concluded that the Appellate Body in its current form threatens the ability of the United States to protect itself from unfair trade practices in an increasingly competitive global economy. As a result, the Trump administration chose to defang the body by refusing to appoint any new judges. While the Obama administration similarly blocked judges it felt would not narrowly apply WTO rules as written, the Trump administration’s decision to block all nominations hamstrung the WTO’s ability to resolve trade disputes and put the rules-based trading system at risk. While this drastic step could have potentially provided the leverage needed to fix the WTO, the Trump administration failed to advance a clear reform agenda. Today, however, the Biden administration has the opportunity to use the leverage its predecessor accrued to pursue meaningful WTO reform—an opportunity potentially enhanced by the EU’s recent moves on trade.  

Until the European Union announced its new trade strategy, some U.S. officials viewed the European Union as part of the problem, accusing it of applauding what they saw as flaws in the Appellate Body.  The EU had been reluctant to endorse U.S. critiques and expressed frustration with the blunt approach adopted by the Trump administration. The newly released trade strategy, however, suggests a new path forward.

The document includes an annex that reasserts the European Union’s interest in reforming the WTO—and explicitly recognizes that “the United States has raised a number of valid concerns” about the role played by Appellate Body. The annex goes on to single out specific issues that the United States has complained about, including the need for “judicial economy,” for new rules to restrain state-owned enterprises, and for the Appellate Body to adhere to stricter timelines. It then suggests that, in the run-up to the WTO’s twelfth Ministerial Conference, the United States and the EU “could intensify their engagement on all aspects of WTO reform to seek a maximum of convergence on their respective positions, including possible joint proposals.”

This is a clear signal that the EU is prepared to move toward the United States on the issue of Appellate Body reform. Whether any such movement will be far enough for Washington remains to be seen. It may depend on the degree to which the Biden administration links dispute settlement reform to other changes at the WTO that have also frustrated the United States, such as the application of “developing-country status” and member states’ lack of compliance with the WTO’s transparency and notification requirements. The Commission report makes clear, however, that restoring the dispute settlement is “the most urgent of WTO reforms,” stressing that it should “not be linked to the other aspects of WTO reform.”

WTO reform is also only one element of an increasingly complicated transatlantic relationship the Biden team will have to navigate. The steel and aluminum tariffs imposed by the Trump administration have rankled our European allies, while France has imposed a digital services tax that has raised the ire of Silicon Valley. Going forward, the EU’s interest in implementing a carbon-border adjustment mechanism may create added friction with the United States, particularly if U.S. domestic political gridlock continues to prevent meaningful American action on climate change. Unless carefully managed, these issues could undermine any transatlantic cooperation on WTO reform. On the other hand, the recent decision by both sides to temporarily suspend the retaliatory tariffs imposed as part of the long-running Boeing-Airbus subsidy dispute is a positive sign that the EU and the Biden administration can work together to resolve previously intractable problems. 

Despite inevitable points of friction, the United States should recognize, and attempt to seize, the opportunity being offered by the EU. The WTO, despite its problems, remains the best venue through which to resolve issues related to global trade. The United States needs to retain a binding WTO dispute settlement system in its foreign economic policy toolbox, particularly as it works to check China’s systemic abuses. Engaging in good faith with the EU on the issue of Appellate Body reform would also offer Washington a springboard toward addressing the other critical global economic issues. While there is no guarantee of success, rebuilding the strength of the rules-based trading system will be essential as the world economy continues to evolve and the climate continues to change.

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There are lots of smaller numbers too: the 20 non-profit organisations that have appointed Okonjo-Iweala to their advisory boards, the major banks and corporations she has advised, the 10 honorary degrees in addition to her own doctorate, 20 or so awards, dozens of major reports authored, and the books.

Then there are the multiple lists frequently featuring Okonjo-Iweala, 66: the world’s 100 most powerful women, 100 most influential people in the world, 10 most influential women in Africa, Top 100 or 150 women in the world, and many others.

On Monday, Okonjo-Iweala was added to a new list: that of the director generals of the World Trade Organization (WTO), a position that has never before been occupied by an African person nor by a woman. She will take over the institution, with its budget of $220m and staff of 650, at a critical time.

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