WTO dispute settlement

Many members call for enforceable appeal/review mechanism at WTO

dlegge — Wed, 05 Jun 2024 07:04:06 +0000

Many members call for enforceable appeal/review mechanism at WTO

31 May 2024

dlegge Wed, 05/06/2024 - 17:04

Author/s

D. Ravi Kanth

TWN Info Service on WTO and Trade Issues

Many members call for enforceable appeal/review mechanism at WTO

Many members on 30 May called for preserving the two-tier dispute settlement system, including the binding Ap pellate Body, to ensure the continuation of a robust enforcement function at the Wo rld Trade Organization, said people familiar with the discussions.

At the first formal meeting on dispute settlement reform at the level of He ads of Delegation (HoD) on 30 May, the new facilitator, Ambassador Usha Dwarka-Canabady of Mauritius, explained the process that she would follow i n the coming days and months.

In an "urgent" email sent to members on 27 May, Ambassador Canabady, who had participated in one or two dispute settlement panels in the past, infor med members that "the focus of the 30 May 2024 DS Reform HoDs meeting should be on how to resolve the questions of appeal/review and accessibility."

[...]

It is not clear whether the co-convenors have substantial institutional kno wledge about the dispute settlement reform discussions, which had been conducted informally by the former facilitator, Mr Marco Molina, deputy trade envoy o f Guatemala, till the last week of January, said a person who asked not to be quoted.

Mr Molina was abruptly dismissed by his government, with one major member being unhappy with the speed at which he produced revised texts. Apparently , several countries wanted to send a petition to request the Guatemalan gover nment to change its decision, but one member disapproved of the attempt, said a t rade envoy, who asked not to be quoted.

So far, there is little clarity on the large volume of work that was almost finalized by the previous facilitator and whether it will be used by the six co-conve nors, the person said.

[...]

The last statement made by the US concerning DSS reform was at a Dispute Settlement Body (DSB) meeting on 24 May.

In that statement, the US made two pertinent observations.

First, it maintained that "as we undertake our work with the Facilitator, w e must bear in mind that re-launching the Appellate Body selection process will no t address the concerns - and calls for the restoration of the Appellate Body undermine our collective efforts for reform."

Secondly, the US said, "As WTO Members continue our efforts to better understand each other's interests in WTO dispute settlement, the United Sta tes remains focused on achieving a reformed system that meets the interests of all Members to the greatest extent possible. The United States has been working with Members to advance this goal, and we look forward to continued engagement."

More here (not yet posted)

Keywords

WTO dispute settlement

Security exceptions and trade norms in WTO reforms

dlegge — Fri, 24 May 2024 01:08:16 +0000

Security exceptions and trade norms in WTO reforms

23 May 2024

dlegge Fri, 24/05/2024 - 11:08

Author/s

Michitaka Nakatomi

East Asia Forum

Security exceptions and trade norms in WTO reforms

The narrowing economic gap between the United States and China has led to growing use of World Trade Organization (WTO) security exceptions, a development requiring a review to prevent abuse of the concept. A balance between these exceptions and free trade must be maintained through restoring the WTO's legislative function, realising the goals of Joint Statement Initiatives and clarifying trade remedy measures.

The rapid narrowing of the economic and technological gap between the United States and China since the late 2010s has triggered confrontation. Because of this, security-based perspectives have shaped various measures introduced into trade and commerce around the world.

The current approach to security issues is one of the most important challenges facing the World Trade Organization (WTO). There is a need to seriously review how to harmonise security and free trade without abusing the concept of security. The war in Ukraine has shown that one area needing to be reassessed is the principle of security exceptions stipulated in Article 21 of the General Agreement on Tariffs and Trade 1994 (GATT).

One issue with adjudicating security exceptions is the ambiguities in Article 21 and a lack of sufficient precedents and deliberations related to legal interpretations. Another issue relates to the increasing instances of the losing party in WTO disputes ‘appealing into the void’ — the lack of a functional Appellate Body rendering disputes suspended until appeals can be heard.

The failure of broad trade rules to develop alongside the needs of the times has led to expanding and abusive invocations of the security exception.

Keywords

WTO

WTO dispute settlement

TWN Briefings for 13th WTO Ministerial Conference

dlegge — Wed, 28 Feb 2024 03:20:20 +0000

TWN Briefings for 13th WTO Ministerial Conference

26 February 2024

dlegge Wed, 28/02/2024 - 14:20

Author/s

TWN

TWN Briefings for 13th WTO Ministerial Conference

Analysis of e-commerce JSI chairs’ text of 20 February 2024, INF/ECOM/85 Rev. 1 by Jane Kelsey
Agriculture and food security in MC13: Going forward or backward? by Ranja Sengupta
Dispute settlement reform: The informal process and the way forward after MC13 by Kinda Mohamadieh
Commentary on the draft text of the informal discussions on dispute settlement reform
Risks in trade as a solution for environmental problems by Abhijit Das
Comments on the investment facilitation framework: Are there real benefits to bringing it under the umbrella of the WTO? by Kinda Mohamadieh
Commentary on the investment facilitation text
Fishing subsidies negotiations towards MC13: Some key issues by Ranja Sengupta

Keywords

e-commerce

WTO Agriculture

WTO dispute settlement

WTO Fisheries

WTO Environment

What’s at Stake at the WTO’s 13th Ministerial Conference This Month in Abu Dhabi?

dlegge — Mon, 26 Feb 2024 01:47:51 +0000

What’s at Stake at the WTO’s 13th Ministerial Conference This Month in Abu Dhabi?

23 February 2024

dlegge Mon, 26/02/2024 - 12:47

Author/s

DEBORAH JAMES

CEPR

What’s at Stake at the WTO’s 13th Ministerial Conference This Month in Abu Dhab…

rom February 26–29, 2024, the United Arab Emirates (UAE) will host the 13th Ministerial Conference (MC13) of the World Trade Organization (WTO). Governments from 164 countries will be joined by Timor-Leste and Comoros, the first two nations to join the group since 2017.

At stake is a fight between two visions of what role the WTO, as the world’s most powerful rule-making body in the global economy, should play.

Should the institution expand as an even more corporate-influenced body, with rich countries allowed to set agendas, impose negotiation mechanisms in their favor, and leave poorer countries — and multilateralism itself — in the dustbin of history?

Or should members of the institution recognize the constraints that the current rules place on developing economies, including the harm caused to workers, farmers, and the global environment, and increase flexibilities so that these countries can use trade for their development?

Ministerial Declaration

Debates over the Ministerial Declaration illustrate most clearly what is at stake. There are two primary assaults through which rich countries are attempting to take the WTO in a more pro-corporate and less multilateral direction. First, by changing the rules on how the WTO operates. Many developed countries, with support from the director-general, are attempting to make it even more responsive to corporate wishes and even less able for developing countries to have a fair shake at negotiations, under the rubric of “WTO reform” and the euphemism “Reform by Doing.” And second, by negotiating plurilateral agreements to replace multilateralism and requirements for consensus and impose an even more neoliberal order, notwithstanding developing-country resistance.

WTO “reform” has emerged as a key focus of WTO activities in recent years. But rather than make the institution more responsive to members’ needs for development policy space, the current efforts must be understood as hijacking the “reform” concept to eviscerate developing countries’ ability to bargain collectively.

Read more at: https://cepr.net/whats-at-stake-at-the-wtos-13th-ministerial-conference-this-month-in-abu-dhabi/

Keywords

WTO

WTO dispute settlement

WTO Development

WTO Investment facilitation for development

WTO Services domestic regulation

World trade cooperation will be put to the test in Abu Dhabi

dlegge — Mon, 26 Feb 2024 00:32:54 +0000

World trade cooperation will be put to the test in Abu Dhabi

25 February 2024

dlegge Mon, 26/02/2024 - 11:32

Author/s

DOUG PALMER, CAMILLE GIJS

Politico Pro

World trade cooperation will be put to the test in Abu Dhabi

Here’s a roundup of the issues at stake at the upcoming ministerial:

Fishing subsidies: The WTO reached a partial agreement at its last ministerial conference in June 2022 to curb subsidies that threaten the future of ocean fish supplies.

This time they are trying for a more comprehensive agreement that would hopefully have a much bigger impact on maintaining one of the world’s most important food stocks.

Of all the issues at stake in Abu Dhabi, officials are most hopeful about getting this negotiation over the line. “If there’s no agreement on fish at MC13, that’d be a tragedy,” one Geneva-based diplomat said.

For Okonjo-Iweala, the negotiation is proof the WTO is still relevant. “260 million people depend on fisheries for their livelihood, and the oceans are being overfished. [The question for ministers in Abu Dhabi is] can we save the oceans, be part of the regenerative blue economy and save jobs?” she told POLITICO in an interview.

Digital trade: One of the biggest achievements of the upcoming ministerial meeting could be maintaining a ban on the collection of tariffs on digital goods and other “electronic transmissions.”

The ban has been in place since 1998, but some member countries such as India, South Africa and Indonesia believe they are missing out on valuable tariff revenue because of streaming services that have largely replaced DVDs and CDs.

Supporters of the ban say the lost revenue is trivial compared to the cost of letting the moratorium expire, which they worry could open the door for tariffs on all sorts of data and transactions that cross borders over the internet.

Business groups also argue failure to renew the moratorium would be a major setback since it would be the first time the WTO has made a decision that makes it harder to trade.

“The majority of members want the extension but there are a few members who find it's a problem because they think it has an impact on revenues,” Okonjo-Iweala said. “Let's see what comes up from the negotiations. We were able to successfully extend the e-commerce moratorium” at the WTO’s 12 Ministerial Conference in June 2022.

Dispute settlement: The United States’ most meaningful move at the WTO in recent years was a negative one in 2019, when the Trump administration effectively killed the group’s powerful Appellate Body, which decided trade disputes between member countries, by blocking the appointment of new judges.

Trump officials charged the panel had gone too far in restricting how the United States could impose duties on goods it believes are unfairly priced or subsidized. Trump’s chief trade negotiator, Robert Lighthizer, called it “a colossal and tragic failure” in a recent book.

But most other members want to see the Appellate Body restored so they can appeal lower panel decisions that they believe are mistaken.

Some progress could be made in Abu Dhabi, but Biden administration officials have been clear they see the end of 2024 — after the U.S. presidential election — as the real deadline for reaching an agreement to reinstate some sort of judicial function.

Food security: In what has become a regular feature of recent WTO ministerials, India wants its anti-hunger program to be permanently protected against a challenge that it violates the country’s cap on trade-distorting farm subsidies.

It won a temporary peace agreement in 2013, but major agricultural exporters, including the United States, are increasingly frustrated by the way India operates its food security program, particularly for heavily-traded commodities such as rice and wheat.

India has threatened to block progress on all other issues at the upcoming ministerial unless an agreement on its public stockholding is reached. That puts tremendous pressure to accommodate India’s demand or risk having a failed ministerial.

Covid-19 treatment patent waivers: WTO members could also face a decision on whether to waive intellectual property protections for Covid-19 therapeutics and diagnostics. That would open the door for developing country manufacturers to make generic versions of Paxlovid and other treatments, as well as test kits and assorted other products.

But with Covid-19 feeling like a problem of the past for some, expectations of a deal are very low.

South Africa, India and other developing countries have pushed for the decision after winning a waiver for Covid-19 vaccines at MC13. The Biden administration has avoided taking a public position on the issue, which is fiercely opposed by the U.S. pharmaceutical industry and the business community more broadly, but supported by groups on the left.

The WTO committee in charge of discussing intellectual property rights recently told the WTO General Council that it had been unable to reach agreement on the issue after more than 18 months of discussion. That could signal the end of the road for efforts to expand the waiver, but pharmaceutical industry officials fear it could still be approved by ministers at MC13 as part of the final horse-trading that occurs to reach some deal.

WTO accessions: One bright spot on the meeting’s agenda is the accession of two new members, Comoros and Timor-Leste, to the WTO. They will be the first new members since Liberia and Afghanistan joined in July 2016.

The combined population of the two countries is less than 2.5 million, so the accessions won’t mean much to world trade. Timor-Leste is the larger of the two, with an estimated population of about 1.3 million in 2021, while Comoros has less than 900,000 people.

Another 22 countries are currently negotiating the WTO, another statistic Okonjo-Iweala cites to refute talk that the group is becoming irrelevant. The number of applicants “speaks for itself in terms of the organization and the way that people and countries see it,” she said.

Keywords

WTO dispute settlement

e-commerce

Draft ministerial decision silent on appellate review in DSS reform

dlegge — Sat, 17 Feb 2024 02:21:38 +0000

Draft ministerial decision silent on appellate review in DSS reform

15 January 2024

dlegge Sat, 17/02/2024 - 13:21

Author/s

D. Ravi Kanth

TWN

Draft ministerial decision silent on appellate review in DSS reform

Several members of the World Trade Organization sought to know from the facilitator overseeing the reform of the WTO’s dispute settlement system (DSS) as to why his 49-page draft ministerial decision did not include language on the crucial pillar of Appellate Review, particularly the Appellate Body.

Keywords

WTO dispute settlement

Attempts to weaken dispute settlement system, enforcement function

dlegge — Tue, 30 Jan 2024 06:00:33 +0000

Attempts to weaken dispute settlement system, enforcement function

15 October 2023

dlegge Tue, 30/01/2024 - 17:00

TWN

Attempts to weaken dispute settlement system, enforcement function

The facilitator overseeing the informal discussions on reforming the World Trade Organization’s dispute settlement system issued a confidential zero draft text on 3 October that appears to curtail the organization’s vital enforcement function.

Keywords

WTO dispute settlement

Senior officials say their views on agriculture & DS reform “doctored”

dlegge — Tue, 30 Jan 2024 05:44:37 +0000

Senior officials say their views on agriculture & DS reform “doctored”

01 November 2023

dlegge Tue, 30/01/2024 - 16:44

Author/s

D. Ravi Kanth

TWN

Senior officials say their views on agriculture & DS reform “doctored”

While the chair of the World Trade Organization’s General Council (GC) and the WTO Director-General said on 24 October that the two-day Senior Officials Meeting (SOM) ended on an optimistic note with clear guidance going forward, the Chairpersons’ Summary issued by them has raised some serious questions.

See full report for further details on Dispute settlement, TRIPS, Agriculture, Development, Fisheries subsidies, WTO reform, JSIs

Keywords

WTO Agriculture

WTO dispute settlement

Draft ministerial decision silent on appellate review in DSS reform

dlegge — Tue, 30 Jan 2024 05:20:58 +0000

Draft ministerial decision silent on appellate review in DSS reform dlegge Tue, 30/01/2024 - 16:20

TWN

Draft ministerial decision silent on appellate review in DSS reform

Keywords

WTO dispute settlement

Facilitator: Dispute settlement talks offer 'viable' ideas for reformed appeals stage

dlegge — Sat, 27 Jan 2024 01:06:00 +0000

Facilitator: Dispute settlement talks offer 'viable' ideas for reformed appeals stage

26 January 2024

dlegge Sat, 27/01/2024 - 12:06

IUST

Facilitator: Dispute settlement talks offer 'viable' ideas for reformed appeals…

World Trade Organization negotiators have identified several “concepts” that could be the basis for a “viable solution” to the question of what the appeals stage of the dispute settlement system will look like, the facilitator of the reform talks said on Friday, adding that a deal on that issue is possible before the 13th ministerial in one month -- if members work with enough “determination.”

The WTO Appellate Body has been largely defunct since December 2017, as the U.S. has maintained a block on filling vacancies on the body across two administrations, leaving more than 30 appealed disputes in limbo. The fracture of the dispute settlement system sparked a reform effort, which has produced a draft text that identifies a number of procedural and operational improvements to the system, although it does not yet include any outline of a new or reformed appeals stage.

The dispute settlement reform talks are being facilitated informally by Guatemala’s deputy permanent representative, Marco Molina, who took the reins in early 2023 following initial discussions launched by the U.S. the previous year. During a Dispute Settlement Body meeting on Friday, Molina told members the discussions are happening on two tracks: One for refining the existing draft text and one for how to set up an appeal or review mechanism.

The talks on a second stage have identified some promising “concepts” that members hope could lead to an eventual deal, Molina said, according to a copy of his remarks obtained by Inside U.S. Trade.

“These concepts are undergoing refinement and testing to ensure they address the interests and concerns identified by Members. In the coming days, the plan is to create an inventory of the elements of these concepts gaining interest and support among Members and further develop those that require consideration,” he said. “Gradually, we are progressing towards finding a viable solution for the appeal/review mechanism.”

Molina did not elaborate on what those concepts were but insisted that a solution was still possible ahead of MC13, which is set for Feb. 26-29 in Abu Dhabi, United Arab Emirates.

“With Members’ commitment, determination, and a focus on interests and concerns, it is feasible to achieve the objective of designing an appeal/review mechanism that works for all WTO Members in the next few weeks,” he said.

According to Molina, the goal is to complete the draft text -- likely without the appeals stage -- by Feb. 9, with an updated version set to be circulated on Jan. 29. Once members finish finalizing the draft text, “the intention is to shift all attention and energy to the question of the appeal/review mechanism,” the facilitator said.

During Friday’s meeting, a vast majority of members -- more than 130 -- again proposed restarting the Appellate Body nomination process as they have since the U.S. first instituted its block. The U.S. again blocked the proposal, arguing -- pointedly -- that it undermines the reform effort.

“Under the previous agenda item [on dispute settlement reform], Members’ statements focused on the future of the dispute settlement system; under the current agenda item [on the Appellate Body proposal], Members continue to look back,” the U.S. said, according to a copy of its remarks provided by the U.S. Mission in Geneva. “It may be that some Members prefer the status quo. But let us be clear: the old system was not working for the United States and it was not working for many other Members.”

“In contrast, investing in dispute settlement reform presents an opportunity to build a new system that overcomes the problems of the past,” the U.S. added. “As we engage on reform, we must bear in mind that re-launching the Appellate Body selection process will not address the concerns -- and calls for the restoration of the Appellate Body undermine our collective efforts for reform.”

The U.S. has continuously praised the informal process and did so again during the meeting, saying it has led to “substantial progress” and produced a “draft text on a number of procedural and functional reforms” that shows “a shift in the culture toward resolving disputes and avoiding needless litigation for the sake of litigation.”

But Washington also noted that “difficult issues remain,” citing the needs of developing and least-developed country members as well as “critical substantive areas where ‘judicial’ overreach has damaged the functioning of the WTO and altered the balance of Members’ rights and obligations.”

“If you are concerned about policy space, you should be for a reformed dispute settlement system. A reformed system should address erroneous interpretations on such issues as essential security, regulatory space, remedies for unfair trade, and other fundamental systemic issues,” the U.S. added.

“Policy space” is a bit of a buzzword in Geneva -- a phrase used by some members to identify areas in which they believe the WTO should allow for more flexibility, exceptions or other easing of rules so countries can adopt policies they want. Frequently, it is invoked by developing countries in pushing for certain special and differential treatment provisions; notably, the U.S. cited the need for “policy space” in withdrawing its support for certain e-commerce proposals in the plurilateral WTO talks.

The U.S. has several times called for an “authoritative interpretation” on the national security exception to be part of dispute settlement reform, although how much the U.S. had pushed on the issue or whether it had proposed anything on this front was unclear. But according to a weekly summary of WTO meetings provided by the mission on Friday, U.S. Ambassador to the WTO María Pagán has been meeting with other delegations to hash out issues related to dispute settlement reform, including national security.

“Ambassador Pagán continued to conduct bilateral and small group outreach with WTO Members to advance dispute settlement reform discussions and, in particular, engaged with Members on a shared understanding of essential security and other critical issues related to reform,” the summary says.

The U.S. has said it is prepared to harvest whatever is ready from the talks for MC13, although it is not clear that all members are on board with an early harvest deal at the ministerial. Some warned against an early harvest deal at MC13, insisting any deal must include an appeals stage, according to the Geneva official.

Washington did caution against attempting to move too quickly ahead of MC13 or “artificially slowing down” the talks, referring to a push from some members to “formalize” the process into an official WTO body like the DSB or General Council. Several members reiterated that desire on Friday, arguing it would be more transparent and inclusive, according to a Geneva-based trade official familiar with the meeting.

“As we approach MC13, we are in favor of neither speeding too quickly to an outcome that overlooks the needs of certain Members, nor artificially slowing down the discussion by imposing constraints that limit rather than encourage constructive dialogue,” the U.S. said. “We feel strongly -- as evidenced by our progress to date -- that the interest-based discussions provide us with the best opportunity to address the remaining issues.”

The chair of the DSB, Norwegian Ambassador Petter Ølberg, told members during Friday’s meeting that he had consulted with various delegations on whether and how to formalize the talks, according to the Geneva official. There is no consensus among members, he said, and recommended that they continue with the discussions as-is while he works to establish a way forward.

A General Council meeting is set for Feb. 14 to collect and transmit texts to trade ministers ahead of MC13. If members decide to provide an official dispute settlement reform deal to ministerial for approval, the process likely would have to be formalized in some way. However, if the goal is to continue with the informal process past MC13, members could instead opt to acknowledge progress or provide guidance in some other way. -- Hannah Monicken (hmonicken@iwpnews.com)

Keywords

WTO dispute settlement