Türkiye and EU: appeal-by-arbitration cases leave questions about WTO law

Originally published as
“Alternative to the alternative: Turkey and EU use arbitration for WTO appeals”
and previously as one section in
“Arbitration — the stop-gap when WTO appeals are unavailable”

By Peter Ungphakorn
POSTED AUGUST 30, 2022 | UPDATED SEPTEMBER 26, 2022

Türkiye told World Trade Organization members on August 29, 2022 that it would comply with dispute rulings that said it was violating WTO agreements by giving preferences to locally-produced pharmaceutical products, even though the rulings have not been formally adopted.

So far, the case is unique among WTO legal disputes. It is the first use of appeal-by-arbitration as a route to a second legal opinion on a ruling, while the WTO Appellate Body cannot function.

And because at the time arbitration was the only route open to Türkiye to appeal the case, neither the first-stage “panel” ruling, nor the findings in the appeal, have been formally adopted by the WTO’s membership.

This raises questions about the status of the rulings in WTO law. When a ruling has been formally adopted, governments (and others involved in trade) can assess with a degree of confidence whether similar policies or measures comply with WTO agreements.

When the membership has not adopted a ruling, that confidence is weakened, although some legal experts suggest the difference is small. The US treats non-adoption as significant without explaining why.

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Alternative to the alternative: Turkey and EU use arbitration for WTO appeals

This has now been republished as
“Türkiye and EU: appeal-by-arbitration cases leave questions about WTO law — Similar to the 50-member ‘Multi-party Interim Appeal Arrangement (MPIA)’, one ruling has been formally adopted, the other not”

Optimism v pessimism: what to make of Katherine Tai’s Geneva speech

By Peter Ungphakorn
POSTED OCTOBER 21, 2021 | UPDATED OCTOBER 21, 2021

The reaction among experts to US Trade Representative Katherine Tai’s speech in Geneva on October 14, 2021, has been mixed, some welcoming the optimistic tone, others disappointed at the lack of specifics.

“Unpopular take: Tai’s Geneva speech was actually quite good and clarifying at this stage,” said one privately. “I heard her as being noncommittal but also not prejudging.”

“Sorry I’m with the pessimists on the Tai speech, if nine months into a US administration the best that can be offered is that something might be considered in the future,” said another.

With little fanfare, the US splits its tariff quotas for UK and EU exports

By Peter Ungphakorn
POSTED JULY 5, 2021 | UPDATED JULY 5, 2021

On the eve of the July 4 holiday, the United States announced new tariff quotas for some dairy products and tobacco imported from Britain and the European Union, from 2022.

This is the other side of the coin for an issue that has received much more attention — how the tariff quotas for imports into the original EU28 are being split between the post-Brexit EU27 and the UK, the on-going discussion in the World Trade Organization (WTO), and the resolution with some of the objecting countries.

Presumably Britain and the EU have accepted these new conditions on their exports.

Arbitration — the stop-gap when WTO appeals are unavailable

By Peter Ungphakorn
POSTED AUGUST 4, 2020 | UPDATED DECEMBER 21, 2022

On August 3, 2020, a group of 50 World Trade Organization members — 30% of the membership — announced that an alternative arrangement was up and running, as a means of getting round a blockage preventing formal appeals in WTO dispute settlement.

Developed gradually since early 2019, the system would retain countries’ ability to get a second opinion after a first-stage “panel” ruling, through arbitration instead of going through the non-functioning Appellate Body.

But unlike a standard appeal, the outcome of the arbitration would not be formally adopted by the WTO’s membership, and therefore would not be part of official WTO law — at least not with the same weight as a full appeal.

On October 6, 2022, the first case was appealed. Less than three months later on December 21, it produced the first arbitration appeal ruling.

Summary: ‘WTO terms’ apply in any future UK-EU trade relationship. But how much?

By Peter Ungphakorn
POSTED MAY 27, 2020 | UPDATED MAY 27, 2020

This is a summary of a 3-part article looking at the meaning of “WTO terms” for UK-EU trade in goods, services and more.
The main article is here
.
The series draws partly on a paper from The UK in a Changing Europe

Now that UK-EU trade talks have begun, it’s important to recognise that “WTO terms” will unavoidably apply to the trading relationship — whether or not there’s a deal. It isn’t either/or. It isn’t either a deal or “WTO”, as some people describe it. It’s a question of scale.

The point is: the more the UK and EU trade on WTO terms, the more trade barriers they raise against each other — from a starting position where trade between them has fewer international trade barriers than anywhere else in the world outside the EU.

‘WTO terms’ apply in any future UK-EU trade relationship. But how much? Part 1 ‘WTO terms’

By Peter Ungphakorn
POSTED MAY 27, 2020 | UPDATED MAY 27, 2020

This first of 3 parts looks at the meaning of “WTO terms” for UK-EU trade. Part 2 is on goods trade. Part 3 is on services, intellectual property and other issues.
A short summary is here
.
They draw partly on a paper from The UK in a Changing Europe

Now that UK-EU trade talks have begun, it’s important to recognise that “WTO terms” will unavoidably apply to the trading relationship — whether or not there’s a deal. It isn’t either/or. It isn’t either a deal or “WTO”, as some people describe it. It’s a question of scale

And that scale determines how many trade barriers go up on trade between the UK and EU — from a starting position where their trading relationship is one of the freest in the world.

‘WTO terms’ apply in any future UK-EU trade relationship. But how much? Part 3 services and more

By Peter Ungphakorn
POSTED MAY 27, 2020 | UPDATED MAY 27, 2020

This final of 3 parts looks at UK-EU trade in services
and other issues under “WTO terms”.
Part 1 is on the meaning of “WTO terms”. Part 2 is on goods trade.
A short summary is here
.
They draw partly on a paper from The UK in a Changing Europe

As with goods, if the UK and EU fail to reach agreement, or if the agreement has limited content, UK-EU trade will see new trade barriers in services. Also possible are complications in intellectual property and dispute settlement among other issues.

‘WTO terms’ apply in any future UK-EU trade relationship. But how much? Part 2 Goods

By Peter Ungphakorn
POSTED MAY 27, 2020 | UPDATED MAY 27, 2020

This second of 3 parts looks at UK-EU trade in goods under “WTO terms”. Part 1 is on the meaning of ‘WTO terms’. Part 3 is on services, intellectual property and other issues.
A short summary is here
.
They draw partly on a paper from The UK in a Changing Europe

If the UK and EU fail to reach agreement, British goods imports from the EU and its exports to the EU will face tariffs and non-tariff barriers. That is not just the result of trading solely on WTO terms. Even with an agreement, some aspects of goods trade will still face the new barriers of trading on WTO terms.

Spot the difference: US tariffs on Scotch are not part of a tariff war

By Peter Ungphakorn
FROM UK TRADE FORUM, JANUARY 24, 2020 | UPDATED DECEMBER 9 2020

On January 23, 2020, Fiona Bruce, the host of Question Time on BBC TV, repeatedly and wrongly confused US tariffs on Scotch whisky with the US threat to raise tariffs on cars if Britain taxes digital technology companies.

The mistake matters because UK-US trade talks are likely to feature regularly over the coming months, not least on Question Time.