Belief in the multilateral trade system is eroding, and that spells trouble

By Peter Ungphakorn and Robert Wolfe
POSTED FEBRUARY 26, 2023 | UPDATED FEBRUARY 26, 2023

Time flies. It was only last June that the World Trade Organization (WTO) emerged from a morale-boosting Ministerial Conference, hailed as a success simply because members could at least agree on what to do next, often in the vaguest possible terms, and not on everything.

They did strike a deal on curbing harmful fisheries subsidies but even that was gutted of its most important element: tackling subsidies that contribute to overcapacity and overfishing, the top priority of UN Sustainable Development Goal 14 Target 6.

The June success is already a distant memory.

Experts: India, S.Africa unlikely to succeed in blocking WTO services deal

By Peter Ungphakorn
POSTED FEBRUARY 7, 2023 | UPDATED FEBRUARY 9, 2023

India and South Africa are questioning the right of 62 World Trade Organization (WTO) members to implement their agreement to streamline domestic regulation in services, but experts question whether the two can prevent the deal from becoming legal.

The deal was concluded in December last year. Since then, most of the participants have submitted what they have each agreed to do, in the form of draft revised “schedules” (or lists) of commitments in services.

Altogether there are 35 schedules of commitments covering the 62 members (counting the EU as 28), meaning 8 of the 70 participants have not yet sent in theirs. (See details below.)

Estimates by the WTO and Organization for Economic Cooperation and Development (OECD) suggest the agreement could potentially save trade costs by about US$150bn annually. The 62 WTO members that have submitted new draft schedules account for about 89% of world services trade — 92.5% if all 70 are counted, WTO Deputy Director-General Anabel González says.

By putting the deal in individual members’ schedules of commitments, the participants have avoided the need for consensus approval by the whole WTO membership.

Whatever happened to the WTO intellectual property negotiations?

By Peter Ungphakorn
POSTED DECEMBER 4, 2022 | UPDATED DECEMBER 5, 2022

No one noticed when these World Trade Organization negotiations passed their 25th anniversary in early 2022. It was no surprise since WTO members had not even bothered to meet in these talks for a decade, except to appoint a new chair and tidy up other administrative issues.

This is about geographical indications — names associated with specific production areas, such as Champagne wine, Scotch whisky or Caerphilly cheese.

The negotiations are not about protecting the names as such. That was settled in the 1994 intellectual property agreement, although some countries want more.

Rather, these talks are about creating in the WTO a multilateral register for geographical indications for wines and spirits. They are the only officially recognised negotiations on intellectual property in the WTO.

And although they’ve been stuck in limbo since 2012, before that the negotiations did manage to narrow gaps between diametrically opposed positions until they could proceed no further.

The achievement is subtle but significant. The failure of WTO negotiations more broadly prevented members from taking the final steps, although that could not be guaranteed even in a better atmosphere.

WTO agriculture negotiators face challenge of thinking outside the box(es)

By Peter Ungphakorn
POSTED OCTOBER 23, 2022 | UPDATED OCTOBER 24, 2022

See also the report on the retreat (published October 26, 2022):
WTO agriculture retreat said strong on context but weak on give-and-take

Brain-storming. Blue sky thinking. Wiping the slate clean. Thinking outside the box. Pick your cliché. World Trade Organization (WTO) members’ ambassadors and agriculture attachés go on a “retreat” tomorrow (October 24) as they try to discover solutions where none have been found for over a decade.

The common impression is that the WTO agriculture negotiations have achieved nothing since they started almost a quarter of a century ago in 2000.

This is partly because after just over a year (in 2001), the talks were rolled into the newly launched and broader Doha Round of WTO negotiations. And now the Doha Round is widely considered to be dead.

Officially the position is more complicated. Some members say the Doha Round is over. Others say the original mandate continues — they refuse to endorse the end of the round.

In practice some parts of the Doha Round have been concluded, such as the Trade Facilitation and Fisheries Subsidies agreements. Other parts are in limbo or the talks have dried up, at least among the full membership. What has faded away is the idea of the talks as one unified package or “single undertaking”.

(An aside here. What almost no one has noticed is that the Trade Negotiations Committee of the WTO membership — with the director-general ex officio in the chair — still meets. This committee was set up specifically within the Doha Round. If the round has ended so should the Trade Negotiations Committee. That would also mean the director-general has no official position in any council or committee of the WTO membership.)

UPDATES: expanding the WTO intellectual property waiver for COVID-19

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By Peter Ungphakorn
POSTED OCTOBER 4, 2022 | UPDATED AS INDICATED

The waiver on patent protection for COVID-19 vaccines was agreed at the WTO Ministerial Conference on June 17, 2022. The text with brief explanations is here. The waiver is not an obligation. Countries can choose to suspend certain patent rights if they want.

Much of the work after the Ministerial Conference results from a provision for WTO members to decide within six months (by December 17, 2022) whether or not to expand the waiver to include COVID-19 tests and treatments:

“No later than six months from the date of this Decision, Members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics”

Background: The original (revised) proposal; the debate; the proposed compromise and analysis.

Updates on the latest developments will be added here, with links to new documents and news items. That will include any notifications from countries changing their laws to apply the waiver. So far there are none.

Key events

• December 20, 2022 — The General Council agrees on postponing the deadline with no date set, but to be reconsidered in the Spring
• December 19, 2022 — The General Council postpones a decision on postponing the deadline
• December 17, 2022 — deadline for expansion decision missed, so far no country has moved to use the vaccine patent waiver agreed in June
• December 16, 2022 — formal meeting: chair’s draft binned, replaced by short paragraph postponing the deadline
• December 7, 2022 — chair’s draft factual report circulated
• December 6, 2022 — informal meeting discusses proponents’ draft and postponing deadline
• December 5–6, 2022 — US announces it will need time to consult stakeholders
• November 2, 2022 — informal meeting, with members’ positions on expanding the waiver to tests and treatments crystallised into three groups
• July 6, 2022 — first meeting after the vaccine patent waiver decision, followed by stock-taking and informal meetings

(TRIPS = trade-related aspects of intellectual property rights, the official description of intellectual property issues that are discussed in the WTO — they should be “trade-related” issues)

Unlikely video star outshines trade big-guns at WTO ministerial conference

By Peter Ungphakorn
POSTED JUNE 21, 2022 | UPDATED SEPTEMBER 16, 2022

The World Trade Organization’s Ministerial Conference ended two days late on Friday morning (June 17, 2022), the concluding session pushed back by stamina-draining and sometimes chaotic round-the-clock haggling, drafting and redrafting.

And yet this was supposed to be a streamlined meeting. The important-sounding “plenary sessions” were scrapped, replaced by pre-recorded videos so that ministers and their delegations wouldn’t have to pop out of sessions on real substance to talk platitudes to a near-empty room.

Touch and go at the WTO. Is the director-general’s optimism justified?

By Peter Ungphakorn and Robert Wolfe
POSTED JUNE 9, 2022 | UPDATED JUNE 12, 2022

How many times can a curtain go up and down? This is our second curtain-raiser for the World Trade Organization’s 12th Ministerial Conference, now rescheduled for June 12–15, 2022.

As we wrote when the meeting was postponed in late 2021, the WTO risks disappearing into a chasm of petty procedural wrangling over what to talk about, and how to move forward.

After delays in 2020 and 2021 due to the pandemic, and more recently the threat to multilateralism posed by Russia, the fact of it happening at all will be taken as a success. But have WTO members been able to move closer to significant agreement on anything?

This time our curtain-raiser proposes some benchmarks for assessment. There’s even a scorecard at the end for anyone following along at home.

Two last-minute agriculture proposals land as WTO conference approaches

By Peter Ungphakorn
POSTED JUNE 3, 2022 (REPLACING THIS ORIGINAL PAGE) | UPDATED JUNE 3, 2022

Less than two weeks before the re-scheduled World Trade Organization (WTO) Ministerial Conference, two new proposals were circulated on May 31, 2022, on the most difficult subject in the agriculture negotiations — including the first from a “non-demandeur”.

The two proposals are from opposite sides on how to deal with domestic support in developing countries’ stockholding programmes for food security.

The debate in a meeting of WTO ambassadors two days later showed how far apart members still are on this with only 10 days to go before their ministers meet in Geneva. Members are now holding round-the-clock meetings to prepare for their June 12–15 Ministerial Conference

Two last-minute agriculture proposals land as WTO conference approaches

By Peter Ungphakorn
POSTED JUNE 1, 2022 | UPDATED JUNE 1, 2022

Less than two weeks before the re-scheduled World Trade Organization (WTO) Ministerial Conference, two new proposals were circulated on the most difficult subject in the agriculture negotiations — including the first from “non-demandeurs”.

The two proposals are from opposite sides on how to deal with domestic support in developing countries’ stockholding programmes for food security.

… This has been updated and re-posted here …

‘Quad’ raise hopes of a COVID-19 deal and revival for the beleaguered WTO

Updates
June 17, 2022 — members agree on the waiver at the Ministerial Conference.

From mid-May to June 10 — members work on the compromise draft and discuss further revisions. The text submitted to the Ministerial Conference is here. Earlier versions are here.

May 19, 2022 — An informal meeting to take stock of two days of real negotiation on the compromise among about 30 delegations on May 16 and 18, described by chair Lansana Gberie (Sierra Leone’s ambassador) as “arduous”.

WTO Director-General Ngozi Okonjo-Iweala urged members on all sides to sort out their reservations over the proposed compromise, so that a deal on waiving some intellectual property protection for COVID-19 can be struck by the Jun 12-15 Ministerial Conference. See this Twitter thread.

May 3, 6 and 10, 2022 — The compromise text was finally put to the rest of the membership at a May 3 informal meeting — WTO news story, and the text (html or pdf) — and discussed in a May 6 formal intellectual property council meeting and in the General Council on May 10. Both bodies consist of the full WTO membership.

Members were non-committal about accepting or rejecting the text. But this compromise draft allowed them for the first time to agree broadly to start negotiating on a text in the search for a solution. None of the Quad presented the text as their own, just an attempt to secure an agreement.

See this twitter thread and this WTO news story on the General Council meeting, and this earlier Twitter thread and WTO news story on the intellectual property council. The blog post below had been updated accordingly.

March 28, 2022 — Three of the “Quad” could still be consulting internally on whether to accept the compromise, according to Geneva trade sources.

South Africa is said to have told members in an informal General Council meeting on March 28 that the draft was still being discussed domestically. Only the EU is understood to have completed its internal processes and to have accepted the draft, while India and the United States had not yet confirmed their support for it.

The draft would still have to go to the full membership in the intellectual property council, but no date has been set for the council’s next meeting.

By Peter Ungphakorn
POSTED MARCH 17, 2022 | UPDATED JUNE 17, 2022

Behind-the-scenes negotiations by four key members have raised the prospect of an agreement on intellectual property and the COVID-19 pandemic, which would also help lift the World Trade Organization out of one of its worst crises.

For nearly a year, the United States, […] has worked constructively with other WTO Members to facilitate discussions and bridge differences that might lead to […] consensus across the 164 Members of the World Trade Organization to help end the pandemic.

In the days ahead, […] we look forward to continuing our engagement with members of Congress and stakeholders as all WTO Members consider the text released by the WTO Director-General.

— Statement by US ambassador to the WTO María Pagán, May 3, 2022

News broke in mid-March 2022 that the four — the EU, India, South Africa and the US — had agreed on a compromise text on waiving the obligation to protect intellectual property related to the COVID-19 pandemic.

A slightly modified text was circulated to members on May 3, 2022. A cover letter from WTO Director-General Ngozi Okonjo-Iweala summarised how the proposed compromise was negotiated.

Although members offered some initial reactions in meetings over the following week, it still had to be negotiated, agreed, and possibly amended by the WTO’s membership of 164. (See this twitter thread and this WTO news story on the General Council meeting, and earlier this Twitter thread and this WTO news story on the intellectual property council.)

Anything can happen in that process, but so far the compromise has not been rejected outright — it has been accepted as a basis for negotiations. After all, most of those driving the main positions are among the four.

The likelihood of a breakthrough was first reported by Priti Patnaik of Geneva Health Files on March 11.

A month earlier she had broken news of what turns out to be an important part of the compromise — to limit the countries eligible to use the waiver. She reported that India and China would be excluded and that India would resist. How accurate that was at the time is unconfirmed, but the outcome would exclude China and not India.

What are the implications of the proposed compromise? How does it fit into the earlier debate about the waiver? How does it differ from the original proposal?

These are some immediate thoughts. Underlying them are two fundamental questions. Both, in totally different ways, are important:

• What would this do for dealing with the pandemic?
• What would this do for the WTO?

Some of the answers will emerge when the full membership gets down to negotiating the compromise in the WTO body responsible for intellectual property, the TRIPS Council. (TRIPS is trade-related aspects of intellectual property rights.)