The proposed COVID-19 intellectual property waiver: too soon to predict

Will the US prevail? What actually lies ahead? How long will it take? And if the waiver is agreed, what impact will it have?

By Peter Ungphakorn
POSTED MAY 7, 2021 | UPDATED FEBRUARY 6, 2022

It’s tempting to conclude that the proposed waiver on World Trade Organization (WTO) intellectual property rules related to the COVID-19 pandemic will swiftly be agreed now that the US is supporting it.

It’s also tempting to assume that if the waiver is agreed, then intellectual property on vaccines and other COVID-19 products will be freely available and in use around the world.

Neither of those will necessarily happen, and almost certainly not quickly.

Continue reading “The proposed COVID-19 intellectual property waiver: too soon to predict”
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Ngozi Okonjo-Iweala is the new WTO chief, but let’s not get carried away

The director-general’s powers are limited, so don’t expect miracles. And don’t blame her if problems stay unresolved

By Peter Ungphakorn
POSTED FEBRUARY 15, 2021 | UPDATED FEBRUARY 18, 2021

Now that Ngozi Okonjo-Iweala has been confirmed as the next director-general of the World Trade Organization (WTO) it’s tempting to see light at the end of the tunnel for the troubled negotiating forum and guardian of the resulting agreements.

First woman director-general. First African. Finally, someone at the helm after almost a year effectively without a leader. All those headlined proclamations are true. The excitement is justified, to some extent.

Continue reading “Ngozi Okonjo-Iweala is the new WTO chief, but let’s not get carried away”

US lifts objections that deadlocked the WTO over its next director-general

‘Troika’ had announced Nigeria’s Ngozi Okonjo-Iweala enjoyed broadest support, but US had refused to join consensus

By Peter Ungphakorn
POSTED OCTOBER 28, 2020 | UPDATED FEBRUARY 15, 2021


On February 15, 2021, Nigerian Ngozi Okonjo-Iweala was confirmed as the World Trade Organization’s next director-general. The decision was by a consensus of the WTO’s membership. See Ngozi Okonjo-Iweala is the new WTO chief, but let’s not get carried away.

This was made possible 10 days earlier when the new Biden administration in the US announced its “strong support” for her, ending three months of deadlock.

By then, South Korean candidate Yoo Myung-hee
withdrew her candidacy. By overturning the stance of the Trump administration and its US Trade Representative, Robert LIghthizer, Biden paved the way for Okonjo-Iweala to be selected by the necessary consensus.

What follows was written before the deadlock was broken.

Continue reading “US lifts objections that deadlocked the WTO over its next director-general”

Were Trump and Lighthizer right about WTO disputes?

The US’s claim that it is a victim in the WTO is based on a truly blinkered view. And that’s being generous

By Peter Ungphakorn
POSTED JUNE 21, 2020 | UPDATED JANUARY 22, 2021

“We lose the lawsuits, almost all of the lawsuits in the WTO”. So said President Donald Trump in October 2017, just one of three huge untruths he uttered in barely 100 words.

Like the bad loser in the school playground, Trump might as well have wailed: “You’re all cheats!”

But the sentiment persists in US politics and was repeated on June 17, 2020 by Trump’s US Trade Representative, while more broadly an anti-WTO campaign mounts and US belligerence has thrown the WTO into crisis.

Continue reading “Were Trump and Lighthizer right about WTO disputes?”

A bit of bother down at the WTO court — Why? And is it a killer? Long read

WTO dispute settlement is in trouble, but it can struggle on at least for a while. So can the organisation’s other important functions

This looks at the WTO Appellate Body crisis in some depth.
A simpler version is here
.
See also:
How the WTO deals with problem trade measures—it’s not just dispute settlement and The WTO is surprisingly busy — considering it’s supposed to be dead


Skip the updates

UPDATES

January 26, 2022 — Brazil moved to authorise (under Brazilian law) unilateral action against countries that lose in a panel ruling and appeal “into the void” to leave a dispute inconclusive.

Legal opinion seems to be that this could violate WTO rules, but so long as the Appellate Body was unable to function, Brazil could also appeal “into the void” any legal challenge in the WTO. “In the absence of the Appellate Body, this does not seem totally bonkers,” tweeted law professor Geert Van Calster

News of the move came from Tatiana Palermo, President of Palermo Strategic Consulting and a former Brazilian vice-minister and negotiator, who tweeted:

Brazil’s President Bolsonaro has signed an executive order allowing #Brazil to retaliate unilaterally ([including] suspending IPR [intellectual property rights] obligations) in cases where the losing party appealed the #WTO panel ruling into the void & continues with unfair trade practices.”

The executive order is here, in Portuguese.


October 26, 2021 — María Pagán, the Biden administration’s nominee ambassador to the WTO, told a US Senate Finance Committee hearing on her nomination that the US does want to “restore the Appellate Body”, a point that had never been clarified since the Trump administration blocked the appointment of appeals judges:

I think there’s consensus that the WTO, and particularly the Appellate Body, need to be reformed. I guess on the other hand, we all have different views of what reform means, and particularly with respect to the Appellate Body. What we want, and if confirmed what I will work hard to do, is to have conversations so that we can restore the Appellate Body and the dispute settlement system to what we thought we had agreed to.”

To underscore that this is an official position, Henry Hodge, spokesperson of the Office of the US Trade Representative, tweeted Bloomberg’s story on the statement with the headline “Biden’s nominee to WTO wants to restore Appellate-Body function.”

Pagán’s remark came on the day the US blocked the appointment of appeals judges for the 47th time at a WTO meeting in Geneva. It was the first sign of any new thinking in Washington. But it was too late for anything to happen in time for the November 30 to December 3 Ministerial Conference.

Trade lawyer Simon Lester said the remark is “positive” but that restoring the system “to what we thought we had agreed to” may prove to be “tricky”, a point Pagán herself acknowledged.


By Peter Ungphakorn
POSTED AUGUST 21, 2019 | UPDATED JANUARY 29, 2022

A casual glance at the headlines might have misled us into thinking the World Trade Organization (WTO) would grind to a halt at the end 2019, that the blame lay entirely with US President Donald Trump, and that the WTO’s demise would bring anarchy to world trade.

Only the last of those three assertions is possibly correct; and only if the WTO really does die — which it certainly won’t, not in the near future.

This is an attempt at an explanation. It shows that even WTO dispute settlement could well survive, but in a less powerful form. Other important work in the WTO will continue, and therefore so will the WTO itself.

But be warned: simple explanations of complex issues cannot tell the whole story. And even this attempt is not that simple. Sorry.

Continue reading “A bit of bother down at the WTO court — Why? And is it a killer? Long read”