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

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.

Continue reading “Türkiye and EU: appeal-by-arbitration cases leave questions about WTO law”

Does ‘holding the pen’ give WTO staff too much power over disputes?

WTO REFORM: The light shed by recent papers on the role of the Secretariat is welcome, but there are unanswered questions

By Peter Ungphakorn
POSTED AUGUST 22, 2022 | UPDATED SEPTEMBER 28, 2022

Does the WTO Secretariat have too much influence over WTO dispute settlement rulings? Two experts argue controversially in recent papers that it does, backing their claims with sophisticated analysis of writing styles to detect who might have authored the rulings.

The analysis by Joost Pauwelyn (Graduate Institute of International and Development Studies, Geneva) and Krzysztof Pelc (McGill University, Montreal) also digs down in detail into the reasons behind the role that the Secretariat has been given.

That leads to a discussion covering a wide range of issues, some of them central to the debate about reforming the WTO and its dispute settlement system — including the controversy over whether case history and precedent should have a bearing on new rulings, and to what extent that should be guided by the institutional knowledge of Secretariat staff.

Continue reading “Does ‘holding the pen’ give WTO staff too much power over disputes?”

Milestone or inchpebble? The first UK ‘trade deal’ with a US state, Indiana

It’s a non-binding memorandum of understanding and Indiana itself could hardly be less interested

By Peter Ungphakorn
POSTED MAY 29, 2022 | UPDATED MAY 31, 2022

“They said a US trade deal couldn’t be done. It can. We are doing it.”

That declaration by UK Minister of State for Trade Policy Penny Mordaunt is the headline on a piece she wrote on a partisan website to celebrate signing an agreement with the US state, Indiana.

But is it a “US trade deal”?

  • It is not with the “US”, but Indiana — a state with 2% of the US population (at 6 million slightly more than Yorkshire or Scotland), less than 2% of the US economy (GDP), and less than 1% of its area (ranked 38th of the 50 US states)
  • The actual “trade” content is minimal, when compared with what governments usually sign in trade agreements
  • “Deal” is misleading since this is not the conclusion of anything. It’s a memorandum of understanding (MoU) — or joint statement of intent — on future cooperation and on what future talks will cover. The way it’s presented stretches the meaning of “agreement” a lot.

The phrase “trade deal” is itself a problem.

Continue reading “Milestone or inchpebble? The first UK ‘trade deal’ with a US state, Indiana”

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

Similar but not the same as the 50-member ‘Multi-party Interim Appeal Arrangement (MPIA)’

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

Can a WTO member be expelled? No. But …

The response from almost all legal experts is simple: there are no provisions in the WTO agreements allowing expulsion or suspension

By Peter Ungphakorn
POSTED MARCH 23, 2022 | UPDATED MARCH 26, 2022

Can a member of the World Trade Organization (WTO) be expelled? The short answer is no. There is no legal means of doing that.

The question arises because of a number of calls to expel Russia, to suspend its membership or to suspend its ability to act in the WTO, in response to its invasion of Ukraine.

Those three are not exactly the same. The first two — expulsion or suspending membership — are clearly legal issues. They require decisions by the WTO’s membership.

The response from almost all experts in WTO trade law is simple: there are no provisions in the WTO agreements that would allow expulsion or suspension.

Continue reading “Can a WTO member be expelled? No. But …”

US politicians call for trade action against Russia in the WTO

Kicking Russia out of the World Trade Organization is probably impossible, but other actions are available

Painting (detail) by Chris Edmund © used with permission

See also:
List of measures announced or proposed
that come under the WTO system, periodically updated
Can a WTO member be expelled? No. But …

By Peter Ungphakorn
POSTED FEBRUARY 28, 2022 | UPDATED MARCH 4, 2022

Two senior US politicians announced on February 25, 2022 that they were introducing legislation to suspend World Trade Organization terms in US trade with Russia and to seek expelling Russia from the WTO.

Lloyd Doggett, chair of the House of Representatives Ways and Means subcommittee on health, and Earl Blumenauer, his counterpart on the subcommittee on trade, proposed the bill following Russia’s “unprovoked invasion of Ukraine”.

Since then, at least three similar bills have been proposed in the US Senate.

Meanwhile, Ukraine and Canada have actually implemented action against Russia within in the WTO system, and the EU has said it is considering its own action.

The Doggett and Blumenauer bill would make it easier for the US to impose trade sanctions against imports of Russian goods, in addition to the commercial, financial and personal sanctions the US and its allies have already initiated. That includes new EU sanctions in trade with Belarus (not a WTO member).

The bill would also “seek the suspension of the Russian Federation’s membership in the WTO”, a more difficult prospect.

Continue reading “US politicians call for trade action against Russia in the WTO”

If Americans are confused about Gruyère cheese, blame the French

Or how to start a war among trade geeks

It’s war: don’t talk about geographical indications
It’s war: don’t talk about geographical indications

By Peter Ungphakorn
POSTED JANUARY 13, 2022 | UPDATED JANUARY 29, 2022

“If you’re new to trade and want to know how to start a brawl between trade people — Simon has the answer.”

That tweet, accompanied by a riotously animated GIF of a bar fight, came from Greg Messenger, associate professor at Bristol University Law School.

“Simon” is another trade law guru, Simon Lester, whose CV includes a stint in the WTO Appellate Body Secretariat.


Let’s keep up the erosion & make all cheese terms generic!

Simon Lester

“GI Simon,” punned a third trade law guru Holger Hestermeyer of The Dickson Poon School of Law, King’s College London.

Lester had tweeted the outcome of a court case as reported on NBC News: “decades of importation, production, and sale of cheese labeled GRUYERE produced outside the Gruyère region of Switzerland and France have eroded the meaning of that term and rendered it generic.”

That quote already contains a lot that is inflammatory in trade. Lester added a couple of gallons (US, of course, 3.785411784 litres each) of gasoline to the flames: “Let’s keep up the erosion & make all cheese terms generic!”

Continue reading “If Americans are confused about Gruyère cheese, blame the French”

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

‘If you will listen to us, we will listen to you, and let’s start the reform process from there.’ But was USTR Tai being disingenuous?

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.

Continue reading “Optimism v pessimism: what to make of Katherine Tai’s Geneva speech”

Arbitration — the stop-gap when WTO appeals are unavailable

A group of WTO members have agreed on an alternative way to get a second legal opinion

By Peter Ungphakorn
POSTED AUGUST 4, 2020 | UPDATED MAY 3, 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, but unlike a formal appeal, the outcome would not be part of official WTO law.

Continue reading “Arbitration — the stop-gap when WTO appeals are unavailable”

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?”