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

Monday’s retreat is an attempt to produce fresh thinking that might break the deadlock in the two remaining pillars.

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.)

Continue reading “WTO agriculture negotiators face challenge of thinking outside the box(es)”
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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”

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

Imagine. What if these viewing figures show where the WTO is heading?

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.

As Robert Wolfe and I wrote a while ago:

“After the stars of the show have made their statements on the opening day — the host dignitary, director-general, guest speaker, ministers from the US, EU, and China — the plenaries retreat to a much smaller room for speeches by the rest of the ministers.

“Often the only delegates present are from the minister’s own team. The conference TV camera zooms in on the minister, leaving the empty seats invisible. Ministers may think they are making important statements for the record. No one else cares one jot, except perhaps the audience back home.”

Last week’s video statements can be watched by anyone with an internet connection and a phone or computer, anywhere in the world.

They are all here, all 150 of them.

So how did those video statements fare?

Bearing in mind that in almost all cases the texts can be read without spending time on the videos, the viewing numbers of people all over the world are not really any bigger than the in-room audiences when the statements are delivered in person.

For example, how many watched the minister usually considered to be the most powerful in the WTO, US Trade Representative Katherine Tai?

Go on, have a guess.

Screenshot of Tai making her statement
How many watched? US Trade Representative Katherine Tai delivers her statement

By Monday afternoon (June 20, 2022), a week after the videos were posted, 252 people had watched Tai’s video.

Two hundred and fifty-two.

And Tai’s viewing figures were the third best out of all 150 statements.

She was beaten by Nepal (267) and, wait for it …

… Grenada, with a whopping 1,897.

Yes almost two thousand people, almost 10 times the number who watched Tai, watched the statement from Grenada.

Why? Grenada didn’t even send a minister.

The statement was delivered by its Ambassador, Extraordinary and Plenipotentiary, and Permanent Representative to the World Trade Organization, His Excellency Justin Sun.

(Google him.)

These are the top 10 viewing figures.

  1. Grenada – 1,897
  2. Nepal – 267
  3. USA – 252
  4. China – 188
  5. Benin – 162
  6. India – 150
  7. Russian Federation – 134
  8. Ukraine – 105
  9. Kazakhstan – 99
  10. South Africa – 98

If you Googled H.E.Justin Sun, you’ll have seen he’s a really big shot in cryptocurrency. He has 3.3 million followers on Twitter.

How did he become Grenada’s ambassador to the WTO?

It’s a long story. A very long story. From China via South Korea to the US and on to various jurisdictions, mainly islands. You can read it all here.

This bit is relevant:

“Sun also announced he’s now Grenada’s ambassador to the World Trade Organization, where he says he’ll advocate for favourable cryptocurrency policy.

“Because of the new title, one of his senior employees issued proper guidance to workers on Slack for how to correctly refer to Sun as ‘his excellency.’ Former employees speculated the ambassadorship is a play for diplomatic immunity. But so far, he’s most notably used his public office to promote Tron.

“Sun met with Russia’s representative to the WTO after their military invaded Ukraine and tweeted, ‘We discussed humanitarian use case of how blockchain like Bitcoin/TRON can be implemented for Russian civilians who lack access to financial payment system.’ The tweet was later deleted. 

“(A spokesperson for the WTO said they were not aware of this event and thus had no comment. They also said the WTO has no right to bar any representative from meetings and they had no further comment.)”

E-commerce was a big issue at the Ministerial Conference. But if anyone watching (or reading) Sun’s statement was looking for signs of a proposal on cryptocurrency in the WTO, they would have been disappointed.

Just boring old stuff about Caribbean allies, the pandemic, and SIDS — small island developing states.


PS. On August 29, 2022, Swiss-German business newspaper Handelszeitung reported that the Swiss Government had withheld diplomatic status from Justin Sun. Contacted by this blog, the Swiss Foreign Ministry said it does not comment on individual cases.


Updates:
September 16, 2022 — adding the PS on Switzerland declining to give Justin Sun diplomatic status

Image credits:
Stars | Greg Rakozy, Unspalsh licence

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

The meaning of “success” is not the same for the Ministerial Conference’s organisers as it is for outsiders

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.

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

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 …”

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

Not done yet, but the group-of-four could give the WTO some long-awaited success

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.)

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

Ukraine invasion—what Russia and Belarus face in the WTO system: so far

The feasible actions are unilateral. Anything requiring formal decisions in the WTO such as suspending membership is likely to fail

This blog post contains a list of actions that countries have taken against Russia and Belarus. It will now only be updated occasionally. The point was to examine how they work, where WTO decisions might be needed and the implications, and how they relate to WTO provisions such as non-discrimination (MFN) or the security exceptions. That should be clearer now.

See these sources for closer monitoring:

Global Trade Alert

A considerably longer list of sanctions announced against Russia is available at Global Trade Alert. Many are outside the WTO system. Some may be within the system, such as export restrictions on dual-use products and restrictions on shipping services (but not air traffic rights). Russia’s retaliation is here.

Global Trade Alert was originally set up by Simon Evenett and his team at St Gallen University, Switzerland. It is now run by an independent foundation.

PIIE

Chad Bown of the Peterson Institute for International Economics (PIIE) has created a timeline that tracks all the actions taken by various countries on all sides: Russia’s war on Ukraine: A sanctions timeline.

A number of other sources are available. This one (details paywalled) is Europe-centred.


By Peter Ungphakorn
POSTED MARCH 4, 2022 | UPDATED MAY 10, 2022 (SEE ALSO ENTRY DATES)

This is a summary of actions taken or proposed so far against Russia within the WTO system. Some are also against Belarus, which is not a WTO member.

They are deliberately described as “within the WTO system” and not “in the WTO” — or worse “by the WTO” — to avoid confusion.

Continue reading “Ukraine invasion—what Russia and Belarus face in the WTO system: so far”

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”

8 reasons why countries disagree over a WTO intellectual property waiver

What the countries are saying — and it’s more than just ‘yes’ or ‘no’ to the waiver

UPDATES

In February it was “no sign of a breakthrough”. By mid-March there were signs
More in: ‘Quad’ raise hopes of a COVID-19 deal and revival for the beleaguered WTO

The waiver was agreed at the Ministerial Conference on June 17, 2022. The final text is here.

By Peter Ungphakorn
POSTED FEBRUARY 22, 2022 | UPDATED NOVEMBER 12, 2022

The deadlock in the World Trade Organization (WTO) over a proposal to waive intellectual property protection related to COVID-19 is now well into its second year with no sign of a breakthrough.

India and South Africa first made the proposal in October 2020. They produced a revised draft the following May, saying it was based on discussions in the months in between, but the revision produced little change in positions.

The proposal would temporarily waive countries’ obligations under WTO rules to protect some types of intellectual property, for products used to deal with COVID-19.

That’s the general idea. Every part of it is debated.

NEW: WHO’s African ‘hub-and-spokes’ vaccine technology set-up

Continue reading “8 reasons why countries disagree over a WTO intellectual property waiver”

‘Who invented the four modes of services supply?’

The idea evolved over almost three years among negotiators in the Uruguay Round talks in the 1980s, crystallised by the EU delegation

By Peter Ungphakorn
POSTED FEBRUARY 15, 2022 | UPDATED FEBRUARY 19, 2022

We now take for granted that services can be traded internationally in four ways known as the “four modes”, but once upon a time this was not so clear-cut.

The four “modes of supply” (or “modes of delivery”) are:

  • cross border supply — where a service provider in one country sells the service to a customer in another country without anyone moving, for example professional advice over the telephone or internet
  • consumption abroad — where the customer travels, for example tourism
  • foreign commercial presence — where the service provider sets up a subsidiary or branch in another country, for example a bank or insurance company
  • movement or presence of natural persons — where individuals travel to provide the service either as staff in the foreign branch or subsidiary or independently, for example maintenance engineers travelling to service aircraft abroad

This is now established right at the top of the World Trade Organization’s General Agreement on Trade in Services, under Article 1, “Scope and Definition”:

 2.   For the purposes of this Agreement, trade in services is defined as the supply of a service:

(a)  from the territory of one Member into the territory of any other Member;

(b)  in the territory of one Member to the service consumer of any other Member;

(c)  by a service supplier of one Member, through commercial presence in the territory of any other Member;

(d)  by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.

How they are now applied can be seen in the commitments that each WTO member has made in services, in fiendishly complicated documents known as “schedules” of commitments (explained in this technical note).

But it took some time to arrive at that point.

Continue reading “‘Who invented the four modes of services supply?’”