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”
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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?”

WTO members achieve breakthrough, but the tough part is what happens next

It might seem churlish to draw attention to what was lacking, but the achievements that were rightly hailed are not the end of the story.

See also
The successful WTO Conference saw one big failure: agriculture | Have we just seen the funeral of the WTO ‘single undertaking’? | Our scorecards

By Peter Ungphakorn and Robert Wolfe
POSTED JUNE 30, 2022 | UPDATED JUNE 30, 2022

As a beautiful sun rose over the World Trade Organization’s lakeside headquarters in Geneva on June 17, 2022, exhausted delegates sealed a package of decisions and declarations that would give the beleaguered WTO new direction for the next couple of years.

Much has already been written about the achievement of the 12–17 June WTO Ministerial Conference, after it was extended by almost two days of sometimes chaotic round-the-clock bargaining.

Most of the analysis focuses on what was achieved, often with a sense of relief that the WTO was back on track, mixed with a warning that much still needs to be done.

Perhaps the biggest success was that a package was agreed by ministers, including an Outcome Document — which the previous ministerial conference failed to do.

Often missing is recognition of how hard it was to achieve this limited outcome.

Continue reading “WTO members achieve breakthrough, but the tough part is what happens next”

How did the Ministerial Conference do? Our scorecards

There were a number of concrete results, which was a relief for many, but how significant are the outcomes?

By Robert Wolfe and Peter Ungphakorn
POSTED JUNE 19, 2022 | UPDATED JUNE 19, 2022

In our curtain-raiser before the June 12–17 World Trade Organization (WTO) Ministerial Conference — “Touch and go at the WTO. Is the director-general’s optimism justified?” — we suggested a set of score cards for assessing the result. Based on the actual outcome, we’ve adjusted the scorecards slightly and filled them in.

The scorecards are in this note. It includes an invitation to comment


Updates: none so far

Image credit:
Delegates on the terrace at the WTO headquarters, Geneva, night of June 15, 2022 | WTO

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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?”

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

Explainer: The 18 WTO plurilaterals and ‘joint-statement initiatives’

Brand new, decades old, or in between? Exclusive or applying to all members? Proper negotiations or just talk? Which is which, and what are the subjects?

By Peter Ungphakorn
POSTED JANUARY 3, 2022 | UPDATED OCTOBER 13, 2022

As World Trade Organization (WTO) members struggle to reach consensus on numerous issues, many see talks among “the willing” as the way to modernise the organisation and in many cases to update its trade rules. But the approach is controversial.

These talks and resulting decisions among only some WTO members are called “plurilateral” to distinguish them from “multilateral” activities and agreements among the WTO’s whole membership.

Continue reading “Explainer: The 18 WTO plurilaterals and ‘joint-statement initiatives’”

Hamid Mamdouh — WTO reform imperative: a possible way forward

Posted by Peter Ungphakorn
POSTED NOVEMBER 9, 2021 | UPDATED NOVEMBER 9, 2021

This is a short proposal on World Trade Organization (WTO) reform by Hamid Mamdouh, former director of the WTO Secretariat’s Trade in Services Division and a recent candidate to be WTO director-general.

Mamdouh proposes members start from overall principles and cover all three of the WTO’s main functions:

This should be done, he suggests, in a new working party to start work in the new year.

He is not alone. The EU Commission and Council have also floated the idea of a working group on WTO reform in a trade policy statement presented to the European Parliament on February 18, 2021 (page 18 of this). The EU is understood to be discussing the proposal privately with other delegations in Geneva.

Continue reading “Hamid Mamdouh — WTO reform imperative: a possible way forward”

The WTO is regularly in crisis, but this time could be different

The WTO Ministerial Conference is almost upon us. The chorus of calls for “WTO reform” puts too much emphasis on Geneva when the real solutions require fundamental changes in and between the capitals of its 164 members.

New dates
On February 23, 2022, WTO members meeting as the General Council
agreed to reschedule the Ministerial Conference for the week of June 13

The Ministerial Conference had been “postponed indefinitely” on November 26, four days before it was due to start, as Switzerland tightened travel restrictions because of the new omicron COVID-19 variant

By Peter Ungphakorn and Robert Wolfe
POSTED OCTOBER 30 AND NOVEMBER 26, 2021 | ORIGINALLY PUBLISHED BY COSMOPOLITAN GLOBALIST SEPTEMBER 28, 2021 | UPDATED FEBRUARY 24, 2022

On December 8, 2019, The New York Times predicted the possible “end of the […] World Trade Organization itself.” Earlier, a Bloomberg headline spoke of a “fatal blow” to the WTO.

Two years later, the WTO is still up and running. Even the crisis in dispute settlement, where first-stage rulings can no longer be appealed — the cause of those doom-mongering news reports — has failed to stop it.

Yet the WTO does face serious problems. Dealing with them has become more urgent.

This piece was originally published in September. We are now only days away from when WTO ministers are due to meet in Geneva, where “WTO reform” is a major item on the agenda.

We have heard various upbeat statements from events like the G20 trade ministers’ October 12 meeting in Sorrento, the G7 ministers in London 10 days later, the optimistic sounds coming from Geneva, and apparently a new signal from Washington.


A cacophony of cans being kicked down the road

As the November 30–December 3 Ministerial Conference approached, activity increased, including from some ministers.

The US strengthened its call to talk.

Canadian Trade Minister Mary Ng visited Geneva to rally delegations to produce “concrete outcomes on key initiatives” at the Ministerial Conference. She met the Ottawa Group of members working on WTO reform, the WTO director-general, the chair of the fisheries subsidies negotiations, ambassadors from India, South Africa, EU and Mauritius, and the US chargé d’affaires.

Nevertheless, the only likely deal to be struck is on services regulation among a small group of members. We are also told a last-minute WTO-wide breakthrough on fisheries subsidies might be possible — after 20 years of negotiation and at least one missed deadline. In reality a lot of difficult issues still remain at the last minute.

Aside from those two subjects, we remain sceptical that anything substantial will be delivered.

Continue reading or jump down the page to:
Round the clock activity | No stranger to crisis | The misunderstood role of the WTO | Dispute settlement | The real problem: low priority | ‘Reform’ and the ministerial conference | Two strands of WTO reform | Find out more

See also: Hamid Mamdouh — WTO reform imperative: a possible way forward

Continue reading “The WTO is regularly in crisis, but this time could be different”

New WTO head’s first statements sail close to the wind

Okonjo-Iweala faces a crash course in WTO diplomacy, a car crash, or a third way. Which will it be?

By Peter Ungphakorn
POSTED FEBRUARY 18, 2021 | UPDATED MARCH 2, 2021

‘Someone has said that the definition of madness is doing the same thing you’ve done for years.” So remarked Ngozi Okonjo-Iweala shortly after she was accepted as the World Trade Organization’s next director-general on February 15, 2021.

She was speaking in an online press conference, outlining her view of where the WTO might be heading and how she might contribute.

Her first statements shed light on her intentions at the WTO and signal possible delicate times ahead. With some forthright suggestions on issues where members are divided, her approach has risks. (See also her acceptance statement in the WTO General Council.)

Continue reading “New WTO head’s first statements sail close to the wind”