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 …”
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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”

No agreement on India’s call for WTO ministers to discuss COVID-19 waiver

Many delegations argued that ministers meeting online would not be able to break the deadlock

By Peter Ungphakorn
POSTED JANUARY 10, 2022 | UPDATED JANUARY 11, 2022

India’s call for an online WTO ministerial meeting to  discuss the proposed intellectual property waiver for COVID-19 fell well short of consensus at an informal General Council meeting today (January 10, 2022).

Many delegations countering that members would have to be much closer to agreement on the proposed waiver before a meeting of ministers would be able to contribute to a solution, said sources familiar with today’s discussion of just over two hours.

Continue reading “No agreement on India’s call for WTO ministers to discuss COVID-19 waiver”

WTO COVID-19 waiver: does the new draft move the talks forward?

A closer examination—paragraph by paragraph—of the re-draft shows how little has changed and how much may still lie ahead

UPDATE
‘Quad’ raise hopes of a COVID-19 deal and revival for the beleaguered WTO
March 2022. This leads to the compromise decision, June 17, 2022, at the WTO Ministerial Conference in Geneva

THE DISCUSSIONS IN THE WTO
An overview of the discussion to February 2022 is in 8 reasons why countries disagree over a WTO intellectual property waiver
An earlier summary of how members responded to this text is in a box at the end, along with an example of the chairman’s report to the General Council.

By Peter Ungphakorn
POSTED MAY 25, 2021 | UPDATED JUNE 20, 2022

The long-awaited revised proposal related to the COVID-19 pandemic, to waive obligations on intellectual property protection, was finally circulated to members of the World Trade Organization (WTO) on May 25, 2021.

This will allow the first negotiations to proceed in the WTO’s intellectual property council since the US swung behind the idea of a waiver, if not necessarily in the form proposed. (The council’s official name is the TRIPS Council — for “trade-related aspects of intellectual property rights”.)

A closer examination of the contents shows that a lot may still have to be negotiated. In other words, this is not just about accepting or rejecting the waiver — to waive or not to waive. What is in the text and what is left out are all significant. We can expect some rough times ahead.

Continue reading “WTO COVID-19 waiver: does the new draft move the talks forward?”

Dire WTO General Council meeting shows scale of Okonjo-Iweala’s task

If this was an indication of members’ willingness to listen to the new director-general they had picked, then she must be disappointed

By Peter Ungphakorn
POSTED MARCH 5, 2021 | UPDATED JULY 25, 2021

‘It cannot be business as usual,” she had said when she was appointed. “It cannot be business as usual,” the ambassadors had echoed as they congratulated her. And at the next opportunity they did their utmost to demonstrate the exact opposite.

If Ngozi Okonjo-Iweala needed evidence of how much had to change at the World Trade Organization (WTO), her first few days as director-general offered her plenty to think about. Some who attended the WTO General Council’s first regular meeting of the year said it was one of the worst they could remember.

Continue reading “Dire WTO General Council meeting shows scale of Okonjo-Iweala’s task”

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”

Is the World Trade Organization choosing a saviour? Or a butler?

The 40-year record of previous office-holders shows how limited the WTO chief’s powers really are — worth keeping in mind as nominations for a new director-general open from June 8 to July 8

By Peter Ungphakorn
POSTED JUNE 8, 2020 | UPDATED AUGUST 26, 2020

Nominations closed on July 8, 2020 after one month (from June 8) for governments to propose candidates for the new director-general of the World Trade Organization (WTO). The organisation is in deep trouble and the timing looks bad although there are some pluses. But are the 164 member governments going to choose someone to rescue the WTO? Or does that overstate the powers of a person who might be better described as the WTO’s butler?

Continue reading “Is the World Trade Organization choosing a saviour? Or a butler?”

The WTO is surprisingly busy — considering it’s supposed to be dead

The reports of the WTO’s death are greatly exaggerated

By Peter Ungphakorn
POSTED JANUARY 17, 2020 | UPDATED JANUARY 17, 2020

As December approached last year, a steady stream of news reports and other articles warned of the impending death of the World Trade Organization (WTO). Deathday (December 10, 2019) came and went and still the WTO is alive and kicking.

If anyone needs proof, they could look at the schedule of meetings for the coming year. Continue reading “The WTO is surprisingly busy — considering it’s supposed to be dead”

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”