Caribbean Trade Law and Development

Category: WTO Appellate Body

  • WTO Thirteenth Ministerial Conference: What’s at stake?

    WTO Thirteenth Ministerial Conference: What’s at stake?

    Alicia Nicholls

    All eyes of the trade policy world will be on the United Arab Emirates’ glistening capital city, Abu Dhabi, for the World Trade Organization (WTO)’s Thirteenth Ministerial Conference (MC 13) taking place February 27-29, 2024. Under the chairmanship of His Excellency Dr Thani bin Ahmed Al Zeyoudi, UAE’s Minister of State for Foreign Trade, WTO members’ trade ministers and other delegates will discuss several key priority areas in hopes of securing a substantive package of outcomes which reinvigorates some confidence and strength to the WTO and the rules-based multilateral trading system which it oversees. This article takes a broad look at some of the major issues being discussed.

    Unlike other major multilateral organisations, the WTO is run by its members. Its highest decision-making body, the Ministerial Conference, comprises all of its members and meets every two years. The main exception to this was the four-year lag between the Buenos Aires Ministerial (2017) and Geneva Ministerial (2022) due largely to the COVID-19 pandemic.

    Similar to the run-up towards the last ministerial (MC 12), pressure exists for achieving concrete outcomes from this Ministerial Conference. Public commentary leading up to the ministerial has ranged the gamut from optimistic to pessimistic, especially since some issues like the TRIPS Waiver extension and agriculture appear far from reaching consensus. Significant discussions and preparatory work by delegations leading up to MC13 seek to ensure, however, that the pessimists are proven wrong. Indeed, ever-optimistic, the WTO’s formidable Director-General, Dr. Ngozi Okonjo Iweala is quoted as stating ““You know it’s always very difficult and seems like it’s not going to work…But we never say never. We are going to get it done.”

    Two new accessions

    On the bright side, the WTO will see two new accessions – Comoros and Timor Leste, the first since 2016 and which will bring its membership from 164 currently to 166. Both Comoros and Timor Leste are least developed countries (LDCs) and small island developing States (SIDS), emblematic of the importance small States in particular attach to the rules-based multilateral trading system despite its flaws. Some twenty-two other countries or separate customs territories are presently in the accession process. This lends credence to the argument that despite its shortcomings, countries still see WTO membership as desirable.

    Fisheries Subsidies Agreement

    Securing the entry into force of the Fisheries Subsidies Agreement, which was adopted at MC12 in 2022, is one priority area, as well as the second round of negotiations under that Agreement. The Agreement establishes binding multilateral rules seeking to discipline harmful fisheries subsidies which have been detrimental to the world’s fish stocks. The Agreement requires two-thirds of the WTO’s membership to deposit instruments of acceptance. Barbados, Dominica and Haiti recently deposited their instruments of acceptance this month. Indeed, Barbados’ Ambassador Matthew Wilson shared a video entitled “The Barbadian Matriarchy of Fishing” to highlight the importance of supporting small-scale and artisanal fishing in Barbados.

    E-commerce moratorium extension

    In place since 1998, the long-standing agreement among Members against imposing customs duties on electronic transmissions is due to expire unless Members agree once again to extend it. This e-commerce moratorium has been controversial as some countries argue that it has been critical for a smooth environment for digital trade. However, some developing countries are concerned about foregone customs revenue.

    Trade and development

    Development-related issues are also key on the agenda, particularly how to operationalize the development flexibilities – Special and Differential Treatment – within the WTO’s agreements. In December 2023, WTO members agreed on a draft decision to be submitted to trade ministers for approval at MC13 on further integration of small economies into the world trading system. Additionally, in January 2024, the Plastics Pollution Dialogue, comprising 76 WTO Members, reached agreement on a ministerial statement to be issued at MC13.

    Incorporation of JSI outcomes into WTO rulebook

    Since the stalemate of the Doha Development Agenda, some WTO members have turned to joint statement initiative discussions as a way to advance rule-making in the WTO in the areas of e-commerce, MSMEs, investment facilitation for development and domestic regulation in services trade. The JSI discussions have been criticized by some members, most prominently India and South Africa, as ‘illegal’ and lacking a formal mandate for the discussions. As such, the recently concluded Investment Facilitation for Development (IFD) Agreement’s incorporation as a plurilateral agreement under Annex 4 of the Marrakesh Agreement remains fraught. It would require consensus, including support from non-parties to the Agreement and from countries which oppose the JSI process. Six CARICOM Member States (Antigua & Barbuda, Barbados, Belize, Dominica, Grenada, Suriname) participated in the IFD Agreement negotiations and are among the 118 WTO members which support the Agreement.

    WTO Reform

    WTO reform has been an important agenda item, but the Doha Development Agenda stalemate and the Appellate Body crisis have reiterated the need to reform the institution’s dispute settlement function. A draft text on dispute settlement reform has elicited much discussion but there appears so far to be no way forward for the resumption of a two-tier system.

    Lots at stake

    Interestingly, the WTO’s MC13 will be taking place at the same time as the 46th Regular Heads of Government Meeting in Georgetown, Guyana, opening on Sunday, February 25. However, it is expected that at least some of CARICOM’s trade ministers will be at MC13, especially given the nature of the issues being discussed.

    In conclusion, there is a lot riding on MC13. MC13 cannot be divorced from the economic and political context in which it is occurring. For example, the fact that this is a ‘mega-election’ year with elections due in major countries, such as the US and India, for example, mean that there is added pressure on delegations to ensure that MC13 outcomes deliver for their own citizens and are politically palatable for their electorate. It is hoped that whatever the outcomes, they help to strengthen, revitalise and restore some confidence to an institution which, though not perfect, is indispensable for global trade and the wider global economy.

    Alicia Nicholls is an international trade consultant and founder of the Caribbean Trade Law & Development Blog www.caribbeantradelaw.com.

  • Several WTO Members agree on interim appeal arrangement for dispute settlement

    Several WTO Members agree on interim appeal arrangement for dispute settlement

    Alicia Nicholls

    On March 27, 2020, several Members of the World Trade Organization (WTO) agreed on a stop gap measure to ensure the continuation of a two-step system for the peaceful and orderly settlement of trade disputes amongst them at the WTO.

    Readers would recall that in December 2019 the WTO Appellate Body lost the quorum needed for hearing new appeals from panel reports and is no longer functioning. It is the sad culmination of the US’ blockage of appointments/re-appointments to the normally seven-member body in protest over alleged judicial overreach.

    What’s the Multiparty Interim Appeal Arbitration Arrangement?

    The new temporary arrangement agreed on today, known as the Multiparty Interim Appeal Arbitration Arrangement (MPIA), is based on Article 25 of the WTO’s Dispute Settlement Understanding. The MPIA will be based on the substantive and procedural aspects of the Appellate Body. Any Member may join the MPIA upon notification of endorsement of the communication to the Dispute Settlement Body. The arrangement will be in place as long as the Appellate Body remains defunct.

    This interim appeal initiative, which was spearheaded by the EU, is further to a statement which was made on January 4, 2020 at Davos in which the EU and then sixteen other WTO Members agreed to work on such an arrangement.

    Who’s already in?

    In addition to the EU, the fifteen other WTO Members which have already signed on are: Australia; Brazil; Canada; China; Chile; Colombia; Costa Rica; Guatemala; Hong Kong, China; Mexico; New Zealand; Norway; Singapore; Switzerland; and Uruguay. No Caribbean country has signed on as yet.

    For further information

    The Ministerial Statement may be accessed here.

    The full text of the Multiparty Interim Appeal Arbitration Arrangement may be read here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant. You can also read more of her commentaries at www.caribbeantradelaw.com and follow her on Twitter @LicyLaw.

    DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.

  • WTO Reform High on US President’s Trade Policy Agenda for 2020

    WTO Reform High on US President’s Trade Policy Agenda for 2020

    Alicia Nicholls

    Reform of the World Trade Organization (WTO) remains a high priority on United States (US) President Donald Trump’s ‘America-First’ Trade Agenda. This was confirmed in the recently released 2020 Trade Policy Agenda and 2019 Annual Report of the President of the United States on the Trade Agreements Program by the Office of the United States Trade Representative (USTR).

    Among the priorities listed for the President’s 2020 trade agenda is that the Administration “will push for a WTO that reflects current economic realities and strengthens free-market economies”. Readers would recall, for example, that last year the US stepped up its campaign advocating the introduction of criteria-based eligibility requirements, as opposed to the current and longstanding practice of self-selection as a developing country. In early February of this year, the US revised its list of developing and least-developed countries for purposes of US countervailing duties law.

    In December last year, the WTO’s Appellate Body became defunct following some two years of US blocking of appointments and reappointments to the once seven-member body over allegations of judicial overreach by the WTO’s highest arbiter of trade disputes. Earlier this month, the USTR released a report reiterating some of its criticisms of the Appellate Body’s operation.

    Consistent with the Administration’s stance, this present report has argued that “a number of features at the WTO reflect out-of-date assumptions and do not reflect current realities”.

    So what are the US priorities for WTO reform this year? The report notes that in addition to addressing the Appellate Body, the US will seek a new fisheries agreement, a digital commerce agreement, enforcing notifications obligations, and seeking reform of “special and differential treatment” for “developing” countries. It will also advocate for “other changes at the WTO that will have the WTO working for its Members.”

    The report further states that “the United States will also explore a broader reset at the WTO”. It notes, for example, that “the WTO currently locks-in outdated tariff determinations that no longer reflect deliberate policy choices and economic realities. ” As a result, it argues, “countries that have large economies that have developed significantly over the past two decades continue to maintain very high bound tariff rates, far in excess of the rates applied by the United States or to which the United States is bound”. It will also seek more plurilateral agreements.

    Other trade policy priorities outlined in the 300-plus page document are: pursuing trade agreements that benefit all Americans and enforcing US trade agreements and trade laws vigorously.

    Bearing in mind that this is a presidential election year in the US, it is likely the Trump Administration will use its ‘progress’ on WTO reform and other ‘wins’ like the recently updated NAFTA (renamed to the USMCA) and the Phase One trade deal with China as examples of a trade policy that puts Americans first in its bid to support the President’s re-election. This will definitely be a space to closely watch in coming months.

    The full USTR report may be accessed here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

    DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.

  • USTR releases report reiterating critiques of defunct WTO Appellate Body

    USTR releases report reiterating critiques of defunct WTO Appellate Body

    Alicia Nicholls

    Any doubts on whether the United States (US) would eventually shift its stance on the now defunct World Trade Organization (WTO) Appellate Body (AB) have been quashed with the release of a report by the Office of the United States Trade Representative (USTR) reiterating the US’ longstanding grievances with the AB.

    The crux of the report may be obtained from the following paragraph:

    “the Appellate Body has repeatedly failed to apply the rules of the
    WTO agreements in a manner that adheres to the text of those agreements, as negotiated and
    agreed by WTO Members. The Appellate Body has strayed far from the limited role that WTO
    Members assigned to it, ignoring the text of the WTO agreements. Through this persistent
    overreaching, the Appellate Body has increased its own power and seized from sovereign nations
    and other WTO Members authority that it was not provided.

    The report may be accessed here.