Amb. David Walker

The importance of addressing “overreach” in reforming the WTO Appellate Body

· April 22, 2021 · Appellate Body reform · , , , , · No Comments

I have written a number of posts in the last eighteen months looking at the problems of the Appellate Body and the inadequacy of reform proposals put forward by WTO Members. Most importantly there can be no acceptable solution for the United States without addressing the concern over the WTO Appellate Body creating rights and obligations that Members have not agreed to. In the U.S., this is often referred to as “overreach”. In my view, addressing “overreach” requires changes both going forward and correction of overreach that has occurred in the past. My suggested approach can be found in my post of July 12, 2020 with a background note on “overreach contained in my post of November 12, 2019. Some of my prior posts on the WTO Dispute Settlement system include the following: March 11, 2021:  “No Quick Fixes for WTO Dispute Settlement Reform” — a skeptical view by the former Deputy USTR of the EU’s willingness to address core U.S. concerns, https://currentthoughtsontrade.com/2021/03/11/no-quick-fixes-for-wto-dispute-settlement-reform-a-skeptical-view-by-the-former-deputy-ustr-of-the-eus-willingness-to-address-core-u-s-concerns/; February 18, 2021:  The European Commission’s 18 February 2021 Trade Policy Review paper and Annex — WTO reform and much more proposed, https://currentthoughtsontrade.com/2021/02/18/the-european-commissions-18-february-2021-trade-policy-review-paper-wto-reform-and-much-more-proposed/; January 29, 2021:  WTO Panel report on UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS AND THE USE OF FACTS AVAILABLE should be appealed by the United States, https://currentthoughtsontrade.com/2021/01/29/wto-panel-report-on-united-states-anti-dumping-and-countervailing-duties-on-certain-products-and-the-use-of-facts-available-should-be-appealed-by-the-united-states/; October 1, 2020:  Thoughts on the Geneva Trade Week session entitled “WTO Dispute Settlement – Where Do We Stand?”, https://currentthoughtsontrade.com/2020/10/01/thoughts-on-the-geneva-trade-week-session-entitled-wto-dispute-settlement-where-do-we-stand/; August 29, 2020:  WTO Dispute Settlement Body meeting of August 28, 2020 – how disputes are being handled in the absence of reform of the Appellate Body, https://currentthoughtsontrade.com/2020/08/29/wto-dispute-settlement-body-meeting-of-july-28-2020-how-disputes-are-being-handled-in-the-absence-of-reform-of-the-appellate-body/; August 9, 2020:  USTR Lighthizer on WTO dispute settlement – answers to Congressional questions from June 17 hearings, https://currentthoughtsontrade.com/2020/08/09/ustr-lighthizer-on-wto-dispute-settlement-answers-to-congressional-questions-from-june-17-hearings/; July 12, 2020:  WTO Appellate Body reform – revisiting thoughts on how to address U.S. concerns, https://currentthoughtsontrade.com/2020/07/12/wtos-appellate-body-reform-revisiting-thoughts-on-how-to-address-u-s-concerns/; July 2, 2020:  WTO Dispute Settlement – how to handle allegations that an Appellate Body member is affiliated with a government and hence not properly an Appellate Body member, https://currentthoughtsontrade.com/2020/07/02/wto-dispute-settlement-how-to-handle-allegations-that-an-appellate-body-member-is-affiliated-with-a-government-and-hence-not-properly-an-appellate-body-member/; March 28, 2020: March 27, 2020 Agreement on Interim Arbitration Process by EU and 15 other WTO Members to Handle Appeals While Appellate Body is Not Operational, https://currentthoughtsontrade.com/2020/03/28/march-27-2020-agreement-on-interim-arbitration-process-by-eu-and-15-other-wto-members-to-handle-appeals-while-appellate-body-is-not-operational/; March 7, 2020: Impasse on the WTO Appellate Body – Any Progress Likely by the 12th Ministerial?, https://currentthoughtsontrade.com/2020/03/07/impasse-on-the-wto-appellate-body-any-progress-likely-by-the-12th-ministerial/; February 14, 2020: USTR’s Report on the WTO Appellate Body – An Impressive Critique of the Appellate Body’s Deviation from Its Proper Role, https://currentthoughtsontrade.com/2020/02/14/ustrs-report-on-the-wto-appellate-body-an-impressive-critique-of-the-appellate-bodys-deviation-from-its-proper-role/; January 30, 2020: WTO Appellate Body Impasse – How and Why, https://currentthoughtsontrade.com/2020/01/30/wto-appellate-body-impasse-how-and-why/; December 7, 2019: The WTO Dispute Settlement System – Closing Out 2019 and Implications for 2020, https://currentthoughtsontrade.com/2019/12/07/the-wto-dispute-settlement-system-closing-out-2019-and-implications-for-2020/; November 24, 2019: With the WTO Appellate Body Becoming Dysfunctional on December 11, What Happens to Pending Appeals and Other Open Issues?, https://currentthoughtsontrade.com/2019/11/24/with-the-wto-appellate-body-becoming-dysfunctional-on-december-11-what-happens-to-pending-appeals-and-other-open-issues/; November 17, 2019: The WTO budget and the Appellate Body – Potential Fireworks at the end of 2019, https://currentthoughtsontrade.com/2019/11/17/the-wto-budget-and-the-appellate-body-potential-fireworks-at-the-end-of-2019/; November 12, 2019: Background Materials on WTO Appellate Body Reform Challenges – The Critical Issue of “Overreach”, https://currentthoughtsontrade.com/2019/11/12/background-materials-on-wto-appellate-body-reform-challenges-the-critical-issue-of-overreach/; November 4, 2019: WTO’s Appellate Body Reform – The Draft General Council Decision on Functioning of the Appellate Body, https://currentthoughtsontrade.com/2019/11/04/wtos-appellate-body-reform-the-draft-general-council-decision-on-functioning-of-the-appellate-body/; November 1, 2019: The October 28, 2019 WTO Dispute Settlement Body Meeting – Another Systemic Problem Flagged by the United States, https://currentthoughtsontrade.com/2019/11/01/the-october-28-2019-wto-dispute-settlement-body-meeting-another-systemic-problem-flagged-by-the-united-states/; October 9, 2019: The World Trade Organization in Crisis – the Last Two Months of the Appellate Body Absent Reform Is Just One Example, https://currentthoughtsontrade.com/2019/10/09/the-world-trade-organization-in-crisis-the-last-two-months-of-the-appellate-body-absent-reform-is-just-one-example/.

In late 2019 and the first half of 2020, the National Foreign Trade Council released two papers it commissioned that were written by a former USTR attorney with extensive experience in WTO dispute settlement matters, Bruce Hirsch, on Appellate Body reform. See Bruce Hirsch, Resolving the WTO Appellate Body Crisis (Vol. 1), Proposals on Overreach, December 2019, https://www.nftc.org/default/trade/WTO/Resolving%20the%20WTO%20Appellate%20Body%20Crisis_Proposals%20on%20Overreach.pdf; Bruce Hirsch, Resolving the WTO Appellate Body Crisis (Vol. 2), Proposals on Precedent, Appellate Body Secretariat and the Role of Adjudicators, June 2020, https://www.nftc.org/default/Trade%20Policy/WTO_Issues/Resolving%20the%20WTO%20AB%20Crisis%20vol2%2006042020.pdf. The first of the two papers dealt with the topic of overreach though did not address correcting past overreach situations. The NFTC press release summarized the proposals for change on the overreach issue as follows:

“The paper includes six key proposals:

“1. Enforce the 90-day timeframe for appeals;

“2. Prohibit advisory opinions, and further elaborate the circumstances constituting advisory opinions;

“3. Clarify that DSU Article 3.2 does not justify expanding or narrowing the reach of WTO provisions or filling gaps in WTO coverage;

“4. Clarify that customary rules of interpretation of public international law do not justify gap-filling and expanding or narrowing the reach of WTO provisions;

“5. Affirm that Article 17.6(ii) of the Antidumping Agreement must be given meaning, by clarifying that the provision reflects the principle just described, that WTO adjudicators may not expand or narrow the meaning of broad provisions and general terms; and

“6. Direct the Appellate Body to reject party arguments that expand or narrow the reach of agreement provisions or fill gaps in agreements.”

This year, a former USTR General Counsel, Warren Maruyama had an article published in the Journal of World Trade that again stressed the importance of addressing overreach to be able to resolve the Appellate Body impasse. See Maruyama, Warren H., “Can the Appellate Body Be Saved?”, Journal of World Trade 55, no. 2 (2021, 197-230. Mr. Maruyama notes that the problem of overreach for the United States is most pronounced in the trade remedy sphere and that there have been concerns for two decades or more flowing in large part from the Appellate Body’s creation of obligations on “zeroing”. As Mr. Maruyama states, “The concerns rest on the conviction of U.S. trade officials who participated in the Uruguay Round negotiations and later served in the Bush 43, Obama, and Trump Administrations, that there was never a WTO agreement to abolish ‘zeroing’.” Id at 197. Mr. Maruyama reviews the Uruguay Round antidumping negotiations and GATT disputes on similar language in the Tokyo Round Code to that relied upon by the Appellate Body to support his thesis that many countries knew about “zeroing” (treating sales that were not dumped as having a “0” dumping amount) during the Uruguay Round, and that efforts to have language added to the Agreement to address the issue were rejected. Id at 202-210.

Mr. Maruyama then proceeds to look at the challenges to addressing overreach and has a number of useful proposals — clarifying the standard of review for the Appellate Body, not review finding of facts under DSU Art. 11, giving meaning to ADA Article 17.6(ii) in terms of deference to administering authorities in constructions where more than one meaning is possible, examining negotiating history and ending gap filling. Id at 214 – 225. He also proposes reforming the Appellate Body appointment process (moving away from academics to individuals with WTO negotiating experience), making Appellate Body positions full time, providing a mechanism to disapprove an AB decision where a significant number of Members object, and by modifying the structure and operation of the Appellate Body Secretariat to have Secretariat personnel hired by each AB member to help the AB member during his/her time on the Appellate Body. Id at 226-228.

The importance of Mr. Maruyama’s article lies in his focus on the critical importance of solving the overreach problem if the WTO is to regain a two-tier dispute settlement system. His is another voice providing a clear signal that overreach is the most important issue to be solved and that the Walker paper from late 2019 didn’t really address this core U.S. concern.

As I have written before, addressing overreach requires both fixing the operation of the system going forward and rebalancing rights and obligations by correcting for the overreach decisions Members have flagged to the DSB in the past. The addressing of overreach is of importance to both political parties in the United States and has been on the radar of current and past Administration since at least 2002.

Because restoration of a two-tier dispute settlement system is viewed as important by many Members, it is time for WTO Members to in fact recognize the problems of past decisions and work for meaningful solutions both of the system going forward and to ensure a restoration of the balance and rights and obligations agreed to by Members during the Uruguay Round.

Special Session of the General Council at WTO appoints Dr. Ngozi Okonjo-Iweala as the seventh Director-General

· February 16, 2021 · Selection of WTO Director-General · , , , , · No Comments

The Special Session of the WTO General Council yesterday, February 15, 2021, which was called for the sole purpose of appointing the next Director-General, ran especially long, some four hours, as many WTO Members took to the floor (virtually) to congratulate Dr. Ngozi Okonjo-Iweala on her appointment as the next WTO Director-General. The appointment marks the first time the WTO or its predecessor the GATT has been headed by a woman, and the first time it has been headed by an African. At the end of the special meeting of the General Council, the next Director-General held a press conference for about an hour. During the press conference, Dr. Ngozi Okonjo-Iweala was asked how reporters should address her. Her answer was as Dr. Ngozi (Director-General Ngozi after February 28). I use “Dr. Ngozi” in the rest of this post.

While a normal term for the Director-General is four years, the WTO Members could have appointed Dr. Ngozi for the remainder of the four years from September 1, 2020-August 31, 2024 (i.e., the period from when Roberto Azevedo stepped down at the end of August), a four year period from March 1, 2021 – February 28, 2025 (i.e., the four year period from when she starts as Director-General), or could have brought the first period back in line with the four year cycles that would have prevailed if Roberto Azevedo had stayed til August 31, 2021. The WTO membership has set Dr. Ngozi’s first term at the longer option, March 1, 2021 – August 31, 2025.

The special meeting was not open to the public, and minutes from the meeting are not yet available. As the only agenda item was the appointment of the next Director-General, the process presumably consisted of the Chairman of the General Council, Amb. David Walker (New Zealand), with the concurrence of his facilitators in the selection process Amb. Dacio Castillo of Honduras (Chairman of the Dispute Settlement Body) and Amb. Harald Aspelund of Iceland (Chairman of the Trade Policy Review Body), putting forward the recommendation that Dr. Ngozi be appointed as the next Director-General. Without objection, Dr. Ngozi received the consensus support of the Members. Following that Dr. Ngozi provided a statement which both thanks the “troika” for their efforts during the selection process and reviewed her vision of the priorities for the WTO. Her full statement is embedded below (JOB/GC/250).

JobsGC250

Some excerpts lay out the major priorities and shows the daunting challenges facing WTO Members and the new Director-General:

“1.9 * * * For the global economy to return to sustained growth, the global community will need to get a tight grip on the pandemic by intensifying cooperation to make equitable and affordable access to vaccines, therapeutics, and diagnostics a key plank of the recovery. With new COVID variants spreading rapidly all over, we must have a sense of urgency to getting control of the pandemic. The WTO can and must play a more forceful role in exercising its monitoring function and encouraging Members to minimise or remove export restrictions and prohibitions that hinder supply chains for medical goods and equipment. The International Trade Centre recently reported that up to 100 countries still maintain export restrictions and prohibitions.” (emphasis added)

“1.10. WTO Members have a further responsibility to reject vaccine nationalism and protectionism. They should rather intensify cooperation on promising new vaccines, therapeutics, and diagnostics. There should be a ‘third way’ to broaden access through facilitating technology transfer within the framework of multilateral rules, so as to encourage research and innovation while at the same time allowing licensing agreements that help scale up manufacturing of medical products.”

“1.11 * * * At MC12, the success of which is a top priority for us all, we must reach agreement on some pressing issues and elaborate on work programmes for others. Apart from the issues related to the pandemic, I hope that we would have finalised the fisheries subsidies negotiations, leaving MC12 as the venue to conclude on modalities for implementation.”

“1.12. Reform of the dispute settlement system, which has been a central element in guaranteeing security and predictability of the multilateral trading system, is of utmost importance to the membership. Some Members have criticised the way it functions and demanded reforms. It will be important to agree on the nature of these reforms, flesh them out, and develop a work programme for implementation that can be advanced at MC12. I believe that the set of recommendations proposed by Ambassador Walker could provide Members with a platform upon which to build so as to restore confidence in the dispute settlement system. A strengthened and robust system is in the interest of all Members, and as such, every effort should be made to improve it. We need a system that can garner the confidence of all, including small developing and least developed countries who have found it challenging to utilize.”

“1.13. The WTO rule book is outdated, and its rules lag behind those of several regional and bilateral trade agreements which are incorporating a lot of innovations. The rulebook must be updated to take account of 21st century realities such as e-commerce and the digital economy. The pandemic has heightened the importance and accelerated the role of e-commerce, which is expected to grow significantly in the coming years. E-commerce offers important opportunities for inclusivity of MSMEs and women in international trade, especially in developing countries. To make it possible for some developing and least developed countries to participate in the e-commerce negotiations, we must partner with governments and other organizations to bridge the digital divide. Success in the e-commerce negotiations could provide an impetus for reviving more broadly the negotiations on Trade in Services, a sector of increasing importance in the economy of most Members. Plurilateral initiatives have brought new energy in the Multilateral Trading System. Negotiating work on other joint statement initiatives – domestic regulation and investment facilitation – has continued fairly intensively despite the pandemic. Participants need to pursue their efforts to build support and attract interest from a significant part of the WTO membership, including from developing countries with a view to concluding at least the domestic regulation by MC12.”

“1.14. We should also work to ensure that the WTO best supports the green and circular economy and addresses more broadly the nexus between trade and climate change.”

“1.15. The WTO’s work in new or innovative areas does not mean that traditional topics such as agriculture are forgotten. Agriculture is particularly important for many developing and least developing countries. Improving market access for export products of interest to these countries is of paramount importance, as is dealing with trade distorting domestic support. The growing domestic support entitlements of Members must be addressed to level the playing field, so as to provide opportunities for small scale farmers. In addition, it is possible for an early agreement on removal of export restrictions including favorable consideration of the exemption of WFP humanitarian purchases. Likewise, we must also strengthen disciplines on industrial subsidies. In that regard, it would be important to ensure that subsidies granted by Members to their state-owned enterprises in certain situations do not distort the conditions of competition. The issue of Special and Differential Treatment (SDT) is a divisive one that undermines trust. However, the voluntary action of some developing country Members to not avail themselves of SDT in the future points a way forward, so does the Trade Facilitation Agreement which allowed for taking into account each Member’s particular development status.”

“1.16 * * * Transparency is the lifeblood of the system and every effort should be made to assist Members to meet their notification and transparency obligations. The development and streamlining of online tools, including the introduction of E-agendas is a step in the right direction. Some WTO rules and procedures also need to be revisited, including the procedures for appointing DGs. Regarding Ministerials, Article IV of the Marrakesh Agreement provides that ‘there shall be an MC composed of representatives of all Members which shall meet at least once every two years.’ In today’s fast changing, fast paced, but uncertain world, it may be opportune for members to review the frequency of Ministerials to assess whether yearly meetings would allow Members to better appraise the health of the MTS, surface problems, and together advance timely solutions. Furthermore, Members take decisions on the basis of consensus, and rightly so, since Article IX:1 of the Marrakesh Agreement provides that ‘the WTO shall continue the practice of decision-making by consensus followed under the GATT’ but Members must be vigilant that the quest for consensus does not create situations in which welfare enhancing innovations or approaches of benefit to the membership are frustrated.”

“1.17. The WTO Secretariat should be strengthened to enable it to provide cutting edge services to the membership in all relevant areas of WTO’s work, including implementation, monitoring, dispute settlement and negotiations. An important change will be to move away from the current siloed way of working to a more team and task-based approach. The Secretariat has to be fit for purpose to take account of the changing dynamics of the global economy and priorities of Members.”

During the press conference, Dr. Ngozi reviewed many of the above priorities but emphasized the critical importance of focusing first on the pandemic which means getting better control over export restraints and addressing the role the WTO can play in ensuring access to vaccines and other medical goods. Preparation for the 12th Ministerial Conference likely to take place near the end of 2021 is next and includes concluding the fisheries subsidies, progress on Joint Statement Initiatives (e.g., e-commerce, domestic regulations, etc.) and agreeing to a process for addressing the impasse on dispute settlement.

While yesterday’s Special Session was a time of celebration and expressions of support for the incoming Director-General, the ultimate success of the WTO under Dr. Ngozi’s leadership will depend on the ability of Members with very different interests to reach agreement on the road forward. Dr. Ngozi was selected in part for her promise to bring a fresh pair of eyes and push for a change in how the organization operates (“not business as usual”). But success is anything but assured. While Dr. Ngozi has focused on a lack of trust among Members, some have argued that it is really a lack of common purpose/objective among the membership that has resulted in an inability to move the organization forward. The move to bilateral and plurilateral agreements and Joint Statement Initiatives over the last dozen years is a reflection of the inability to get all Members on board initiatives to keep the organization moving forward. The twenty years that the fisheries subsidies negotiations have been dragging on and the inability of Members to focus on the objective of preserving fishing for future generations vs. minimizing the disciplines they accept reinforces the concern that the deep divisions among the membership doom multilateralism.

In a post from Saturday, I had urged Dr. Ngozi to think big in terms of her inner team and the four Deputies Director-General that will help her. See February 13, 2021, Leadership change at the WTO — with Dr. Ngozi Okonjo-Iweala’s arrival next week, what support team and early changes in the role of the Secretariat could help WTO Members move forward?, https://currentthoughtsontrade.com/2021/02/13/leadership-change-at-the-wto-with-dr-ngozi-okonjo-iwealas-arrival-next-week-what-support-team-and-early-changes-in-the-role-of-the-secretariat-could-help-wto-members-move-forward/. With all of the critical issues before the WTO, Dr. Ngozi will need as deep and talented a team as she can assemble to permit extension of her reach to avoid the stagnation that has characterized the organization, assuming common ground can be found among the Members.

Dr. Ngozi’s appointment has given the WTO a shot in the arm and given many hope that a brighter future lies ahead. The WTO clearly needs major reforms to recapture the role envisioned in the 1980s and early 1990s when it was being negotiated and created. Let’s hope that Dr. Ngozi will help find the path that Members will agree to pursue to return the WTO to relevance.

Below are embedded a few of the statements from yesterday of Members (U.S., EU, China, India).

U.S.-Statement-on-the-Appointment-of-New-Director-General-Dr.-Ngozi-Okonjo-Iweala-_-U.S.-Mission-to-International-Organizations-in-Geneva

EU-Statement-at-the-General-Council-Special-Session-Appointment-of-the-next-Director-General-15-February-2021-European-External-Action-Service

Statement-by-H.E.-Ambassador-Li-Chenggang-at-the-Special-Meeting-of-the-General-Council

Welcome-to-Permanent-Mission-of-India-in-Geneva

WTO Special General Council meeting called for 3 p.m. on February 15, 2021 to consider appointment of a Director-General

· February 9, 2021 · Selection of WTO Director-General · , , , , · No Comments

Via communications sent out to the WTO membership on Tuesday, February 9, 2021, there will be a special General Council meeting next Monday, February 15, to consider the recommendation by the Chairman of the General Council, Amb. David Walker (NZ) that Members appoint Dr. Ngozi Okonjo-Iweala as Director-General of the WTO. the notices follow the withdrawal of the South Korean candidate, Trade Minister Yoo Myung-hee last Friday and the press release from the United States Trade Representative’s Office last Friday that the U.S. strongly supported the candidacy of Dr. Okonjo-Iweala. As other Members appeared to be on board with a consensus behind Dr. Okonjo-Iweala following the third round of consultations last October, movement by the Republic of Korea and the United States were the remaining steps for the Chairman of the General Council to be able to move forward with making his recommendation (supported by his facilitators) to the membership in a special General Council meeting. It is believed that Amb. Walker has been doing outreach to other Members since those announcements to confirm consensus and address any other issues relevant to the appointment of the next Director-General. So after the General-Council meeting next Monday, the WTO should finally have a new Director-General. The four Deputies Director-General have been jointly carrying on since the last Director-General departed at the end of August last year.

The two documents sent out today are embedded below.

Document-1

Document

The WTO Informal Ministerial of January 29, 2021 — hope for progress at the WTO in 2021

· January 30, 2021 · Appellate Body reform, COVID-19, electronic commerce and digital trade, Fisheries Subsidies negotiations, Selection of WTO Director-General, Special and Differential Treatment, WTO Informal Ministerial · , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , · No Comments

Switzerland typically hosts an informal ministerial meeting of WTO trade ministers on the sidelines of the World Economic Forum’s January Davos event. This year both were handled remotely.

The informal ministerial was summarized in ten points by the Swiss Confederation President Guy Parmelin at the end of the event. President Parmelin’s statement is available here, https://www.newsd.admin.ch/newsd/message/attachments/65098.pdf, and is copied below.

“Virtual Informal WTO Ministerial Gathering, 29 January 2021

“Personal Concluding Remarks by the Chair, President of the Swiss Confederation and Head of the Federal Department for Economic Affairs, Education and Research, Guy Parmelin, Switzerland

“29 Ministers and high officials representing a broad spectrum of the WTO membership attended this year’s Informal World Trade Organization (WTO) Ministerial Gathering in virtual format. In concluding and with warm thanks to all participants for their contributions, I would like to summarise the main points from our discussions as follows:

“• Ministers stressed the urgency of the swift appointment of a new WTO Director-General as well as the confirmation of the date and venue of the 12th Ministerial Conference (MC12).

“• Ministers reiterated their determination to maintain a credible multilateral trading system and to restore a climate of mutual trust.

“• Ministers expressed their concerns about the enormous social and economic impact of the COVID-19 crisis. They highlighted the relevance of trade and the role of the WTO in containing the pandemic and promoting recovery. Many Ministers underlined the importance of ensuring the development of as well as an equitable and affordable access to medical goods, including vaccines. They addressed ways and means to achieve these goals, including the implementation of measures facilitating trade, the role of intellectual property and transparency.

“• Ministers regretted that the negotiations on fisheries subsidies could not be completed in accordance with the end-2020 deadline foreseen in SDG 14.6. In light of the significance of this process for the sustainability of global fisheries, Ministers concurred that a comprehensive and effective agreement on fisheries subsidies should be concluded as soon as possible. Ministers agreed to step up efforts with a view to finding mutually acceptable solutions consistent with all the elements of the negotiating mandate.

“• Ministers highlighted the importance of restoring a fully functional WTO dispute settlement system, which is a key pillar of the rules-based multilateral trading system.

“• Many participants argued for further progress in agricultural trade policy reform at MC12 and asked for an outcome on domestic support and other issues. The issues of public stockholding and the special safeguard mechanism were highlighted by several Ministers.

“• Many Ministers called for tangible outcomes, by MC12, on the Joint Statement Initiatives. Inter alia finalizing the process on Services Domestic Regulation and making substantial progress on E-commerce and Investment Facilitation as well as on Trade and Women’s Economic Empowerment.

“• The need to reform the WTO was widely acknowledged. A number of Ministers insisted on advancing diverse issues related to the special and differential treatment of developing and least developed countries. Some participants proposed to adjust WTO rules to present-day economic and competitive conditions.

“• Several Ministers supported new initiatives launched in response to global challenges such as the structured discussions on Trade and Environmental Sustainability.

“• Ministers reaffirmed their commitment to engage in the preparations for MC12 in order to advance key issues.”

The participants at this year’s informal ministerial included officials from Argentina, Australia, Brazil, Canada, Chad (coordinator for LDC Group), Chile, China, Egypt, European Union, India, Indonesia, Jamaica (Coordinator ACP Group), Japan, Kazakhstan, Kenya, Korea, Mauritius (Coordinator African Group), Mexico, New Zealand, Norway, Russian Federation, Saudi Arabia, Singapore, South Africa, Switzerland (Chair), Thailand, Turkey, United Kingdom, United States and three officials with WTO roles — H.E. Mr. David Walker (New Zealand), WTO General Council Chair; H.E. Mr. Santiago Wills (Colombia), WTO Chair of the Negotiating Group on Rules, H.E. Mr. Alan Wolff, WTO Deputy Director-General. The full list with titles is embedded below.

List-of-participants-at-virtual-informal-ministerial-1-29-2021-65099

The good news for the informal ministerial was the position taken by the United States representative who reportedly indicated that the United States was actively reviewing the issue of the next Director-General and was intent on actively working on WTO reform. See, e.g., Inside U.S. Trade’s World Trade Online, Biden administration strikes ‘constructive’ tone in first word on WTO approach, January 29, 2021, https://insidetrade.com/daily-news/biden-administration-strikes-%E2%80%98constructive%E2%80%99-tone-first-word-wto-approach; Politico, Biden administration joins call for ‘swift appointment’ of new WTO head, January 29, 2021, https://www.politico.com/news/2021/01/29/biden-world-trade-organization-463820. Under the Trump Administration, the United States had blocked the formation of consensus around Dr. Ngozi Okonjo-Iweala based on the U.S. view that Dr. Okonjo-Iweala did not have a sufficient trade background. See, e.g., January 26, 2021, Letter from variety of former U.S. officials to President Biden urges U.S. support for Dr. Ngozi Okonjo-Iweala as next WTO Director General, https://currentthoughtsontrade.com/2021/01/26/letter-from-variety-of-former-u-s-officials-to-president-biden-urges-u-s-support-for-dr-ngozi-okonjo-iweala-as-next-wto-director-general/. Hopefully, the current review of the issue by the Biden Administration, even ahead of President Biden’s trade team being confirmed by the U.S. Senate, will result in the U.S. joining the support for Dr. Okonjo-Iweala, permitting the WTO to approve a next Director-General.

It was also reported that the United States, consistent with the Biden Administration’s focus on the COVID-19 pandemic and climate change, expressed interest in promoting recovery from the COVID-19 pandemic and concluding an ambitious fisheries subsidies agreement. See Inside U.S. Trade’s World Trade Online, Biden administration strikes ‘constructive’ tone in first word on WTO approach, January 29, 2021, https://insidetrade.com/daily-news/biden-administration-strikes-%E2%80%98constructive%E2%80%99-tone-first-word-wto-approach. Fisheries subsidies negotiations have been going on for some twenty years, and many Members have remained more concerned with keeping their subsidies in place than agreeing to disciplines that would create conditions for sustainable fishing going forward. The Interest in the Biden Administration in working within the WTO on joint steps to promote recovery from the pandemic is different from the approach pursued by the Trump Administration which didn’t want to look at actions possible within the WTO (other than limits on export restraints on agricultural goods) while the world was dealing with the pandemic. The U.S. statement should mean more interest in exploring issues like those raised by the Ottawa Group. See November 27, 2020, The Ottawa Group’s November 23 communication and draft elements of a trade and health initiative, https://currentthoughtsontrade.com/2020/11/27/the-ottawa-groups-november-23-communication-and-draft-elements-of-a-trade-and-health-initiative/.

Other issues flagged in the Swiss President’s concluding remarks are issues of particular interest to some or many countries but not topics of clear agreement. For example, while it is likely that the United States will look for ways to resolve its concerns about longstanding problems in the WTO’s dispute settlement system, particularly around the Appellate Body, it is unlikely that there will be a swift resolution of the U.S. concerns, and hence there will likely be a continued impasse for at least much of 2021 on the return of a functioning two-stage dispute settlement system.

Similarly on domestic support in agriculture and other agriculture issues flagged, certain WTO Members have not supported further liberalization in agriculture while pushing for limits on domestic subsidies and rollback of liberalization commitments undertaken in the Uruguay Round. It is unlikely that there will be forward movement on these issues without greater balance in terms of tariff reductions on major agricultural products. Moreover, as noted in a recent post, other major distortions in agriculture that are not presently identified as domestic subsidies include widespread use of child and forced labor on many agricultural products. See January 25, 2021, Child labor and forced labor in cotton production — is there a current WTO mandate to identify and quantify the distortive effects?, https://currentthoughtsontrade.com/2021/01/25/child-labor-and-forced-labor-in-cotton-production-is-there-a-current-wto-mandate-to-identify-and-quantify-the-distortive-effects/; January 24, 2021, Forced labor and child labor – a continued major distortion in international trade for some products, https://currentthoughtsontrade.com/2021/01/24/forced-labor-and-child-labor-a-continued-major-distortion-in-international-trade-for-some-products/. Such practices should be quantified and the level of potential distortion identified so WTO Members can decide how to address them in ongoing agriculture negotiations.

Progress is being made on Joint Statement Initiatives including e-commerce, services domestic regulation, investment facilitation and women’s empowerment. An open issue for these and topics in the sphere of trade and the environment (e.g., environmental goods agreement) is whether benefits provided by participants will be made available on an MFN basis or limited to participants, with the option of other Members to join in the future. See January 18, 2021, Revisiting the need for MFN treatment for sectoral agreements among the willing, https://currentthoughtsontrade.com/2021/01/18/revisiting-the-need-for-mfn-treatment-for-sectoral-agreements-among-the-willing/. For many Members liberalization could be speeded up if benefits in sectoral agreements go to those participating only while leaving the door open for other Members to join later when they see the value for them.

And on the important topic of WTO reform beyond the items listed above, there is little current agreement on how to deal with industrial subsidies and other practices that lead to massive global excess capacity, or on how to address access to special and differential treatment and many other areas of importance to some or many WTO Members.

Deputy Director-General Alan Wolff provided a statement during the virtual informal ministerial urging WTO Members to make 2021 a year of accomplishments. The WTO press release can be found here. WTO News, DDG Wolff urges WTO ministers to address the pandemic and make 2021 a year of action, 29 January 2021, https://www.wto.org/english/news_e/news21_e/igo_29jan21_e.htm. DDG Wolff’s statement is copied below.

“My thanks to our Swiss hosts and to President Parmelin both for his remarks today and for his very thoughtful address on the occasion of the 25th anniversary celebration of the WTO last November.

“Ministers, you can make 2021 a year of substantial accomplishments at the WTO.

“There has already been a beginning.  In the first action of the year, Members accounting for most of the world’s agricultural exports committed to refrain from imposing export restrictions on purchases made by the World Food Program.

“The anticipated appointment of a new Director-General will bring needed leadership in moving toward concrete results.  But she can succeed only with your active engagement.

“I urge you not to wait for the Twelfth Ministerial Conference, delayed by the pandemic, to move negotiations forward to positive outcomes. 

“There is no reason why the twenty-year negotiation on fisheries subsidies cannot be concluded successfully — without a sacrifice of ambition — in the next few months.  Success hinges on Members’ willingness to accept a significant level of discipline on their own subsidies.  Political decisions and your active engagement will be required to bring about success.

“I urge you to address ‘trade and health’ forcefully and immediately.  Last year, trade made a vitally important contribution in supplying needed medical supplies to deal with COVID-19.  Proposals as to what more can be done must be deliberated now.  Cooperation on trade can accelerate access to vaccines.  There can be no higher priority.

“Consider how the WTO can further contribute to the economic recovery.  Members can take steps to ensure enhanced transparency, work to eliminate unnecessary barriers and agree that new restrictions will not be imposed.  Trade finance must be restored.  The WTO convened the major international financial organizations and banks to address this need in the aftermath of the financial crisis and it can do so now again.

“’Trade and climate’ must be on the WTO agenda.  Carbon border adjustment measures will likely result in conflicts unless Members engage in joint efforts to find mutually beneficial solutions.  The heightened interest of Members in a broad range of other environmental issues such as plastics pollution and the circular economy can be reflected in new agreements.   The WTO can be more visible as a steward of the planet by reviving and concluding the Environmental Goods Agreement. 

“The Joint Statement Initiatives on e-commerce, investment facilitation, and services domestic regulation can bear fruit this year, building on what was achieved with respect to small businesses last year.  In addition, more progress can be made on the economic empowerment of women through international trade.  

“Concerns over income inequality have been growing.  The WTO’s rules-based system needs to be seen not only among countries but also within countries, as responsive to the needs of workers, farmers and all who wish to engage in international trade.  But international trade rules cannot substitute for domestic policy actions to make growth more inclusive.  When large numbers of people are unhappy with how the economy is working for them, trade will often receive undeserved blame.  The WTO is about fairness.  Its work will never be done in pursuit of that objective, but further progress can be made this year.

“There can be an outcome on agriculture — at least a down-payment and a defined work program going forward.

“During 2021, the WTO can likely welcome new WTO Members, as it continues to move towards universal coverage.  Comoros and Bosnia-Herzegovina may be ready, and over a dozen others are making progress.

“Last but not least, ‘WTO reform’ can become a reality, with actions taken to —

“- facilitate rule-making with wide participation,

“- achieve heightened enforcement through binding dispute settlement in a manner agreed by all, and

“- provide a strong mandate for a Secretariat to deliver all needed support to Members and to achieving the mission of the WTO. 

“We should greet this year with optimism and re-dedication.  With your strong engagement, 2021 can be a year to remember for what is achieved.

“Thank you.”

A presentation from the WTO Secretariat to Ministers needs to be positive, forward looking, aspirational and inspirational. DDG Wolff’s statement yesterday provides all of that. The first item mentioned, the joint pledge from 79 WTO Members not to restrict agricultural exports to the UN World Food Programme for humanitarian purposes is a positive for the world but follows the December failure of the WTO General Council to agree to the same by all WTO Members. See January 23, 2021, WTO and the World Food Programme – action by 79 Members after a failed December effort at the General Council, https://currentthoughtsontrade.com/2021/01/23/wto-and-the-world-food-programme-action-by-79-members-after-a-failed-december-effort-at-the-general-council/.

The challenge for the WTO in 2021 will be whether Members can come together in fact to achieve many of the important opportunities and needs in front of the Membership. While the history of the WTO since 1995 and the major divisions among Members at the present time would strongly suggest that 2021 will not achieve many of the things that are needed and possible, hope springs eternal.

U.S. perspective

The Trump Administration did an excellent job of identifying problems with the operation of the WTO whether from the longstanding failures of the dispute settlement system, to the existential challenges to the viability of the WTO from major Members whose economies have not converged to a full market orientation, to the out-of-date rules around special and differential treatment to all who claim developing country status regardless of economic development of individual members, to the need for greater transparency in many areas, including importantly subsidies, to the failure of the WTO to update rules to address changing technology and trade issues.

The Biden Administration has indicated its intention to work within multilateral institutions, including the WTO. Early action by the United States on the Director-General selection issue could provide positive energy to WTO Members in the coming months. There are topics where success can be made in 2021 either multilaterally or plurilaterally. But a lot of what is needed for meaningful WTO reform will be difficult, if not impossible, to achieve in the short term. Hopefully, the Biden team will stay the course to achieve reform that both returns the WTO playing field to the level agreed at the time of concluding the Uruguay Round, finds ways to deal with the massive distortions not presently covered by WTO rules, works with others to bring the WTO into the 21st century and addresses the critical issues for global prosperity and sustainable development.

The WTO selection process for the next Director-General — possible steps that can be taken in the coming weeks

· November 19, 2020 · Selection of WTO Director-General · , , , , , , , · No Comments

According to the Procedures adopted by the General Council at the end of 2002 for appointing Directors-General, the current selection process of a new Director-General should have concluded with a General Council meeting that was called for November 9, 2020 but then postponed. See PROCEDURES FOR THE APPOINTMENT OF DIRECTORS-GENERAL, Adopted by the General Council on 10 December 2002, WT/L/509 (20 January 2003), paragraphs 8, 15-19; November 6, 2020, Postponement of WTO General Council meeting to consider recommendation of Dr. Ngozi Okonjo-Iweala as next Director-General, https://currentthoughtsontrade.com/2020/11/06/postponement-of-wto-general-council-meeting-to-consider-recommendation-of-dr-ngozi-okonjo-iweala-as-next-director-general/.

In prior posts, I have reported on the developments in the third and final round of consultations that the troika (Chairs of the General Council, Dispute Settlement Body and Trade Policy Review Body) had with Members between October 19-27 and the informal meetings with Heads of Delegation on October 28. See October 29, 2020, WTO press release from informal Heads of Delegation meeting on October 28 and Amb. Walker’s statement to the WTO membership on the outcome of the third round of consultations in the Director-General selection process, https://currentthoughtsontrade.com/2020/10/29/wto-press-release-from-informal-heads-of-delegation-meeting-on-october-28-and-amb-walkers-statement-to-the-wto-membership-on-the-outcome-of-the-third-round-of-consultations-in-the-director-general/; October 29, 2020, October 29th video discussion on WTO Director-General selection process following the announcement of results of third round of consultations and U.S. announcement of not backing the candidate with the greatest support, https://currentthoughtsontrade.com/2020/10/29/october-29th-video-discussion-on-wto-director-general-selection-process-following-the-announcement-of-third-round-of-consultations-and-u-s-aanouncement-of-not-backing-the-candidate-with-the-greatest/; October 29, 2020, U.S. support for Minister Yoo for WTO Director-General premised on need for person with trade expertise, https://currentthoughtsontrade.com/2020/10/29/u-s-support-for-minister-yoo-for-wto-director-general-premised-on-need-for-person-with-trade-expertise/; October 28, 2020, WTO Director-General selection process doesn’t generate immediate consensus, https://currentthoughtsontrade.com/2020/10/28/wto-director-general-selection-process-doesnt-generate-immediate-consensus/.

There were two strong candidates being considered by Members in the third round of consultations — H.E. Yoo Myung-hee of Korea (Trade Minister) and Dr. Ngozi Okonjo-Iweala of Nigeria (Chair of GAVI, former Finance Minister of Nigeria, and senior official at the World Bank). As reported by the Chairman of the General Council, Amb. David Walker of New Zealand, Dr. Ngozi Okonjo-Iweala was the candidate found based on the preferences of Members to be most likely to attract consensus of the Members and whose name would be put forward to the General Council in a special meeting as recommended by the troika consistent with the procedures (para. 19).

Because the Republic of Korea did not withdraw the Korean candidate and because the U.S. indicated it could not support a consensus for Dr. Okonjo-Iweala, the Chair of the General Council was faced with additional consultations ahead of the planned special General Council meeting that was scheduled for November 9. On November 6, the meeting was postponed for an indefinite period reflecting reimposed restrictions by the Swiss government in light of a second wave of COVID-19 cases in Switzerland, thus permitting the Chair more time to consult and seek a resolution.

We are now 13 days after the postponement was announced. Absent a resolution through consultations, the option exists to move to a vote on who should be the next Director-General. WT/L/509, para. 20. While a possibility, to date at least, there has been no move to shift from a consensus approach to a vote, although that may happen in the coming weeks or months.

Steps that could be taken to help resolve the current situation

  1. Withdrawal of H.E. Yoo Myung-hee as a candidate

Since the procedures were adopted at the end of 2002, all candidates who have been put forward have done so understanding that the procedures envision any candidate who is not moved to the next round or who is not found to be the candidate most likely to attract consensus in the final round will withdraw. WT/L/509, para 18 (“It is understood that the candidate or candidates least likely to attract consensus shall withdraw.”). The withdrawal of candidates not receiving the requisite support was followed by all candidates who didn’t advance in 2005 and in 2013 and in the first two rounds of the 2020 consultation process. So the failure of Korea to withdraw its candidate was surprising and inconsistent with the agreed procedures.

Korea is a strong supporter of the WTO as was recognized by Amb. Walker is his prepared comments at the meeting on October 28 (JOB/GC/247).

” 4 TRIBUTE TO CANDIDATES AND TO MEMBERS

“4.1. Before I conclude, I would like to acknowledge H.E. Yoo Myung-hee for her participation in this selection process.

“4.2. As I said at the start, Members consider her a highly qualified individual. H.E. Yoo Myung-hee has vast experience, which she has acquired in a number of leading positions, and her outstanding
qualifications are highly valued and respected by all Members. In her distinguished career, H.E. Yoo Myung-hee has always been a tireless promoter of the multilateral trading system, and I am certain that the WTO can continue to count on that commitment.

“4.3. We would also like to acknowledge the Government of the Republic of Korea and its Geneva Representative Ambassador PAIK Ji-ah for their commitment to this institution and to the multilateral trading system.”

The government of Korea has indicated that it has not decided a course of action and press accounts suggest that Minister Yoo is still in the fight for the Director-General position. Hopefully, Korea will take the correct action even if belatedly and withdraw its candidate. There is no doubt that Minister Yoo is a qualified individual. But that has been true of many candidates who did not ultimately succeed. The procedures adopted by the General Council obviously don’t work if candidates who do not receive the broadest and largest support don’t withdraw. Korea’s and Minister Yoo’s actions in having Minister Yoo stay in the competition are hurting the organization that both have actively supported. In an organization where Members already have a low level of trust, having important Members disregard procedures all have agreed to simply compounds the challenge of restoring trust and permitting the WTO to get on with the critical work before it.

2. Carry on in the existing configuration until the Biden Administration is in place in late January

While it is unlikely that the incoming Biden Administration will have its full team in place for a number of months after President-elect Biden is sworn in on January 20, my belief is that there will be a reasonably strong likelihood that the new Administration will not prevent a consensus for Dr. Ngozi Okonjo-Iweala to be appointed the next Director-General of the WTO. Thus, holding the special General Council meeting sometime in February would likely permit the recommendation identified by Amb. Walker and his two facilitators at the October 28 informal meeting of Heads of Delegation to proceed unopposed. While a February date drastically reduces the time for an incoming Director-General to help Members prepare for the Ministerial to be held in Kazakhstan midyear 2021, many of the priority short term objectives identified by Dr. Okonjo-Iweala (such as completing the fisheries subsidies negotiations and getting the plurilateral on e-commerce to an advanced state) are being worked by existing groups within the WTO and so hopefully will be positioned for early harvest.

Conclusion

The WTO has many needs for reform going forward. There are issues where drawing a line in the sand may be warranted by Members. I believe that the U.S. has correctly drawn a line in the sand on dispute settlement, an issue of concern to Administrations and Congress for more than 20 years. Hopefully reform of the dispute settlement system can happen in 2021 to restore the balance of rights and obligations that sovereign states negotiated during the Uruguay Round and that will limit the role of panels and the Appellate Body to that which was originally envisioned.

While all decisions by Members are obviously for them to make regardless of outside views, as an outside observer I don’t see the justification for drawing a line in the sand in the selection process for a new Director-General. Both candidates in the final round of consultations were highly qualified and respected. The organization needs a new Director-General. The organization will be well served by either candidate. But only one was found through the 2002 procedures to be the candidate most likely to attract a consensus. With a change in U.S. Administrations a few months away, hopefully the 2002 procedures can be respected again without the need to resort to voting and with Dr. Ngozi Okonjo-Iweala becoming the next Director-General of the WTO.

Postponement of WTO General-Council meeting to consider recommendation of Dr. Ngozi Okonjo-Iweala as next Director-General

· November 6, 2020 · Selection of WTO Director-General · , , , , · No Comments

On November 6, the Chair of the General Council, Amb. David Walker of New Zealand announced that the special General Council meeting scheduled for Monday November 9 was being postponed with a future date to be determined. The communication to the WTO membership is embedded below.

248

Switzerland has reimposed various restrictions in an effort to deal with a second wave of new cases which topped 10,000 in a single day in early November. See CoVID-19 – the situation in Switzerland, https://www.swissinfo.ch/eng/covid-19_coronavirus–the-situation-in-switzerland/45592192. Such restrictions can affect the ability to have in person meetings at the WTO and the willingness of Members to make formal decisions absent in person meetings.

It is also the case that there are external events which are not resolved which could be relevant to the selection process of the next Director-General. One such event is the Presidential election in the United States, where a final resolution is not likely for some time (and certainly not before next Monday).

Similarly, press articles indicate that the Republic of Korea has not resolved internally where it will be on Minister Yoo’s candidacy (withdraw or not withdraw) by the time of the special General Council meeting. See Yonhap News Agency, November 5, 2020, No decision made on S. Korean minister’s WTO chief bid: foreign ministry, https://en.yna.co.kr/view/AEN20201105010900325.

Thus, a postponement provides Amb. Walker and his two facilitators more time to see whether a consensus can be reached on the candidate who received the largest number of preferences in the third round of consultations (Dr. Ngozi Okonjo-Iweala) and who was identified by the troika as the candidate most likely to attract consensus.

No specific date has been selected for when the postponed special General Council meeting will occur. It is possible that there will be slippage until 2021.

WTO Press Release from Informal Heads of Delegation Meeting on October 28 and Amb. Walker’s statement to the WTO Membership on the outcome of the third round of consultations in the Director-General selection process

· October 29, 2020 · Selection of WTO Director-General · , , , , , , , · No Comments

This afternoon, the WTO released a press release on yesterday’s meeting of the Heads of Delegation reviewing the Director-General selection process and the U.S. opposition to the candidate identified as the most likely to attract consensus. Amb. David Walker, the Chair of the General Council, provided a detailed statement during the meeting reviewing the results of the third round of consultations and also announced the date for the next General Council meeting whose sole issue will be the recommendation that Dr. Ngozi Okonjo-Iweala be appointed the next Director-General of the WTO. How the process will proceed has obviously been complicated by the position of the United States and the failure of the Korean candidate to withdraw as was expected under the procedures being followed in the selection process.

While two prior posts have dealt with the developments and one has provided a discussion organized by WITA, below are the press release and
Amb. Walker’s statement so that readers of the post have both important documents.

WTO-_-2020-News-items-Members-indicate-strong-preference-for-Ngozi-Okonjo-Iweala-as-DG-but-US-objects

247

.

Race for becoming the next Director-General of the WTO — five candidates advance; three are asked to withdraw

· September 18, 2020 · Selection of WTO Director-General · , , , , , , , , , , , , , , , , , , · No Comments

At a Heads of Delegation meeting held at the World Trade Organization this morning (11:00 a.m. Geneva time), the Chairman of the General Council, Amb. David Walker, and his facilitators, Amb. Dacio Castillo of Honduras (Chairman of the Dispute Settlement Body) and Amb. Harald Aspelund of Iceland (Chairman of the Trade Policy Review Body) informed the WTO Members that their consultations with Members had identified the five candidates (of eight total) who had received the broadest and deepest support and hence would be moving on to round two of the consultation process.

The five candidates who move to the second round of consultations include (in order that they were put forward as a candidate by their government):

Dr. Ngozi Okonjo-Iweala of Nigeria;

H.E. Yoo Myung-hee of the Republic of Korea;

H.E. Amina C. Mohamed, of Kenya;

H.E. Mohammed Moziad Al-Tuwaijri of Saudi Arabia;

The Rt Hon Dr. Liam Fox MP of the United Kingdom.

The three candidates who have been asked to withdraw based on the results of the first round of consultations include:

Dr. Jesus Seade Kuri of Mexico;

Mr. Abdel-Hamid Mamdouh of Egypt;

Amb. Tudor Ulianovschi of Moldova.

The WTO press release can be found here, WTO members narrow field of DG candidates, https://www.wto.org/english/news_e/news20_e/hod_18sep20_e.htm

A field that had originally consisted of five men and three women with two being Europeans, three being Africans, one being from the Middle East, one being Asian, and one being North American (Latin) is now a field of three women and two men with one from Europe, two from Africa, one from the Middle East and one from Asia.

As the biographies posted on the WTO webpage and the candidates prepared statement to the General Council, subsequent press conference, and interviews, webinars and other press report make clear, the eight candidates were all highly qualified individuals with a good grasp of issues currently facing the WTO and the challenges of reform. This fact and that all eight candidates were respected by the Membership was confirmed by Amb. Walker at today’s Heads of Delegation meeting.

The elimination of the three candidates removes two with the longest engagement with the GATT/WTO — Dr. Jesus Seade and Mr. Abdel-Hamid Mamdouh and the youngest candidate, Amb. Tudor Ulianovschi.

Of the five remaining, only two have extensive WTO/trade experience — H.E. Amina C. Mohamed, H.E. Yoo Myung-hee, although Dr. Liam Fox served as the U.K. Secretary of State for trade for a period of time as well and H.E. Al-Tuwaijri has a broad portfolio with trade issues included. Dr. Ngozi Okonjo-Iweala has extensive experience as Nigeria’s Finance Minister (with customs responsibilities) and as a senior official at the World Bank.

Second Round of Consultations

During the Heads of Delegation meeting, Amb. Walker announced that the second round of consultations would start on September 24 and run until October 6 after which there will be another Heads of Delegation meeting to review which two candidates advance to the third and final round of consultations.

During the first round, each Member was asked to identify four candidates as preferences. During the second round, each Member will be asked to identify two candidates as preferences. The three Ambassadors who are conducting the consultations with Members will then announce the results further narrowing the field from the current five to just two candidates.

Third Round of Consultations

The timing of the third round of consultations will be announced at the next Heads of Delegation meeting when the second round is completed. It is anticipated that the third round and its results will be completed ahead of November 7 consistent with the procedures adopted by the General Council back in December 2002. Procedures for the Appointment of Directors-General, WT/L/509. The results of the third round of consultations will be the candidate that is viewed as most likely to achieve consensus from the Membership. If consensus is likely, a General Council meeting will be called to confirm the selection. If consensus is not achieved, the process forward is unclear but can include taking a vote instead of pursuing consensus.

Conclusion

The selection process to date is running smoothly. The WTO was fortunate that so many talented individuals were willing to step forward to seek to become the next Director-General of the WTO and go through the grueling process that has characterized the first three months. Congratulations to the five candidates who advance. Heartfelt thanks go out to the talented candidates whose run is now ended.

The procedures adopted in 2002 seem overly complicated and time consuming to many who look in from the outside. Complicated and time consuming the procedures certainly are. However, the procedures were adopted in an effort to have Members focus on the positive question – who is your preference — and avoid Members politically committing to who was unacceptable as had happened in 1999.

Let’s hope that the remainder of the selection process proceeds smoothly and without incident.