On May 3, 2021, the WTO held a Trade Negotiations Committee (“TNC”) session combined with an informal session of the Heads of Delegation in Geneva. Because the WTO over time has eliminated the immediate release of statements of the Chair of the TNC and the Chairs of different negotiating groups who provide updates on the status of negotiations, there is very limited public information on the meeting at the present time. The WTO released a news release on the meeting entitled “Members discuss contours of potential MC12 deliverables”. See TNC and Heads of Delegation Meeting, Members discuss contours of potential MC12 deliverables, May 3, 2021, https://www.wto.org/english/news_e/news21_e/hod_03may21_e.htm. A review of WTO documents listed on the WTO website reveals that Director-General Ngozi Okonjo-Iweala provided a seven page Chair’s statement at the meeting, although the document is not publicly available. See JOB/TNC/91. There was at least one other statement made by chairs of negotiating groups, though the statement is not publicly available. See Council for Trade in Services – Special Session – Report by Ambassador Zhanar Altzhanova, Chair of the CTS Special Session, to the informal TNC and HODs meeting – 3 May 2021, JOB/SERV/307, May 4, 2021. One would assume there were reports on the fisheries subsidies negotiations, on agriculture and on various Joint Statement Initiatives though there is no listing of any such statements.
Copied below is the May 3 WTO news release.
“Heads of WTO member delegations today exchanged views about issues on which they can realistically reach agreements in the run-up to the 12th Ministerial Conference (MC12) later this year, and what needs to happen to make such deals possible. Fisheries subsidies, agriculture and the COVID-19 pandemic featured prominently in the discussions, with several members stressing that delivering concrete negotiated results was critical for the WTO’s credibility. The 3 May gathering was both a formal session of the Trade Negotiations Committee and an informal meeting of Heads of Delegation.
“Summing up members’ interventions at the end of the day, WTO Director-General Ngozi Okonjo-Iweala said what she had heard matched what she had been told in her own consultations: ‘Views are coalescing around the most feasible priorities for delivery between now and MC12 — although of course there are gaps on how we get there and on the content of prospective results.’
“She said three concrete deliverables stood out: an agreement to curb harmful fisheries subsidies; outcomes on agriculture, with a focus on food security; and a framework that would better equip the WTO to support efforts against the COVID-19 pandemic and future health crises.
“Looking to the weeks and months ahead, the Director-General expressed hope that by July members would be able to finalize an agreement on fisheries subsidies and achieve clarity about what can be delivered by MC12, scheduled to run from 30 November to 3 December in Geneva.
“On fisheries subsidies, she urged members to exercise the necessary flexibility to overcome the remaining hurdles. With ministerial involvement likely required to finalize an agreement in July, she called on delegations to work with the chair of the negotiations, Ambassador Santiago Wills of Colombia, to prepare a draft negotiating text with a minimal number of outstanding issues for ministers to resolve. ‘We are almost there, we can see the light at the end of the tunnel,’ she said, stressing she stood ready to help members and the chair translate increased flexibility into an agreement.
“Noting that for many members, meaningful outcomes on agriculture were necessary to make MC12 a success, DG Okonjo-Iweala said that the pandemic, and rising hunger around the world, made a strong case for a WTO ‘food security package’. Elements for a prospective package included public stockholding, the proposed exemption from export restrictions of World Food Programme humanitarian purchases, domestic support and transparency, with some delegations also raising cotton and the special safeguard mechanism.
“The Director-General welcomed the view expressed by many delegations that MC12 can deliver concrete responses on trade and health. The WTO’s spotlight on export restrictions and the need to increase vaccine production volumes was gaining attention and engagement from leaders, she said.
“Reporting on a 14 April event where vaccine manufacturers, international organizations, civil society and members looked at how the WTO could contribute to efforts to combat the global scarcity of COVID-19 vaccines, she said it was clear that underused manufacturing capacity existed in several developing countries.
“DG Okonjo-Iweala praised members’ support to India amid the upsurge in COVID-19 cases there, which followed India’s own exports of a large number of vaccines. ‘That is what the WTO membership should be about — working together, supporting each other,’ she said. She asked members to bring the same sense of common purpose to bear on engaging in text-based negotiations on the TRIPS waiver proposal aimed at finding a pragmatic compromise that works for all.
“With regard to dispute settlement, where many members called for resolution to the impasse over the Appellate Body, the Director-General expressed hope that by MC12 members ‘can reach a shared understanding on the types of reforms needed’.
“The General Council chair, Ambassador Dacio Castillo of Honduras, is consulting on proposals about issues specific to least-developed countries such as the G-90 proposals on special and differential treatment as well as on small economies and areas such as the e-commerce Work Programme, she said.
“She noted that groups of members had signalled a desire to move ahead in areas such as services domestic regulation, e-commerce, investment facilitation, women’s economic empowerment, micro, small, and medium-sized enterprises as well as issues related to trade and climate change.
“For issues not in a position to be concluded this year, the Director-General said members had called for post-MC12 work programmes on multilateral issues relating to agriculture, services, and special and differential treatment as well as in joint statement initiatives in areas including plastics pollution and environmental sustainability.
“DG Okonjo-Iweala said that in the coming days, she would intensify her own outreach with heads of delegation, organizing meetings “in various configurations large and small” to support the chairs of negotiating groups in their efforts to broker compromise among members. She reiterated her commitment to ensuring adequate representation and transparency in these meetings ‘Nothing will be done behind closed doors that people don’t know about,’ she emphasised. She indicated that she would work closely with the General Council chair and the chairs of the negotiating bodies as well as MC12 chair Kazakhstan to conduct these meetings.
“Emphasising the tight timeframe for members to resolve their outstanding differences, the Director-General said the ‘path to July’ would involve a large number of intensive meetings aimed at narrowing gaps. ‘Week in, week out, this is what we will do now.’”
It is often the case that the U.S., European Union and China release their statements at events like the May 3 TNC session. Reviewing the webpages for the three Members’ WTO operations shows a statement only for the EU. See EU Statement at the Trade Negotiations Committee/Heads of Delegation meeting, 3 May 2021, Statement delivered by Ambassador João Aguiar Machado, https://eeas.europa.eu/delegations/world-trade-organization-wto/97682/eu-statement-trade-negotiations-committeeheads-delegation-meeting-3-may-2021_en.
The EU seeks a number of specific outcomes for the 12th Ministerial Conference and emphasizes the need to keep the agenda limited to permit success. The EU’s list starts with the conclusion of the fisheries subsidies agreement negotiations and secondly achieving agreement on trade and health including increasing COVID-19 vaccine production.
“Firstly, on fisheries subsidies; the EU supports the Chair’s efforts to move the negotiations forward and the
Director-General’s involvement and intent to achieve an outcome already in July. With this in mind, we need to
consider how best to use the short time ahead. These negotiations are a test case of the ability of the WTO to
deliver on the Sustainable Development Goals, in this case SDG 14.6. We are already late, well passed the
deadline that Heads of State and Government instructed us, here at the WTO, to deliver. We have full
confidence that Ambassador Wills will find the best way forward for these negotiations.
“Secondly, on trade and health, we must work towards a Ministerial Declaration that brings together key
elements of the Ottawa Group proposal on Trade & Health (export restrictions, transparency, trade facilitation)
as well as progress on the expansion of production capacities through voluntary licensing and, where necessary,
supporting the use of the available TRIPs flexibilities.”
Beyond these two deliverables, the EU looks for an agreed work program for reform of the WTO’s three core functions — negotiations, transparency/monitoring, and dispute settlement. Restoring a functioning two-tier dispute settlement system is the top priority in this area followed by improved notification practices.
The EU supports the various Joint Statement Initiatives and intends to propose additional ones on industrial subsidies, state-owned enterprises, and trade and environment topics.
The EU’s proposal on agriculture differs in part from the summary of views presented by DG Okonjo-Iweala as addressing export restraints, particularly for World Food Programme purchases is a priority while other issues including public stockholding (and other forms of domestic support) is viewed as more appropriate for a work program outcome from the 12th Ministerial.
Developments in the last week
The WTO held a two day General Council meeting on May 5-6 with the big news being the United States’ indication that because of the extraordinary circumstances of the global COVID-19 pandemic, the United States would support the proposed waiver of certain TRIPS obligations on medical goods for the duration of the pandemic, more specifically being willing to enter into text negotiations in the TRIPS Council. See May 6, 2021, COVID-19 vaccines — role of WTO and developments at May 5-6, 2021 General Council meeting on TRIPS Waiver, https://currentthoughtsontrade.com/2021/05/06/covid-19-vaccines-role-of-wto-and-developments-at-may-5-6-2021-general-council-on-trips-waiver/.
The major countries within the EU have come out opposing the U.S. change of position on the waiver proposal and have urged the United States to remove export restrictions on vaccines and raw materials and other inputs, See The Hill, EU leaders criticize Biden push to waive COVID-19 vaccine patents: Not a ‘magic bullet’, May 8, 2021, https://thehill.com/policy/international/europe/552459-eu-leaders-criticize-biden-push-to-waive-covid-19-patents-not-a; Euronews, EU leaders urge US to end COVID-19 vaccine export limits amid patents controversy, 8 May 2021, https://www.euronews.com/2021/05/07/european-leaders-urge-u-s-britain-to-match-eu-generosity-on-vaccine-exports. Not surprisingly, the move was also criticized by the pharmaceutical and biotech industries. See, e.g., McDonnell Boehnen Hulbert & Berghoff LLP – JDSupra, BIO & IPO Issue Statements on Biden Administration’s Support for Proposed WTO Waiver, May 7, 2021, https://www.jdsupra.com/legalnews/bio-ipo-issue-statements-on-biden-3271048/.
There have been additional announcements by the WHO on vaccines receiving emergency use authorization (first of two Chinese vaccines was approved on May 7, 2021; a second is pending), additional vaccine producers have reached agreements with COVAX for supplying vaccines once their vaccines are approved by the WHO (Moderna, Novavax), and increased production targets by major COVID-19 producers (e.g., Pfizer raised its target for 2021 to 3 billion doses from 2.5 billion and increased 2022 from 3 billion doses to 4 billion doses; Moderna increases production forecast for 2021 to 800 million to 1 billion and is making investments to increase production in 2022 to 3 billion doses). See, e.g., World Health Organization, WHO lists additional COVID-19 vaccine for emergency use and issues interim policy recommendations, 7 May 2021, https://www.who.int/news/item/07-05-2021-who-lists-additional-covid-19-vaccine-for-emergency-use-and-issues-interim-policy-recommendations; Gavi, Gavi signs agreement with Moderna to secure doses on behalf of COVAX Facility, 3 May 2021, https://www.gavi.org/news/media-room/gavi-signs-agreement-moderna-secure-doses-behalf-covax-facility; Gavi, Gavi signs agreement with Novavax to secure doses on behalf of COVAX Facility, 6 May 2021,https://www.gavi.org/news/media-room/gavi-signs-agreement-novavax-secure-doses-behalf-covax-facility; Wall Street Journal, Pfizer Lifts Covid-19 Vaccine Production Targets for 2021, 2022, May 7, 2021, https://www.wsj.com/articles/pfizer-lifts-covid-19-vaccine-production-targets-for-2021-2022-11620425904; Moderna, Moderna Reports First Quarter Fiscal Year 2021 Financial Results and Provides Business Updates, May 6, 2021, https://investors.modernatx.com/news-releases/news-release-details/moderna-reports-first-quarter-fiscal-year-2021-financial-results
What is clear is that the increased attention that will be paid by WTO Members on the waiver proposal within the TRIPS Council will likely suck a lot of oxygen out of the WTO in the coming months for other negotiating issues, many of which remain controversial in their own right. Any text based agreement on a TRIPS waiver is unlikely until close to the 12th Ministerial (and unlikely then if EU opposition remains or the U.S. is unable to achieve acceptable text). Thus, the remaining months before the 12th Ministerial Conference will present some major challenges to the WTO Members in their efforts to come up with achievements to keep the WTO relevant going forward. The U.S. move also creates a division with European allies and appears to have been taken without consultation with those allies ahead of last week’s announcement — a departure from the Biden Administration’s approach to date.