This year’s World Economic Forum had the usual side meetings of trade ministers and an unexpected meeting between President Trump and WTO Director-General Azevêdo. Trade ministers are discussing what needs to be accomplished ahead of the 12th Ministerial Conference (“MC12”) to be held in Kazakhstan in June 2020 with a focus on how to achieve agreement on fisheries subsidies to address illegal, unrecorded and unregulated fishing and overfishing and hence deliver on the UN sustainable development goal 14.6 during 2020. There are, of course, many other issues potentially on the agenda for MC12.
The potentially more interesting development out of Davos was the meeting between President Trump and DG Azevêdo. The President and the Director-General spoke about the meeting and need for WTO reform at a press conference the President held before leaving Davos. Here is the relevant exchange:
“[President Trump]: One of the people that was very important for me to meet from the World Trade Organization is Roberto Azevêdo. And he is a highly respected man. He happens to be this gentleman right here. I
thought I’d have him say a few words.
“But the World Trade Organization — as you know, I’ve had a dispute running with them for quite a while, because our country hasn’t been treated fairly. China is viewed as a developing nation.
“India is viewed as a developing nation. We’re not viewed a developing nation. As far as I’m concerned, we’re a developing nation, too. But they got tremendous advantages by the fact that they were considered “developing” and we weren’t. And they shouldn’t be. But if they are, we are.
“And we’re talking about a whole new structure for the deal, or we’ll have to do something. But the World Trade Organization has been very unfair to the United States for many, many years. And without it, China wouldn’t be China, and China wouldn’t be where they are right now. I mean, China — that was the vehicle that they used. And I give them great credit. And I also don’t give the people that were in my position great credit, because, frankly, they let that all happen. But the vehicle was the World Trade Organization.
And Roberto and I have a tremendous relationship, and we’re going to do something that I think will be very dramatic. He’ll be coming with a lot of his representatives to Washington sometime — maybe next week or the week after — and we’ll start working on it.
“So I’d like to introduce, just for — briefly — Roberto, and say a few words on behalf of the WTO. And then I’m going to introduce Larry Kudlow to say exactly where we are, in terms of our economy. Some of you know, but we’ve had some tremendous numbers just over the very recent past.
“So, please, Roberto.
“DIRECTOR-GENERAL AZEVÊDO: Well, thank you, Mr. President. And I think it’s fair to say that we have been saying, for quite some time, that if the multilateral system, if the WTO is to deliver and perform its role in today’s global economy, it has to be updated. It has to be changed. It has to be
“This is an agenda that is squarely before members. I don’t think anybody in Geneva misses the point. I think they understand that the — the system has not been functioning properly in many areas. That’s something that we’re trying to address.
“I’m very happy that, in the conversation today with President Trump, he agreed that this is something that needs to happen; the WTO has to change. We are committed to effect those changes. And this is something we are serious about.
“And I am going to be, together with President Trump, as soon as possible, discussing what needs to change, what needs to be effected in the WTO, and we are committed to doing that.
“And, of course, I will be talking to all of the other WTO members, making sure that they all understand that this is serious. This is a path that we all have to be on together if we want to make the WTO relevant and performing to today’s requirements, frankly.
“So thank you very much, Mr. President. It’s an honor to be with you and with everybody else.
U.S. Objectives for WTO Reform – Articulated and Possible
In the first three years of the Trump Administration, the Administration has identified a range of areas for reform and provided some specifics as well as identifying areas of key negotiating interest.
WTO dispute settlement reform has been a top priority for the Administration with a wide range of issues of importance but an overriding issue of preventing panels and the Appellate Body from creating rights or obligations not contained in the negotiated agreements. This is also an area of priority for other WTO members for the different reason of wanting to get the Appellate Body functioning again. While the U.S. has not articulated specifics in terms of what type of reform is needed, the problem areas are clear. The U.S. position has been that the existing DSU text is clear and that proposals to date do nothing more than restate the existing requirements. Without understanding why the system has deviated from the plain language of the DSU, it is not possible to identify the reforms that are needed has been the Administration’s position. Much has been written about this area and one can assume it will be an important part of the upcoming discussions between the Administration and the WTO Secretariat. Broader reform of the WTO is unlikely if reform of the dispute settlement system isn’t achieved. It would be unacceptable to many WTO Members not to find a solution to the dispute settlement system.
Much of the value of the WTO flows from the requirement of WTO Members to provide notifications on a wide range of topics, notifications which are important for other WTO Members to understand what trading partners are doing and whether there are potential WTO problems with the actions of particular trading partners.
Unfortunately, many WTO Members have failed to file required notifications in a timely manner, and, in many cases, notifications that are filed are demonstrably incorrect. In the areas of subsidies, the United States has over the past decade filed counternotifications on subsidy programs on China and India believing that the notifications submitted by those two countries were woefully incomplete. The counternotifications were an effort to identify the magnitude of the problem of under reporting.
While the WTO Secretariat has been tasked with providing periodic updates on notifications by Members, the present system has no consequences for failure to file notifications in a timely manner or for filing incomplete notifications.
How to address the transparency issue is of importance to many WTO Members. Indeed, lack of transparency and full notifications can complicate efforts to move specific issues forward. For example, the United States has raised concerns about the lack of information on cotton subsidies from China and India within the discussions on addressing concerns of cotton producting Members in Africa.
The U.S. and other countries have put forward proposals on modifying notification requirements and potential consequences for failure to keep notifications up to date. Because of the importance to the overall operation of the WTO, one can expect some effort in any reform package to ensure greater likelihood of notification requirements being met in fact.
Who gets Special and Differential Treatment under New Agreements
During the history of the GATT and the WTO to date, whether a Member was a developing country was a matter of self-selection, and, as a result, there have never been criteria that would help Members decide on eligibility. Nor has the organization had any system for graduating Members as their economies grew. Over the years, this has led to the situation where some of the wealthiest countries, largest exporting countries and others have maintained developing country status and hence taken lower levels of commitments through special and differential treatment provisions contained in agreements for developing countries.
As the comments of President Trump indicate, the United States has felt that the WTO system has permitted a number of countries not to assume responsibilities commensurate with their state of development and importance to the global trading system.
The United States has put forward proposals to have various countries, based on objective criteria, be ineligible for special and differential treatment for new agreements. Three WTO Members have indicated that they will not seek special and differential treatment in future agreements, though not agreeing that they are not developing countries — Korea, Singapore and Brazil.
While the need to have advanced economies carry their weight as part of the system would seem to be obvious, this is a highly sensitive issue where a number of major economies will fight hard against modifications of the current system. China, India and South Africa are three who have opposed any changes.
Obviously there has been some positive movement by the actions of three WTO Members. At a minimum, hopefully more Members will make similar commitments. And the United States has indicated that special and differential treatment provisions will not be agreed to in future agreements if certain countries don’t opt out of receiving such benefits. Thus, this issue will be an important and ongoing one that will generate a great deal of debate within the WTO and, hopefully, a meaningful advancement through its outcome. As the United States has indicated in statements at the WTO’s General Council, failure of many Members to carry their proper weight in liberalization has frustrated the ability of the WTO’s negotiating function to achieve the types of success that the system needs.
Update Rules to Address Different Economic Systems
For the United States, the European Union and other countries, the GATT and now WTO rules were written for and are applicable to market economies. WTO Members with different economic systems historically were not significant players in the global economy or when they joined the GATT or WTO undertook obligations which held the promise of the Member’s economy shifting to market economy principles.
The rise in importance of non-market economies like China engaged in different versions of state capitalism has created major challenges for the global trading system and for the viability of the WTO. The size and extent of industrial subsidies, forced technology transfer, role of state-owned and state-invested enterprises, state planning and resulting massive global excess capacity and targeting of technologies are just a few of the challenges market economy countries around the world have been confronting. Existing WTO rules don’t adequately address the many distortions flowing from the actions of the WTO members with non-market economies.
The United States, European Union and Japan announced an initiative at the 11th Ministerial Conference in Buenos Aires to address some of these issues. They recently released a joint statement outlining actions needed on industrial subsidies in particular.
The United States has also indicated that there is need for the WTO to address the disconnect that flows from major economies being within the WTO without being market economies.
While one would hope that a major trading nation, like China, who has benefitted enormously from WTO membership would understand the need for their to be an understanding on how different economic systems can coexist and rules to deal with major distortions or differences, this is an area where it is hard to see meaningful reform under a consensus system such as that used in the WTO.
Updated Rule Book to Address Current Commercial Realities
The Uruguay Round was the last major update of the global trading system’s rule book and occurred over 1986-1994. Technology and the organization of much of business today is dramatically different than the world that existed in the 1980s. There are few rules within the WTO dealing with electronic commerce. The plurilateral effort underway to come up with rules for the e-commerce field is important and long overdue.
Similarly, the world is facing issues of critical importance to the maintenance of food supplies, commercial activity and survival of islands, coast lines and much more. For example, more than one third of fish species are overfished. The oceans of the world are suffering massive pollution with waste areas in some locations being the size of states or smaller countries. Similarly, water temperatures are rising and weather patterns are shifting with consequent effects on agricultural productivity, on human and animal health and much more.
A few of these issues are being pursued within the WTO at the present time, including fisheries subsidies (negotiations now in their 19th year) and the plurilateral talks on e-commerce. Other topics are receiving consideration as well including domestic regulation of services, facilitating investment, the role of women and of small and medium sized enterprises.
Much more can and should be done to address the changes we are currently facing and that can be predicted. Where trade is affected, the WTO should have an important role. But a system that takes decades to work through a single issue, like fishery subsidies, will need a serious review as to how to permit much more timely responses and rule setting that can be ahead of the curve.
Free Trade Agreements and MFN
While Article XXIV of GATT 1994 deals with customs unions and regional trade agreements, the reality is that there are now hundreds of free trade agreements that have been negotiated and are in place of various breadth and different levels of coverage. While such agreements can permit countries to address bilaterally or plurilaterally issues not covered by the WTO, there is no doubt that free trade agreements lead to significant trade diversion as large volumes of trade are done at tariff rates that are more advantageous that the most favored nation rates negotiated during the GATT rounds. For some countries, the bulk of their trade may be at non-MFN rates. Do such facts favor additional efforts at bilateral or plurilateral liberalization even if not on an MFN basis?
Moreover, as many WTO members are opting not to contribute to further liberalization on new topics, there is the challenge of Members willing to liberalize providing benefits to non-participating members. While this is not a new problem, WTO reform may need to explore whether MFN has continuing relevance in a world of bilateral and plurilateral deals and/or whether plurilateral deals on topics not presently covered by WTO agreements should permit participating Members only to be the beneficiaries of the texts.
Other countries have raised a series of topics that they would like to see addressed in WTO reform talks that are not addressed in this note. What is clear is that if the United States is going to find satisfaction in a WTO reform effort, some major changes to the system will be needed. Deputy Director-General Alan Wolff had indicated in the past that WTO reform by 2025 was possible (looking at being ready for adoption by the 15th WTO Ministerial). https://www.wto.org/english/news_e/news19_e/ddgaw_13nov19_e.htm That timeline, while ambitious for the WTO based on past experience, is almost certainly unacceptable to the current U.S. Administration.