WTO

WTO-IMF COVID-19 Vaccine Trade Tracker provides useful information in analyzing vaccine equity

On November 22, 2021, the WTO and IMF announced and released their COVID-19 Vaccine Trade Tracker. See WTO News Release, WTO, IMF launch Vaccine Trade Tracker, 22 November 2021, https://www.wto.org/english/news_e/news21_e/covid_22nov21_e.htm. While the data on access to vaccines is not as granular as the UNICEF COVID Vaccine Dashboard, the new tracker provides data under six topics: summary, exports (options being by producing economy or by supply arrangement type), imports (options being by income group or by continent), total supply (options being by producing economy or by vaccine type), supply to continents (Africa, Asia, Europe, North America, Oceania, South America) and vaccination status (options being by income group and by continent). Data in the initial release are through October 31, 2021. Income groups are the World Bank’s groupings — Low income, lower-middle income, upper middle income and high income.

In recent posts I have noted that much of the discussion on vaccine equity focuses on access and affordability but doesn’t necessarily help understand widely different outcomes for countries or territories that are at the same stage of economic development. See November 22, 2021:  Trade and Health at the WTO’s 12th Ministerial Conference, https://currentthoughtsontrade.com/2021/11/22/trade-and-health-at-the-wtos-12th-ministerial-conference/. The WTO-IMF Tracker doesn’t include the identification of countries/territories within income groups but rather reports on the entire grouping. The World Bank’s 2020 listing is the most recent. See World Bank, GNI per capita, Atlas method (current US$), https://data.worldbank.org/indicator/NY.GNP.PCAP.CD; November 15, 2021:  The folly of self-selection as a developing country at the WTO, https://currentthoughtsontrade.com/2021/11/15/the-folly-of-self-selection-as-a-developing-country-at-the-wto/.

Of the listed producing countries involved in exports of COVID-19 vaccines all are WTO Members. The EU, USA, Japan and Republic of Korea are listed as high income countries by the World Bank though Korea has treated itself as a developing country at the WTO. China, the Russian Federation and South Africa are included as upper middle income countries by the World Bank based on per capita GNI, though both China and South Africa claim developing country status at the WTO. India is listed as a lower-middle income country by the World Bank and claims developing country status at the WTO. There is a small amount of exports from other countries not broken out by individual country n the WTO-IMF tracker.

On total supply (“Total supply contains both exported and domestically delivered doses), China is the largest producing country with a total supply of 4.0811 billion doses of which 1.3294 billion doses have been exported. The European Union is the second largest producer with a total supply of 1.7077 billion doses producers of which 876.5 million have been exported. India is the third largest producers with total supply of 1.3608 billion doses of which just 66.0 million doses have been exported. The United States is fourth with total supply of 941.1 million doses and exports of 300.8 million doses. Others have much smaller total supplies and exports.

The vast majority of exports have been through bilateral deals (77.5%). The second largest source of exports has been doses contracted via COVAX (8.1%). Because of several major problems COVAX experienced from suppliers — the largest being the shut down of exports from India for much of 2021 — COVAX has been unable to supply the large volume of vaccine doses in 2021 to low income and lower middle income countries that had been planned on. The third largest source of exports was donations via COVAX (7.5%), followed by direct donations from producing countries to receiving countries (6.1%) and supply via the African Vaccine Acquisition Trust (“AVAT”)(0.8%).

The vaccination status data (item six in the Tracker) is helpful in identifying regions with the greatest needs as well as the breakout by World Bank income level. However, because of the lack of granularity to the individual country or territory, the data don’t help understand the large differences between members in the same continent or in the same income grouping.

By continent, all continents except Africa have received more than 50 courses of doses per 100 people (with North America the highest at 81.4 and Europe at 76.2). Africa was just 11.2 courses per 100 people. All but Africa have more than 50% of the population with at least one dose administered. Africa was just 8.7%. And all but Africa have more than 40% of the population fully vaccinated. Africa was only 5.8%. Thus, there is a need to expand availability of vaccine doses to most African countries

When vaccination status is examined by income level, high income and upper middle income countries and territories have much larger vaccination rates than lower middle income and low income. On courses of vaccines per 100 people, high income countries were at 89.5, upper middle income countries averaged 74.8, lower middle income countries were at just 34.8 and low income countries were at just 7.0. Similar discrepancies exist on percent with at least one dose administered and percent fully vaccinated. The inability of COVAX to receive the volumes of doses contracted for in 2021 and the slowness of donations for richer countries are certainly core reasons for the differences in doses for lower middle income and low income countries.

Yet there are major discrepancies among countries or territories in the same continent or same income grouping. I identified a few in yesterday’s post. See November 22, 2021:  Trade and Health at the WTO’s 12th Ministerial Conference, https://currentthoughtsontrade.com/2021/11/22/trade-and-health-at-the-wtos-12th-ministerial-conference/. For example, Morocco is classified as a lower middle income country by the WTO but had the highest level of administered vaccines/100 people in Africa (136.5 (assumed to be 68.25 courses of doses/100 people)) while South Africa, classified as an upper middle income country had a rate of administered vaccine doses less than 1/3 that of Morocco (41.4 (assumed to be 20.7 courses of doses/100 people). Similarly, two low income countries as classified by the World Bank have drastically different administered doses despite nearly identical per capita GNIs and both being countries in Africa. Specifically, Zimbabwe’s per capital GNI in 2020 was $1,090 and yet they had administered 42.3 COVID vaccine doses/100 people. Cameroon, with a per capita GNI in 2020 of $1,100, had COVID vaccines administered of only 2.4/100 people.

Conclusion

The WTO-IMF COVID-19 Vaccine Trade Tracker provides very useful information, although much is at a continent or income group level. It appears likely that the tracker will be updated only monthly. If not being considered, the designers of the new tracker should provide a link to a data base that provides the type of data shown in the aggregate for each country or territory. Such data would permit a better understanding of differences within continents and within income groups and potentially improve the ability to improve vaccine equity moving forward. It is also possible to update the tracker more frequently than once a month, though some charts, etc. are fine with monthly updates. .

Global efforts to expand COVID-19 vaccine production and distribution — an all hands on deck effort being led by the U.S. and EU with active support of many governments and others.

The COVID-19 pandemic continues to present unprecedented challenges to global health and the global economy. With some 230 million infections globally and some 4.7 million deaths reported globally to date and with likely actual numbers a multiple of what has been reported, governments around the world have taken strong measures to control the spread of COVID-19, and there have been efforts to improve the equitable access to vaccines and other medical treatments and personal protective equipment for all peoples. The economic costs flowing from the pandemic to countries have been considerable, with many poorer countries experiencing loss of progress made over recent decades in terms of poverty levels, income, educational opportunities, trade and more.

While the pharmaceutical industry has responded impressively and will likely produce more than twice the number of COVID-19 vaccine doses in 2021 compared to all vaccines produced in 2020, access to vaccines has not been as equitable as desired or needed to end the pandemic. The lack of equitable access flows from a number of factors including some production challenges, early acquisition of large quantities of vaccines by wealthier countries, export restraints imposed by some countries, failure of Indian producers (who had been identified as a major source of vaccines for distribution through COVAX to low- and middle-income countries) to honor export contracts during 2021 in light of COVID challenges within India and others.

Vaccine distribution does not match population distribution but also doesn’t correspond to level of infections or deaths in most countries. When inequitable access is flagged by organizations or the media, it is based on population. But where some countries or regions are suffering greater levels of infections or deaths from the pandemic than others, one could argue that equitable access could also be measured by comparing to level of infections or deaths.

Bloomberg in a recent COVID-19 Tracker reports that the least wealthy 52 countries have received 3.6% of the vaccinations while having 20.5% of the global population. Bloomberg, More than 6.1 Billion Shots Given; Covid-19 Tracker, https://www.bloomberg.com/graphics/covid-vaccine-tracker-global-distribution/ (September 25, 2021). Obviously such low levels of vaccination for poor countries present pressing challenges. Fortunately, to date, infections and deaths have been much higher in higher income countries than in many low- and middle-income countries, so there is less of a mismatch with access to vaccines if measured by reference to infections or deaths. Some of the lower numbers for low- and middle-income countries may be due to reporting challenges in some of these countries, but the picture needs to be looked at from multiple angles to understand whether and the extent of equitable distribution challenges facing the world and individual countries. Let’s look at a few countries to understand the complexity of the analysis.

China, which has a population of 1.439 billion people in 2020 (18.45% of global totals) had administered 2.194 billion doses of COVID-19 according to the Bloomberg September 25, 2021 Tracker (35.98% of global doses distributed) yet has reported only 107,981 cases of infections since December 2019 (just 0.04% of global cases) and just 4,849 deaths (just 0.1% of global deaths). See ECDC, COVID-19 situation update worldwide, as of week 37, updated 23 September 2021, https://www.ecdc.europa.eu/en/geographical-distribution-2019-ncov-cases. Thus, China, while being the first country to report cases, has been successful in limiting the case spread both before and after the development of vaccines. Which highlights the question, where there are global shortages of vaccines, is the correct analysis vaccine doses as a share of global population or the short-term need based on infections or deaths? If China distribution of doses reflected its share of population, it would have administered 1.125 billion does, meaning an extra 1.069 billion doses could have been redirected to other countries in need. If done on the basis of the number of infections, China would have administered 2.44 million doses, meaning 2.192 billion doses could have been redirected to other countries in need. If done on the basis of the number of deaths, it would have administered 6.1 million doses to date, meaning 2.188 billion doses could have been redirected to other countries. Under any analysis, China is a major cause of inequitable access to vaccines through late September and that is regardless of doses sold or given to trading partners by China.

India had a population in 2020 of 1.38 billion people (17.69% of the global population). According to the recent Bloomberg Tracker, India has administered 850.372 million doses (13.94% of global doses). India, which has had a serious outbreak of COVID-19 cases in the summer, has recorded 33,478,419 cases of infection (14.59% of global cases) and 445,133 deaths (9.47% of global deaths). Press accounts have indicated that the case and death counts in India are likely significantly understated. However, equitable access to vaccines if based on population or based on percent of global infections as reported by India would show India needing additional doses (an additional 228.718 million based on population; an additional 39.618 million based on percent of global infections). Based on percent of global deaths, India arguably has consumed 272.702 million more doses than death percentage would warrant (if deaths were substantially higher, obviously the answer would differ). Thus, India is almost certainly a country that has been in need of larger volumes of COVID-19 vaccines than it has obtained and explains the country’s decision to halt exports of COVID-19 vaccines for many months this year.

The United States had a population in 2020 of 331 million people (4.24% of global population. It has administered 388.567 million doses of vaccine (6.37% of global doses administered). As a major developed country, one would have expected the United States to have gotten control of the pandemic early or at least to have been able to get the pandemic under control within the United States after vaccines were approved for emergency use authoriztaion. However, the U.S. has recorded 42.288 million cases of infection (18.43% of global cases) (and has recorded 676,075 deaths (9.67% of global deaths) — the most of any nation. Moreover, while the early roll out of vaccines sharply reduced infections, hospitalizations and deaths a few months ago, the large percentage of adults who remain unvaccinated, the opposition of many to basic public health requirements (e.g., mask wearing in many situations) and failure to get vaccinated has resulted in the U.S. having a very large outbreak in the last month or so with the spread of the delta variant — a wave of infections, hospitalizations and deaths of the unvaccinated. If the number of doses administered matched the U.S. share of global population, the U.S. would have administered 129.93 million fewer doses. However, if based on percent of infections or deaths, the U.S. should have administered far more doses — 735.66 million more based on infections and 201.3 million based on deaths — although such numbers would be capped by the number needed for full vaccination.

The above analysis is not to say vaccine equity of access and distribution isn’t important. Rather the analysis is meant to stress the complexity of the analysis, particularly for countries that have suffered large rates of infection and death.

Recent efforts to improve the equitable access to and distribution of COVID-19 vaccines and other medical materials

A great deal of effort has gone into establishing entities to facilitate equitable access to COVID-19 vaccines. For example, COVAX is described on the GAVI webpage as follows (https://www.gavi.org/covax-facility):

“COVAX is the vaccines pillar of the Access to COVID-19 Tools (ACT) Accelerator

“The ACT Accelerator is a ground-breaking global collaboration to accelerate the development, production, and equitable access to COVID-19 tests, treatments, and vaccines.

“COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF. Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.”

COVAX had hoped to get at least 2 billion doses to countries participating (including 92 low- and middle income countries who would get vaccine doses at no- or low-cost) in 2021. As of September 22, 2021, COVAX had distributed over 301 million doses in 142 countries. https://www.gavi.org/covax-vaccine-roll-out. This is out of the 6.1 billion doses administered globally. Recent projections suggest COVAX will get at least 500 million fewer doses in 2021 than originally expected, though higher volumes could happen under certain circumstances. See World Health Organization, Joint COVAX Statement on Supply Forecast for 2021 and early 2022, 8 September 2021, https://www.who.int/news/item/08-09-2021-joint-covax-statement-on-supply-forecast-for-2021-and-early-2022 (“According to its latest Supply Forecast, COVAX expects to have access to 1.425 billion doses of vaccine in 2021, in the most likely scenario and in the absence of urgent action by producers and high-coverage countries to prioritize COVAX.”).

Amidst a constant drumbeat from the WHO that no one is safe until all are safe and that the 2021 distribution to date has left many countries behind, most countries have agreed for the need for greater equitable distribution going forward. Some countries (India, South Africa and others) have called for waiving intellectual property rights at the WTO on vaccines and other medical goods needed to address the pandemic. Some organizations and countries have argued for the need for development of local production capabilities in low income countries. The WTO has monitored export restrictions imposed and tracked the level and elimination of such restrictions as well as market liberalization efforts. Events have been held to gather information on production bottlenecks, efforts of pharmaceutical companies to expand production around the world and countries have been urged to release surplus doses and give up their place in line with pharmaceutical companies to permit larger volumes to be shipped earlier to low- and middle-income countries.

In recent months both the U.S. and the EU have been working to facilitate these efforts and recently announced joint actions. See A U.S.-EU Agenda for Beating the Global Pandemic Vaccinating the World, Saving Lives Now, and Building Back Better Health Security, September 22, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/22/a-u-s-eu-agenda-for-beating-the-global-pandemic-vaccinating-the-world-saving-lives-now-and-building-back-better-health-security/.

“Vaccination is the most effective response to the COVID pandemic. The United States and the EU are technological leaders in advanced vaccine platforms, given decades of investments in research and development.

“It is vital that we aggressively pursue an agenda to vaccinate the world.  Coordinated U.S. and EU leadership will help expand supply, deliver in a more coordinated and efficient manner, and manage constraints to supply chains. This will showcase the force of a Transatlantic partnership in facilitating global vaccination while enabling more progress by multilateral and regional initiatives.

“Building on the outcome of the May 2021 G20 Global Health Summit, the G7 and U.S.-EU Summits in June, and on the upcoming G20 Summit, U.S. and the EU will expand cooperation for global action toward vaccinating the world, saving lives now, and building better health security.  

Pillar I: A Joint EU/US Vaccine Sharing Commitment: the United States and the EU will share doses globally to enhance vaccination rates, with a priority on sharing through COVAX and improving vaccination rates urgently in low and lower-middle income countries.  The United States is donating over 1.1 billion doses, and the EU will donate over 500 million doses. This is in addition to the doses we have financed through COVAX.

We call for nations that are able to vaccinate their populations to double their dose-sharing commitments or to make meaningful contributions to vaccine readiness. They will place a premium on predictable and effective dose-sharing to maximize sustainability and minimize waste.

Pillar II: A Joint EU/US Commitment to Vaccine Readiness: the United States and the EU will both support and coordinate with relevant organizations for vaccine delivery, cold chain, logistics, and immunization programs to translate doses in vials into shots in arms. They will share lessons learned from dose sharing, including delivery via COVAX, and promote equitable distribution of vaccines.

Pillar III: A Joint EU/US partnership on bolstering global vaccine supply and therapeutics: the EU and the United States will leverage their newly launched Joint COVID-19 Manufacturing and Supply Chain Taskforce to support vaccine and therapeutic manufacturing and distribution and overcome supply chain challenges. Collaborative efforts, outlined below, will include monitoring global supply chains, assessing global demand against the supply of ingredients and production materials, and identifying and addressing in real time bottlenecks and other disruptive factors for global vaccine and therapeutics production, as well as coordinating potential solutions and initiatives to boost global production of vaccines, critical inputs, and ancillary supplies.

Pillar IVA Joint EU/US Proposal to achieve Global Health Security.  The United States and the EU will support the establishment of a Financial Intermediary Fund (FIF) by the end of 2021 and will support its sustainable capitalization.  The EU and United States will also support global pandemic surveillance, including the concept of a global pandemic radar. The EU and the United States, through the European Health Emergency preparedness and Response Authority, and the Department of Health and Human Services Biomedical Advanced Research and Development Authority, respectively, will cooperate in line with our G7 commitment to expedite the development of new vaccines and make recommendations on enhancing the world’s capacity to deliver these vaccines in real time. 

We call on partners to join in establishing and financing the FIF to support to prepare countries for COVID-19 and future biological threats.

Pillar V: A Joint EU/US/Partners Roadmap for regional vaccine production. The EU and the United States will coordinate investments in regional manufacturing capacity with low and lower-middle income countries, as well as targeted efforts to enhance capacity for medical countermeasures under the Build Back Better World infrastructure and the newly established Global Gateway partnership. The EU and the United States will align efforts to bolster local vaccine manufacturing capacity in Africa and forge ahead on discussions on expanding the production of COVID-19 vaccines and treatments and ensure their equitable access.

We call on partners to join in supporting coordinated investments to expand global and regional manufacturing, including for mRNA, viral vector, and/or protein subunit COVID-19 vaccines.

See also United States–European Commission Joint Statement: Launch of the joint COVID-19 Manufacturing and Supply Chain Taskforce, September 22, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/22/united-stateseuropean-commission-joint-statement/.

The announced joint efforts of the U.S. and the EU occurred at the same time as the U.S. hosted another event with governments, multilateral organizations and the private sector to find solutions to the COVID pandemic. The event was held on the margins of the UN General Assembly meeting in New York last week. See White House Briefing Room, Global COVID-⁠19 Summit: Ending the Pandemic and Building Back Better, September 24, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/24/global-covid-19-summit-ending-the-pandemic-and-building-back-better/. The write-up is copied below.

“On September 22, 2021, President Biden convened a virtual Global COVID-19 Summit focused on ending the pandemic and building better health security to prevent and prepare for future biological threats.

“The President called on the world to collectively end the COVID-19 pandemic as soon as possible, with every country, partner, and organization doing its part, aligning around shared goals and targets, and holding each other to account. At the same time, all countries need the capacity to prevent, detect, and respond to biological threats, including future pandemics.  The Summit introduced ambitious targets in three critical areas for ending this pandemic and preventing and preparing for the next: Vaccinate the WorldSave Lives Now; and Build Back Better.

“President Biden hosted the virtual Global COVID Summit: Ending the Pandemic and Building Back Better, which included participation by representatives from more than 100 governments and other partners and more than 100 leaders from international organizations, the private sector, the philanthropic sector, civil society, academia, and other stakeholders. These are listed below.

“The COVID-19 pandemic has already claimed over 4.5 million lives and continues to ravage communities and economies around the world.  President Biden called on Summit participants to not only do more, but to do enough to end the pandemic and build back better.

“President Biden was also joined at the Summit by Vice President Kamala Harris, Secretary of State Antony Blinken, U.S. Ambassador to the United Nations Linda Thomas-Greenfield, U.S. Agency for International Development Administrator Samantha Power, Department of Health and Human Services Director of the Office of Global Affairs Loyce Pace, and State Department Coordinator for the Global COVID-19 Response and Health Security Gayle Smith. The full list of participants is available below.

“Throughout the Summit, leaders of countries and organizations underscored the importance of coalescing around shared targets to align commitments with outcomes, as all parties worked together to: Vaccinate the World, Save Lives Now, and Build Back Better Global Health Security over the months ahead. Reaching these targets will require leadership, ambition, boldness, collaboration, transparency, and new commitments.

“In advance of and during the Summit, many countries and stakeholders announced their intention to donate vaccines and financial support to critical vaccine readiness activities to ensure shots get into arms around the world.   Leaders broadly aligned around the World Health Organization (WHO) target of vaccinating at least 70 percent of the global population in every country by UNGA 2022 and expressed shared urgency to do more, to act now, to enhance accountability, and to monitor progress.  To advance this effort, President Biden called for another Heads of State-level Summit in the first quarter of 2022, and Secretary Blinken committed to convene Foreign Ministers in 2021.  Countries made new commitments to share doses and/or double or triple previous pledges for vaccines, delivery, oxygen and testing support, and health security.

“Participants from around the world and across sectors, listed below, brought commitments to the Summit – further details will be available over the coming days.  While the event was not a pledging conference, participants’ combined commitments exceeded 850 million additional COVID-19 vaccine doses and major new commitments for vaccine readiness, oxygen, testing, health systems, and health security financing.

“A list of new commitments announced by the United States at or around the Summit can be found in this Fact Sheet.

“A link to the common targets released by the United States during the Summit for tracking and accountability can be found here.

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Session 1.      Calling the World to Account and Vaccinating the World

“President Biden chaired the opening session of the Summit, which was focused on the need for all countries, organizations, and stakeholders to do more to make COVID-19 vaccines available to all people, everywhere.  He was joined by U.S. Ambassador to the United Nations Linda Thomas-Greenfield.  Participants echoed President Biden’s call to align around common targets, more urgently track progress, and support one another in fulfilling commitments.  World leaders embraced the World Health Organization goal of fully vaccinating at least 70 percent of the population in every country and income category with quality, safe, and effective vaccines by UNGA 2022, and leaders called for more urgent and equitable distribution of vaccine doses.

President Biden announced bold new commitments from the United States to supply an additional 500 million doses of Pfizer vaccine that will all be shipped by this time next year, bringing the U.S. total commitment of donated vaccines to over 1.1 billion.

“He also announced that the United States is stepping up efforts to get shots into arms and boost global manufacturing.  He encouraged countries to join the United States in upholding a set of principles to ensure we can fulfill our collective global commitments for equitable global distribution of safe and effective WHO Emergency Use Listed-authorized COVID-19 vaccines.  Those principles include committing to donate, rather than sell, doses to low- and lower-middle income countries with no political strings attached; to support COVAX as the main mechanism for sharing WHO-authorized vaccines; to fight vaccine disinformation; to exercise transparency; to build public trust; and to work toward common goals and targets to measure progress and to hold ourselves and each accountable.  The President acknowledged efforts through the Quad partnership to help produce at least 1 billion vaccine doses in India to boost the global vaccine supply by the end of 2022, as well as U.S. financing to help strengthen manufacturing in South Africa and produce more than 500 million J&J doses in Africa for Africa by next year.

“President Biden also emphasized the vital logistical challenge of getting those vaccines into the arms of people, and he called on all participants to significantly step up investments in this area.  He announced a commitment of an additional $370 million to support global vaccine readiness and delivery, and he committed more than $380 million in assistance for Gavi, The Vaccine Alliance, to provide political risk insurance to facilitate shipment of vaccines to nine countries across three continents.  In addition, he called on countries, vaccine manufacturers, and other partners to expand global and regional vaccine manufacturing capacity and enhance transparency to make vaccine production and distribution more predictable and coordinated.  He emphasized the United States is working with partner nations and manufacturer to increase their capability to produce and make safe and highly effective vaccines in their own countries.

The President also underscored the importance of saving lives now, and noted the United States is providing nearly $1.4 billion to reduce COVID-19 deaths and mitigate transmission through bulk oxygen support, expanded testing, strengthening healthcare systems and more.

“Finally, President Biden emphasized U.S. support for the establishment of a global health security financing mechanism to prepare for the next pandemic, which Vice President Harris detailed later in the Summit.  He closed the meeting by calling on leaders to set targets that require us to aim high, follow through on our commitments, and hold each other accountable to end the pandemic and advance health security for all.

“Finally, President Biden called for a whole of society response, with an ask for the private sector, country governments, philanthropies, and civil society to take up the U.S. call to action to solve core challenges toward ending the pandemic and building back better – including making vaccinations available to everyone, everywhere; solving the oxygen crisis; financing health security, and more. Representatives from businesses, foundations, and civil society joined global leaders at the Summit. Some of those leaders announced coalitions to combine funds, expertise, and capacity to help realize specific challenges within each of the goals, for example addressing the global oxygen crisis, closing the testing gap, and ensuring vaccines are delivered and administered.

United Nations Secretary-General António Guterres called for a global vaccination plan to at least double vaccine production and ensure 2.3 billion doses are equitably distributed through COVAX to reach 40 percent of people in all countries by the end of this year, and 70 percent in the first half of 2022 as WHO recommends. He framed global vaccination not as philanthropy but as self-interest for all parties, emphasizing the need for low and lower-middle income countries (LMICs) to have the resources and technology to manufacture their own vaccines. He also called for better resourced and stronger global health security architecture. The United Nations will continue to support vaccine rollout in countries and communities that are hardest to reach.

World Health Organization Director-General Dr. Tedros Adhanom-Ghebreyesus emphasized the importance of multilateralism in addressing the disparity in vaccine access between high- and low-income countries. He praised the new U.S. vaccine commitment and called on countries to work with companies to swap places with other countries in vaccine queues, for countries to fulfill dose share pledges immediately, and for sharing the intellectual property necessary to facilitate manufacturing around the world. He observed that we owe it to those who lost their lives to build better governance, financing, systems, and tools to ensure global health security. He called on leaders to support the vaccination of at least 40 percent of the population of every country by the end of this year and 70 percent by mid-2022.  He also called on those who control existing vaccine supplies to ensure that 2 billion doses are provided rapidly to LMICs in order to begin meeting these targets, as the Secretary General highlighted.

Republic of South Africa’s President Matamela Cyril Ramaphosa highlighted the risks of not reaching the vaccination targets set out in the Summit, and discussed how the pandemic exacerbates the global vaccine gap and the ways it undermines global health security. He also affirmed the importance of enabling countries to do their own vaccine manufacturing and procurement, and called on WTO member states to approve the TRIPS waiver proposal from South Africa, India, and other co-sponsors. He shared the African Union’s impactful work in hosting the first mRNA tech transfer on the African continent, then called for a sustainable plan to support LMICs through technology and finance to meet vaccine targets. He also supported the establishment of a global health security financial intermediary fund for pandemic preparedness, a Global Health Threats Council, and Secretary-General Guterres’ proposal for a global vaccination plan.

European Commission President Ursula von der Leyen described the pandemic as one of the most pressing societal challenges we have ever faced. To help address this challenge, she announced a new European Union partnership with the United States to help vaccinate the world with a joint objective of a 70 percent global vaccination rate by UNGA 2022.  The EU-U.S. global vaccination partnership seeks to expand supply and improve delivery while managing constraints to supply chains.  This partnership will seek to boost vaccine production in LMICs and coordinate investments to build regional manufacturing. The EU is investing more than €1 billion with partners in Africa and the pharmaceutical sector to bring mRNA technology to the continent beginning with hubs in South Africa, and Senegal, and Rwanda.  She reaffirmed the EU’s commitment to share more than 500 million doses by the middle of next year, and the  EU commitment that every second dose of vaccine produced in Europe is shipped abroad (to date, 800 million doses).  President von der Leyen also committed that the EU will work with the United States and within the G20 to establish a global health security FIF to help build a healthy and secure future.

Republic of Indonesia President Joko Widodo called for the strengthening of theglobal health architecture and for a new mechanism to mobilize resources. He articulated the need for LMICs to be part of the solution, by enhancing capacity to manufacture of vaccines, medicines, and supplies. He appealed for an end to vaccine nationalism, and said Indonesia as G20 chair next year will focus on strengthening the global health security architecture and preparing for future challenges.  

World Trade Organization Director-General Dr. Ngozi Okonjo-Iweala noted the urgency of preventing more people from dying in poor countries due to lack of access to lifesaving vaccines and other medical countermeasures.  She emphasized the risk of the pandemic to economic recovery, if slow vaccination progress allows the emergence of even more dangerous variants, saying, “Either we converge downwards by allowing the virus to drag all of us back down, or we converge upwards by vaccinating the world.”  She noted the centrality of trade in this effort, and she provided the example of the Pfizer- BioNTech and Moderna vaccines requiring inputs from nineteen countries.  She reiterated the importance of the WTO’s work to reduce export restrictions, address supply bottlenecks, and smooth regulatory obstacles.  She called on industry to donate doses and swap contracts so that COVAX and less advantaged countries can move up in the queue and receive supplies for distribution.  She urged leaders to find pragmatic compromises on intellectual property rules for COVID-19 vaccines, therapeutics, and diagnostics, and she underscored the need for cooperative action to ensure a stable, predictable and fair multilateral trading system.

Canada’s Prime Minister Justin Trudeau reiterated Canada’s commitment to being a trusted partner, and emphasized the target of equitably vaccinating 70 percent of the world by next September and both to protect the world’s population and ensure economic recovery.  He called for a focus on vaccine readiness and delivery, and to increase the production and supply of shots. He outlined Canada’s contributions of more than $2.5 billion, including investing to share tens of millions of doses with the rest of the world and support the ACT Accelerator and COVAX.  He referenced Canada’s interest in developing domestic vaccine production capacity, which would help Canada to help the world.  He expressed support for working through the WTO to resolve intellectual property issues and also called for strengthened global health security infrastructure over the long term by investing in shared health institutions and strengthening global cooperation.

“Gavi, the Vaccine Alliance Chief Executive Officer Dr. Seth Berkley outlined COVAX’s leadership of the most complex, global vaccine deployment in history, which has – to date — shipped more than 300 million doses to 142 economies.  He also said by the end of the year, COVAX seeks to deliver enough doses to protect about 40 percent of the adult population in the 92 lower income countries.  800 million doses have already been committed through COVAX, with 119 million received and delivered. He called leaders’ attention to serious obstacles and unacceptable inequalities in the global distribution of COVID-19 vaccines, and he thanked President Biden for the new U.S. commitment to donate of 500 million additional doses of Pfizer vaccine, as well as embraced the ambitious summit goal of vaccinating the world and accelerating vaccination in lower income countries.  He urged leaders to provide more doses, remove export restrictions, leverage innovative financing and contingency funding to support surge manufacturing capacity, give up their place in production queues to COVAX where possible, and for vaccine manufacturers to commit to greater transparency on orders and delivery timelines, and asked them to waive requirements for indemnification for the humanitarian buffer. 

President Biden and U.S. Ambassador to the United Nations Linda Thomas-Greenfield closed the session by thanking participants and reiterating the goal of ending the pandemic, which will require ambitious, coordinated global action.  President Biden noted we should set targets that require us to aim high, follow through on our commitments, and hold each other accountable in order to end this pandemic for everyone, everywhere.  He concluded by noting this won’t be our last meeting. 

Session I.      Video Interventions

  • King Abdullah II bin Al-Hussein, Hashemite Kingdom of Jordan (video)
  • Prime Minister Narendra Modi, Republic of India (video)
  • Chancellor Angela Merkel, Federal Republic of Germany (video)
  • Bill Gates,  Bill & Melinda Gates Foundation (video)

Session 2.     Saving Lives Now

USAID Administrator Samantha Power chaired the session, which was focused on ensuring equal access to the testing, therapeutics, and personal protective equipment that help prevent, diagnose, and treat COVID-19.  She pointed out that even as the world focuses on the goal of achieving 70 percent vaccination, we must – at the same time – come together to ensure countries have the PPE to keep health workers safe, supply oxygen to treat people with COVID, and close the testing gap.  She announced an intention to commit $50 million to increase access to oxygen in countries around the world, and that USAID would work to build a multi-sectoral coalition to coordinate global investment in oxygen access.

Rockefeller Foundation President Dr. Rajiv Shah moderated the session.  In his framing remarks, he reinforced the importance of the Save Lives Now agenda to helping communities and economies reopen safely amidst the pandemic.  He highlighted the Rockefeller Foundation’s investment of $1 billion for pandemic response, recovery, and prevention, and announced a group of 18 diagnostic companies that are convening with the help of the Foundation to commit to expanding COVID-19 testing around the world.

Vietnam’s President Nguyễn Xuân Phúc noted the toll the pandemic has taken on ASEAN members and expressed support for the goals set out by President Biden, including the creation of a global health security fund and increased vaccine production in developing countries. He emphasized the importance of early detection and public health measures, as well as treatment and large-scale vaccination, in responding to and ending the pandemic.  President Phúc noted the need to improve global cooperation and take a systemic approach, including transforming health systems and industries that produce pharmaceuticals and supplies, particularly in developing countries. He noted that Vietnam donated $500,000 to COVAX and will continue to contribute, and that Vietnam and fellow ASEAN countries have used $10.5 million from a joint COVID-19 Response Fund to purchase vaccines.

Director of the Pan American Health Organization (PAHO) Dr. Carissa Etienne emphasized that COVID-19 has particularly highlighted inequities in the Americas, and explained the path to recovery will only be through an equitable approach, with a focus on resilient, high-quality health systems for all.  She discussed the challenges faced by people living in poverty in following public health measures, and the particular burdens on those in the informal economy, indigenous communities, Afro descendent populations and migrants. Dr. Etienne spoke about PAHO’s delivery of 33 million COVID tests and more than $14 million worth of PPE to countries, and announced that, along with WHO, PAHO had identified two countries to initiate a mRNA vaccine manufacturing hub in the Americas.

Global Fund to Fight AIDS, TB, and Malaria Executive Director Peter Sands endorsed the Save Lives Now targets, noting that while vaccines are the most potent weapon against COVID-19, ending the pandemic will require stepped-up support to LMICS for testing, treatment, and PPE, as well as critical infection prevention and control.  He noted that the Global Fund, which is the largest provider of grants to LMICS for non-vaccine COVID response, has already approved more than $3.6 billion to over 100 countries, including $478 million for oxygen equipment and supplies, $815 million for diagnostics, and $745 million for PPE.  However, at a time when we must scale up these responses, Sands said that current funding will be exhausted by the end of the month, and urged increased investment in this critical response mechanism.

“Skoll Foundation CEO Don Gips discussed the role of philanthropy in taking risks, supporting civil society, testing out solutions that government can adopt, and connecting civil society and government– all important components of an all-society response to COVID-19.  He announced that Skoll Foundation founder Jeff Skoll has prioritized ending the pandemic and will build on the Foundation’s previous $100 million commitment with an additional $100 million to support Summit objectives, with a focus on saving lives now – particularly oxygen – and building strong health and preparedness systems for the future as a global public good. Part of their investment will support Build Health International, which will increase medical oxygen supplies in Africa.  Mr. Gips emphasized the importance of alignment and coordination around a global plan to end the pandemic, saying that the success of global COVID-19 response will be an indication of our ability to tackle other complex, interconnected global problems.

Mastercard Foundation President and CEO Reeta Roy emphasized that achieving global health security requires bold and simultaneous action on all fronts.  She also highlighted that we are all interconnected, and that there is no global health security without regional health security.  She noted that African leaders have mobilized a collective response to the pandemic, and that the next step is to manufacture vaccines on the continent. Ms. Roy focused on African public health institutions, and expressed support for the Africa CDC’s efforts to achieve sustainable public health, detailing the Foundation’s $1.3 billion partnership with Africa CDC to purchase vaccines for 50 million people; equipping health care workers, encouraging vaccine acceptance, and increasing genomic sequencing; developing the workforce to manufacture vaccines in Africa; and strengthening the Africa CDC.  She appealed to funders to support existing public health institutions.

Amref Health Africa CEO Dr. Githinji Gitahi reminded attendees of the way COVID-19 affects individual people, including those lacking oxygen treatment and health workers who lack PPE.  He pointed out that the toll of COVID-19 is much larger than what has been officially counted, due to the number of people in underserved areas dying at home without treatment. He noted that saving lives now requires making connections between the global mechanisms with resources and people in affected communities and includes strengthening health systems to respond at the local level, with a focus on community ownership and accountability. He emphasized the importance of grant funding rather than loans and stressed the need to invest quickly in local systems and existing mechanisms.

Moderator Dr. Shah asked each panelist to comment briefly on the single most important thing needed to ensure we save lives now, equitably.  Dr. Etienne replied with an emphasis on adequate tools to predict, prevent, and protect against COVID, as well as expanding regional vaccine production.  Mr. Sands advised to “act now; act big.”  Mr. Gips advocated for a coordinated global plan with real political commitment.  Ms. Roy advocated for including everyone at the table to ensure an equitable response, including those hardest hit: “We act in our self-interest when we act together.” Mr.D Gitahi advised that rich countries take a step back from the vaccine queue to allow COVAX to access more, and that we strengthen existing mechanisms before building new ones.

Administrator Power closed the session by noting that we have the ability to ramp up testing, improve availability of PPE, and develop sufficient oxygen capacity to treat those in need.  She advised that today’s Summit should be the start of a more coordinated effort to save lives that would be lost without our support.

Session II.    Video Interventions

  • Prime Minister Suga Yoshihide Japan (video)
  • Prime Minister Jacinda Ardern, New Zealand (video)
  • Tom Hart, ONE Campaign (video)
  • Prime Minister Stefan Löfven, Sweden (video)
  • Prime Minister Sheikh Hasina, Bangladesh (video)

Session 3.     Building Back Better Global Health Security

Vice President Kamala Harris chaired the session, which was focused on building back better global health security to mitigate future biological threats and pandemics.  She pointed out that nations need greater capacity now, and the world as a whole must be ready before, not after, the next pandemic.  Vice President Harris issued a clear call to action to establish a global health security financial intermediary fund (FIF) to bring together new resources for pandemic preparedness, with an initial goal of reaching $10 billion in seed funding for country and corporations.  She announced that the United States is prepared to contribute at least $250 million to help seed the FIF. Those funds will combat this pandemic while helping prevent the next, with an additional $850 million requested from the U.S. Congress.  She also called for greater political leadership and accountability, calling for the establishment of a Global Health Threats Council to monitor progress and sound the alarm to prevent future pandemics. 

Loyce Pace, U.S. Department of Health and Human Services Office of Global Affairs Director, moderated the panel with an emphasis on urgency and equity of the global response.

Prime Minister Solberg of Norway reiterated Vice President Harris’ perspective that we were not sufficiently prepared, and that we must transform ad-hoc solutions for the future.  She also called for predictable health security financing, a future health security fund, and burden-sharing as an approach to funding for it.  She stressed the importance of assistance beyond official development assistance, emphasized health security as a global public good, and stressed the need to strengthen WHO financing in parallel.  She also strongly supported achieving global early warning networks to detect and respond to outbreaks early, research and development on vaccines, tests and treatment, with accessible technologies to all and regional production capacity, with universal equitable access.  She emphasized that Norway stands ready to do its part.

Prime Minister Gaston Alphonso Browne, Antigua and Barbuda, Chair of the Conference of the Heads of Government of the Caribbean Community (CARICOM) stated that CARICOM governments are committed to the 70% global vaccination target by September 2022, including in their own governments.  He discussed his resolve to strengthen the Caribbean Public Health Agency (CARPHA) and called for international partnership.  In discussing the goal of building back better, Prime Minister Browne reiterated that recovering from economic effects will be protracted because economic progress has been reversed.  He discussed the importance of global public goods and the need to build health infrastructure, and stressed that none of us are safe until all of us are safe.

Senior Minister Tharman Shanmugaratnam, Republic of Singapore and Co-chair of the G20 High Level Independent Panel on Financing the Global Commons for Pandemic Preparedness and Response focused on the need for substantially more investments in pandemic preparedness.  He spoke of collective investments in areas such as global networks of surveillance and early warning, health security and public health capacities at national and regional level, and vaccines and critical medical supplies. He called for urgent establishment of a new multilateral Fund of $10 billion per year, less than 0.02 percent of most national GDPs, which could catalyze public, private, and philanthropic sources, besides domestic investments within nations.  He also stressed the importance of an inclusive G20-Plus Board for governance, comprising health and finance ministers, and the leaders of the WHO and the other key multilateral institutions.  He ended by noting, “It will be both morally indefensible and financially myopic to defer these investments or wait for the next pandemic to overwhelm us.”

“Ellen Johnson Sirleaf, former President of Liberia, Nobel Peace Prize recipient, and Co-Chair of the Independent Panel for Pandemic Preparedness and Response (IPPPR) called on the UN General Assembly to hold a Special Session to approve a political declaration on the reforms required for pandemic preparedness and response, including to establish a Global Health Threats Council led by Heads of State and Government, representative of the world’s regions, and focused on both accountability and political leadership.  She noted the IPPPR’s call for an International Pandemic Financing Facility to mobilize $10 billion per year and disbursements of up to $100 billion for biological crises, and commended the United States’ call for a FIF with seed contribution.  She expressed concerns about the severe inequality in vaccine availability and access (50-80 per cent of wealthy populations, with only 5 per cent in poorer countries), commended efforts to redistribute surplus vaccines to the 92 low-and middle-income countries, as well as technology transfers and voluntary licensing agreements for vaccine manufacturers. Finally, she called for adequate financing to the WHO, support for community health workers as a hallmark of the COVID19 response, and the burden COVID-19 has placed on women and girls. “It is clear that the current international system failed to protect us all from this catastrophic pandemic—and it is not fit to prevent another.” 

Dr. John Nkengasong, Director of the Africa Centers for Disease Control and Prevention, called for a “reset” button” on architecture for global health security, recognizing that this starts at the national, then regional, then global levels.  Reflecting on urgent needs, Dr. Nkengasong pointed to the need for scaling up the workforce and frontline health workers – in order to be better prepared for the next pandemic.  He discussed the need for all countries to house their own Centers for Disease Control that can serve as an emergency operation center, strengthen laboratory systems, and train the workforce.  With regards to lessons learned from this pandemic, Dr. Nkengasong raised regional manufacturing and the gap between African manufacturing and African consumption of vaccines.  Finally he called for innovative financing at the global and regional level, and that funding needs predictability, sustainability, and rapid access.

“Chief Executive Officer Marcel Arsenault, PAX sapiens, One Earth Future Foundation, stated that COVID-19 was our “dress rehearsal” for a far more devastating pandemic.  He reiterated that an effective plan and implementation will require the whole of global society to join together.  In that regard, he spoke to the role of philanthropies can play since they operate by more flexible rules than government, including their capacity for long term commitments.  He announced a new $200 million commitment to help future pandemics, to partner with other donors and global institutions to build a better global system.  Mr. Arsenault also committed to convene other donors and experts to finance pandemic preparedness and explore creative financing mechanisms outside of transitional development assistance. He also applauded the call by Vice President Harris to establish a FIF.

“Director Pace closed the session by highlighting the importance of global action toward “predictable, sustainable financing” allocated equitably to the most urgent needs and rooted in regional or local community perspectives. She emphasized the opportunity to mobilize public and private sector funds through multisector collaboration, and stressed the value of high-level political engagement and oversight.

Session III.   Video Interventions

  • President Moon Jae-in, Republic of Korea (video)
  • Carolyn Reynolds, Pandemic Action Network (video)
  • Prime Minister Scott Morrison, Australia (video)
  • Dr. Roopa Dhatt, Women in Global Health (video)
  • Prime Minister Pedro Sánchez, Spain  (video)
  • Prime Minister Sheikh Hasina of Bangladesh (video)

“Session 4.   Closing of Summit

Coordinator for Global COVID-19 Response and Health Security Gayle Smith moderated the panel and focused on creating momentum, checking our progress, and constantly doing more.  She asked G20 President Prime Minister Draghi to share a preview of the G20 Summit and areas in need of additional support.

Secretary Blinken announced called on leaders to end the pandemic rather than just “doing better,” and announced his intent to personally convene foreign ministers before the end of the year to follow up with commitments made at the Summit, as well as the G20.  He reiterated President Biden’s call for heads of state to reconvene on this issue in the first quarter of 2022.  He also called for a multilateral leaders task force made up of experts from inside and outside the government to transparently and rigorously evaluate progress in the run-up to the G20 and at regular intervals thereafter. 

“He stressed the target of vaccinating at least 70% of the population of every country, in every major income category, by UNGA 2022 and called on leaders to set ambitious targets with timelines that are openly tracked for progress and with accountability.  He reiterated the United States’ willingness to lead, President Biden’s commitment to supply an additional 500 million doses of the Pfizer vaccine, and his commitment to work with global vaccine manufacturers to expand global and regional manufacturing for mRNA, viral vector, and protein subunit COVID-19 vaccines, as well as pledged to enhance transparency for the data on production and projections for dose manufacturing.

“He also called on leaders to accelerate efforts to get more shots into arms, to reduce morbidity and mortality from the virus, to expand access to oxygen, testing, and more, building on historic support for Gavi and the Global Fund, aid to countries and communities through USAID and the CDC, Treasury Secretary Yellen’s call to action on Special Drawing Rights, and U.S. support for a waiver of intellectual property protections in the WTO TRIPS Agreement for COVID-19 vaccines in service of ending this pandemic.  Finally, he recognized community and healthcare workers on the frontlines of the pandemic, noting that the people are what’s critical to winning the fight against COVID-19.  ‘It comes down to us.  What we do in this critical moment, in the weeks ahead, in the months ahead.’ 

Prime Minister Mario Draghi of the Italian Republic addressed the Summit and announced a new commitment that will triple Italy’s existing dose donation pledge by providing 30 million additional doses by the end of the year.  These are in addition to the 15 million doses pledged for donation, largely through COVAX, during the G20 Global Health Summit of which nearly half have been distributed to date.  He called on leaders, as they work to end this pandemic, to also improve preparation for future pandemics, including by expanding the production capacity of vaccines and other medical tools worldwide – especially in the most vulnerable countries.  He welcomed the U.S. proposal to establish a FIF for health security and stressed that it is fully complementary with the G20 proposal for a Global Health and Finance Board.  He recalled the G20 Health Summit Rome Declaration and progress achieved since that time, including more than 2.5 million fully vaccinated worldwide. However, he stressed the grave inequalities in vaccine availability and emphasized the ACT-Accelerator and COVAX as the most effective ways to deliver and build capacity to administer.  He asked countries to stand by existing pledges and make more generous ones and gave support to the EU plan to develop regional manufacturing hubs in Africa, and the U.S.-EU global vaccination partnership that launched this week. Finally, he committed that the G20 Summit will build on the outcomes from today’s summit.

Ms. Zipporah Iregi of the National Nurses Association of Kenya called on leaders to support healthcare workers and include them in decision-making.  She thanked leaders for committing to these targets to save lives, vaccinate people, and build back better.  She also provided insight for leaders into the plight of healthcare workers serving on the front lines of the COVID-19 pandemic.  She recounted staying home at the beginning of the pandemic, watching peers explore other careers. She urged leaders to support healthcare workers and help them to be prepared for the next crisis.  She welcomed the U.S. announcement of additional vaccine sharing.  She expressed concerns about impending shortages of healthcare workers and called on leaders to support and recruit more healthcare workers, including ensuring they are paid on time and provided with personal protective equipment that is necessary to provide care. 

“Mr. Lwazi Mlaba a COVID-19 Survivor and Global Health and Global Fund Champion, provided final remarks for the Summit, sharing his personal journey with long COVID and advocating for urgency to strengthen community assistance and support investments to expand community healthcare workers. He noted that his survival depended on them.  He called for Universal Health Coverage and for global solidarity and leadership to beat the COVID-19 pandemic.  He ended by saying, powerfully, “We know what we need to do.  We know how we need to do it.  The time has come to actually do it. Invest now, invest big.  Let’s go now and do it.”

Summit Participants

More than 100 governments and other partners participated in the President Biden’s Global COVID-19 Summit on September 22, 2021.

Principality of Andorra; Antigua and Barbuda; Argentine Republic; Republic of Armenia; Commonwealth of Australia; Republic of Austria; Commonwealth of The Bahamas; Kingdom of Bahrain; People’s Republic of Bangladesh; Barbados; Kingdom of Belgium; Belize; Kingdom of Bhutan; Bosnia and Herzegovina; Republic of Botswana; Brunei Darussalam; Kingdom of Cambodia; Republic of Cameroon; Canada; Republic of Chile; Republic of Colombia; Republic of Cote d’Ivoire; Republic of Croatia; Czech Republic; Kingdom of Denmark; Commonwealth of Dominica; Arab Republic of Egypt; Republic of Estonia; Kingdom of Eswatini; Federal Democratic Republic of Ethiopia; European Commission; Republic of Finland; Gabonese Republic; Georgia; Federal Republic of Germany; Republic of Ghana; Hellenic Republic (Greece); Grenada; Republic of Guatemala; Republic of Guinea-Bissau; Cooperative Republic of Guyana; Republic of Haiti; Republic of Iceland; Republic of India; Republic of Indonesia; Ireland; State of Israel; Italian Republic; Jamaica; Japan; Hashemite Kingdom of Jordan; Republic of Kazakhstan; Republic of Kenya; Republic of Kiribati; Republic of Korea; Republic of Kosovo; Kyrgyz Republic; Lao People’s Democratic Republic; Republic of Latvia; State of Libya; Republic of Lithuania; Grand Duchy of Luxembourg; Republic of Malawi; Malaysia; Republic of Malta; Republic of Mauritius; Federated States of Micronesia; Republic of Moldova; Mongolia; Montenegro; Kingdom of Morocco; Republic of Mozambique; Republic of Namibia; Nepal; Kingdom of the Netherlands; New Zealand; Federal Republic of Nigeria; Republic of North Macedonia; Kingdom of Norway; Sultanate of Oman; Islamic Republic of Pakistan; Republic of Palau; Palestinian Authority; Republic of Peru; Republic of the Philippines; Republic of Poland; Portugal; Romania; Russian Federation; Kingdom of Saudi Arabia; Republic of Serbia; Republic of Sierra Leone; Republic of Singapore; Federal Republic of Somalia; Republic of South Africa; Kingdom of Spain; Sri Lanka; Federation of Saint Kitts and Nevis; Democratic Socialist Republic of Sri Lanka; St Vincent and Grenadines; Republic of the Sudan; Republic of Suriname; Kingdom of Sweden; Swiss Confederation; Taiwan; Kingdom of Thailand; Togolese Republic; Republic of Trinidad and Tobago; Republic of Tunisia; Republic of Turkey; Ukraine; United Arab Emirates; United Kingdom of Great Britain and Northern Ireland; United Nations General Assembly (Republic of Maldives); Republic of Uzbekistan; Republic of Vanuatu; Socialist Republic of Vietnam; Republic of Yemen; Republic of Zambia; Zimbabwe

International Organizations, Non-Governmental Organizations, Private Sector, and Philanthropies

More than 100 International Organizations, non-governmental organizations, private sector, and philanthropies participated in the President Biden’s Global COVID-19 Summit on September 22, 2021.

“Abbott; Access Bio; AdvaMedDX; Africa Centres for Disease Control and Prevention; The World Health Organization Regional Office for Africa (AFRO); African Development Bank; African Union; Alphabet Inc.; American Chamber of Commerce of Mexico; American Chamber of Commerce in South Africa; American Clinical Laboratory Association; American Society of Tropical Medicine and Hygiene; Amref Health Africa; American Public Health Association; Asian Development Bank; Association of Public Health Laboratories; Association of Southeast Asian Nations; Becton, Dickinson and Company; Biotechnology Innovation Organization; Boston Consulting Group; CARE; Caribbean Public Health Agency; The Carter Center; CDC Foundation; Center for Supporting Community; Development Initiatives; Coalition for Epidemic Preparedness Innovations; The Clinton Foundation; Clinton Health Access Initiative; CORE Group; COVID Collaborative; Danaher Corporation; Deloitte; Emory University; European Bank for Reconstruction and Development; Friends of the Global Fight; The Bill & Melinda Gates Foundation; Gavi, The Vaccine Alliance; Ginkgo Bioworks; Global Citizen; Global Communities; The Global Fund; Global Poverty Project; Global Health Council; Global Health Technologies Coalition; Health GAP; Hologic, Inc.; International Federation of Pharmaceutical Manufacturers & Associations; International Monetary Fund; InterAction; International Air Transport Association; International Atomic Energy Agency; International Civil Aviation Organization; International Committee of the Red Cross; International Federation of Red Cross and Red Crescent Societies; International Maritime Organization ; International Organization for Migration; International Vaccine Institute; IntraHealth International; Johnson & Johnson; Jubilee; LEGO Foundation; JustActions; LumiraDx; Management Sciences for Health; Marked by COVID; Mastercard Foundation; Matahari Global Solutions; Mayo Clinic Laboratories; McKinsey & Company; Merck Group; MilliporeSigma; National Nurses Association of Kenya; NETWORK for Catholic Social Justice; Nuclear Threat Initiative; ONE Campaign; One Earth Future Foundation; Open Society Foundations; OraSure Technologies; Oxfam America; Pan American Health Organization; Pandefense Advisory; Pandemic Action Network; PATH; PerkinElmer; Pfizer Inc.; Pharmaceutical Research and Manufacturers of America; Public Citizen; Public Health Foundation of India; QIAGEN; Roche; The Rockefeller Foundation; Sabin Vaccine Institute; SalivaDirect at the Yale School of Public Health; Save the Children; Schmidt Futures; Seed Global Health; The Skoll Foundation; Sustainable Energy for All; Thermo Fisher Scientific; United States Chamber of Commerce; United Nations Foundation; Unitaid; United Nations Children’s Fund; United Nations Environment Programme; United Nations High Commissioner for Refugees; United Parcel Service; The United States Global Leadership Coalition ; World Health Organization; Women in Global Health; World Bank Group; World Food Programme; WOTE Kenya; World Trade Organization.”

Conclusion

The damage from the COVID-19 pandemic is much worse than should have occurred had the world had a robust monitoring system and the global infrastructure to address the problem early on and cooperation among nations in the effort. Developed countries demonstrated a slowness of response. China was not forthcoming early on on developments in their country and has limited the ability of the world to understand the origins of the virus. Leadership in a number of countries downplayed the seriousness of the virus causing untold human suffering from runaway infections. Misinformation and misguided notions of personal choice have slowed the ability to take responsible action where public health care measures would have reduced the human damage and even the willingness to take a life saving vaccine. The world has been set back years or decades in its fight against poverty and other Sustainable Development Goals. While many countries are bouncing back economically and trade wise, it has often been with massive government infusions which reduced the economic collapse of particular economies but which are, of course, not sustainable and which were not available to most countries.

Despite the structures in place to facilitate a rapid development and equitable distribution of vaccines and other medical goods during a pandemic, a host of problems have reduced the success in the acquisition and distribution of vaccines to low- and middle-income countries to date.

The efforts of the United States and the European Union and other countries in recent months are important and will help correct — albeit months late — the issue of equitable access to vaccines. The U.S. and EU push for donations of vaccine doses versus sales with strings attached, working through COVAX for distributions to low- and middle-income countries and the need to address a range of other issues going to reducing death rates around the world (oxygen, therapeutics, PPEs), helping expand vaccine production capacity in low- and middle-income countries, as well as preparing for the next pandemic so the world is better able to respond in a timely manner are all important aspects for ending this pandemic and ensuring a more capable global response in the future. How successful the efforts of the U.S. and EU are will depend on the depth of commitment from other countries, multilateral organizations and the private sector as well as their own ability to deliver and even expand on their own initiatives.

Last week was an important one for the global effort to terminate the pandemic. While the media didn’t pay a lot of attention, the efforts of the U.S. and the EU are critical to a successful conclusion to the health crisis.

COVAX delivers COVID-19 vaccines to 100th country; India surge in infections likely to reduce product availability for COVAX through May and likely longer

Apress release from the WHO, Gavi, CEPI and UNICEF on the COVAX facility’s success in getting vaccines to 100 countries by April 8 is impressive news for the efforts of the WHO, GAVI, CEPI, UNICEF and their supporters to get vaccines to low- and middle-income countries as part of the effort to have vaccine distribution done equitably and affordably. See Press Relase from WHO, Gavi, CEPI, UNICEF, COVAX reaches over 100 economies, 42 days after first international delivery, April 8, 2021, https://www.gavi.org/news/media-room/covax-reaches-over-100-economies-42-days-after-first-international-delivery#:~:text=The%20milestone%20comes%2042%20days,Ghana%20on%20February%2024th.&text=Of%20the%20over%20100%20economies,Advance%20Market%20Commitment%20(AMC). The press release is embedded below.

PDF Embedder requires a url attribute COVAX-reaches-over-100-economies-42-days-after-first-international-delivery-_-Gavi-the-Vaccine-Alliance

While the release indicates that there will be delays in deliveries of vaccines in March and April because of increased COVID-19 cases in India, developments in India could mean an even greater delay in supplies than announced in March. For example, the major supplier of vaccines to COVAX in the first half of 2021 is the Serum Institute of India (“SII”) which is licensed by AstraZeneca to produce that vaccine in India for distribution in large part to COVAX. Yesterday, the president of SII indicated that export shipments could resume in June depending on cases levels in India. See Financial Times, India to restart Covid vaccine exports in June if local cases fall, April 7, 2021, https://www.ft.com/content/fcdffb8f-f86e-4bd9-adec-20256aeb0a07. It doesn’t appear that SII has notified COVAX of a further delay past April, but a June resumption, if it occurs, suggests that delays will continue through May at a minimum.

The situation for SII is complicated by a need for expanded capacity. It has sought $400 million from the Indian government to ramp up production from 71 million to 100 million doses per month by May. See Fierce Pharma, ‘Very stressed’ Serum Institute asks government for $400M vaccine production boost, April 8, 2021, https://www.fiercepharma.com/manufacturing/very-stressed-serum-institute-india-asks-government-for-vaccine-production-boost.

Moreover, the refusal of SII to export doses to the United Kingdom, to COFAX and others has become the basis for a legal notice from AstraZeneca. See Times of India, Covid-19: AstraZeneca sends legal notice to SII over delays in vaccine supply, April 8, 2021, https://timesofindia.indiatimes.com/india/astrazeneca-sends-legal-notice-to-sii-over-delays-in-vaccine-supply/articleshow/81960902.cms. SII is also finding itself refunding moneys paid by countries who are not getting supplies. See Reuters, Serum Institute refunds S. Africa for undelivered AstraZeneca doses, April 8, 2021, https://www.reuters.com/article/us-health-coronavirus-safrica/serum-institute-refunds-south-africa-for-undelivered-astrazeneca-doses-idUSKBN2BV1TI.

While COVAX is looking to expand sources of vaccines, SII is the major source through June. Professor Simon Evenett has put out a one page analysis of the implications for supply to COVAX from SII if the resumption of exports is premised on India fully vaccinating all those willing to be vaccinated for whom the government of India has opened up vaccinations. While SII has not stated that resumption of exports is tied to full vaccination of Indians who are 45 years or older, Prof. Evenett’s paper is an interesting analysis of how long a delay could occur in terms of SII becoming a major exporter again. His paper entitled “Vaccine Maths 2: Will India start exporting COVID-19 vaccines again in June 2021?” is embedded below.

Vaccine_Maths_2.pd_

Conclusion

With the spread of the new variants of COVID-19 that have higher rates of transmission and higher rates of serious infection, many countries find themselves facing increased numbers of cases and increased hospitalizations and deaths even as vaccine supplies are increasing and vaccination roll outs starting in many countries. There is a lot of attention within multilateral organizations such as the World Bank, IMF and WTO and by a number of countries on the needs for increased production and distribution to all countries. See, e.g., April 6, 2021, IMF April World Economic Outlook, IMF and World Bank Spring Meetings and U.S. efforts on global access to vaccines, https://currentthoughtsontrade.com/2021/04/06/imf-april-world-economic-outlook-imf-and-world-bank-spring-meetings-and-u-s-efforts-on-global-access-to-vaccines/. COVAX is an important part of the solution but it will need more funding and greater diversity of suppliers to meets its role in the equitable and affordable access to vaccines in 2021 and 2022.

WTO reform — trade and environment issues to be examined should include addressing ocean/sea trawling effects on carbon capture/release

While the WTO has had a Trade and Environment Committee since 1995 and interest on the intersection between trade and environment predates the formation of the WTO (i.e., back in the GATT), there has been renewed calls by many Members for increased activity in the WTO on trade and environment issue as part of the future agenda. The WTO provides a short history of WTO involvement in the area. See WTO, Trade and Environment, https://www.wto.org/english/tratop_e/envir_e/envir_e.htm.

Ongoing talks on fisheries subsidies are aimed at helping make fishing sustainable and meeting one of the UN Sustainable Development Goals (SDG 14.6). See, e.g., WTO, Civil society call for fishing subsidies deal welcomed by Dr Ngozi and negotiations chair, 3 March 2021, https://www.wto.org/english/news_e/news21_e/fish_01mar21_e.htm. There is interest in addressing plastics in the oceans (circular economy issues) and for some, an interest in restarting the Environmental Goods Agreement negotiations. See WTO, Role of trade in promoting circular economy highlighted at WTO Environment Week, 27 November 2019, https://www.wto.org/english/news_e/news19_e/envir_03dec19_e.htm; WTO, Plastic waste, ‘blue economy’ among issues taken up at trade and environment committee, 28 November 2018, https://www.wto.org/english/news_e/news18_e/envir_30nov18_e.htm.

In a New York Times article from Wednesday, there is interesting information on the effects of fish trawling on carbon release. See New York Times, Trawling for Fish May Unleash as Much Carbon as Air Travel, Study Says, March 1, 2021, https://www.nytimes.com/2021/03/17/climate/climate-change-oceans.html. The opening sentences of the article reads, “For the first time, scientists have calculated how much planet-warming carbon dioxide is released into the ocean by bottom trawling, the practice of dragging enormous nets along the ocean floor to catch shrimp, whiting, cod and other fish. The answer: As much as global aviation releases into the air.” The study referenced is an article that was published online by Nature on 17 March 2021 by 26 authors entitled “Protecting the global ocean for biodiversity, food and climate.” https://www.nature.com/articles/s41586-021-03371-z. The New York Times article notes that the study estimated that 1.9 million square miles of the sea floor is scraped every year which can release the carbon that is stored in the sea floor and that would remain captured for thousands of years if left undisturbed. The NYT article continues, “The carbon released from the sea floor leads to more acidified water, threatening marine life, and reduces the oceans’ capacity to absorb atmospheric carbon dioxide. China, Russia, Italy, the United Kingdom and Denmark lead the world in such trawling emissions.”

While carbon release from fish trawling is not presently part of the ongoing negotiations on fisheries subsidies nor a topic being discussed within the Committee on Trade and Environment (at least that I have seen), it would seem to be a topic that could meaningfully be examined within the WTO in an effort to have trade be sustainable and contribute to reducing carbon emissions. Some possible approaches within the WTO or by individual WTO Members could include identifying less environmentally damaging approaches (sharing experiences, best practices), potential negotiations to terminate or phase out such practices, review of such practices in trade policy reviews, inclusion within any carbon border adjustment plan adopted by Members.

Addressing the topic would appear to be an important opportunity to promote sustainable development as the world deals with and comes out of the pandemic. Let’s hope Members take an ambitious approach to the role the WTO can play on sustainable development.

March 8, 2021, International Women’s Day — statements of UN Women Executive Director, heads of WTO, UNCTAD and International Trade Centre, and U.S. Executive Orders and Statement by President Biden

Today is International Women’s Day. With the pandemic still occupying center stage in global affairs, the UN effort on its Sustainable Development Goal 5 to “achieve gender equality and empower all women and girls” is in trouble. Women have been disproportionately adversely affected by the pandemic, tens millions leaving the workforce to take care of children, tens of millions losing jobs and having no safety net. Various reports have reviewed the disparities and the loss of progress towards achieving gender equality and empowering all women and girls. See, e.g., UN Women, From Insights To Action, Gender Equality in the Wake of COVID-19 (September 2020); (“The pandemic has widened gender and economic inequalities.” “COVID-19 is exposing vulnerabilities in social, political and economic systems. It is forcing a shift in priorities and funding across public and private sectors, with far-reaching effects on the well-being of women and girls. Action must be taken now to stop this backsliding.”); UN Women, SPOTLIGHT ON GENDER, COVID-19 AND THE SDGS, WILL THE PANDEMIC DERAIL HARD-WON PROGRESS ON GENDER EQUALITY?, https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2020/spotlight-on-gender-covid-19-and-the-sdgs-en.pdf?la=en&vs=5013.

It is against this backdrop that statements and actions today on the importance of Women to the achievement of sustainable development goals should be seen. Below are materials from the UN Women’s Executive Director, the heads of the three Geneva organizations with a trade mission or function that are headed by women, and the announced actions today by President Biden in the United States.

UN Women Executive Director Statement

The following statement was made today by the UN Women Executive Director. See International Women’s Day Statement by Phumzile Mlambo-Ngcuka, UN Women Executive Director, on International Women’s Day 2021, Change up the pace: women at the table, March 8, 2021, https://www.unwomen.org/en/news/stories/2021/3/statement-ed-phumzile-international-womens-day-2021. The statement is copied below in its entirety.

“International Women’s Day this year comes at a difficult time for the world and for gender equality, but at a perfect moment to fight for transformative action and to salute women and young people for their relentless drive for gender equality and human rights. Our focus is on women’s leadership and on ramping up representation in all the areas where decisions are made – currently mainly by men – about the issues that affect women’s lives. The universal and catastrophic lack of representation of women’s interests has gone on too long.

“As we address the extraordinary hardship that COVID-19 has brought to millions of women and girls and their communities, we also look ahead to the solid opportunities of the Generation Equality Forum and Action Coalitions to bring change.

“During the pandemic, we have seen increased violence against women and girls and lost learning for girls as school drop-out rates, care responsibilities and child marriages rise. We are seeing tens of millions more women plunge into extreme poverty, as they lose their jobs at a higher rate than men, and pay the price for a lack of digital access and skills. These and many other problems cannot be left to men alone to solve. Yet, while there are notable exceptions, in most countries there is simply not the critical mass of women in decision-making and leadership positions to ensure that these issues are tabled and dealt with effectively and this has affected the pace of change for women overall.

“There are breakthroughs to celebrate, where women have taken the helm of organizations such as the World Trade Organization, the International Monetary Fund and the European Central Bank and we look forward to more such appointments that help to change the picture of what a leader looks like. Yet this is not the norm. In2020, as a global average, women were 4.4 per cent of CEOs, occupied just 16.9 per cent of board seats, made up only 25 per cent of national parliamentarians, and just 13 per cent of peace negotiators. Only 22 countries currently have a woman as Head of State or Government and 119 have never experienced this – something that has important consequences for the aspirations of girls growing up. On the current trajectory, we won’t see gender parity in the highest office before 2150.

“This can and must change. What is needed is the political will to actively and intentionally support women’s representation. Leaders can set and meet parity targets, including through appointments for all executive positions at all levels of government, as has occurred in the few countries with gender equal cabinets. Special measures can work; where countries have put in place and enforced quotas, they have made real progress on women’s leadership, as have those that have policies to address representation. Where these measures do not exist, progress is slower or even nonexistent and easily reversed.

“No country prospers without the engagement of women. We need women’s representation that reflects all women and girls in all their diversity and abilities, and across all cultural, social, economic and political situations. This is the only way we will get real societal change that incorporates women in decision-making as equals and benefits us all.

‘This is the vision of the 2030 Agenda and the Sustainable Development Goals and the vision of the Beijing Declaration and Platform for Action. It is the vision of civil society and multitudes of young people who are already leading the way and of all those who will join us in the Generation Equality Action Coalitions. We need bold decisive action across the world to bring women into the heart of the decision-making spaces in large numbers and as full partners, so that we can make immediate progress on a greener, equitable and inclusive world.”

Video of Director-General Ngozi Okonjo-Iweala of the WTO, Acting Secretary-General Isabelle Durant of UNCTAD, and Executive Director Pamela Coke-Hamilton of the International Trade Centre

For International Women’s Day, the three heads of multilateral organizations in Geneva involved in trade put out a video entitled, International Women’s Day — Leading global trade: Three women, three organizations. The note accompanying the video states “For the first time, all three major global trade organizations have women leaders: Ngozi Okonjo-Iweala at the WTO, Isabelle Durant at UNCTAD and Pamela Coke-Hamilton at ITC. On International Women’s Day, they talk about the importance of looking at trade through a gender lens, and how trade can help tackle the challenges related to the COVID-19 pandemic.” https://www.wto.org/english/news_e/news_e.htm.

Top priorities to boost recovery outlined by the three leaders include the following. For Director-General Okonjo-Iweala, her first priority to boost economic recovery, is the health aspect. “It is absolutely a top priority for me that we should look at how to make equitable and affordable access to vaccines, therapeutics and diagnostics happen. It is unconscionable that any countries or peoples should be waiting for any of these medical products. And we know that until we tackle the health challenges, we will not be able to really get a handle on the economic challenges and return to a sustainable growth path that would spell recovery from the pandemic. So that’s a really important priority. Second is what can trade do to boost the economic recovery? How can we liberalize trade in certain sectors to make sure that supply chains stay open and work and that countries can produce more and sell more? So what can trade contribute to that? It’s a priority for me that export restrictions and prohibitions that have been put by countries during this time of the pandemic be dropped or minimized or phased out very quickly so that we can have a freer flow of goods and intermediate inputs. So those are two top priorities that I think we need to focus on to boost economic recovery.”

For Acting Secretary-General Durant, her first priority is “to ensure that our institutions contribute to making trade a real tool for recovery, especially for those countries, groups and sectors that have paid a high price due to the pandemic. My priority is that everything we provide them in terms of analysis, data, technical and intergovernmental support helps them steer their recovery towards more inclusive and greener sectors and strategies. Climate change is indeed the greatest threat to current and future generations. Countries need urgently to start planning and implementing actions to adapt their production and trade to the ruthless effects of climate change: what does this imply for better production methods; new comparative advantages; investments; diversification of their economies; and regional integration and value chains? I have the same concern for fairness in the digital revolution. How can developing countries derive the greatest benefit for their development, and become players in it, when digital technology has become the driving force of the economy? COVID has shown the importance of digital infrastructure, policies and skills. More than ever, we need the cooperation, expertise and experience of all to build the road to recovery, because we all know that countries we are far from being equal when it comes to these issues.” (English translation from French as provided in the video).

For Executive Director Pamela Coke-Hamilton, her first priorities are “empowerment and equality — empowerment by building resiliency for MSMEs through partnership; empowerment for recovery by moving towards greener trade. ITC is starting a new initiative to support MSMEs and green trade, helping MSMEs adopt more sustainable practices, pursue opportunities in the circular economy and participate in greener supply chains. Empowerment through digital inclusion by promoting greater integration of MSMEs in digital economies and facilitate digital access for all. Empowerment of women and youths. A dedicated program at ITC will lead the way to women’s economic empowerment, and we will continue to work with governments to build an eco-system of new and innovative jobs for youths. And secondly, equality. Ultimately we want to make sure that no one is left behind as we seek paths for recovery, and build resilience against future shocks. COVID-19 has loaid bare the depths of inequality still prevailing from the global economic system. We must choose to challenge the status quo, and as women we will.”

Action by President Biden

President Biden provided a statement on International Women’s Day and issued two Executive Orders. See Statement by President Biden on International Women’s Day, March 8, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/08/statement-by-president-biden-on-international-womens-day/; Executive Order on Establishment of the White House Gender Policy Council, March 8, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-establishment-of-the-white-house-gender-policy-council/; Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, March 8, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/; Fact Sheet: President Biden to Sign Executive Orders Establishing the White House Gender Policy Council and Ensuring Education Free from Sexual Violence, March 8, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/08/fact-sheet-president-biden-to-sign-executive-orders-establishing-the-white-house-gender-policy-council-and-ensuring-education-free-from-sexual-violence/. The President’s statement is copied below as is the fact sheet on the two Executive Orders.

“Women’s history is American history — and world history. On International Women’s Day, we celebrate the achievements, contributions, and progress of women and girls in the United States and around the globe.
 
“My Administration is committed to honoring women by investing in their opportunity, security, and wellbeing. I was proud to issue an Executive Order today establishing the White House Gender Policy Council, to ensure that every domestic and foreign policy we pursue rests on a foundation of dignity and equity for women. My Administration is also committed to ensuring that women are represented equally at all levels of the federal government. That starts with Vice President Harris, who broke through a barrier that stood for more than two centuries. And it includes a record number of diverse women whom I’ve nominated to serve in Cabinet-level roles and appointed to senior-level positions.
 
“In our nation, as in all nations, women have fought for justice, shattered barriers, built and sustained economies, carried communities through times of crisis, and served with dignity and resolve. Too often, they have done so while being denied the freedom, full participation, and equal opportunity all women are due. Their contributions have been downplayed. Their stories have been neglected. That is why International Women’s Day is also a time for us to recommit ourselves to the cause of equity and equality for women the world over, and to shine a light on the systemic obstacles that fuel gender disparities and undermine women’s potential.
 
“Despite persistent obstacles, women are leading every day. Over the past year, women have played a critical, often outsized role in responding to the global coronavirus pandemic. They are our vaccine researchers and public health officials. They are our doctors and nurses. They are our essential workers — so many of whom are women of color — in fire stations and nursing homes, on farms and in grocery stores, in schools and in shelters.
 
“Around the world, we are seeing decades of women’s economic gains erased by this pandemic. It’s forcing millions more girls out of school, which could impact economic growth for decades to come. Incidents of violence against women in their homes and communities have spiked. And, as is so often the case, COVID-19 is hitting the poorest and most marginalized women the hardest. These global trends damage all of us, because we know that governments, economies, and communities are stronger when they include the full participation of women — no country can recover from this pandemic if it leaves half of its population behind.
 
“Elevating the status of women and girls globally is the right thing to do — it is a matter of justice, fairness, and decency, and it will lead to a better, more secure, and more prosperous world for us all.  On International Women’s Day, let us recommit to the principle that our nation, and the world, is at its best when the possibilities for all of our women and girls are limitless.”

Fact Sheet

Biden-Harris Administration establishes a government-wide focus on uplifting the rights of women and girls in the United States and around the world

“The full participation of all people – including women and girls – across all aspects of our society is essential to the economic well-being, health, and security of our nation and of the world. This is a matter of human rights, justice and fairness. It is also critically important to reducing poverty and promoting economic growth, increasing access to education, improving health outcomes, advancing political stability, and fostering democracy.

“Today, President Biden will sign two Executive Orders. The first establishes the White House Gender Policy Council to ensure that the Biden-Harris Administration advances gender equity and equal rights and opportunity for women and girls. The second directs the Department of Education (ED) to review all of its existing regulations, orders, guidance, and policies for consistency with the Administration’s policy to guarantee education free from sexual violence.

“A year into COVID-19, women are still contending with the public health crisis, an ensuing economic crisis, and on top of those challenges, a caregiving crisis. The pandemic has exacerbated barriers that have held back women, especially women of color, forcing many to leave the workforce, manage virtual schooling, and absorb additional caregiving responsibilities. Many women are also on the frontlines of the response to COVID-19 – as essential workers keeping our economy, communities and families going. As the country continues to grapple with the pandemic and reckons with the scourge of systemic racism, President Biden knows that we need a government-wide focus on uplifting the rights of women and girls in the United States and around the world, restoring America as a champion for gender equity and equality.

“Today’s actions will:

“Establish the Gender Policy Council. The first Executive Order formally establishes the Gender Policy Council within the Executive Office of the President, with a role in both domestic and foreign policy development. The Council will work in coordination with the existing policy councils to advance gender equity and equality, including by:

“Combatting systemic bias and discrimination, including sexual harassment;

“Increasing economic security and opportunity by addressing the structural barriers to women’s participation in the labor force, decreasing wage and wealth gaps, and addressing the caregiving needs of American families and supporting care workers, predominantly low-paid women of color;

“Ensuring access to comprehensive health care and preventing and responding to gender-based violence;

“Promoting equity and opportunity in education and leadership; and

“Advancing gender equality globally through diplomacy, development, trade, and defense, and by recognizing the needs and roles of women and girls in conflict prevention, peacebuilding, democratic rights-respecting governance, global health and humanitarian crises and development assistance.

“The White House Gender Policy Council will be an essential part of the Biden-Harris Administration’s plan to ensure we build a more equal and just society – by aggressively protecting the rights and unique needs of those who experience multiple and intersecting forms of discrimination, including individuals who are Black, Latina, Native, Asian American and Pacific Islander, people with disabilities, and LGBTQI+.

“The Executive Order requires the Co-Chairs of the Council to submit to the President a Government-wide strategy to address gender in policies, programs and budgets, and an annual report to measure progress on implementing the strategy. To prevent and respond to gender-based violence, wherever it occurs, there will be a Special Assistant to the President and Senior Advisor on Gender-Based Violence on the Council staff. The Executive Order also requires engagement with non-profit and community-based organizations, state and local government officials, Tribal Nations, foreign government officials and multilateral organizations.

Ensure education free from sexual violence. President Biden will sign an Executive Order that will direct the Department of Education (ED) to review all of its existing regulations, orders, guidance, and policies to ensure consistency with the Biden-Harris Administration’s policy that students be guaranteed education free from sexual violence. It also directs ED to specifically evaluate the Title IX regulation issued under the previous administration and agency action taken pursuant to that regulation, to determine whether the regulation and agency action are consistent with the policies of the Biden-Harris Administration.”

Conclusion

The WTO at its 2017 Ministerial Conference held in Buenos Aires saw a joint declaration on women and trade released. There are currently 127 WTO Members who support the declaration. There was an interim report released in 2019 and an informal working group on trade and gender working on a voluntary basis to share information and best practices in ways to increase women’s role in global trade. Such activities are a start for the WTO, but much more could be done if there was greater support by the Members. The 2020-21 selection of Dr. Ngozi Okonjo-Iweala was an important action and will likely presage change at the Secretariat. Her priorities as reviewed in today’s video address trade issues that are important to economic recovery which may facilitate greater movement towards gender equality.

The challenges women face globally during the pandemic are significantly greater than those faced by men both in terms of lost employment, withdrawal from the workforce to deal with child care and much more. The UN Sustainable Development Goal of gender equality and empowerment of all women and girls is important for many reasons. In trade, gender equality will promote growth and innovation. This is true in all societies regardless of level of economic development.

The pandemic has pushed back progress in economic development for much of the world as has been often reported and has slowed or reversed the drive for gender equality and empowerment of half the world’s population.. More focus and efforts are needed to ensure achieving the UN SDG 5 by 2030. Trade is but one aspect of the challenge.

Today’s speeches by the three leaders of multilateral organizations handling trade show some of the broader issues facing global trade to recover from the pandemic and highlight the capabilities of women leading important organizations. The UN Women’s Executive Director highlighted the deep societal challenges that continue to retard gender equality in fact in many parts of the world.

Finally, the actions by President Biden and his Administration are the types of actions needed by countries who have not achieved gender equality to date. More can and must be done by nations around the world. International Women’s Day is a reminder of the enormous global opportunities that exist if gender equality and empowerment of women and girls is achieved.

Recent WTO report on services trade and January 2021 International Monetary Fund World Economic Outlook Update — the future growth depends on vaccinations of peoples around the world

On January 26, 2021, the WTO put out a press release entitled “Services trade recovery not yet in sight”. https://www.wto.org/english/news_e/news21_e/serv_26jan21_e.htm. As the press release states,

“Global services trade in the third quarter of 2020 fell 24% compared to the same period in 2019, according to statistics released by the WTO on 26 January. This represents only a small uptick from the 30% year-on-year decline registered in the second quarter, in marked contrast to the much stronger rebound in goods trade.

“Preliminary data further suggest that, in November, services trade was still 16% below 2019 levels. Prospects for recovery remain poor since a second wave of COVID-19 infections necessitated new, stricter lockdown measures in many countries, with tightened restrictions on travel and related services extending into the first quarter of 2021.

“The latest statistics confirm earlier expectations that services trade would be harder hit by the pandemic than goods trade, which was only down 5% year-on-year in the third quarter.  Foregone expenditures on tradeable services could be directed elsewhere, with consumers shifting to goods instead.”

Travel services in the third quarter were down 68% from the third quarter of 2019, a slight improvement from the 2nd quarter (down more than 80%). Transport services were down 24% in the third quarter while other services were down 2%.

As prior posts have reviewed, travel and tourism trade has been destroyed during the pandemic with as many as 100 million people’s jobs at risk. See November 4, 2020, WTO reports a 30% decline in commercial services trade in 2nd quarter of 2020 – travel challenges through September will continue to put downward pressure on commercial services trade, https://currentthoughtsontrade.com/2020/11/04/wto-reports-a-30-decline-in-commercial-services-trade-in-2nd-quarter-of-2020-travel-challenges-through-september-will-continue-to-put-downward-pressure-on-commercial-services-trade/; September 21, 2020, OECD data on services trade and latest UNWTO World Tourism Barometer – continued drag of travel and tourism on global trade, https://currentthoughtsontrade.com/2020/09/21/oecd-data-on-services-trade-and-latest-unwto-world-tourism-barometer-continued-drag-on-travel-and-tourism-on-global-trade/; September 9, 2020, Making the WTO relevant to businesses and workers – the example of travel and tourism, https://currentthoughtsontrade.com/2020/09/09/making-the-wto-relevant-to-businesses-and-workers-the-example-of-travel-and-tourism/; July 1, 2020, COVID-19 — EU move to permit some international trade in addition to intra-EU travel, effects on tourism, https://currentthoughtsontrade.com/2020/07/01/covid-19-eu-move-to-permit-some-international-travel-in-addition-to-intra-eu-travel-effects-on-tourism/; May 3, 2020, Update on the collapse of travel and tourism in response to COVID-19, https://currentthoughtsontrade.com/2020/05/03/update-on-the-collapse-of-travel-and-tourism-in-response-to-covid-19/; April 30, 2020, The collapse of tourism during the COVID-19 pandemic, https://currentthoughtsontrade.com/2020/04/30/the-collapse-of-tourism-during-the-covid-19-pandemic/.

With new lockdowns and travel restrictions occurring in the first quarter of 2021, the travel and tourism sector (including air, hotel, restaurant, entertainment sectors) is in for a continued difficult 2021 (at least the first half for some developed countries depending on vaccination staging).

The WTO press release is embedded below.

WTO-_-2021-News-items-Services-trade-recovery-not-yet-in-sight

In an earlier post, I had reviewed a World Bank forecast that tied economic recovery to the speed and breadth of COVID-19 vaccinations that occur in 2021. See January 5, 2021, Global economic rebound in 2021 will be affected by rate of vaccinations against COVID-19 – World Bank’s January 5, 2021 release of its World Economic Prospects report , https://currentthoughtsontrade.com/2021/01/05/global-economic-rebound-in-2021-will-be-affected-by-rate-of-vaccinations-against-covid-19-world-banks-january-5-2021-release-of-its-world-economic-prospects-report/.

In an update to its World Economic Outlook released earlier this week, the IMF noted that while global economic growth in 2021 and 2022 is expected to be somewhat stronger than previously projected, the level of growth is dependent on vaccine availability and vaccinations and whether there is widespread availability to peoples of the world. See IMF, World Economic Outlook Update, January 2021, https://www.imf.org/en/Publications/WEO/Issues/2021/01/26/2021-world-economic-outlook-update. The header and first three paragraphs of the update are copied below.

Policy Support and Vaccines Expected to Lift Activity

“Although recent vaccine approvals have raised hopes of a turnaround in the pandemic later this year, renewed waves and new variants of the virus pose concerns for the outlook. Amid exceptional uncertainty, the global economy is projected to grow 5.5 percent in 2021 and 4.2 percent in 2022. The 2021 forecast is revised up 0.3 percentage point relative to the previous forecast, reflecting expectations of a vaccine-powered strengthening of activity later in the year and additional policy support in a few large economies.

“The projected growth recovery this year follows a severe collapse in 2020 that has had acute adverse impacts on women, youth, the poor, the informally employed, and those who work in contact-intensive sectors. The global growth contraction for 2020 is estimated at -3.5 percent, 0.9 percentage point higher than projected in the previous forecast (reflecting stronger-than-expected momentum in the second half of 2020).

“The strength of the recovery is projected to vary significantly across countries, depending on access to medical interventions, effectiveness of policy support, exposure to cross-country spillovers, and structural characteristics entering the crisis.”

On the IMF webpage for the update there is a colored chart showing projected growth for certain groupings of countries. The Chart is embedded below.

growth-projections-weoupdate-jan21-eng

From press reports it is known that the rollout of vaccines has hit some early snags with both Pfizer/BioNTech and AstraZenaca announcing reduced shipments to some countries. BBC News, Coronavirus: Vaccine supply fears grow amid EU export threat, 26 January 2021, https://www.bbc.com/news/world-europe-55805903#:~:text=The%20EU%20has%20warned%20Covid,cannot%20supply%20the%20expected%20numbers. Indeed, the EU is considering steps to monitor and/or restrict exports of vaccines depending on fulfillment of contracts with the EU and member states, raising concerns about vaccine nationalism. NBC News, E.U. threatens to restrict exports of Covid vaccines amid rollout anger, January 26, 2021, https://www.nbcnews.com/news/world/eu-threatens-restrict-exports-covid-19-vaccines-amid-rollout-anger-n1255636.

Similarly, new variants that are apparently more contagious and possibly more deadly are spreading resulting in heightened travel restrictions which will retard any recovery in the travel and tourism sector. Washington Post, Coronavirus updates: As variants spread, countries pursue new round of travel restrictions, January 26, 2021, https://www.washingtonpost.com/nation/2021/01/26/coronavirus-covid-updates/. There are also concerns about whether initial vaccines will be effective against the new variants. New York Times, As Virus Grows Stealthier, Vaccine Makers Reconsider Battle Plans, January 25, 2021, https://www.nytimes.com/2021/01/25/health/coronavirus-moderna-vaccine-variant.html.

At the same time, Africa which had recorded relatively few cases and deaths from COVID-19 for much of 2020 is now experiencing significant increases in both which is overwhelming health systems in some areas. Financial Times, Coronavirus second wave surges across Africa, Mildly hit the first time round, the continent’s death rate has now overtaken the global average, 17 January 2021, https://www.ft.com/content/3d000093-87a3-48f3-8bb5-4ad9a8316aa1

The COVAX facility designed to help many countries (including many poor countries) access vaccines has a significant funding shortfall at present despite the U.S. rescinding its notice of withdrawal from the WHO and its agreement to participate in COVAX. Reuters, U.S. alone won’t fill COVAX funding gap, lead official says, January 22, 2021,https://news.trust.org/item/20210122130041-jr1j3. The Secretary-General of the World Health Organization has expressed concern that the world will fail to make vaccines available to all at affordable prices in a timely manner. WHO Director-General, Dr Tedros Adhanom Ghebreyesus, Debate on the report “COVID-19 vaccines: ethical, legal and practical considerations,” 27 January 2021, https://www.who.int/director-general/speeches/detail/debate-on-the-report-covid-19-vaccines-ethical-legal-and-practical-considerations. The WHO Director-General’s speech is embedded below.

Debate-on-the-report-COVID-19-vaccines_-ethical-legal-and-practical-considerations

The WHO’s Director-General references a report from the International Chamber of Commerce Research Foundation. The report and a press release can be accessed here: ICC, The Economic Case for Global Vaccinations, https://iccwbo.org/publication/the-economic-case-for-global-vaccinations/. The press release from the ICC describes the report as follows.

“A study commissioned by the International Chamber of Commerce (ICC) Research Foundation has found that the global economy stands to lose as much as US$9.2 trillion if governments fail to ensure developing economy access to COVID-19 vaccines

“The COVID-19 pandemic had a devastating effect on both lives and livelihoods in 2020. The arrival of effective vaccines can be a major game changer in mitigating the economic, social and health consequences of the virus in the year ahead.

“However, evidence to date suggests that access to these vaccines is likely to be highly uneven across countries. Advanced economies have in recent months pursued a policy of securing the global supply of frontrunner vaccines – as a result severely limiting their availability in emerging markets. Moreover, the Access to COVID-19 Tools (ACT) Accelerator – the proven global platform to enable equitable access to COVID-19 test, treatments and vaccines – remains underfunded by the world’s largest economies, constraining its ability to procure vaccines at scale for the developing world.

“A new study highlights the major risks to the global economy inherent in this uncoordinated approach to vaccine access. Using a sophisticated model – that builds upon an earlier NBER and IMF Working Paper – to properly the assess the economic toll of a prolonged pandemic, the research shows that no economy can recover fully from the COVID-19 pandemic until vaccines are equally accessible in all countries.

“In short, advanced economies that can vaccinate all of their citizens are shown to remain at risk of a sluggish recovery with a drag on GDP if infection continues to spread unabated in emerging markets. These losses dwarf the donor finance needed to enable vaccines to be procured for everyone, everywhere – making a clear ‘investment case’ for full capitalization of the ACT Accelerator and a coordinated global approach to distribution.”

Conclusion

While the recent releases from the WTO and IMF show somewhat better rebounds from the effects of the pandemic in the third quarter of 2020 (WTO) and into 2021 and 2022 (IMF), the key to global recovery lies in the approval of effective vaccines and the equitable and affordable distribution and vaccinations of populations around the world. Major advanced economies, many suffering from high infection and death rates in 2020, are using their financial muscle to secure contracts to deal with getting the pandemic under control within their borders. While there has been extensive work to create a mechanism to get vaccines to other countries in 2021 and 2022, there remain funding needs and questions about whether vaccines will in fact be available for use for these other countries. A lot depends on the efforts to ensure equitable distribution of vaccines to all those in need. There is a large opportunity for governments, businesses, and private organizations and citizens to help fill the gap. Because the failure to do so carries a likely huge cost, making sure funds are available to get the world vaccinated is in everyone’s interest. The outcome will determine global growth rates and trade flows for the coming years.

WTO Appellate Body Reform – Revisiting Thoughts on How to Address U.S. Concerns

In a November 4, 2019 post, I reviewed a draft General Council Decision that had been presented by Amb. David Walker to the General Council on addressing some of the concerns presented over the last several years by the United States with the functioning of the WTO’s Appellate Body. The United States has been blocking the process for selecting new Appellate Body members until its longstanding concerns are addressed. See 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/.

The Appellate Body ceased to have at least three members on December 11, 2019 at which point it could not hear new appeals. Moreover, only appeals that had gone through hearings were handled after December 10, with the last report released last month.

The United States released in February a lengthy Report on the Appellate Body of the World Trade Organization which provides a detailed review of the purpose of dispute settlement in the WTO and the development of major departures from the agreed language of the Dispute Settlement Understanding by the Appellate Body over the first twenty-five years of the WTO’s existence. The report was reviewed in an earlier post. See https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf; 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/.

While a number of WTO Members have joined together in supporting an interim arbitration approach, there has been no apparent ongoing effort to find a resolution to the continuing impasse. Indeed, the interim arbitration approach adopted by the EU, Canada, China and others in the view of the U.S. extends and in some cases exacerbates the longstanding concerns the U.S. has had with the Appellate Body and exceeds the proper role of arbitration.

There have been any number of proposals by academics, former government employees and others on what is needed to reform the Appellate Body to deal with U.S. concerns. The National Foreign Trade Council commissioned a multi-part report on Resolving the WTO Appellate Body Crisis from Bruce Hirsch, a former USTR official with significant responsibilities for dispute settlement matters. See Resolving the WTO Appellate Body Crisis, Proposals on Overreach (December 2019), http://www.nftc.org/default/trade/WTO/Resolving%20the%20WTO%20Appellate%20Body%20Crisis_Proposals%20on%20Overreach.pdf; Resolving the WTO Appellate Body Crisis Volume 2, Proposals on Precedent, Appellate Body Secretariat and the Role of Adjudicators (June 2020), http://www.nftc.org/default/Trade%20Policy/WTO_Issues/Resolving%20the%20WTO%20AB%20Crisis%20vol2%2006042020.pdf. His two papers make an important contribution to those interested in finding a forward path on restoring a second stage to the WTO’s dispute settlement system.

Specifically, Mr. Hirsch’s two papers address a number of important issues with suggestions presented for possible approaches to help move the WTO dispute settlement system back to what was agreed to in the Dispute Settlement Understanding which became operative in 1995 when the WTO was created.

The NFTC press releases on the two papers provides the following summary of proposals in each paper. From the December 17, 2019 press release:

The paper includes six key proposals:

  1. Enforce the 90-day time frame 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.

From the June 5, 2020 press release:

Specifically, the paper outlines 3 proposals that will help “reflect the goal of making the Appellate Body operate as Members expected in 1995:”

  1. Clarify that Appellate Body reports do not create binding precedent;
  2. Replace the Appellate Body secretariat with clerks seconded from the WTO secretariat; and
  3. Guidance on the Role of Adjudicators.

The two papers are an effort to help WTO Members focus on moving forward on bringing the Appellate Body’s role in the Dispute Settlement system back to its intended limited function.

The first paper which deals with the critical issue of overreach also takes in issues such as advisory opinions and adherence to the timeline for completing appeals (absent party consent) which Mr. Hirsch views as often interrelated. If there is a problem with the first paper it is in not addressing how to restore balance to WTO Members by correcting prior cases where overreach occurred. This has been an issue of some importance to the United States and is critical in a number of agreements where there has been a pattern of decisions changing rights and obligations.

In a prior post from November 12, I reviewed the large number of WTO Members who have expressed concern about the Appellate Body creating rights or obligations not contained in the WTO Agreements. See 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/

The second paper by Mr. Hirsch addresses a number of important issues although only the issue of precedent is on the list of concerns raised by the United States. However, Mr. Hirsch makes a strong case that the structure of the Appellate Body Secretariat has likely contributed to the development of problematic issues such as precedent, and his recommendations make a lot of sense and would return control of the Appellate Body process to Appellate Body members.

Mr. Hirsch notes that there is a lack of trust amongst WTO Members, which certainly reflects the current environment. His proposals are all focused on what he perceives to be a view with which all Members should be able to agree — reform the Appellate Body to ensure it performs the limited role articulated in the Dispute Settlement Understanding. I agree with both his observation on the lack of trust (and the need to develop trust through actions) and what the objective of reform can and should be. I differ only in what type of actions Members can take to ensure compliance by the Appellate Body with the limited role it is to play in dispute settlement.

His two papers do not suggest that all issues raised by the U.S. have been addressed in his papers (not clear if there are additional papers yet to be released). Nor is it the intention of his papers to suggest language amendments to the draft General Council Decision put forward by the then facilitator to the General Council, Amb. David Walker (NZ).

As an aid to readers, I have copied my November 4, 2019 recommended modifications to the draft General Council Decision below. The intention of my edits to the draft Decision was to provide changes reflecting the underlying purpose of the DSU that would be enforceable by the parties to disputes and to suggest an approach to deal with overreach that would deal with the past cases and not simply the future disputes. As one of the objectives of the U.S. is restoring the balance that was agreed to in the negotiated texts, I believe any resolution of the Appellate Body impasse has to identify a path forward on past decisions. The next paragraph and the modified draft General Council Decision are copied verbatim from my November 4th post. There are obviously many excellent ideas in papers from experts like Mr. Hirsch. My suggestions may add some flavor or different options on a number of issues that need to be addressed.

Excerpt from November 4, 2019 Post

What follows is my personal effort to identify some consequences of actions that have long concerned the United States.  Obviously, only the U.S. can determine what will address its concerns.  But possibly some of the following suggestions, if part of any final package, could address some of the ongoing and longstanding U.S. concerns.  The text, other than what is both in bold and underlined, is the draft General Council Decision that is contained as an Annex to Amb. Walker’s October 15, 2019 report to the General Council.  Job/GC/222.  Only one number has been deleted – “6” (60 days has been changed to 90 days under the first topic).

DRAFT GENERAL COUNCIL DECISION ON FUNCTIONING OF THE APPELLATE BODY

The General Council,

Conducting the function of the Ministerial Conference in the interval between meetings pursuant to paragraph 2 of Article IV of the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”);

Having regard to paragraph 1 of Article IX of the WTO Agreement;

Mindful of the work undertaken in the Informal Process of Solution-Focused Discussion on Matters Related to the Functioning of the Appellate Body, under the auspices of the General Council;

Recognizing the central importance of a properly functioning dispute settlement system in the rules-based multilateral trading system, which serves to preserve the rights and obligations of Members under the WTO Agreement and ensures that rules are enforceable;

Desiring to enhance the functioning of that system consistent with the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”);

Decides as follows:

Transitional rules for outgoing Appellate Body members

Only WTO Members may appoint members of the Appellate Body.  

The Dispute Settlement Body (the “DSB”) has the explicit authority, and responsibility, to determine membership of the Appellate Body and is obligated to fill vacancies as they arise.

To assist Members in discharging this responsibility, the selection process to replace outgoing Appellate Body members shall be automatically launched 180 days before the expiry of their term in office. Such selection process shall follow past practice.

If a vacancy arises before the regular expiry of an Appellate Body member’s mandate, or as a result of any other situation, the Chair of the DSB shall immediately launch the selection process with a view to filling that vacancy as soon as possible.

Appellate Body members nearing the end of their terms may be assigned to a new division up until 90 days before the expiry of their term.

An Appellate Body member so assigned may complete an appeal process in which the oral hearing has been held prior to the normal expiry of their term if completing such appeal is consistent with Article 17.5 of the DSU or any mutually agreed extension by the parties.

90 Days

Consistent with Article 17.5 of the DSU, the Appellate Body is obligated to issue its report no later than 90 days from the date a party to the dispute notifies its intention to appeal.

In cases of unusual complexity or periods of numerous appeals, the parties may agree with the Appellate Body to extend the time-frame for issuance of the Appellate Body report beyond 90 days.1 Any such agreement will be notified to the DSB by the parties and the Chair of the Appellate Body.

Failure to complete the appeal within 90 days of the notification of intent to appeal, or such other time as the parties agree to, shall result in the appeal terminating with no decision.  In such situations the Dispute Settlement Body will consider adoption of the panel report but rights of the complaining party under Articles 21.6 and 22 of the DSU shall not apply.

The Appellate Body will supply the Dispute Settlement Body with a description of steps taken by the Division to complete any such appeal within 90 days and any modifications to Appellate Body procedures and practice that will be pursued by the Appellate Body to ensure such failure to comply with the 90 day rule is not repeated.   

1 Such agreement may also be made in instances of force majeure.

Municipal Law

The ‘meaning of municipal law’ is to be treated as a matter of fact and therefore is not subject to appeal.  Where the Appellate Body nonetheless addresses the meaning of municipal law in an Appellate Body report, either party may request that the paragraphs of the Appellate Body report dealing with such issue or issues and any conclusions drawn therefrom  be striken, and the Appellate Body will reissue the decision without such paragraphs forthwith.  Compliance with the 90 day requirement will be measured from the date of the revised decision.

The DSU does not permit the Appellate Body to engage in a ‘de novo’ review or to ‘complete the analysis’ of the facts of a dispute. 

Consistent with Article 17.6 of the DSU, it is incumbent upon Members engaged in appellate proceedings to refrain from advancing extensive and unnecessary arguments in an attempt to have factual findings overturned on appeal, under DSU Article 11, in a de facto ‘de novo review’.   Where Article 11 is invoked by a Member seeking review on appeal of whether the panel failed to make an objective assessment, any other party may file an objection.  The Appellate Body will consider the claim only in extraordinary circumstances of facial bias in the assessment by the panel.  A Member raising such a claim that is dismissed will be assessed costs to the Member who filed an objection.

Advisory Opinions and Appellate Body Economy in Decisions

Issues that have not been raised by either party may not be ruled or decided upon by the Appellate Body.   Where issues not raised by either party are addressed in the Appellate Body report, the addressing of such issues constitutes the provision of an advisory opinion and is inconsistent with DSU Article 17.12 .  Either party may request that the paragraphs of the Appellate Body report dealing with such issue or issues and any conclusion based thereon be striken, and the Appellate Body will reissue the decision without such paragraphs forthwith.  Compliance with the 90 day requirement will be measured from the date of the revised decision.

Consistent with Article 3.4 of the DSU, the Appellate Body shall address issues raised by parties in accordance with DSU Article 17.6 only to the extent necessary to assist the DSB in making the recommendations or in giving the ruling provided for in the covered agreements in order to resolve the dispute.  The Appellate Body’s indicating that other issues raised need not be addressed to resolve the dispute satisfies the requirements of DSU Article 17.12.

Precedent

Precedent is not created through WTO dispute settlement proceedings.

Consistency and predictability in the interpretation of rights and obligations under the covered agreements is of significant value to Members.

Panels and the Appellate Body should take previous Panel/Appellate Body reports into account to the extent they find them relevant in the dispute they have before them.  The Appellate Body shall not reverse a panel decision on any issue solely on the basis of the panel not conforming to a prior Appellate Body report where the panel has identified different factual and/or legal issues.  

‘Overreach’

As provided in Articles 3.2 and 19.2 of the DSU, findings and recommendations of Panels and the Appellate Body and recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.   In a large number of Panel and Appellate Body reports, one or more parties and/or third parties have raised concerns about the Panel or Appellate Body adding to or diminishing the rights and obligations contrary to Articles 3.2 or 19.2 of the DSU.

To clarify situations where rights and obligations are being added to or diminished, Panels and the Appellate Body will not fill gaps in agreements, construe silence to indicate obligations or construe ambiguities in language of existing agreements to require a particular construction.  Any such actions by a Panel or by the Appellate Body is inconsistent with Articles 3.2 and 19.2 of the DSU.

Any party to an Appellate Body report that raised at the DSB meeting considering adoption of the Appellate Body report concerns about the creation of rights or obligations inconsistent with Articles 3.2 or 19.2, will have 90 days from the adoption of this General Council decision to request a review of the Appellate Body decision.  Such request will be for the limited purpose of having the Appellate Body determine whether on the specific issues raised where the party complained of creating rights or obligations the clarification of meaning provided in this General Council decision would result in a changed decision on the particular issue.  The Appellate Body will render decisions on all such requests within 90 days and will accept no additional briefing or argument from parties.  Where the report would have been different on one or more particular issues, it is sufficient for the Appellate Body to so indicate.  Where the same decision on an issue would have been made, the Appellate Body shall provide a detailed explanation.      

Panels and the Appellate Body shall interpret provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“antidumping agreement”) in accordance with Article 17.6(ii) of that Agreement.  Any party to an Appellate Body report that raised at the DSB meeting considering adoption of the Appellate Body report that Article 17.6(ii) was not applied in interpreting the antidumping agreement, will have 90 days from the adoption of this General Council decision to request a review of the Appellate Body decision.  Such a request will be for the limited purpose of having the Appellate Body determine whether a different outcome on one or more issues would have resulted had the Appellate Body applied Article 17.6(ii)  of the antidumping agreement.  The Appellate Body will render decisions on all such requests within 90 days and will accept no additional briefing or argument from parties.  Where the report would have been different on one or more particular issues, it is sufficient for the Appellate Body to so indicate.  Where the same decision on an issue would have been made, the Appellate Body shall provide a detailed explanation.       

Regular dialogue between the DSB and the Appellate Body

The DSB, in consultation with the Appellate Body, will establish a mechanism for regular dialogue between WTO Members and the Appellate Body where Members can express their views on issues, including in relation to implementation of this Decision, in a manner unrelated to the adoption of particular reports.  Such mechanism will be in the form of an informal meeting, at least once a year, hosted by the Chair of the DSB.

The Appellate Body Secretariat will prepare and circulate to the DSB at least 60 days in advance of such a meeting a document which reviews:

(a) for any Appellate Body member whose term is or has expired in the last 12 months, assignments to appeals within 90 days of the end of the term and any appeals on which the AB member continued to work after his term expired and whether such continuation was authorized by the parties to the appeal;

(b) the time from notification of intent to file an appeal to the AB decision in each case filed in the last twelve months (and for the first such report and any subsequent reports where appeals are not current with the 90 day requirement) to an AB report (or revised report where paragraphs are requested to be deleted as addressing issues not raised by any party) and copies of any write-ups filed where reports were not filed within 90 days;

(c) a list of AB reports where paragraphs were requested striken and time from request to rerelease of AB report;

(d) a list of requests for review in appeals pursuant to Article 11 of the DSU of panel decisions as not being an objective assessment, how each request was resolved, and for such claims that were not properly filed whether costs were paid by the party raising the issue;

(e) the number of AB reports where parties requested review based on statements made at prior DSB meetings that rights or obligations were being added to or diminished and/or that Article 17.6(ii) of the antidumping agreement was not applied or was applied inappropriately, timing of resolution by the Appellate Body and the number of issues where a different decision was rendered.

Where the Appellate Body has been unable to comply with the requirements of the DSU as clarified by this General Council Decision, it is expected that the Appellate Body Chairman will present at the informal meeting the action plan being pursued by the Appellate Body to achieve full compliance with the terms of the DSU and this Decision. 

To safeguard the independence and impartiality of the Appellate Body, clear ground rules will be provided to ensure that at no point should there be any discussion of ongoing disputes or any member of the Appellate Body other than as it relates to compliance with this General Council Decision. 

WTO Director-General Selection Process — 3rd Nomination, Egypt nominates Abdel-Hamid Mamdouh

On June 9, 2020, the WTO received two nominations for consideration in the Director-General selection process. My earlier post reviewed Nigeria’s nominee, Dr. Ngozi Okonjo-Iweala. The second nomination received on June 9th was from Egypt for Abdel-Hamid Mamdouh. His bio is embedded below.

bio_egy_e

Mr. Mamdouh’s bio shows a long history of involvement with the WTO (Director, Trade in Services and Investment Division and other positions) and work in the Egyptian government on trade issues before GATT/WTO Secretariat involvement. So his strengths would include knowledge of the WTO and trade policy and his involvement relatively recently with Missions in Geneva. Being from an African country, he could have an advantage if the Members decide to select a DG from a region that has not had a DG in the past. However, like the other two candidates to date, Mr. Mamdouh is from a developing country. If Members decide to rotate between developed and developing, candidates from developing countries would be disadvantaged as DG Azevedo is from Brazil, a developing country. Like Jesus Seade, if the Members decide to select a female candidate, Mr. Mamdouh would be disadvantaged.

It is unclear if more candidates from Africa will come forward during the nomination process and whether nominees from African countries would withdraw if the African Union decides to support a single candidate. Multiple candidates from the same region can dilute support for any one candidate, making it less likely that any candidate from the region will become the Director-General (although prior experience shows multiple candidates from Latin America with Roberto Azevedo from Brazil becoming the Director-General).

So two days into the process, the WTO is at three nominees, two from Africa, and counting.

COVID-19, Recommendations from the ICC and from Global Services Coalition

As the toll from COVID-19 exceeds 51,000 deaths and one million confirmed cases, most of the attention globally has been on the health dimension of the pandemic, while governments struggle with inadequate global supplies for a rapidly growing crisis. With a lack of a vaccine and with the virus having reached most countries in the world, the focus of governments has understandably been on trying to “flatten the curve” to reduce the challenges to national health systems and the likely death rates.

But the need to engage in social distancing, usually reflected in stay at home recommendations or orders, is causing extreme disruption to many economies. The country with the largest number of confirmed cases, the United States, has witnessed roughly 10 million people filing for unemployment in just the last two weeks with many more likely in the coming weeks. The United States has passed three pieces of legislation to address various aspects of a national response to COVID-19 to address the economic challenges from the shutdown of large parts of the economy with a cost of more than $2 trillion (the Administration has used a figure of more than $6 trillion). Other countries are passing emergency legislation to deal with the human costs and extraordinary nature of the crisis. More than $5 trillion has been teed up globally by governments trying to help their economies and citizens survive the lockdown situations being imposed on many to stop the spread of the disease. That figure will certainly increase in the coming months as the full scope of the economic challenge becomes clear and hot spots shift from current locations to other countries.

Because of the extraordinary ramp up in infections in global “hot spots,” demand for medical equipment and supplies has outstripped prior global supply and inventories, leading a number of countries to push their industries to ramp up additional production in the hope of being able to get supplies up to demand levels and avoid the situation seen in some countries of medical staff having inadequate supplies and needing to determine who will get life saving equipment (e.g., ventilators) and who won’t because of shortages. Ability to meet local demand is complicated by export restraints, travel restrictions, lack of information (in some cases) and the level of coordination of government actions.

Prior posts have looked at various aspects of the COVID-19 crisis including communications from the G20 countries and the growing number of countries imposing restraints on export of agricultural products out of concerns for food safety.

This post looks at recommendations for government actions made by two global groups of businesses, the ICC and the Global Services Coalition. There can be little doubt that getting through the crisis requires not only action by governments but a strong relationship between business and governments to identify practical consequences on businesses and their employees and the ability of businesses to contribute to the needs of society.

The International Chamber of Commerce

On April 2nd, the World Trade Organization’s Director General Roberto Azevedo and the International Chamber of Commerce’s Secretary-General John Denton issued a joint call for greater communication with the business community to ensure government policies are effective in addressing COVID-19 while reducing damage to economies. https://www.wto.org/english/news_e/news20_e/igo_02apr20_e.htm.

“JOINT STATEMENT

“2 April 2020

“Heads of ICC1/ and WTO call for increased action on trade to ensure an effective response to COVID-19 pandemic and announce virtual business roundtable to provide concrete advice to governments.

“We are profoundly saddened by the suffering and loss of life the COVID-19 pandemic is causing around the world. This health crisis is also becoming a social and economic crisis, and we support governments’ efforts to mitigate the pandemic’s effects on jobs and growth, and lay the foundations for a strong and inclusive recovery.

“G20 leaders have clearly recognised the need for the international community to step up global cooperation in response to this crisis. The business community is—and will continue to be—an important partner in this response.

“Trade and trade rules have a crucial role to play in both the health and economic response to the crisis. We welcome the G20’s endorsement of this view, including their assertion that any pandemic-related trade measures should be ‘targeted, proportionate, transparent, and temporary.’

“We also underscore the importance of ‘actively working to ensure the flow of vital medical supplies, critical agricultural products, and other goods and services across borders,’ as well as the G20’s broader commitment to ‘minimise disruptions to trade and global supply chains’.

“We deeply share the G20’s concern about the impact of the pandemic on the most vulnerable, including developing and least developed countries, and on workers and businesses, including micro-, small-, and medium-sized enterprises (MSMEs).

“We are concerned about the severe disruptions to value chains in many sectors—with major implications for employment and the supply of goods, especially essential medical and food supplies. Bold and urgent leadership is required to keep trade moving and to secure jobs.

“Now is the time for concrete measures to respond to the economic dimensions of the pandemics. Business can play a key role in signalling where trade flows and production chains are being affected, helping to identify solutions that maximize health outcomes while minimising economic damage.

“It is increasingly clear that the economic downturn caused by the pandemic will necessitate a significant rebuild of domestic policies—and of international cooperation. In this time of uncertainty, leadership requires not only responding to the crisis at hand but providing a clear vision for the future. On-going efforts to improve and strengthen the global trading system, including the WTO, must therefore continue.

“With a view to providing additional concrete business recommendations to governments, ICC will work with its partners, supported by the WTO, to host an extraordinary virtual business roundtable. This virtual session will look to provide constructive recommendations to governments on trade policy measures that can be readily deployed to speed the response to the COVID-19 pandemic in the immediate and mid-term.

“1/ The International Chamber of Commerce is the institutional representative of over 45 million businesses. ICC’s recommendations on
trade policy and post-pandemic rebuilding were sent to governments and international agencies in a 28 March letter available here.”

The ICC in its 28 March 2020 letter to governments and international agencies had identified ten actions they recommended should be taken. https://iccwbo.org/content/uploads/sites/3/2020/03/g20-trade-ministers-letter-280320.pdf.

Specifically, the ICC made the following recommendations, the last three of which look to the future of the trading system versus dealing with the immediate challenges of COVID-19:

  1. “Eliminate tariffs on essential products
  2. “Expedite trade facilitation for essential products
  3. “Eliminate export curbs on essential products
  4. “Suspend all national public procurement regulations and state-required localisation measures that frustrate the cross-border sourcing of essential medical supplies
  5. “Keep cargo and transport moving
  6. “Extend timeframes for payments of duties and fees
  7. “Keep trade finance flowing
  8. “Comprehensively reform the WTO
  9. “Speed up the transition to digitally enabled trade
  10. “Enable digital trade through standardisation.”

Many businesses have suffered from reduced cash flow, reduced access to key inputs flowing from export restraints, and service challenges from travel restrictions. Government actions may address the health crisis but exacerbate the business challenges.

Some of the challenges to business may depend on technology developments/deployment, improved national and global information on medical supplies and equipment availability especially in light of ramped up production.

For example, Abbott Laboratories has developed a test that can be applied with results available within 15 minutes. Understandably, the early deployment of the tests are to hospitals anxious to have greater capacity for testing patients. But until there is greater availability of such time efficient tests and coordination with trading partners on testing crews of cargo planes, ships and other modes of transport, it is hard to see how countries with raging infection rates and general stay-at-home or lockdown requirements will be comfortable with the type of liberalization for transport personnel necessary to maximize keeping transportation avenues open.

The same types of concerns for wholesale testing, along with adequate personal protection equipment may be the key to ensuring farm labor and other labor shortages because of border restrictions can be addressed without jeopardizing health needs.

So hopefully the wealth of experience from the business community will be able to dialogue with governments not only on governmental needs and business recommendations on trade policy options to consider, but also on how business can help governments achieve important objectives where major impediments currently exist in terms of dealing with the health emergency.

Global Services Coalition

In an interconnected world, many service providers are in fact essential to addressing the COVID-19 pandemic both on the healthcare side and on supporting economic and other activity critical to the functioning of societies. Transport, food processing, distribution, grocery stores, information and technology communication services, financial services, installation and service workers for medical equipment would be some obvious examples.

On April 1, 2020, the Global Services Coalition issued a document urging governments to ensure the continued operation of essential services to address the COVID-19 challenges. https://www.thecityuk.com/assets/2020/Reports/100bfdd80d/Ensuring-resilience-of-global-supply-of-essential-services-in-combating-COVID-19.pdf.

So much of the public attention has been and continues to be on the availability of goods (medical or agricultural), but little public attention has actually focused on the broad role of service providers in helping countries address the national and global needs during the COVID-19 Pandemic. The full statement from the Global Services Coalition is provided below. Just as was true for the ICC recommendations, the important points raised by the Global Services Coalition do not address what is needed to help governments in fact support essential services while protecting the public health and control the spread of COVID-19. That said, the role of services is critical to understand for those considering actions at the national, local or global level.

“Ensuring Resilience of Global Supply of Essential Services in Combating COVID-19

“1 April 2020

“As the world continues to grapple with the global COVID-19 pandemic, the members of the Global Services Coalition wish to express solidarity with the work of governments and international institutions to combat its spread. As associations representing all segments of the services industry, we call on governments to take a range of critical measures to maintain resilience in the supply of essential services during this time of crisis.

“Financial services, ICT services, retail and distribution, and transportation and logistics services are all examples, though not exhaustive, of critical enablers of trade in goods and agri-food products, as well as services that enhance social welfare. As governments curtail commercial activity and social interaction to fight the global pandemic, it is critical for them to allow for continuation of these and other essential services, while of course ensuring the health and safety of the personnel involved.

“Cargo flights must be able to continue in order to move critical life-saving medical equipment and supplies, as well as other goods that consumers rely for daily sustenance. It is crucial that governments work together to develop standards that ensure – within reasonable safeguards – that cargo pilots are not subject to mandatory 14-day quarantine periods. Government should also consult about facilitating greater use of passenger aircraft for essential deliveries of critical supplies.

“Sophisticated medical equipment and therapies cannot be put in place without key medical services. For instance, the work of individual service suppliers, such as technicians that service (e.g. maintenance & repair services) critical medical equipment, is also crucial to fighting the pandemic. Governments should therefore ensure that travel restrictions justifiably put in place do not have unintended consequences that inhibit the cross-border movement of critical services.

“Banks, insurers, reinsurers, electronic payment service suppliers, mutual funds and pensions, and related professions supporting them, including call centre and in-person customer support functions, must be allowed to facilitate the purchase and delivery of those goods and food supplies. These are services that citizens and businesses rely on and ensure stability in global financial markets. Proposals in some markets to retroactively add coverage for pandemics and other causes of loss not included in existing insurance policies – and therefore not funded by premium payments – risk the stability of the insurance industry and should be avoided.

“Information and communications technology (ICT) services are crucial and must remain available so that essential supply chains can continue to function and “digital” options can help governments and citizens to overcome the challenges of “lock-downs” and “social distancing”, It is these business services that will allow continuous access to the goods and services that are needed to protect against COVID-19.

“Some ICT services are especially critical. They include: remote exchanges among research teams to fight against the virus and look for medicines and vaccines; e-health services to allow daily medical services be delivered to millions of patients; e-learning services to allow teachers to continue the education of millions of pupils and students; teleworking facilities to allow workers to stay at home but continue to sustain economic activity; and connectivity services that minimize the adverse affects of social distancing. Free flow of anonymous medical/health data among trusted partners should be ensured in this context.

“It is therefore vital that countries cooperate multilaterally to avoid constricting the global supply of these essential enabling services through an uncoordinated patchwork of country lockdowns. There have been public statements highlighting the need for international cooperation in facilitating delivery of essential goods. But governments need to focus equally on the critical role of essential enabling services. The evolution of the crisis has demonstrated the resilience and innovative capacity of the global services sector, which has made rapid shifts in work practices and supply-chain adaptation. Governments must broaden their approach to recognise essential services as systemically critical to the smooth functioning of the global economy at this time.

“Lastly, the necessary measures to respond to COVID-19 cannot become cover for countries to introduce unjustifiable protectionist measures further disrupting the global economy. This is the time for building bridges, not barriers. We wholly support the World Trade Organization Director-General in his appeal of 24 March for governments to be transparent about the measures that they are taking nationally to respond to COVID-19, including in services sectors. We also support the G20 Summit statement of 26 March. An open, coordinated and transparent approach can only reinforce the spirit of global collaboration that is essential to combat this pandemic.”

Conclusion

The COVID-19 pandemic requires an “all hands on deck” approach. Governments and international organizations need the input and benefit of the real world experience of businesses who can explain the challenges that particular government policies present to achieving what are governmental objectives of beating the health crisis and minimizing the harm to the economy (whether local, national, regional or global). Examples of business engagement, such as that by the ICC and the Global Services Coalition, are useful in themselves and should be embraced by governments and international organizations. The recommendations would be more useful if coupled with an articulation of how governments achieve some of the recommendations with the very real limitations that exist on supplies, tests and equipment.

An ongoing dialogue between stakeholders and governments along with the efforts to expand capacities, find innovative solutions to existing needs and pursue research and development of a vaccine are all part of the all hands on deck global needs. May the dialogue intensify and speed the ultimate resolution.

Food security – export restraints and border controls during the COVID-19 pandemic

While COVID-19 is first and foremost a health crisis, efforts to control the fallout from the virus have led to border controls on farm workers and encouraged some countries to impose export restraints on particular agricultural products. While the border control dimension to the problem is new, the world has in recent years gone through a number of situations where large numbers of countries have imposed export restraints on core agricultural products in an effort to ensure adequate supplies at home. The results are never positive for the global community and particularly harm the least developed countries and those dependent on imported food products.

For example, in 2007-2008, there were dozens of countries that imposed export restraints on specific items such as rice or wheat leading to massive price spikes and shortages of product available to countries dependent on imports. The nature and extent of the problem was outlined in a paper I prepared back in 2008 which is embedded below.

GDP

The crisis led to coordinated efforts by the various UN organizations to find solutions and ways of avoiding repeats moving forward. A policy report from multiple UN agencies was released on 2 June 2011, Price Volatility in Food and Agricultural Markets: Policy Responses.

igo_10jun11_report_e

Unfortunately, a number of countries in reacting to the COVID-19 pandemic have introduced export restraints on certain food products. Russia, Ukraine, Kazakhstan, and Vietnam are some of the countries identified so far as introducing export restraints on selected agricultural products. In the past, export restraints by some have led to export restraints by many. The possibility of rapidly expanding restraints by trading nations is obviously a major concern and major complication to the global response to COVID-19.

Equally troubling are the potential challenges to agricultural product availability in countries that rely to some extent on temporary foreign labor to harvest produce and other products where border measures are restricting access of foreigners to reduce the potential spread of COVID-19. Coupled to that are concerns about whether imported agricultural products meet health and quality needs and any changes in approach to those issues during the pandemic.

As one example of the farm labor concern, the United States is a country that relies on temporary farm workers from outside of the country and has significant restrictions on the entry of foreign nationals from many areas at present. U.S. farmers have raised concerns about the availability of sufficient migrant labor to harvest the fields when product is ready. How the issue gets resolved in the United States is not yet clear. But the same or similar challenges will apply in any country where imported farm labor is important to the harvesting, processing or transporting of agricultural products.

That these multiple potential issues on agricultural goods trade are escalating can be seen in yesterday’s joint statement from the WTO, WHO and FAO. The joint statement is available on the WTO webpage, https://www.wto.org/english/news_e/news20_e/igo_26mar20_e.htm, and is reproduced below:

“Joint Statement by QU Dongyu, Tedros Adhanom Ghebreyesus and Roberto Azevêdo, Directors-General of FAO, WHO and WTO

“Millions of people around the world depend on international trade for
their food security and livelihoods. As countries move to enact measures
aiming to halt the accelerating COVID-19 pandemic, care must be taken
to minimise potential impacts on the food supply or unintended
consequences on global trade and food security.

“When acting to protect the health and well-being of their citizens,
countries should ensure that any trade-related measures do not disrupt
the food supply chain. Such disruptions including hampering the
movement of agricultural and food industry workers and extending
border delays for food containers, result in the spoilage of perishables and increasing food waste. Food trade restrictions could also be linked
to unjustified concerns on food safety. If such a scenario were to
materialize, it would disrupt the food supply chain, with particularly
pronounced consequences for the most vulnerable and food insecure
populations.

“Uncertainty about food availability can spark a wave of export
restrictions, creating a shortage on the global market. Such reactions can
alter the balance between food supply and demand, resulting in price
spikes and increased price volatility. We learned from previous crises
that such measures are particularly damaging for low-income, food-deficit
countries and to the efforts of humanitarian organizations to procure food for those in desperate need.

“We must prevent the repeat of such damaging measures. It is at times like this that more, not less, international cooperation becomes vital. In the midst of the COVID-19 lockdowns, every effort must be made to ensure that trade flows as freely as possible, specially to avoid food shortage. Similarly, it is also critical that food producers and food workers at processing and retail level are protected to minimise the spread of the disease within this sector and maintain food supply chains. Consumers, in particular the most vulnerable, must continue to be able to access food within their communities under strict safety requirements.   

“We must also ensure that information on food-related trade measures, levels of food production, consumption and stocks, as well as on food prices, is available to all in real time. This reduces uncertainty and allows producers, consumers and traders to make informed decisions. Above all, it helps contain ‘panic buying’ and the hoarding of food and other essential items.

“Now is the time to show solidarity, act responsibly and adhere to our common goal of enhancing food security, food safety and nutrition and improving the general welfare of people around the world.  We must ensure that our response to COVID-19 does not unintentionally create unwarranted shortages of essential items and exacerbate hunger and malnutrition.”

Conclusion

There is little doubt that COVID-19 is placing extraordinary strains on countries, their peoples, their economies and the ability and willingness to act globally as opposed to locally. The strains and how the world reacts will shape the world going forward and determine the magnitude of the devastation that occurs in specific markets and the broader global community.

The UN report released yesterday, Shared responsibility, global solidarity: Responding to the socio-economic impacts of COVID-19, and the statement from UN Secretary-General Antonio Guterres outline the enormity of the global challenges and a potential path to a better future. See https://news.un.org/en/story/2020/03/1060702; https://reliefweb.int/sites/reliefweb.int/files/resources/sg_report_socio-economic_impact_of_covid19.pdf.

The global health emergency is significantly worsened by the introduction of food security issues. Despite a better understanding of the causes and necessary approaches to minimize food security issues, the world has a poor track record on working for the collective good in agriculture when fears of food availability arise. An eruption of export restraints at the time of the global COVID-19 health crisis could indeed undermine societal stability.

Export restraints vs. trade liberalization during a global pandemic — the reality so far with COVID-19

The number of confirmed coronavirus cases (COVID-19) as of March 26, 2020 was approaching 500,000 globally, with the rate of increase in cases continuing to surge in a number of important countries or regions (e.g., Europe and the United States) with the locations facing the greatest strains shifting over time.

In an era of global supply chains, few countries are self-sufficient in all medical supplies and equipment needed to address a pandemic. Capacity constraints can occur in a variety of ways, including from overall demand exceeding the supply (production and inventories), from an inability or unwillingness to manage supplies on a national or global basis in an efficient and time responsive manner, by the reduction of production of components in one or more countries reducing the ability of downstream producers to complete products, by restrictions on modes of transport to move goods internationally or nationally, from the lack of availability of sufficient medical personnel or physical facilities to handle the increased work load and lack of facilities.

The reality of exponential growth of COVID-19 cases over weeks within a given country or region can overwhelm the ability of the local health care system to handle the skyrocketing demand. When that happens, it is a nightmare for all involved as patients can’t be handled properly or at all in some instances, death rates will increase, and health care providers and others are put at risk from a lack of adequate supplies and protective gear. Not surprisingly, shortages of supplies and equipment have been identified in a number of countries over the last three months where the growth in cases has been large. While it is understandable for national governments to seek to safeguard supplies of medical goods and equipment to care for their citizens, studies over time have shown that such inward looking actions can be short sighted, reduce the global ability to handle the crisis, increase the number of deaths and prevent the level of private sector response that open markets would support.

As we approach the end of March, the global community receives mixed grades on their efforts to work jointly and to avoid beggar-thy-neighbor policies. Many countries have imposed one or more restraints on exports of medical supplies and equipment with the number growing rapidly as the spread of COVID-19 outside of China has escalated particularly in March. Indeed, when one or more countries impose export restraints, it often creates a domino effect as countries who may depend in part on supplies from one or more of those countries, decides to impose restraints as well to limit shortages in country.

At the same time, the G-7, G-20 and others have issued statements or other documents indicating their political desire to minimize export restraints and keep trade moving. The WTO is collecting information from Members on actions that have been taken in response to COVID-19 to improve transparency and to enable WTO Members to identify actions where self-restraint or roll back would be useful. And some countries have engaged in unilateral tariff reductions on critical medical supplies and equipment.

Imposition of Export Restraints

The World Customs Organization has developed a list of countries that have imposed some form of export restraint in 2020 on critical medical supplies. In reviewing the WCO website today, the following countries were listed: Argentina, Bulgaria, Brazil, Colombia, Ecuador, European Union, India, Kazakhstan, Kyrgyzstan, Russia, Serbia, Thailand, Ukraine and Vietnam. Today’s listing is copied below.

List-of-Countries-having-adopted-temporary-export-control-measures-Worl.._

While China is not listed on the WCO webpage, it is understood that they have had some restrictions in fact at least during the January-February period of rapid spread of COVID-19 in China.

While it is surprising to see the European Union on the list, the Official Journal notice of the action indicates that the action is both temprary (six weeks – will end around the end of April) and flows in part from the fact that sources of product used by the EU had been restricting exports. The March 15, 2020 Official Journal notice is attached below.

EC-Implementing-Regulation-EU-2020-402-of-14-March-2020-making-the-exportation-of-certain-products-subject-to-the-production-of-an-export-authorisation

Professor Simon Evenett, in a March 19, 2020 posting on VOX, “Sickening thy neighbor: Export restraints on medical supplies during a pandemic,” https://voxeu.org/article/export-restraints-medical-supplies-during-pandemic, reviews the challenges posed and provides examples of European countries preventing exports to neighbors — Germany preventing a shipment of masks to Switzerland and France preventing a shipment to the U.K.

In a webinar today hosted by the Washington International Trade Association and the Asia Society Policy Institute entitled “COVID-19 and Trade – A WTO Agenda,” Prof. Evenett reviewed his analysis and noted that the rate of increase for export restraints was growing with 48 of 63 actions occurring in March and 8 of those occurring in the last forty-eight hours. A total of 57 countries are apparently involved in one or more restraints. And restraints have started to expand from medical supplies and equipment to food with four countries mentioned by Prof. Evenett – Kazakhstan, Ukraine, Russia and Vietnam.

Efforts to keep markets open and liberalize critical medical supplies

Some countries have reduced tariffs on critical medical goods during the pandemic and some countries have also implemented green lane approaches for customs clearance on medical supplies and goods. Such actions are clearly permissible under the WTO, can be undertaken unilaterally and obviously reduce the cost of medical supplies and speed up the delivery of goods that enter from offshore. So it is surprising that more countries don’t help themselves by reducing tariffs temporarily (or permanently) on critical medical supplies and equipment during a pandemic.

Papers generated by others show that there are a large number of countries that apply customs duties on medical supplies, equipment and soaps and disinfectants. See, e.g., Jennifer Hillman, Six Proactive Steps in a Smart Trade Approach to Fighting COVID-19 (graphic from paper reproduced below), https://www.thinkglobalhealth.org/article/six-proactive-steps-smart-trade-approach-fighting-covid-19

Groups of countries have staked out positions of agreeing to work together to handle the pandemic and to keep trade open. For example, the G20 countries had a virtual emergency meeting today to explore the growing pandemic. Their joint statement can be found here and is embedded below, https://www.wto.org/english/news_e/news20_e/dgra_26mar20_e.pdf.

dgra_26mar20_e

There is one section of the joint statement that specifically addresses international trade disruptions during the pandemic. That language is repeated below:

“Addressing International Trade Disruptions

“Consistent with the needs of our citizens, we will work to ensure the flow of vital medical supplies, critical agricultural products, and other goods and services across borders, and work to resolve disruptions to the global supply chains, to support the health and well-being of all people.

“We commit to continue working together to facilitate international trade and coordinate responses in ways that avoid unnecessary interference with international traffic and trade. Emergency measures aimed at protecting health will be targeted, proportionate, transparent, and temporary. We task our Trade Ministers to assess the impact of the pandemic on trade.

“We reiterate our goal to realize a free, fair, non-discriminatory, transparent, predictable and stable trade and investment environment, and to keep our markets open.”

The WTO Director General Roberto Azevedo participated in the virtual meeting with the G20 leaders and expressed strong support for the commitment of the G20 to working on the trade related aspects of the pandemic. https://www.wto.org/english/news_e/news20_e/dgra_26mar20_e.htm.

Separately, New Zealand and Singapore on March 21st issued a Joint Ministerial Statement which stated in part,

“The Covid-19 pandemic is a serious global crisis.

“As part of our collective response to combat the virus, Singapore and New Zealand are committed to maintaining open and connected supply chains. We will also work closely to identify and address trade disruptions with ramifications on the flow of necessities,”

https://www.thestar.com.my/news/regional/2020/03/21/new-zealand-works-closely-with-singapore-to-maintain-key-supply.

The Joint Ministerial Statement was expanded to seven countries (Australia, Brunei Darussalam, Canada, Chile, Myanmar, New Zealand and Singapore), on March 25th and is reportedly open to additional countries joining. See https://www.mti.gov.sg/-/media/MTI/Newsroom/Press-Releases/2020/03/updated-joint-ministerial-statement-25-mar.pdf

Conclusion

When a pandemic strikes, many countries have trouble maintaining open trade policies on critical materials in short supply and/or in working collaboratively to address important supply chain challenges or in taking unilateral actions to make critical supplies available more efficiently and at lower costs.

The current global response to COVID-19 presents the challenges one would expect to see – many countries imposing temporary restrictions on exports — while positive actions in the trade arena are more limited to date with some hopeful signs of a potential effort to act collectively going forward.

Time will tell whether governments handling of the trade dimension of the pandemic contributes to the equitable solution of the pandemic or exacerbates the challenges and harm happening to countries around the world.

WTO Reform – Will Limits on Who Enjoys Special and Differential Treatment Be Achieved?

The GATT had and now the WTO has a system of self-declared status as a developing country. The vast majority of WTO members have declared themselves to be developing countries. Some WTO members are categorized by the United Nations as Least Developed Countries (“LDCs”). Indeed the WTO webpage indicates that 36 of 47 LDCs are currently WTO members and that another eight countries who are listed as LDCs by the UN are in the process of negotiating accession to the WTO. “There are no WTO definitions of ‘developed’ or ‘developing’ countries. Developing countries in the WTO are designated on the basis of self-selection although this is not necessarily automatically accepted in all WTO bodies.” https://www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm.

The relevance of a WTO member declaring themselves to be a developing country has to do with access to special and differential treatment provisions in virtually every agreement and the likelihood of reduced trade liberalization obligations on the member and in any ongoing negotiations. Thus, in the Uruguay Round, developing countries typically faced lower percent reductions on tariffs and were given longer time periods to implement such reductions than were true for developed countries. A report by the WTO Secretariat reviews Special and Differential Treatment (“S&D”) by agreement and categorizes the S&D provisions under one of the following six groupings (WT/COMTD/W/239 at 4) which are quoted as presented:

  1. provisions aimed at increasing the trade opportunities of developing country Members;
  2. provisions under which WTO Members should safeguard the itnerests of developing country Members;
  3. flexibility of commitments, of action, and use of policy instruments;
  4. transitional time-periods;
  5. technical assistance;
  6. provisions relating to LDC members.

The listing of S&D provisions in the Secretariat document is provided as an attachment below along with a correction.

WTCOMTDW239

WTCOMTDW239C1

With the progress many countries or customs territories have made during their GATT and/or WTO membership, the self-selection designation process has raised concerns by other members about whether certain Members are carrying their weight in terms of market liberalization. Indeed, some have attributed the failure of the Doha Agenda to conclude in 2008 to what certain Members who have declared themselves to be developing countries were willing to do in terms of liberalization versus other major Members who are not “developing”. The issue of who should benefit from Special and Differential treatment takes as a given that all LDCs should receive such benefits. The issue is about whether those non-LDCs who have experienced strong growth and significant economic advancement since the start of the WTO should continue to enjoy those benefits in new agreements.

The United States at the beginning of 2019 made a major submission entitled “An Undifferentiated WTO: Self-Declared Development Status Risks Institutional Irrelevance”. WT/GC/W/757, 16 January 2019. A revision was submitted in February and was followed by a draft General Council Decision to limit who can claim S&D benefits in future negotiations and agreements. WT/GC/W/747/Rev.1; WT/GC/W/764. The U.S. proposal in February was as follows:

“The General Council,

Acknowledging that full implementation of WTO rules as negotiated by Members can contribute to economic growth and development and the need to take steps to facilitate full implementation;

Recognizing the great strides made by several WTO Members since the establishment of the WTO in accomplishing the goals set out in the Marrakesh Agreement Establishing the World Trade Organization, of ‘raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with
the objective of sustainable development…;’

Recognizing that not all WTO Members have enjoyed equal rates of economic growth and development since the establishment of the WTO;

Recognizing the plight of the least-developed countries and the need to ensure their effective participation in the world trading system, and to take further measures to improve their trading opportunities;

Recognizing that reserving flexibilities for those WTO Members with the greatest difficulty integrating into the multilateral trading system can open new export opportunities for such countries; and

Desiring to strengthen the negotiating function of the WTO to produce high-standard, reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations;

Agrees as follows:

“To facilitate the full implementation of future WTO agreements and to ensure that the maximum benefits of trade accrue to those Members with the greatest difficulty integrating into the multilateral trading system, the following categories of Members will not avail themselves of special and
differential treatment in current and future WTO negotiations:

“i. A WTO Member that is a Member of the Organization for Economic Cooperation and Development (OECD), or a WTO Member that has begun the accession process to the OECD;

“ii. A WTO Member that is a member of the Group of 20 (G20);

“iii. A WTO Member that is classified as a “high income” country by the World Bank; or

“iv. A WTO Member that accounts for no less than 0.5 per cent of global merchandise trade (imports and exports).

“Nothing in this Decision precludes reaching agreement that in sector-specific negotiations other Members are also ineligible for special and differential treatment.”

The self-designation of developing country within the GATT and the WTO has generally been seen by Members and outside observers as a “third rail” that could not be modified because of the certain opposition from those enjoying S&D benefits. Not surprisingly, the U.S. proposal has met with opposition from some important WTO Members who have declared themselves to be developing countries, including China, India, South Africa, Venezuela, Bolivia, Kenya and Cuba. See, e.g., WT/GC/W/765 and 765/Rev.1 (it does not appear that the U.S. proposal would affect the last four Members listed).

The U.S. has included the topic in each General Council meeting since its submissions, has engaged in discussions with many WTO members, and submitted a revised proposal in November 2019, WT/GC/W/764/Rev.1, which incorporated language reflecting its arguments throughout the year that

(1) the proposal would not require any country to declare itself not a developing country, just limit whether they received blanket S&D coverage in new agreements;

(2) the change would affect new agreements/negotiations and not affect S&D from existing arrangements;

(3) Members had the right to seek special accommodations on issues of particular importance to them.

There was also clarification of the third and fourth criteria for non-eligibility to reflect a three year period of meeting the criteria.

A few WTO Members who would be subject to the elimination of automatic entitlement to new S&D provisions if the U.S. proposal were adopted by the General Council have indicated that they will forego automatic S&D from future negotiations/agreements. These Members to date are Korea, Singapore and Brazil.

While the strong opposition from major WTO Members such as China, India and South Africa would indicate the U.S. proposal is not likely to be adopted in the foreseeable future, the U.S. has also indicate that it will oppose S&D provisions in future agreements if they are applicable to certain Members.

Indeed, President Trump on July 26, 2019 issued a Memorandum on Reforming Developing-Country Status in the World Trade Organization. https://www.whitehouse.gov/presidential-actions/memorandum-reforming-developing-country-status-world-trade-organization/. The Memo notes that many WTO members who have declared themselves developing countries are “patently unsupportable in light of current economic circumstances. For example, 7 out of the 10 wealthiest economies in the world as measured by Gross Domestic Product per capita on a purchasing-power parity basis – Brunei, Hong Kong, Kuwait, Macao, Qatar, Singapore, and the United Arab Emirates – currently claim developing country status. Mexico, South Korea, and Turkey – members of both the G20 and the Organization for Economic Cooperation and Development (OECD) – also claim that status.” “China most dramatically illustrates the point.”

The memo goes on to instruct USTR to use all available means to secure changes at the WTO to prevent unwarranted use of S&D provisions and authorizes USTR to take action after 90 days if substantial progress is not made to no longer treat certain WTO members as developing countries and to not support any such country’s efforts to join the OECD.

USTR Robert Lighthizer issued a statement the day of the President’s Memo that reflected the position of the Administration:

“For far too long, wealthy countries have abused the WTO by exempting themselves from its rules through the use of special and differential treatment. This unfairness disadvantages Americans who ply by the rules, undermines negotiations at the WTO, and creates an unlevel playing field. I applaud the President’s leadership in demanding fairness and accountability at the WTO, and I look forward to implementing the President’s directive.” https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/july/ustr-robert-lighthizer-statement

Obviously trading partners have had an ongoing interest in the President’s Memo and how it is being implemented by the USTR. At the December 9, 2019 General Council meeting, as part of the U.S. discussion of its proposal, Ambassador Dennis Shea (Deputy USTR) stated as follows:

“Finally, I’d like to provide an update on the memorandum to USTR from the President of the United States in July.

“The President instructed USTR to no longer treat as a developing country for the purposes of the WTO any self-declared developing country that, in the USTR’s judgment, can inappropriately seek S&D in current and
future WTO negotiations. Some Members have asked how the USTR will carry this out.

“USTR consulted with the interagency Trade Policy Staff Committee on this issue. The interagency agreed that if a S&D provision is introduced in a WTO negotiation, the United States will indicate that it will not agree to that provision unless certain Members forego use of that provision. The United States will also use the TPR process to continue to press countries that we believe should not be claiming blanket S&D in future agreements. In addition, USTR is continuing to review additional steps that can be taken.

“The President issued two other instructions to the USTR.

“The USTR will not support the application for OECD membership of any self-declared developing country that, in the USTR’s judgment, can inappropriately seek S&D in current and future WTO negotiations.

“Also, USTR shall publish on its website a list of all self-declared developing countries that the USTR believes can inappropriately seek S&D in WTO negotiations.

“Members have asked when USTR will publish the list. USTR is consulting on this issue. The memo did not require USTR to publish the list by a speci􀃌c date.

“I’d like to emphasize two important aspects about the memo and the U.S. proposal that we would like Members to keep in mind.

“First, the President’s memo did not instruct USTR to ask any Member to change its self-declared development status. The U.S. proposal does not ask this of any Member, either.

“Second, the President’s memo did not instruct USTR to ask any Member to forego S&D in existing WTO agreements. The U.S. proposal does not ask this of any Member, either.”

https://geneva.usmission.gov/2019/12/09/ambassador-shea-procedures-to-strengthen-the-negotiating-function-of-the-wto/

As S&D provisions are part of every negotiation, the U.S. position obviously creates challenges to completing ongoing negotiations in any area, such as negotiations on fish subsidies, agriculture, digital trade without more countries agreeing not to seek S&D privileges or at least foregoing such privileges in certain agreements where there is U.S. opposition.

A quick look at some of the countries whom the U.S. proposal would remove from automatic S&D eligibility for new negotiations include the following:

Member of the OECD or in the accession process:

Chile, South Korea, Mexico, Turkey, Colombia, Costa Rica.

Member of the G-20:

India, South Africa, Turkey, Argentina, Brazil, Mexico, China, Indonesia, South Korea.

Classified by World Banks as “high income” for 2016-2018 (includes):

Antigua and Barbuda, Bahrain, Brunei Darussalam, Chile, Hong Kong, South Korea, Kuwait, Macao, Panama, Qatar, Seychelles, Singapore, St. Kitts and Nevis, Trinidad and Tobago, United Arab Emirates, Uruguay.

0.5% of Merchandise Trade (includes):

China, South Korea, Hong Kong, Mexico, Singapore, United Arab Emirates, Thailand, Malaysia, Vietnam, Brazil, Indonesia, Turkey, South Africa.

In light of the experience of the last two years on the need to reform the WTO Appellate Body, there should be little doubt that the United States will continue to push hard to achieve a more rational approach to the assumption of obligations at the WTO in terms of who should be eligible for S&D benefits in new agreements. Without movement by some major countries who currently enjoy S&D benefits to forego automatic eligibility in new agreements, the challenging negotiating environment at the WTO that has prevailed for many years now will become more challenging in 2020.

European Union Moves to Authorize Retaliation in Disputes Where There is No Alternative to the Appellate Body Pursued

With the WTO’s Appellate Body not able to handle appeals at the present time because of diminished membership, the EU has put forward a proposal that would authorize the EU to retaliate whenever a dispute where the EU has received what it views as a favorable ruling is appealed by the other party during the period when any such appeal cannot be considered by the Appellate Body. They have also proposed such actions in bilateral agreements where they view the other party as frustrating dispute settlement. https://ec.europa.eu/trade/policy/policy-making/enforcement-and-protection/. http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2019/0623/COM_COM(2019)0623_EN.pdf

The proposal is not adopted as yet, and the EU portrays the initiative as a way of protecting EU interests and consistent with its efforts to increase enforcement of its negotiated trading rights. This proposal, if adopted, will put pressure on smaller trading partners to join alternative dispute settlement approaches such as the arbitration approach the EU has agreed to with Canada and separately with Norway.

The proposal doesn’t address what the EU expects trading partners to take against EU products where it files an appeal (such as the EU did against the second 21.5 panel decision on December 6 which found against the EU in terms of compliance with its obligations on Airbus). WT/DS316/43 (11 December 2019)(notice of appeal); WT/DS316/RW2 (2 December 2019)(panel report on 2nd 21.5 request). But at least for larger WTO members, if the EU files an appeal that will not be heard during this interim period while Members seek ways to resolve open issues, the EU proposal invites similar action by such other Members. Retaliation has, of course, already been authorized for the U.S. against the EU for its WTO-inconsistent actions on Airbus. But should there be other cases that the US (or other countries who opt not to use arbitration under DSU Article 25 or not to simply adopt panel decisions without appeal) brings against the EU which the EU loses in part or whole, the EU is inviting retaliation without opportunity to correct its practices and without arbitration of the amount of retaliation being available. Virtually every Member who has been authorized to take retaliation has been subject to arbitration with amount authorized typically significantly less than the retaliating Member has sought. Thus, the EU may find its approach has costs for EU industry as well.

At the last Dispute Settlement Body (“DSB”) meeting of 2019 held on December 18, the effort to get the process for selecting Appellate Body members started was again unsuccessful because of opposition from the United States. So there will be some considerable period when there is no functioning Appellate Body and only four of the appeals pending on December 10 will be completed by the AB members who were involved in appeals prior to December 10. However, besides the EU efforts with Canada and Norway (which is reportedly being pursued with additional countries), there are alternative approaches being explored by other WTO Members including agreeing to adopt panel decisions without appeals or developing a different arbitration approach to that presented by the EU (e.g., reports that Australia and Brazil are exploring a different system).

For the United States, the U.S. indicated that it had filed on December 18th an appeal from a panel report in DS436, India’s resort to Article 21.5 of the DSU in its challenge to U.S. countervailing duty orders on hot-rolled steel products. The notice of appeal from the U.S. (WT/DS436/21) is not yet available on the WTO webpage. At the DSB meeting, the U.S. made the following comments on the WTO dispute settlement system:

“And the United States is determined to bring about real WTO reform, including to ensure that the WTO dispute settlement system reinforces the WTO’s critical negotiating and monitoring functions, and does not undermine those functions by overreaching gap-filling.

“As discussions among Members continue, the dispute settlement system continues to function.

“The central objective of that system remains unchanged: to assist the parties in the resolution of a dispute. As before, Members have many methods to resolve a dispute, including through bilateral engagement and mutually agreed solutions.

“For instance, today, the United States appealed the compliance Panel’s report in DS436.

“While no division can be established to hear this appeal at this time, the United States will confer with India so the parties may determine the way forward in this dispute, including whether the matters at issue may be resolved at this stage or to consider alternatives to the appellate process.

“Consistent with the aim of the WTO dispute settlement system, the parties should make efforts to find a positive solution to their dispute, and this remains the U.S. preference.

“And the United States will continue to insist that WTO rules be followed by the WTO dispute settlement system. We will continue our efforts and our discussions with Members to seek a solution on these important issues.”

Statements by the United States at the Meeting of the WTO Dispute Settlement Body, Geneva, December 18, 2019, “6. Appellate Body Appointments, Proposal by Some WTO Members (WT/DSB/W/609/Rev.15), https://geneva.usmission.gov/wp-content/uploads/sites/290/Dec18.DSB_.Stmt_.as-deliv.fin_.public-1.pdf.

It is certainly the case that the U.S. and the EU have very different views of the role of dispute settlement and the Appellate Body in particular and whether there are major problems with the operation of dispute settlement over the first twenty-five years of WTO operation. But the EU is traveling down a path of increasingly ignoring WTO limitations on its actions, a charge that they make with regard to the United States.

For example, when a WTO member disagrees with an action of a trading partner, it is expected to seek consultations and, if necessary, file a dispute, await resolution of the dispute, permit a reasonable period of time for implementation if a violation was found before retaliation is permitted. Yet the EU (followed by many other countries — Canada, Mexico, China, Russia, Turkey, India) created a facially false basis for retaliating against the United States without pursuing the required steps, when the U.S. took action under a domestic law (Section 232 of the Trade Expansion Act of 1962, as amended) on imports of steel and aluminum based on a report finding threats to U.S. national security from such imports. The EU and the other countries have claimed the action was a disguised safeguard action permitting immediate retaliation. WTO members don’t have to agree with another Member’s actions, but unilateral action is not authorized and the creation of false predicates to justify retaliation don’t change the action from being unilateral and unjustified.

The proposed regulation represents one more step by the EU to create its own system of enforcement regardless of the agreements to which it is a party using circumstances it does not like to justify its own unilateral actions. Let’s hope that whether adopted or not, the EU proceeds cautiously and reflects on its own actions consistency with international agreements.

The WTO Dispute Settlement System – Closing Out 2019 and Implications for 2020

The week of December 2, 2019 saw WTO Members engaged in a variety of year end activities including two added meetings – the resumption of the November 22 Dispute Settlement Body (“DSB”) meeting to explore how pending appeals would be handled post December 10 and another Committee on Budget, Finance and Administration meeting to see if Members could agree to a modified proposed budget to address U.S. concerns on funding for the Appellate Body (“AB”) in light of the imminent reduction of AB members from three to one.

December 3, 2019 DSB Meeting on Pending Appeals

The resumption of the DSB meeting did not result in agreement for how all pending appeals will be addressed with most pending appeals unlikely to be resolved by the current AB members, although it has been reported that the DSB Chair David Walker had indicated that appeals would proceed on four cases (of fourteen pending on December 3) – the two plain paper packaging appeals on Australia’s programs (Honduras (DS435) and the Dominican Republic (DS441), Ukraine’s challenge to various measures in the Russian Federation on the importation of raailway equipment (DS499) and the appeal in the case on U.S. countervailing duties on supercalendered paper from Canada (DS505).

The December 3 resumed DSB meeting did show the continued distance between at least certain WTO members in their view of one of the issues raised by the United States — whether the Dispute Settlement Understanding limits who may authorize individuals to serve as Appellate Body members to the WTO Membership through the DSB. For example, the EU statement confirmed that it viewed the Appellate Body, through Rule 15 of the Working Procedures, as qualified to permit members of the AB whose terms have expired to continue working on appeals that started while they were members. See EU statement at the regular DSB meeting on 3 December 2019, https://eeas.europa.eu/delegations/world-trade-organization-wto/71496/eu-statement-regular-dsb-meeting-3-december-2019_en.

The U.S. statement reviewed their year long effort to get an answer to the question “do Members agree that the Appellate Body does not have the authority to ‘deem’ a person who is no longer an Appellate Body member to nonetheless continue to be a member and decide appeals?” From statements by the EU and presumably others, the U.S. concluded that “members are not in agreement on this fundamental question.” As such the U.S. concluded that “there will be no consensus between Members on how to proceed on the Appellate Body by December 10” and that “[i]n the absence of any shared understanding of the underlying causes and of appropriate solutions, it will be for the parties to each dispute to engage with each other to determine an appropriate way forward.” Statement of the United States at the Meeting of the WTO Dispute Settlement Body (Dec. 3), https://geneva.usmission.gov/wp-content/uploads/sites/290/Nov22.DSB_.Reconvene.Item7_.as_.deliv_.fin_.public.pdf.

Since the DSB meeting on December 3, Morocco withdrew its appeal of a panel decision, Morocco – Anti-Dumping Measures on Certain Hot-Rolled Steel from Turkey, indicating that its antidumping measure had terminated in September. See WT/DS513/7 (5 December 2019). And on December 6, the European Union filed an appeal from the second compliance panel ruling in the Airbus case where the panel had found the EU had not brought its programs into compliance with WTO obligations (panel report was circulated on December 2, 2019). See https://www.wto.org/english/news_e/news19_e/ds316oth_06dec19_e.htm. Thus, as of December 7, there remain 14 appeals pending before the Appellate Body.

December 5, 2019 Committee on Budget, Finance and Administration Consideration of WTO 2020 Budget

Meanwhile, the Committee on Budget, Finance and Administration meeting of December 5 resulted in approval of the modified budget proposal for the WTO for 2020. The budget will now be before the General Council for approval in its final meeting of 2019 held on December 9-11. See Agenda item 20, WT/GC/W/793. The U.S. had worked with the Director-General to identify changes in the budget to reduce funds available for Appellate Body members in light of the current situation and only agreed to proceed with the budget for 2020, postponing the 2021 budget approval process until next year. A number of WTO Members, including the EU, China, India and Turkey had expressed concerns about the modifications to the budget, but approval at the Committee level was secured.

Reductions in two budget line items were reportedly made, reducing funding from $2.791 million to $200,000, presumably sufficient to handle appeals that do go forward through the Appellate Body. What such changes in funding will mean for the Appellate Body Secretariat is not yet clear but logically if there is no functioning Appellate Body, there is no need for an Appellate Body Secretariat until such time as the AB has sufficient members to once again hear appeals.

Other Issues Potentially Affecting the Operation of the Dispute Settlement System

Still unknown is whether current AB members whose term expires on December 10 will agree to continue on appeals after that date even on the four appeals where hearings have been had and that press reports indicated that Amb. Walker, the DSB Chair, had indicated would proceed post December 10. To the extent one of the current AB members opts not to continue on any appeal after the end of his term, that would presumably reduce the number of pending appeals that could be heard as it is likely there would be no continuing AB member who could be substituted (would depend on the composition of the AB Division presently hearing the appeal).

Moreover, as one of the four pending appeals identified in press articles as likely to be completed is a case where the U.S. is a party, it is also not clear what the U.S. position will be on that appeal post December 10. It may have agreed to have those appeals where hearings have been had completed if the current AB members are willing to continue to serve. Press accounts are unclear if that is the case.

There is also the question as to whether the Appellate Body Secretariat is disbanded pending the resumption of a functioning Appellate Body. Press reports have indicated that this is possible/likely with existing staff having the option to leave the WTO or accept positions in other WTO divisions. That would obviously make sense from a budget perspective as well as there is no institutional value in paying people who have no discernible workload.

December 6 Trade Negotiations Committee Heads of Delegation Meeting

There is always a flurry of activity ahead of the last General Council meeting of the year. December 6 saw a meeting of heads of delegation for the Trade Negotiations Committee (“TNC”). The TNC is the Committee that oversees ongoing negotiations within the WTO. While there are very important issues being pursued by various groups within the WTO under the jurisdiction of the TNC, for purposes of this post, the issue of interest will be the extent to which the dispute settlement system is a subject of debate.

As the minutes of the meeting are not publicly available, reference is made to three statements – one by Director-General Azevedo, one by EU Ambassador Joao Aguiar Machado and one by Ambassador Dennis Shea of the United States at the meeting. Other relevant statements were undoubtedly made as well.

The WTO put out a news release on Director-General’s statement to the TNC Heads of Delegation Meeting. The long excerpt below provides the Director-General’s views on the state of play on both the dispute settlement system and on the 2020 budget:

“In his remarks, the Director-General said that while the effective suspension of appellate review of WTO dispute rulings is a serious challenge to the global trade body’s adjudication function, it ‘does not mean the end of the multilateral trading system’.
“‘Existing WTO rules still apply. WTO disciplines and principles will continue to underpin world trade. And members will continue to use WTO rules to resolve trade conflicts – in regular WTO bodies, through consultations, via dispute settlement panels, and through any other means envisaged in the WTO agreements,’ he said.
“Members have important decisions to make, with implications for the WTO and for their respective economies, DG Azevêdo said.
“Where we go from here is in your hands. What we do – or just as significantly, what we fail to do – will define the trajectory of this organization.
“On rule-making, your choices could contribute to restoring certainty in the global economy, and help governments manage interdependence in a fast-changing world.
“On the implementation of existing commitments, you have scope to make regular committee work an even more effective vehicle for fostering compliance and addressing concerns about each other’s trade policies.
“And on dispute settlement, you could restore the impartial, effective, efficient two-step review that most members say they want.
“Alternatively, your choices could open the door to more uncertainty, unconstrained unilateral retaliation – and less investment, less growth, and less job creation.”
‘The DG welcomed a compromise reached in the Committee on Budget, Finance and Administration on the WTO’s budget for 2020. The committee’s favourable recommendation has been forwarded to the General Council for endorsement during its 9-11 December session.
“The proposed budget compromise is the result of flexibility and cooperation among members, both here in Geneva and in capitals. It represents a pragmatic response that preserves the WTO system amid turbulence in the wider international system – turbulence that we cannot wish away. I am counting on your help with approval in the General Council.”
DG Azevêdo urges WTO members to find ways forward on
the dispute settlement system, https://www.wto.org/english/news_e/news19_e/tnc_06dec19_e.htm.

Ambassador Machado of the EU’s statement at the meeting is a good representation of the EU position over time and shows the continued sharp difference in views the EU has with the U.S.

“Since our last meeting, the situation of the WTO has further deteriorated. Not only the discontinuation of the Appellate Body’s work has become an evident prospect, but attempts to obstruct the functioning of this Organization through the budget discussion have shattered Members’ confidence in teh WTO. This has diverted us from progressing our negotiation agenda or from finding ways to resume nominations of the Appellate Body Members, which should be the priority. While the European Union is alarmed about the current state of affairs at the WTO, we remain strongly determined to address the challenges in front of us.

“First, we remain resolute to find ways to restore a two-step dispute settlement system at the the WTO, and resume nomination of Appellate Body’s Members as soon as possible. Next week’s General Council will be crucial in this respect and we invite all Members to engage constructively in finding solutions.”

https://eeas.europa.eu/delegations/world-trade-organization-wto/71633/eu-statement-ambassador-jo%C3%A3o-aguiar-machado-trade-negotiations-committeeheads-delegation-6_en

Ambassador Shea’s statement, like that of other Ambassadors at the meeting, covered a range of issues deemed important for the TNC and its work going forward. On dispute settlement, Amb. Shea provided the following thoughts:

“Foruth, with respect to dispute settlement, the United States has engaged constructively over the past year, providing detailed statements in the DSB and the General Council outlining clear positions and articulating our longstanding concerns with the functioning of the Appellate Body. Unfortunately, we have yet to see the same level of engagement from other Members. We have asked repeatedly, if the words of the DSU are already clear, then why have the practices of the Appellate Body strayed so far? This is not an academic question; we will not be able to move forward until we are confident we have addressed the underlying problems and have found real solutions to prevent their recurrence.”

https://geneva.usmission.gov/2019/12/06/ambassador-sheas-statement-at-the-wto-trade-negotiating-committee-heads-of-delegation-meeting/

General Council Meeting, December 9-11, 2019

When the General Council meets starting on Monday, December 11th, among its twenty-four agenda items are two that deal with either dispute settlement (Agenda Item 5) or the 2020 budget (Agenda Item 20). Both agenda items will likely generate a great deal of discussion.

Presumably on December 9th, the General Council will get to agenda item 5, “Informal Process on Matters Related to the Functioning of the Appellate Body – Report by the Facilitator and Draft Decision on the Functioning of the Appellate Body.” The original draft Decision and the revised draft have been discussed in earlier posts and reflects efforts by Amb. Walker (serving as Facilitator to the General Council) to identify possible solutions to the concerns raised by the United States over the last several years on the functioning of the Appellate Body. There will be many WTO Members – undoubtedly including the EU, China, India and others – who will support the draft Decision and urge its adoption. In their view adoption of the Decision would clear the path for the Dispute Settlement Body to start the process for finding replacements for the six Appellate Body seats that either are currently or will be empty after December 10.

The United States has made it clear that the draft Decision does not resolve its concerns, most importantly because there is no understanding of why the Appellate Body has felt free to disregard the limits on its activities.

So expect Agenda item 5 to be contentious but result in no agreed decision being adopted.

On agenda item 20, “Committee on Budget, Finance and Administration – Reports on Meetings of April, June, September, October and November”, this item will likely be taken up on the 10th or 11th (assume the 11th). While again there will likely be a large number of statements and concerns raised about the process, it is expected that the 2020 budget for the WTO will be approved by the General Council.

Regular DSB Meeting of December 18, 2019

The agenda for the upcoming last regular DSB meeting of 2019 is contained in WTO/AIR/DSB/90 dated 6 December 2019. The relevant item for this post, is agenda item 6 which takes up the latest iteration of the proposal to have the DSB make a decision to launch a selection process to fill the six Appellate Body member slots that are or will be open. The proposal is essentially identical to earlier versions and is supported by 117 of the 164 WTO Members. See WT/DSB/W/609/Rev.15, 6 December 2019.

As it has in the past, the United States will not support the proposal, and the year 2019 will end with the Appellate Body unable to hear new appeals, unable to proceed with many of the pending appeals and with WTO Members exploring different options for how they will handle disputes going forward.

Implications for 2020

The 2020 budget reflects the contraction in activity by the Appellate Body even assuming the four pending appeals are completed in 2020. So 2020 will be a year of no or limited Appellate Body activity.

Major players such as the EU, China, India and others are far removed from acknowledging the deep concerns that have been expressed by the United States on the functioning of the Appellate Body, and in many cases disagree that there is even a problem. This impasse suggests that progress on reestablishing a two-step dispute settlement system will be slow if it occurs at all in 2020.

For some, there may be a hope that U.S. elections in late 2020 could lead to a different Administration in 2021 and a different posture on the WTO dispute settlement system. Change may or may not occur regardless of which Administration is in place in 2021. But there is little doubt that 2020 will be a year in which WTO members will need to consider other approaches to resolving disputes. One obvious alternative could be through arbitration under Article 25 of the Dispute Settlement Understanding (the EU has a model it has adopted with Canada and separately with Norway; other approaches could obviously be pursued). Members could also agree to not appeal from panel decisions. Negotiations can also provide ways to address matters of concern to trading partners, as can greater transparency and increased activity in WTO Committees permitting Members to understand and comment on practices of trading partners.

Change inevitably brings discomfort and uncertainty. December 10 and the inability to appeal new panel decisions after that date is the bookmark date for change. 2020 will undoubtedly be a year of discomfort and uncertainty. Let us hope that the WTO Members can find a path to addressing U.S. concerns in a meaningful manner and that an improved dispute settlement system is the result.

Additional Meetings of the WTO Dispute Settlement Body and Budget, Finance and Administration Committee set for December 3 and 5 in search of Resolution of Outstanding Issues.

The WTO’s last General Council meeting of 2019 is scheduled for next Monday-Wednesday (December 9-11). There are unresolved issues on what will happen with pending appeals before the Appellate Body and whether the modified 2020 budget that was introduced last week but received opposition from a number of Members will be approved. Not surprisingly, two additional meetings have been added to the WTO schedule for this week and can be seen in the section of the WTO webpage that shows pending meetings at the WTO.

The first is technically a resumption of the November 22 Dispute Settlement Body meeting to take up issue 7, “pending appeals”. The second is yet another Budget, Finance and Administration Committee meeting to seek approval of the proposed budget as modified by the Director-General in response to the issues raised by the United States on Appellate Body compensation and other matters.

As reviewed in earlier posts, the U.S. is seeking reductions in the budget within the WTO for Appellate Body [“AB”] matters in light of the reduced number of AB members and the likely inability to pursue appeals for some period of time after December 10. The U.S. also is opposed to former members of the AB continuing to hear most of the pending appeals after December 10. There are 13 reported pending appeals before the Appellate Body that will not be resolved prior to December 10. Resolution of how or if those appeals will proceed will presumably be relevant to the resolution of what funds are needed in 2020 for the AB in the proposed budget. Thus, the activities this week are important to providing clarification of what activity by the Appellate Body will occur prior to the resolution of the U.S. concerns on activities by the AB that are inconsistent with existing Dispute Settlement Understanding requirements.

The WTO General Council has had Ambassador David Walker of New Zealand (the current Chair of the Dispute Settlement Body) serving as a facilitator to see if solutions to the U.S. concerns could be found. At an informal General Council meeting of the Heads of Delegations held last Friday, November 29th, press reports indicate that modifications to the draft General Council Decision on the functioning of the Appellate Body that were contained in WT/GC/W/791 received the green light from Members. This indicates that the draft decision could be adopted at the upcoming General Council meeting.

It would be surprising if the modified draft Decision solves the impasse on filling AB vacancies. There are two additions to the draft General Council Decision from the version (JOB/GC/222 Annex) that the United States had dismissed as inadequate in the last General Council meeting on October 15. See my post of Nov. 4, 2019 on the Draft General Council Decision which quotes the U.S. position in full. https://currentthoughtsontrade.com/2019/11/04/wtos-appellate-body-reform-the-draft-general-council-decision-on-functioning-of-the-appellate-body/

First, a paragraph has been added acknowledging that the Appellate Body has not always functioned as intended. “Acknowledging that the Appellate Body has, in some respects, not been functioning as intended under the Understanding on Rules and Procedures Governing the Settlement of Disputes (the ‘DSU’)”. Such a paragraph is undoubtedly important to the U.S. as it reflects agreement that there have been problems – the U.S. position for many years that some other Members have not publicly acknowledged.

Second, paragraph 9 in WT/GC/W/791 has been added to a section previously titled “Municipal Law” but now renamed “Scope of Appeal”. The added paragraph reads, “9. Article 17.6 of the DSU restricts matters that can be raised on appeal to issues of law covered in the relevant panel report and legal interpretations developed by that panel.” The existing DSU limits the scope of appeal as reflected in this new paragraph. While the U.S. presumably supports the language, it is not clear that the concerns that the U.S. has raised about the Appellate Body opining on issues not raised by either party are fully addressed in this paragraph. Should the panel address issues not raised by the parties, the language would indicate the AB can address such issues in an appeal. The two documents are included below.

WTGCW791

JobsGC222

The press article indicates that it is not clear that the U.S. will approve the draft GC decision at the upcoming GC. Washington Trade Daily, December 2, 2019 at 1-2. Indeed, considering the October 15 statement of the U.S. at the General Council meeting, it would be surprising if the few modifications to the earlier draft would be viewed by the United States as adequate. For example on the longstanding problem of creating obligations or diminishing rights of Member, the draft Decision makes no changes to language which simply repeated part of DSU Articles 3.2 and 19.2. As reviewed in earlier notes, there is unlikely to be correction of the overreach problem if 3.2 and 19.2 aren’t clarified to identify situations where obligations are created (e.g., if gaps are filled, silence is construed or ambiguities clarified). Moreover, the U.S. concern reflects a more than 20 year problem of the balance of rights and obligations being altered. Nothing in the draft identifies how Members rights will be rebalanced.

if the U.S. joins other Members in approving the draft Decision at the upcoming General Council meeting on December 9-11, the U.S. could view the adoption of the decision as simply one step in the process needed before the U.S. will lift its hold on filling vacancies. Stay tuned.

The WTO Budget — Will There Be a Resolution in December?

November 2019 proved to be a challenging time for the WTO in terms of getting agreement on the budget for the organization for 2020. Normally, the budget is approved for a two year time period. At the November 12 Budget, Finance and Administration Committee [“BFA Committee”] meeting, the United States had questions on a number of topics including funding for the Appellate Body and its Secretariat with the result that the Director-General’s draft budget was not approved at that meeting. The Committee added another meeting to the agenda for November 27 in the hope of achieving resolution and agreement at the Committee level on the budget for 2020-2021.

Virtually none of the documents that are submitted to or generated by the BFA Committee are made public, nor is there a summary of meetings that is made available to the public. Thus, relatively little is public about events following the November 12 BFA Committee meeting. The Director-General is reported to have revised the budget proposal after consultations with the United States which appeared to leave the total budget for the WTO in tact but to have modified what could be used for the Appellate Body based on the reality of the number of Appellate Body [“AB”} members being reduced to 1 after December 10 which prevents the AB from handling new appeals after that date.

Press accounts suggest that the U.S. agreed to having just a few of the 13 pending appeals concluded with AB funds — specifically the two plain packaging of cigarette cases against Australia brought by Costa Rica and Honduras (DS435 and DS 441). In an earlier note, I had reviewed the likely challenges for the 13 pending appeals in light of when notices of appeal were filed and the possibility of one of the two AB members whose term expires on December 10 apparently not having expressed a willingness to continue to hear appeals past the end of his second term.

Reportedly, the U.S. has also insisted on funding for any arbitration under DSU Article 25 to be handled from the WTO Secretariat and be at the level and amount for panelists vs. Appellate Body members.

Finally, the U.S. has only agreed to funding for 2020 with 2021 to be dealt with next year.

At the meeting on November 27, press reports indicate that objections to the modified budget were raised by the EU, China, India and Turkey. on various grounds (e.g., different treatment for different pending disputes; contractual commitments to the remaining AB member for the remainder of the member’s term; view that it is not the role of the BFA Committee to resolve how pending appeals are handled) with no consensus at the end of the November 27 meeting. See, e.g., Washington Trade Daily, November 28, 2019 at 1-2.

No additional BFA Committee meeting has been added to the WTO list of remaining meetings in 2019. There are two informal heads of delegation meetings ahead of the December 9-11 General Council meeting. One was held on November 29 (informal General Council – heads of deletation) but has no report of what was discussed or whether the budget was being handled in ongoing negotiations with those raising concerns. The next informal heads of delegation meeting is scheduled for Friday, December 6 (TNC – heads of delegation) followed by the three day General Council meeting.

The General Council’s agenda is likely lengthy and will include annual reports from various committees and other entities but has not been made public at this point. However, some documents for review at the General Council are available publicly including the draft General Council Decision prepared by Amb. Walker of New Zealand which is an attempt to find a solution to problems with the dispute settlement system raised by the United States. As the U.S. has already indicated that the draft General Council Decision does not adequately address its concerns, it is not expected that the draft Decision will be adopted by the General Council after it has been presented and discussed.

December 18 is the last regularly scheduled Dispute Settlement Body meeting of the year, and will occur eight days after the last day the Appellate Body has a minimum of three Appellate Body members (assuming no resolution with the United States). Thus, no new appeals filed after December 10 can be heard by the Appellate Body until new members are agreed to.

Amb. Walker, who in addition to being the facilitator for the General Council’s consideration of the issue is the current Chairman of the Dispute Settlement Body, is understood to be working with Members to see if there is an approach to the pending appeals that can be approved. For the reasons reviewed in the Nov. 24 post, it is unlikely that most of the current appeals will be in a position to proceed if all three of the existing Appellate Body members don’t agree to continue to serve under Rule 15 of the AB’s procedures despite the terms for two of the three expiring on December 10. Amb. Walker will be hoping to have an agreed solution ahead of the December 18 DSB meeting. But the resolution on how pending appeals will be handled, if found, is presumably relevant to what the Members agree to for the 2020 budget. The December 18 DSB meeting is the last listed meeting of any WTO group for 2019. Indeed, December 23 – 31 are shown as non-working days for the WTO.

While it is hard to imagine that WTO Members won’t approve a modified budget for 2020 in the coming few weeks, it is likely to be a tense end to 2019 at the WTO with formal or informal additional meetings possible and with some Members having to consider how to handle pending appeals and all ongoing and future disputes.

With the WTO Appellate Body Becoming Dysfunctional on December 11, What Happens to Pending Appeals and Other Open Issues?

There was another WTO Dispute Settlement Body (“DSB”) meeting on November 22, 2019. In addition to the normal agenda item of receiving reports and comments by other members on the status of implementation of recommendations on disputes where reports had previously been adopted by the DSB, there were a number of other agenda items, one of which was not addressed.

First, the United States had put on the agenda making a statement on what it considers systemic concerns on the compensation for Appellate Body.

Second, annually each body within the WTO prepared a report on activity during the year. Adoption of the 2019 draft annual report of the DSB was an agenda item for consideration.

Third, the topic of Appellate Body appointments was an agenda item based on the September 2019 proposal from 117 WTO members.

Finally, there was an agenda item entitled “Pending Appeals” which was meant to permit an examination of how the 13 pending appeals would be handled after December 10 when the number of current Appellate Body members would decline to 1 from 3.

This note looks at several of the agenda items with a focus towards the end on the thirteen appeals which are proceeding at the present time.

I. Compensation for Appellate Body members

As reviewed in a post from November 16, the United States had raised a series of questions on the handling of funds for the Appellate Body and its Secretariat (among other issues) and held up adoption of the 2020/2021 WTO budget at a November 12 meeting of the Committee on the Budget, Finance and Administration. Another meeting of the Committee has been scheduled for November 27, with efforts to provide answers and resolve concerns ahead of that meeting.

At the same time, the U.S. added the agenda item to provide its thoughts on “systemic issues” flowing from the Appellate Body compensation system. The comments on this agenda item were made by Ambassador Dennis Shea and laid out the various elements of the compensation package, the part time nature of the work of Appellate Body members, and the fact that compensation has been paid to individuals whose terms have expired but who continue to handle appeals. See pages 9-12 of Statements b the United States at the Meeting of the WTO Dispute Settlement Body, Geneva, November 22, 2019, https://geneva.usmission.gov/wp-content/uploads/sites/290/Nov22.DSB_.Stmt_.as-handed-out.fin_.public.pdf. U.S. concerns revolved around: (1) the total compensation (some 300,000 Swiss Francs tax free for part time work which is higher than compensation for Deputy Director Generals at the WTO whose work is full time; (2) whether the daily component of compensation contributed to delay in completing Appellate Body decisions, hence undermining prompt resolution of disputes; (3) lack of transparency on expenses; and (4) pay to former members who are continued after terms expire when working on appeals which they started prior to term expiration.

Press reports from the day of the DSB meeting indicated relatively little interest/sympathy by other trading partners on the U.S. concerns including on the size of the compensation. See, e.g., Inside U.S. Trade’s World Trade Online, U.S. Questions WTO Appellate Body compensation as others lament impending paralysis, https://insidetrade.com/daily-news/us-questions-wto-appellate-body-compensation-others-lament-impending-paralysis.

From the earlier U.S. statement of concerns on how to remedy the Appellate Body disregard of clear requirements under the Dispute Settlement Understanding, the U.S. statement provides a potential “why” answer to part of the disregard. Failing to meet the required 60-90 day deadline for appeals results in longer work on any given appeal and hence higher compensation, potentially encouraging longer decisions, coverage of additional issues, etc. and making timely delivery of AB decisions more difficult.

Should the U.S. insist that the AB compensation system be reviewed and potentially modified before agreeing to opening the Appellate Body nomination process, obviously a protracted and difficult process will become more complicated and presumably more drawn out.

II. Appellate Body Proposal to Start the Appointment Process

Not surprisingly, the same proposal to start the process of finding new Appellate Body members that had been presented in October by Mexico and 116 other WTO members was resubmitted for consideration at the November 22 DSB meeting. Once again the U.S. found itself unable to agree to moving ahead with the process for finding six Appellate Body members to fill the existing vacancies and the two that will occur when existing terms expire on December 10. So there is actually nothing new on this agenda item or the outcome at the recent DSB meeting.

Ambassador David Walker’s draft General Council Decision which is an effort to present a possible road forward to addressing U.S. concerns was not taken up within the DSB (other than a review of the effort at resolution contained in the draft annual report of the DSB) but will be on the agenda for the December 9-11 General Council meeting. As reviewed in an earlier post, the U.S. has already rejected the draft General Council Decision as not meeting its concerns. Thus, the General Council meeting in December is not likely to provide a breakthrough on the current impasse. So an obvious question is what happens on December 11?

The panel process of dispute settlement will continue as before. Thus, for the many cases proceeding through panel deliberations, one can expect those panels to continue without interruption. WTO Members have the option of agreeing to arbitration under Article 25 of the DSU, as the EU has done with Canada and with Norway. Similarly, WTO Members can agree not to take an appeal in a given dispute such that the panel report would be what is adopted absent a negative consensus. It is understood that some WTO members are considering this or have agreed to this approach. Thus, December 11 marks not the collapse of the dispute settlement system in its entirety, but rather a need to evaluate options for WTO members as they look at pending or future disputes or face a process where there is no automatic adoption.

A large number of WTO Members have participated in at least one dispute in the first 25 years of the WTO. Other WTO members, who have not been a complainant or a respondent have participated as a third party in one or more cases. While that is true, the number of cases where a Member is either a complainant or a respondent is very small for nearly all countries. The attached table looks at information from the WTO Dispute Settlement listing (looked at on November 22, but not reflecting the EU request for consultations filed against Indonesia on November 22). Six Members (U.S. (11.16/yr), EU and member states (9.44/yr), China (3.61/yr), Canada (2.52/yr), Russian Federation (2.42/year), and India (2.24/yr)) have seen two or more disputes filed each year of membership. Eight others have between one and two disputes each year (Brazil, Argentina, Japan, Mexico, Korea, Ukraine, Australia, and Indonesia). Everyone else (121 members) have less than one dispute per year including 81 who have never either filed a dispute or been a respondent in a dispute in the first twenty-five years of the WTO and 46 of whom have also never been a third party in a dispute.

WTO-Member

The EU’s agreements with Canada and Norway are important for Canada and Norway but relatively minor for the EU itself, other than creating what they hope will be an approach that other trading partners of theirs will agree to. For Canada, 23.81% of the disputes where Canada has been a complainant or respondent have been where the EU was the other party. For Norway, 3 of 5 cases they have been involved in have been with the EU (60%). However, for the EU, Canada and Norway represent less than 6% of the disputes in which they have been a party.

So how disruptive the reduction in Appellate Body membership to one member as of December 11, 2019 will be is uncertain and will depend on actions by a number of major players in terms of ongoing disputes..

III. Pending Appeals Before the Appellate Body

Agenda item 7 on the November 22, 2019 DSB meeting was “Pending Appeals. A. Statement by the Chairman.” WTO/AIR/DSB/89.

In the Dispute Settlement Body’s draft Annual Report (2019), the following brief discussion appears on what the Chair of the DSB was doing on the issue of pending appeals. WT/DSB/W/651 (8 November 2019) at 4:

” Finally, he said that he would be consulting with delegations who had pending appeals before the Appellate Body ahead of 10 December 2019 to see how to deal with those appeals. He said that he would revert to this matter at the November DSB meeting (WT/DSB/M/436).”

While the WTO does not have a summary of the November 22nd DSB meeting up on its webcite as of 11/24 2:30 p.m. (ET), a press article from the 22nd indicated that the agenda item wasn’t pursued as the Chair had not found agreement on how to deal with the 13 pending appeals. The U.S. was apparently the holdout in reaching agreement on how to proceed. Inside U.S. Trade’s World Trade Online, U.S. Questions WTO Appellate Body compensation as others lament impending paralysis, https://insidetrade.com/daily-news/us-questions-wto-appellate-body-compensation-others-lament-impending-paralysis.

In looking at the thirteen appeals that are understood to be underway and the relevant DSU articles on Appellate Body practice rules, there appear to be a number of potential issues that will need to be addressable if the issues are in fact present and the appeals are to proceed.

First, eight of the thirteen appeals were noticed by the appellant after 30 September 2018 the last day of Mr. Shree Baboo Chekitan Servansing’s four year term. See DS541, DS534, DS523, DS518, DS513, DS510, DS461, DS371. After that date, there have been only three Appellate Body members, all of whom would have to be hearing the appeal and no substitute would be possible if one of the two members whose terms end on December 10, 2019 decided not to continue on an appeal after that date. See DSU Art. 17.1; Working Procedures for Appellate Review, WT/AB/WP/6 16 August 2010, Rules 6.(3) and 12 and 13. It is understood that one of the two Appellate Body members whose second term expires on December 10 has indicated an unwillingness to continue to serve on the appeals after the expiration of his term. If correct, absent a decision by the DSB on how those appeals can proceed, the appeals will presumably terminate or be in a state of limbo pending restoration of the membership of the Appellate Body. The United States is a party in four of the eight cases.

Of the other five appeals, it is unclear if a similar situation exists in terms of the composition of the Division hearing the appeal (DSU Art. 17.1 has appeals heard on a rotation basis) and if so, if the remaining AB member would be available to maintain the appeal at three members (two former members and the remaining current member).

For all thirteen appeals, after December 10, 2019, the appeals could only be handled in two or all three of the people hearing the appeal were individuals whose terms expired, hence falling into the space that the U.S. has reviewed as to the lack of authority for the Appellate Body have non-AB members complete appeals that were started when they were members. The U.S. is a party in five of the thirteen pending appeals.

Expect that the DSB Chair David Walker will continue to search for an approach that is acceptable to all members. Don’t be surprised if no consensus is reached. Two known events in December are possible situations where better understanding of the issues will surface: the December 9-11 General Council and the December 18 DSB meeting.

Below is a reverse chronological listing of the thirteen pending appeals:

DS541, India-Export Related Measures (U.S. complainant); notice of appeal, Nov. 19, 2019.

DS534, United States – Anti-Dumping Measures Applying Differential Pricing Methodology to Softwood Lumber from Canada; notice of appeal, June 4, 2019.

DS523, United States – Countervailing Measures on Certain Pipe and Tube Products (Turkey complainant); notice of appeal, Jan. 25, 2019.

DS518, India – Certain Measures on Imports of Iron and Steel Products (Japan complainant); notice of appeal, Dec. 14, 2018.

DS513, Morocco – Anti-Dumping Measures on Certain Hot-Rolled Steel from Turkey; notice of appeal, November 20, 2018

DS510, United States – Certain Measures Relating to the Renewable Energy Sector (India complainant); notice of appeal, August 15, 2019.

DS505, United States – Countervailing Measures on Supercalendered Paper from Canada; notice of appeal, August 27, 2018.

DS499, Russian Federation – Measures Affecting the Importation of Railway Equipment and Parts Thereof (Ukraine complainant); notice of appeal, August 27, 2018.

DS476, European Union – Certain Measures Relating to the Energy Sector (Russian Federation complainant); notice of appeal, September 21, 2018 [The WTO webpage shows this dispute still being on appeal before the Appellate Body, but the case is not included in the list of 13 pending appeals on the WTO webpage] .

DS441, Australia – Certain Measures Concerning Trademarks, Geographical Indicators and Other Plain Packaging Requirements Applicable to Tobacco Products (Dominican Republic complainant); notice of appeal, August 23, 2018.

DS435, Australia – Certain Measures Concerning Trademarks, Geographical Indicators and Other Plain Packaging Requirements Applicable to Tobacco Products (Honduars complainant); notice of appeal, July 19, 2018.

DS461, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (21.5, Panama complainant); notice of appeal, November 20, 2018.

DS371, Thailand – Custom and Fiscal Measures on Cigarettes from the Philippines; notice of appeal (2nd recourse to 21.5), September 9, 2019; notice appeal (1st recourse to 21.5), 9 January, 2019).

IV. Conclusion

WTO Members are continuing to look for alternatives to the present appeal process as they await further developments both at the General Council and the Dispute Settlement Body. The U.S. has been looking for adherence to the original DSU commitments and is unwilling to accept simple reaffirmation of those principles in light of the longstanding problems flagged by the United States. The core disagreement on the purpose of the dispute settlement system between the U.S. and the EU (and like minded Members) has made meaningful progress difficult.

What is certain is that the brave new world of a more complicated dispute settlement system within the WTO arrives in less than three weeks. How long the changed status will continue is unclear. Current indications are the wait will be long in fact before the Appellate Body is back functioning with the concerns of the U.S. at last addressed in an enforceable manner. For the U.S. a major concern should be achieving a restoration of the rights and obligations that were agreed to through negotiation and that have been lost through overreach actions by the Appellate Body.

The WTO budget and the Appellate Body — Potential Fireworks at the end of 2019

On December 11, the WTO Appellate Body will be down to one member based on the current impasse created by the U.S. insistence that significant problems with the dispute settlement system be addressed before new Appellate Body members are added. Earlier posts have reviewed the impasse and underlying issues at some length.

On November 12, the U.S. reportedly blocked adoption of the 2020-2021 budget proposal from the WTO Director-General at the meeting of the Committee on Budget, Finance and Administration. There were a series of written questions about the budget received from Members ahead of the November 12 meeting, including a six page document entitled, “CBFA questions received from the United States relating to the coordination, governance and administrative responsibilities of the multi-donor voluntary contribution trust funds”. WT/BFA/INF/6, 7 November 2019. The written questions are not publicly available at the present time.

A version of the 2020-2021 Budget Proposal from the Director-General that is available publicly is from 10 September 2019 and is document WT/BFA/W/492 (38 pages). Pages 23-24 review the budget proposal for the Appellate Body and its Secretariat (Section 3.2). The proposal shows the budget for the Appellate Body Secretariat staff at 4.573 million Swiss Francs/year, Appellate Body Members Fees and other temporary assistance as 871,000 Swiss Francs/year, other resources as 136,000 Swiss Francs/year and contributions to special reserves as being 2.0 million Swiss Francs/year. In mid-November 2019, 1 Swiss Franc was worth $1.01.

Press reports on the WTO meeting indicate that the U.S. was opposed to the budget for various reasons, including the provision of funds for the Appellate Body (AB) and its Secretariat for 2020-21 because of the impasse which would render the AB dysfunctional (arguably meaning no funds would be required until the impasse is resolved).

The U.S. also raised questions as to where funds for arbitration under DSU Article 25 would come from, including whether funds would be diverted from the AB. The EU has concluded agreements entitled “Interim Appeal Arbitration Pursuant to Article 25 of the DSU” with Canada and separately with Norway. These agreements call for the use of former AB members to act as arbitrators (in groups of three the same as AB Divisions) and use of AB Secretariat staff for such arbitrations.

Concern was also expressed on what was done with AB funds from 2018 and presumably 2019 because of the reduced number of AB members. See, e.g., Washington Trade Daily, November 13, 2019, “US Blocks WTO Budget” at 1-2; Bloombergs, Bryce Baschuk, November 12, 2019, “U.S. Raises Prospect of Blocking Passage of WTO Budget”, https://www.bloomberg.com/news/articles/2019-11-12/u-2-is-said-to-raise-prospect-of-blocking-passage-of-wto-budget.

The U.S. intends to develop its concerns on budget matters in multiple fora within the WTO. For example, the U.S. has added an agenda item (no. 4) to the upcoming Dispute Settlement Body meeting on November 22, “4. Statement by the United States on systemic concerns regarding the compensation of Appellate Body members”. WTO/AIR/DSB/89, 12 November 2019.

One can envision a number of concerns that could be raised by the United States. For example, based on its concerns about former AB members continuing to handle disputes after their term has expired, the U.S. could raise concerns about any payments (fees and expenses, etc.) to such individuals. Similarly, the U.S. could raise concerns over the total compensation including expenses that go to AB members whose work is part time only, particularly if the overall level of expenditures per AB member exceeds what full time compensation is for judges at appeals courts or the Supreme Court.

It is not clear if the U.S. will use the agenda item at the DSB meeting to also question whether WTO Members can utilize Appellate Body resources and staff for DSU Article 25 arbitration work or whether that issue will be left for the budget discussion.

Based on the Budget Finance and Administration Committee meeting of this past week, the U.S. statement at the November 22 DSB meeting is likely to be a detailed review of its concerns on how AB and Secretariat funding has been handled. The U.S. statement will almost certainly see responses from many other Members defending the status quo. The conflict on the budget issue adds to the tension among the membership on the likely continued impasse on the AB vacancies and the imminent shut down of the AB for future appeals pending a resolution on the many concerns raised by the U.S. on the functioning of the dispute settlement system.

The current approved budget ends at the end of 2019. So achieving an approved budget in the remaining weeks of 2019 is critical to the continued functioning of the WTO. Whether the U.S. will block the budget, achieve some accommodation or simply approve the budget in the coming weeks creates the focus for WTO Members. There is a three day General Council meeting on December 9-11, and there is an assumption that the matter will be resolved by then, if it is to be resolved this year. What is certain is that the last weeks of 2019 will see increased tensions within the WTO and likely fireworks at formal meetings.

The Continued Problem of Inconsistent Transparency at the World Trade Organization

The World Trade Organization has attempted over the years to improve its transparency both for the benefit of Members and for the needs of the public in many countries with active interests in the issues being discussed within the WTO. Because the WTO is a member driven organization, there has been a long standing tension between the desire of some for greater transparency and the unwillingness of others to make their submissions available to the public.

Back in 2010, I wrote a trade flow for my law firm which reviewed how the WTO was failing to honor the objectives of greater transparency through the wholesale adoption of a category of documents labeled “JOB” which largely were not made available ever for public review. Nine years later, there has been some improvement and some backsliding in transparency at the WTO.

JOB documents are not the only documents hidden from view in many situations. There is a category of documents called “room documents” (“RD”) that similarly are never released for public review. The classification of documents as JOB documents (or as other unavailable types) is a matter of self-selection by the WTO Member submitting the document and can lead to essentially irrational differences. For example, during the WTO Doha negotiations, the chairs of all negotiating groups except dispute settlement released draft negotiating texts as public documents, and many/most/all of the submissions by members of positions, etc. were also available to the public. For many years, the dispute settlement negotiation group was alone in not releasing the draft text or many of the negotiating proposals.

Similarly, the resort to “informal meetings” means that there are no minutes of the meeting that are kept or released to the public after some period of delay. Looking at the Fishery subsidy negotiations, many documents of submissions by parties are available, but there are no minutes for the many informal meetings, just very abbreviated “summaries” provided.

When there is an inconsistent approach to the treatment of similar documents or when there is movement from formal to informal with a loss of transparency, the public loses and there can be a dimunition in trust of how the WTO is functioning.

Look at the area of agriculture negotiations. There are 202 documents that are shown in the WTO document system with a “JOB/AG” number (these include corrections or revisions) going back to July 1, 2010. Before that time, JOB documents were not broken out by area or typically listed but would occasionally be referenced in statements by the Director General or in Committee reports. Of the 202 JOB/AG documents listed on the WTO document file, 141 are not available to the public. Many of the public documents date from 2017 but there are documents in the last three years that are also not public even if earlier documents of a similar nature were public. For example, JOB/AG/163 is a Report of the Chairman of the Committee on Agriculture in Special Session (31 July 2019) and is not public. Yet another report by the same Chairman from 12 days earlier is public (JOB/AG/162). Moreover, to the extent types of documents are now treated as public, there is no system for going back and correcting classification of earlier submissions. And for categories like room documents there is no system for ever making such documents public.

Despite some progress in the first twenty-five years, the WTO has a lot of room for improvement in ensuring that the public can monitor and understand developments in all areas of its operation. WTO Members need to develop more consistent policies on how they treat their own submissions and work with trading partners to maximize transparency.

Below is a trade flow I posted on my law firm’s website on May 12, 2010:

Opening Up the World Trade Organization: How the Promise of Greater Transparency Has Been Compromised By the Wholesale Use of “JOB” Documents

The World Trade Organization (“WTO”) is an intergovernmental organization that came into existence in 1995.  Its predecessor, the General Agreement on Tariffs and Trade (“GATT”), had received relatively little notice and operated largely out of public view.  However, the growing importance globally of trade, the expansion of rules to areas traditionally viewed as domestic in nature, and a dispute settlement system that was more binding on participants all increased the pressure on the WTO to improve its transparency to the public. 

Indeed, when the U.S. Congress was considering implementing the Uruguay Round Agreements that created the WTO into U.S. law, increasing the transparency of the new organization was of great importance.  This is reflected in section 126 of the URAA and the House Report and Statement of Administrative Action on the section:

Sec. 126.  Increased Transparency

The Trade Representative shall seek the adoption by the Ministerial Conference and General Council of procedures that will ensure broader application of the principle of transparency and clarification of the costs and benefits of trade policy actions, through the observance of open and equitable procedures in trade matters by the Ministerial Conference and the General Council, and by the dispute settlement panels and the Appellate Body under the Dispute Settlement Understanding.

19 U.S.C. § 3536.  House Rep. No. 103-826(I) at 35 (1994):

Section 126.  Increased transparency

Present law.

No provision.

Explanation of provision

Section 126 of H.R. 5110 directs the USTR to seek adoption by the functional bodies of the WTO of procedures that will ensure broader application of the principle of transparency.

Reasons for change

Through the adoption of more open and equitable procedures, it is the intention of the United States to improve our ability to assess the costs and benefits of WTO trade policy actions.  Members have been concerned, particularly with respect to dispute settlement panels and the Appellate Body, that closed meetings and the lack of public availability of documents upon which decisions are based serve to undermine confidence in the decisions of these functional bodies.

Although it is more traditional in international bodies to conduct meetings and make decisions behind closed doors, the Committee believes that the WTO will gain more respect and build confidence if they follow the U.S. experience of providing more open access to the public with respect to key policy or dispute-settlement determinations.  It has become a high priority for the U.S. to persuade other member nations of the WTO to work with us to open the process, provide greater access, provide for voices of dissent and differing views to be heard, and in general make the WTO more accountable to those who are affected by international decision-making.

See also Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, 103d Cong., 2d Sess., vol. I, 678-679 (1994).

            The United States was not the only country interested in greater transparency, and the WTO early on did adopt a number of steps to improve transparency.  One such step was the creation of a broader system for derestricting documents so there would be greater public awareness of issues.  See, e.g., WT/L/160/Rev.1 (26 July 1996) (procedures for the circulation and derestriction of WTO documents); WT/L/452 (16 May 2002). 

While WTO meetings generally have not been opened to the public, there has been movement, where disputing parties consent, to open at least some dispute settlement meetings and hearings to public viewing.  The WTO has also done some outreach to the public through formal meeting days in Geneva, the opportunity to submit comments on their webpage, improved access to the public portion of ministerial meetings, briefings on ministerials, and other events, and through other means.  So the WTO can fairly be said to be more transparent than its predecessor, the GATT.  Although many countries continue to have concerns about increased transparency, there are various proposals being considered as part of the ongoing Doha Round —  both within the review of the dispute settlement system and in the Rules negotiations — for additional steps to increase transparency.

But there is one growing problem, in particular, within the WTO that undermines at least some of the progress made in increased transparency that is neither necessary nor, in this author’s view, desirable.  It is the growing presence of “JOB” documents within the system.  Under the WTO classification system, documents which are given a “JOB” number do not become part of the “official WTO documents” and hence escape either categorization, listing, or derestriction to the public.  Indeed, members of the public only know such documents exist because they are referenced in official documents that are public.  Whatever the merits of having documents that are never derestricted, the “JOB” classification is a matter of self-selection, resulting in situations impossible for the public to comprehend.  Thus, a chairman’s draft text [JOB(08)/81 of July 2008] in the dispute settlement negotiations is not available to the public (though it is referenced in the Chairman’s report to the Trade Negotiations Committee, TN/DS/24 (22 March 2010)), while chairmen’s draft texts are available publicly in agriculture, non-agricultural market access, Rules and other areas.  What is the logic of this differential treatment of chairmen’s texts?  There is no obvious answer.

Similarly, in an area like “trade and environment,” some proposals from WTO Members are public while others – including from the United States — are “JOB” documents and not publicly available.  See TN/TE/19 note 19 listing JOB(09)/132 (Canada; European Communities; Japan; Korea; New Zealand; Norway; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Switzerland and United States) (9 Oct. 2009); JOB(09)/169 and Add.1 (Saudi Arabia (6 Nov. 2009 and 15 Dec. 2009); TN/TE/W/75 and Add. 1 (Japan, 27 Nov. 2009 and 16 Feb. 2010) and JOB/TE/2 (Philippines (16 Feb. 2010).  For years, one couldn’t find a public summarization of the competing lists of goods and services that would potentially qualify as environmental for the Doha negotiations, although such summaries are now part of the annual reports.  See TN/TE/19 Annex III.  Why is this permitted?  How can Members square such actions with activity in areas like Rules where all papers have been made public or like agriculture where virtually every country has public submissions?

The problem exists within the Secretariat, which routinely marks summaries as JOB documents.  The problem extends to the Director General, who frequently references in his comments to the General Council or Trade Negotiations Committee one or more JOB documents (e.g., TN/C/M/29 at 2 (referring to JOB(08/132)).  Indeed, the problem exists for all Members, including the strongest advocates of increased transparency like the United States.

The public has no idea how many documents are so marked.  Just from the numbers on some of the JOB documents referenced in other public documents, it appears there may be literally thousands of documents a year that avoid public disclosure or scrutiny.  In addition, the public cannot find a listing of all such documents to be able to at least understand what was submitted even if it is not made public.  Historically in the GATT days, the public could reference an index of documents with full titles even if the document was restricted and not publicly available.  Why should the WTO permit such a retreat from public dissemination of basic information?  Why should the public, increasingly affected by actions of the WTO, accept this state of affairs?  Are there steps that can be taken to drastically reduce if not eliminate this practice?  Why shouldn’t JOB documents that do exist be derestricted just like all “official” documents?

The answers would seem obvious.  For many in the public, there is no justification for the secrecy and “black box” approach to the creation or maintenance of “JOB” documents.  Thus, the best course of action would be to eliminate the use of such categories and require all documents circulated to members to be part of the WTO document collection and subject to derestriction rules.  At a bare minimum, the WTO and its Members should circumscribe which type of documents can legitimately be claimed as such, require prior JOB documents to be reclassified if they don’t meet the criteria, provide a public catalogue of all existing and future “JOB” documents, and determine why a derestriction process should not be applied.

Under the current approach, the WTO and the WTO membership permit entire topics to disappear from public view.  Such an outcome is not acceptable to many Members.  It should be corrected for the good of the system and to honor the public’s right to know what is being discussed by the Members in the WTO.  Correction doesn’t require the completion of a round.  It just requires common sense and the will to keep the promises to make the organization more transparent and more accountable to the people of the world. 

WTO’s Appellate Body Reform – The Draft General Council Decision on Functioning of the Appellate Body

At the October 15, 2019 General Council meeting, agenda item 4, involved a report from H.E. Dr. David Walker (New Zealand) as the Facilitator on the informal process he had been assisting related to the functioning of the WTO Appellate Body.  More specifically, Ambassador Walker, who is also serving this year as the Chairman of the Dispute Settlement Body, has been working with WTO Members as they attempt to address the U.S. concerns with the operation of the Appellate Body (“AB”) and obtain removal of the U.S. blockage of starting a process of filling Appellate Body vacancies.  Amb. Walker submitted under his own authority, after several months of meetings with WTO Members and review /discussion of a range of submissions by various Members suggesting approaches to address U.S. concerns, a draft General Council Decision.

The Appellate Body’s membership will be reduced to one (vs. seven when the Appellate Body has a full number of members) after December 10, 2019 as two of three existing AB members terms expire then.  After December 10th, the AB won’t have three members to assign to hear appeals filed after that date absent removal of the blockage and new members being appointed.  This is not new news, but the draft General Council Decision is an important effort to move the process of finding solutions to the problems identified by the United States (and other countries).  The draft General Council Decision can be found as an Annex to JOB/GC/222.  https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/Jobs/GC/222.pdf.

Unfortunately, while there are sections of the draft decision that address each of the major issues raised by the United States, the draft falls short of actually providing any assurances that the problems of the past won’t continue going forward.  The U.S. Statement on the agenda item at the General Council meeting on October 15 makes the U.S. ongoing concerns abundantly clear:

“We thank the Facilitator, Ambassador David Walker, for his considerable efforts to date and for his report to Members.

“We have also listened carefully to the discussions. As we have explained, the fundamental problem is that the Appellate Body is not respecting the current, clear language of the DSU.  While a number of Members have expressed concern with actions or approaches by the Appellate Body, others appear willing to tolerate – or even encourage – those actions.   If we WTO Members cannot agree that we should be concerned that the Appellate Body has broken the plain rules that Members agreed to in the DSU, then it is difficult to see how we can find solutions to a “problem” we do not agree exists.  By denying that they are concerned about persistent rule-breaking by the Appellate Body, some WTO Members seek to avoid the deeper question: why did the Appellate Body feel free to disregard the clear text of the agreements?

“We cannot find meaningful solutions without understanding how we arrived at this point. Without an accurate diagnosis, we cannot assess the likely effectiveness of any potential solution.  It is possible that some explanations may cut across several of the issues and be of a systemic nature.  For instance, one cause could be the ongoing challenges facing the WTO negotiating function and its oversight function, leading to unchecked “institutional creep” by the Appellate Body as Members push to achieve through litigation what they haven’t achieved or can’t achieve at the negotiating table.

“Another cause could be that some WTO Members believe that the Appellate Body is an “international court” and its members are “judges” who inherently have more expansive authority than is provided in the DSU, for example, to create “jurisprudence” and fill gaps in the WTO agreements.  This view may be shared by some who have served on the Appellate Body.  It is also possible that some explanations for why the Appellate Body felt free to depart from the clear text of the DSU may be specific to the concerns that have been raised.

“For example, Article 17.5 of the DSU could not be more clear or categorical that appellate reports must be issued within 90 days.  While the DSB minutes record that some WTO Members raised concerns about the Appellate Body’s exceeding 90 days, particularly without even consulting the parties, the minutes also record a few Members excusing the breach of our agreed rules.  Did the attitude of these Members contribute to a mindset among the Appellate Body that the WTO’s rules and deadlines did not need to be respected?

“On so-called “cogent reasons”, the Facilitator’s Report suggests that Members agree that “precedent” is not created through WTO dispute settlement.    If this is so, then why did some WTO Members advocate for the Appellate Body to assert that its interpretations must be followed by panels absent unidentified cogent reasons?  And why then does the Appellate Body assert a precedential value for its reports like an authoritative interpretation that only WTO Members in the Ministerial Conference or General Council can give?

“As a result of these fundamental questions not yet being addressed, we do not see convergence among Members with respect to an understanding and appreciation of the concerns raised.

“It is important to recognize that suggested convergence on statements in the Facilitator’s Report that largely reflect the existing text of the DSU does not indicate convergence on the understanding of the problem and the situation in which Members now find themselves. It simply will not work to “paper over” the problems that have been identified with new language that the Appellate Body and some Members could subsequently argue means the Appellate Body can continue operating the way that it has.

“To find a solution to the concerns raised, WTO Members will need to reach a shared understanding that the Appellate Body has failed to follow the rules agreed by Members and the role assigned to it by the Members. And let me repeat – the purpose of this process is not to re-negotiate the rules already agreed by Members to establish and govern the WTO dispute settlement system.  Rather, we need to find a way to ensure the system operates as agreed by Members.  Consequently, simply re-affirming the current WTO rules that have been broken persistently does not resolve the problem.

“In addition to these threshold considerations, we question whether there is convergence on the suggestions presented in the Facilitator’s Report.  For example:

  • “With respect to the issue of Appellate Body members whose terms have expired, the proposal would appear to depart from the DSU and provide for an undetermined term for those former Appellate Body members.
  • “Regarding the 90-day deadline for Appellate Body reports, the DSU text is already clear, and yet the Appellate Body has failed to respect it. What reason would there be to think this language would ensure a different result?
  • “With respect to the issue of appellate review of questions of fact, we are concerned that the Appellate Body would say it is already abiding by the text in the Facilitator’s Report, especially since the Appellate Body has interpreted DSU Article 11 to convert questions of fact into questions of law, and we hear WTO Members expressing different views on the meaning of Article 11 of the DSU.
  • “With respect to advisory opinions, similarly, the Appellate Body presumably considers that it is already abiding by the text in the Faciliator’s Report. What basis is there to consider that this language would have a different result?
  • “Regarding the issue of precedent, the Appellate Body has relied on the reference in the DSU to security and predictability to justify its “cogent reasons” approach, and we are concerned that the proposed language does not address the issue.
  • “With respect to the issue of overreach, it is clear that the Appellate Body would say that it already abides by the text of Article 17.6 of the Anti-Dumping Agreement and, in turn, the text in the Facilitator’s Report. The problem is that the Appellate Body has adopted an erroneous interpretation of Article 17.6 that renders it inutile.  We have not yet seen convergence on how to address this issue, or other instances in which the Appellate Body has departed from the plain text of other covered agreements.

“And we would note that there are a number of concerns that have been expressed over the years with respect to the Appellate Body’s approach to substantive provisions in a variety of areas, such as national treatment and technical barriers to trade, safeguards, subsidies, countervailing measures, and antidumping duties.  Concerns related to the Appellate Body departing from the plain text of the covered agreements and upsetting the careful balance of rights and obligations struck by Members have not yet been part of the discussions.

“In sum, the Facilitator’s Report suggests agreement among some Members that the DSU imposes clear limitations on the Appellate Body.  We appreciate that some progress has been made through engagement by Members and the efforts of the Facilitator and others.  But we fail to see convergence on how to ensure that those limitations are respected going forward, and what are the consequences for continued failure to adhere to those limitations.  To find an appropriate and effective solution, it is imperative for Members to engage in a discussion on how we have come to this point.

https://geneva.usmission.gov/2019/10/15/statements-by-the-united-states-at-the-wto-general-council-meeting/

Other Members have been unwilling to explore how the operation of the dispute settlement system has come to the situation it is in at present.  Thus, it is unlikely that one will see meaningful progress in narrowing the differences between the U.S. and others on a core concern of the U.S.  That said, there is always the possibility that WTO Members could examine each of the issues from the perspective of how the system can be made to comply with the DSU requirements beyond simply the language of the DSU.  Stated differently, what are the consequences for failure to comply with DSU limitations by the Appellate Body?

What follows is my personal effort to identify some consequences of actions that have long concerned the United States.  Obviously, only the U.S. can determine what will address its concerns.  But possibly some of the following suggestions, if part of any final package, could address some of the ongoing and longstanding U.S. concerns.  The text, other than what is both in bold and underlined, is the draft General Council Decision that is contained as an Annex to Amb. Walker’s October 15, 2019 report to the General Council.  Job/GC/222.  Only one number has been deleted – “6” (60 days has been changed to 90 days under the first topic).

DRAFT GENERAL COUNCIL DECISION ON FUNCTIONING OF THE APPELLATE BODY

The General Council,

Conducting the function of the Ministerial Conference in the interval between meetings pursuant to paragraph 2 of Article IV of the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”);

Having regard to paragraph 1 of Article IX of the WTO Agreement;

Mindful of the work undertaken in the Informal Process of Solution-Focused Discussion on Matters Related to the Functioning of the Appellate Body, under the auspices of the General Council;

Recognizing the central importance of a properly functioning dispute settlement system in the rules-based multilateral trading system, which serves to preserve the rights and obligations of Members under the WTO Agreement and ensures that rules are enforceable;

Desiring to enhance the functioning of that system consistent with the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”);

Decides as follows:

Transitional rules for outgoing Appellate Body members

Only WTO Members may appoint members of the Appellate Body.  

The Dispute Settlement Body (the “DSB”) has the explicit authority, and responsibility, to determine membership of the Appellate Body and is obligated to fill vacancies as they arise.

To assist Members in discharging this responsibility, the selection process to replace outgoing Appellate Body members shall be automatically launched 180 days before the expiry of their term in office. Such selection process shall follow past practice.

If a vacancy arises before the regular expiry of an Appellate Body member’s mandate, or as a result of any other situation, the Chair of the DSB shall immediately launch the selection process with a view to filling that vacancy as soon as possible.

Appellate Body members nearing the end of their terms may be assigned to a new division up until 90 days before the expiry of their term.

An Appellate Body member so assigned may complete an appeal process in which the oral hearing has been held prior to the normal expiry of their term if completing such appeal is consistent with Article 17.5 of the DSU or any mutually agreed extension by the parties.

90 Days

Consistent with Article 17.5 of the DSU, the Appellate Body is obligated to issue its report no later than 90 days from the date a party to the dispute notifies its intention to appeal.

In cases of unusual complexity or periods of numerous appeals, the parties may agree with the Appellate Body to extend the time-frame for issuance of the Appellate Body report beyond 90 days.1 Any such agreement will be notified to the DSB by the parties and the Chair of the Appellate Body.

Failure to complete the appeal within 90 days of the notification of intent to appeal, or such other time as the parties agree to, shall result in the appeal terminating with no decision.  In such situations the Dispute Settlement Body will consider adoption of the panel report but rights of the complaining party under Articles 21.6 and 22 of the DSU shall not apply.

The Appellate Body will supply the Dispute Settlement Body with a description of steps taken by the Division to complete any such appeal within 90 days and any modifications to Appellate Body procedures and practice that will be pursued by the Appellate Body to ensure such failure to comply with the 90 day rule is not repeated.   

1 Such agreement may also be made in instances of force majeure.

Municipal Law

The ‘meaning of municipal law’ is to be treated as a matter of fact and therefore is not subject to appeal.  Where the Appellate Body nonetheless addresses the meaning of municipal law in an Appellate Body report, either party may request that the paragraphs of the Appellate Body report dealing with such issue or issues and any conclusions drawn therefrom  be striken, and the Appellate Body will reissue the decision without such paragraphs forthwith.  Compliance with the 90 day requirement will be measured from the date of the revised decision.

The DSU does not permit the Appellate Body to engage in a ‘de novo’ review or to ‘complete the analysis’ of the facts of a dispute. 

Consistent with Article 17.6 of the DSU, it is incumbent upon Members engaged in appellate proceedings to refrain from advancing extensive and unnecessary arguments in an attempt to have factual findings overturned on appeal, under DSU Article 11, in a de facto ‘de novo review’.   Where Article 11 is invoked by a Member seeking review on appeal of whether the panel failed to make an objective assessment, any other party may file an objection.  The Appellate Body will consider the claim only in extraordinary circumstances of facial bias in the assessment by the panel.  A Member raising such a claim that is dismissed will be assessed costs to the Member who filed an objection.

Advisory Opinions and Appellate Body Economy in Decisions

Issues that have not been raised by either party may not be ruled or decided upon by the Appellate Body.   Where issues not raised by either party are addressed in the Appellate Body report, the addressing of such issues constitutes the provision of an advisory opinion and is inconsistent with DSU Article 17.12 .  Either party may request that the paragraphs of the Appellate Body report dealing with such issue or issues and any conclusion based thereon be striken, and the Appellate Body will reissue the decision without such paragraphs forthwith.  Compliance with the 90 day requirement will be measured from the date of the revised decision.

Consistent with Article 3.4 of the DSU, the Appellate Body shall address issues raised by parties in accordance with DSU Article 17.6 only to the extent necessary to assist the DSB in making the recommendations or in giving the ruling provided for in the covered agreements in order to resolve the dispute.  The Appellate Body’s indicating that other issues raised need not be addressed to resolve the dispute satisfies the requirements of DSU Article 17.12.

Precedent

Precedent is not created through WTO dispute settlement proceedings.

Consistency and predictability in the interpretation of rights and obligations under the covered agreements is of significant value to Members.

Panels and the Appellate Body should take previous Panel/Appellate Body reports into account to the extent they find them relevant in the dispute they have before them.  The Appellate Body shall not reverse a panel decision on any issue solely on the basis of the panel not conforming to a prior Appellate Body report where the panel has identified different factual and/or legal issues.  

‘Overreach’

As provided in Articles 3.2 and 19.2 of the DSU, findings and recommendations of Panels and the Appellate Body and recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.   In a large number of Panel and Appellate Body reports, one or more parties and/or third parties have raised concerns about the Panel or Appellate Body adding to or diminishing the rights and obligations contrary to Articles 3.2 or 19.2 of the DSU.

To clarify situations where rights and obligations are being added to or diminished, Panels and the Appellate Body will not fill gaps in agreements, construe silence to indicate obligations or construe ambiguities in language of existing agreements to require a particular construction.  Any such actions by a Panel or by the Appellate Body is inconsistent with Articles 3.2 and 19.2 of the DSU.

Any party to an Appellate Body report that raised at the DSB meeting considering adoption of the Appellate Body report concerns about the creation of rights or obligations inconsistent with Articles 3.2 or 19.2, will have 90 days from the adoption of this General Council decision to request a review of the Appellate Body decision.  Such request will be for the limited purpose of having the Appellate Body determine whether on the specific issues raised where the party complained of creating rights or obligations the clarification of meaning provided in this General Council decision would result in a changed decision on the particular issue.  The Appellate Body will render decisions on all such requests within 90 days and will accept no additional briefing or argument from parties.  Where the report would have been different on one or more particular issues, it is sufficient for the Appellate Body to so indicate.  Where the same decision on an issue would have been made, the Appellate Body shall provide a detailed explanation.      

Panels and the Appellate Body shall interpret provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“antidumping agreement”) in accordance with Article 17.6(ii) of that Agreement.  Any party to an Appellate Body report that raised at the DSB meeting considering adoption of the Appellate Body report that Article 17.6(ii) was not applied in interpreting the antidumping agreement, will have 90 days from the adoption of this General Council decision to request a review of the Appellate Body decision.  Such a request will be for the limited purpose of having the Appellate Body determine whether a different outcome on one or more issues would have resulted had the Appellate Body applied Article 17.6(ii)  of the antidumping agreement.  The Appellate Body will render decisions on all such requests within 90 days and will accept no additional briefing or argument from parties.  Where the report would have been different on one or more particular issues, it is sufficient for the Appellate Body to so indicate.  Where the same decision on an issue would have been made, the Appellate Body shall provide a detailed explanation.       

Regular dialogue between the DSB and the Appellate Body

The DSB, in consultation with the Appellate Body, will establish a mechanism for regular dialogue between WTO Members and the Appellate Body where Members can express their views on issues, including in relation to implementation of this Decision, in a manner unrelated to the adoption of particular reports.  Such mechanism will be in the form of an informal meeting, at least once a year, hosted by the Chair of the DSB.

The Appellate Body Secretariat will prepare and circulate to the DSB at least 60 days in advance of such a meeting a document which reviews:

(a) for any Appellate Body member whose term is or has expired in the last 12 months, assignments to appeals within 90 days of the end of the term and any appeals on which the AB member continued to work after his term expired and whether such continuation was authorized by the parties to the appeal;

(b) the time from notification of intent to file an appeal to the AB decision in each case filed in the last twelve months (and for the first such report and any subsequent reports where appeals are not current with the 90 day requirement) to an AB report (or revised report where paragraphs are requested to be deleted as addressing issues not raised by any party) and copies of any write-ups filed where reports were not filed within 90 days;

(c) a list of AB reports where paragraphs were requested striken and time from request to rerelease of AB report;

(d) a list of requests for review in appeals pursuant to Article 11 of the DSU of panel decisions as not being an objective assessment, how each request was resolved, and for such claims that were not properly filed whether costs were paid by the party raising the issue;

(e) the number of AB reports where parties requested review based on statements made at prior DSB meetings that rights or obligations were being added to or diminished and/or that Article 17.6(ii) of the antidumping agreement was not applied or was applied inappropriately, timing of resolution by the Appellate Body and the number of issues where a different decision was rendered.

Where the Appellate Body has been unable to comply with the requirements of the DSU as clarified by this General Council Decision, it is expected that the Appellate Body Chairman will present at the informal meeting the action plan being pursued by the Appellate Body to achieve full compliance with the terms of the DSU and this Decision. 

To safeguard the independence and impartiality of the Appellate Body, clear ground rules will be provided to ensure that at no point should there be any discussion of ongoing disputes or any member of the Appellate Body other than as it relates to compliance with this General Council Decision.