This is not just a problem for parties to individual cases, there is a systemic risk. It
occurs as follows: WTO member A brings a case against WTO Member B. Member A wins a
decision of a dispute settlement panel. It asks Member B to adjust its measures to bring them
into conformity with B’s WTO obligations as determined by the panel. B says it will not do so as
it is appealing the panel decision. But no appeal is possible as a practical matter. Member A then
states that it will retaliate. Member B then states that is will counter-retaliate. A trade war
ensues. This would have been less incredible as a likely scenario were it not for the steel and
aluminum and intellectual property matters just mentioned, and the threats and counter-threats
that were issued in connection with them.
Why is the U.S. blocking appointments to the Appellate Body? The U.S. asserts that the
AB has overreached, acted beyond its authority, and in so doing destroyed the bargain upon
which binding WTO dispute settlement was based. The deal was that trade remedies would be
available in limited, carefully crafted circumstances. Enough of those involved in the
negotiations at the end of the Uruguay Round negotiations in the early 1990s state that this is the
case. U.S. complaints about the conduct of the Appellate Body have been made consistently
over three Republican administrations and one Democratic one. In the eyes of informed
observers, America’s grievance must be regarded as well-founded.
retaliation, and the Appellate Body impasse – are the casi belli of what the press not
unreasonably calls a potential “trade war”. They are not the end of the list of challenges
however. These mask more fundamental issues.
Underlying the tensions in the system, alongside other causes, is the economic rise of
China. The experience of the rise of a major economy is not new in the post-WWII period. The
rise of a new economic power appears to inevitably involve trade friction. This was the case with
respect to the rise of Japan in the last half of the 20th century. Around 1990, the 21st century was
heralded as the coming Century of Japan. Now, at some point in the not too distant future, China
is seen as surpassing other economic powers to be the largest. There are of course major
differences between the two cases. The U.S. and the EU regarded Japan as an ally. Japan was
the stationary aircraft carrier for the American presence in Asia. China is sometimes called a
“strategic competitor” but never an ally of the developed economies. The Japanese market was
closed to both trade and foreign investment during its rise. Deng Xiaoping opened the Chinese
market to foreign goods and foreign investment. The Chinese domestic market is far larger in
scale and global importance than was Japan’s and the announced intention of the Chinese
leadership is to be dominant in its own market as well as abroad with respect to a number of
industries of the future are also important differences. The WTO rules were not well-crafted to
deal with these issues.
(3) The Need for Leadership
As noted, the U.S. had not abdicated a leading role in the WTO, as had appeared to be the
case through mid-December of last year. Rather, while participating actively in the several of
the new initiatives emerging from Buenos Aires and in the regular work of the WTO, for the
future it has an agenda with a focus that is different than that of prior U.S. administrations. It
seeks to reform the system. In my view, its actions do not indicate a desire to destroy the WTO.
Traditional trade liberalization initiatives, such as tariff elimination for more IT products
or environmental goods, are not mentioned at present as U.S. objectives, which they were during
prior US Administrations. The U.S. is seeking compliance with existing transparency
requirements; further disciplines on subsidies; with respect to those claiming a need for
exceptions from the rules due to their development needs, differentiation by level of size and
competitiveness; curtailing what it views as the overreach by WTO dispute settlement (adding to
the rights and obligations of members beyond what was negotiated); improvements in the
domestic regulation of services, market access at least for agricultural goods; and new rules to
While this is a strong positive agenda, the United States is not casting itself in the 70-year
accustomed role of guarantor and motiving force for the multilateral trading system.
This leaves a gap for other potential leaders to fill if they wish to do so.
The European Union is the prime candidate. It has, however, to deal with the problems
caused by Brexit as well as internal issues. Moreover, it has invested much more heavily in an
extensive number of bilateral arrangements than it has in the multilateral trading system. It
nevertheless may grasp and take on board the imperative to reform and perhaps recommit more
strongly to the multilateral trading system.
China, the world’s largest manufacturing and exporting country would be a natural
candidate but has not seemed to be willing to accept this role. This is despite a strong statement
endorsing the multilateral trading system by President Xi Jinping in 2017.
An article in the Financial Times called upon the “middle countries” to lead. At least two
of these are EU Member States — France and Germany — and therefore must lead from within
that bloc. The FT also named Japan. In fact, Japan was superb as a leader and partner in the
crafting of the 12-country Trans Pacific Partnership Agreement. With respect to current issues at
the WTO, it has been working hard at composing differences on various subjects, but apparently
has not stepped forward at the level of Prime Minister to give the same priority to the multilateral
trading system that it gave to the regional arrangement.
Other middle countries do not appear to feel that they have the ability to provide broad
This said, there are some bright spots, such as Australia, Singapore and Japan teaming up
to move the discussion forward on rules for e-commerce. So, new leadership may be emerging
incrementally in selected areas.
(4) Declining Trust
Compliance with rules, whether at the individual or national level, relies heavily on self-
restraint. It is what makes civilization possible. Dispute settlement, retaliation, criticism by
others, these are mechanisms kept in reserve to achieve performance expected to be consistent
with international obligations. The willingness of governments to obey the rules depends heavily
on the belief that others will do likewise. Similarly, the willingness of governments to enter new
trade agreements depends on trust. It is inconceivable that there is not some erosion of trust
currently although it is clear that trust has not completely evaporated. This is a rapidly evolving
(5) Declining Certainty
World trade and investment depend heavily on stability of the regulatory environment —
that tariffs and rules governing imports and investment will not be variable, but rather will be
predictable. Certainty is diminishing. This cannot but have a negative effect on business
confidence, and therefore on investment and trade.
(6) Underinvestment by stakeholders
There has been substantial underinvestment by WTO members and by the private sector
(businesses and civil society) in adapting the international trading system to meet current
challenges as they evolved. In preparation for results at the Buenos Aires Ministerial, other than
the host, Argentine President Macri, as far as I know no president or prime minister reached out
to a peer in another country to accomplish anything. No business or other interest, again as far as
I know, reached out to the head of its national government to press it to achieve a particular
objective at the WTO. What one sows, one reaps. There was no harvest of new agreements at
Buenos Aires, but fortunately the opportunities created for the future were substantial.
(7) Failure to have adequate domestic adjustment policies
During times of rapid technological change, domestic policies, not just trade policies
must provide a cushion, to help the workforce and communities adapt. The pace of change has
only quickened. Smart phones replaced entire industries and caused other industries to grow.
Shifts in demand for various skill sets have occurred very quickly. We are now apparently
racing toward singularity – when artificial intelligence (AI) equals human intelligence. We do
not have to reach that point for there to be major economic dislocations and vast needs for
adjustment. Going forward, it will be even more illogical to blame international trade for the
problems caused. But trade may take its share of calumny –politics make trade all too easy a
Shortcomings in the current world trading system
No set of trading arrangements are perfect for all circumstances, particularly with the
passage of time. It has now been over seven decades since the original rules were negotiated.
The world has changed substantially.
As one of the leaders who participated in the creation of the WTO reacted when I listed
shortcomings in the current rules: “The architects of the multilateral trading system cannot have
been expect to be so prescient as to foresee [these changes]. They were addressing the problems
of the day as they saw them. In fact, the surprising thing perhaps is that the rules that they
designed proved to be quite flexible and adaptable to huge changes in the technological and the
political environment. But they are definitely looking dated now in a number of areas and in my
view, it is time for [rethinking them] and [putting into place] a new design.”
Some issues were thought to have been put to rest when the WTO was created. One was
unilateralism. The change in the U.S. government’s attitude could not have been anticipated. It
was not to be expected that the guardian and creator of the current international trading rules
would belittle the rules as not being “religious obligations”, and assert its freedom to act
accordingly. Nor was it foreseen that the national security exception would be a clause invoked
often and for broad swaths of trade. It is not that the United States had an unblemished record of
adherence to multilateral trade rules, but it had never treated them with disdain.
Nor was it anticipated that China after accession to the WTO would continue and
accelerate industrial policies that are intended to change trade patterns to the deep concern of
others. The assumption was that the role of state-owned enterprises would diminish rather than
It was not anticipated:
- That the world’s largest trading country would as a matter of principle claim to have developing country status for potential preferential treatment under the rules.
- That WTO-unregulated and under-regulated domestic subsidies, agricultural and industrial, would be a dominant cause of distortions of international trade.
- That the exception for FTAs would cover much more of world trade beyond local, geographically limited, regions.
- That technology-driven globalization would spread the benefits of trade so widely as to lead to greatly increased engagement in trade rule-making, greatly complicating decision making.
- That the Appellate Body would make decisions that appear to be based on a belief that trade remedies (trade defense instruments) would fall within a narrow exception to the rules to be continuously constrained.
And while it is not the problem of the moment, it was not anticipated
- That the provision prohibiting the use of exchange rates to frustrate trade liberalization would be a dead letter.
A path forward
While crisis management is essential, it is far from sufficient. Idealism (the historic link
made by political leaders of liberal trading arrangements to world peace) is no longer the guiding
star for the major trading countries. What is needed is pragmatism and re-dedication to
multilateralism through deeds. The widespread underinvestment in the multilateral trading
system is a course that cannot be continued. The system needs renewal periodically and this is
the time for engaging in the necessary effort.
There needs to be a new Geneva consensus, not a Washington consensus, either as that
term was used until the last presidential election (free market), or how it might be used now
(nationalistic), and not a Beijing consensus (with more of a role for the state in directing
economic planning) either.
In late May, at the OECD, French President Emmanuel Macron announced that it was
time for the world’s biggest economic powers to start talks on reshaping the WTO’s rules to
prevent current tensions spiraling into trade wars. He called for the EU, United States, China
and Japan to draw up a blueprint for WTO reform in time for the next G-20 meeting in Argentina
at the end of the year. Macron stated: “The new rules must meet the current challenges of world
trade: massive state subsidies creating distortions of global markets, intellectual property, social
rights and climate protection,”
In response, the WTO Director General Roberto Azevêdo endorsed the need for
reform. “We have been saying for a long time that the system is far from perfect. That it needs
to be improved.” He noted that many discussions took place among trade ministers on the
functioning of the Dispute Settlement Body (DSB), overcapacity of production, and protection of
intellectual property. He concluded: “So there are many topics where improvements are possible.
Members decide what the priorities are.”
Besides the Macron suggestion of major trading powers coming together, there is a
separate exercise already under way that is trilateral – where Japan, the EU and the United States
seek to coordinate their respective approaches to overcapacity, domestic subsidies, and industrial
policies that distort trade.
For its part, the U.S. announced a reform agenda at the Buenos Aires Ministerial in
December 2017 that focused on compliance with existing obligations (particularly with respect
to commitments to provide transparency through notification of measures), a review of
differentiation among those WTO members claiming development status and preventing
attempts to obtain through litigation what could not be gained through negotiation.
The optimal path forward would be to bring policies and measures that affect trade back
within the rules to a greater extent. With respect to new subject areas, the Joint Declaration Initiatives at Buenos Aires are a good beginning. With respect to a number of the major areas of
contention that pose potential systemic risks, solutions can be found through interpretation of
existing rules to some degree and through adoption of new rules. Either way, a consensus for
reform needs to take shape.
Part of the way forward is to renew the WTO Appellate Body with sufficient change so
that it has full legitimacy in the eyes of the WTO Membership as a whole. That is absent at
present. The WTO appellate function will almost surely wither absent a breakthrough. As
noted, the consequences of that occurring will be very damaging to world trade.
The challenges can be met, with pragmatism and good will. The attitude has to be one of
working for the common good as part of individual member’s self-interest. There cannot be
progress without a shared vision and abandonment of any insistence on threshold demands, of
“me before you” — satisfy my interests first as a precondition for engagement.
The present is not the first international economic crisis. There are a number of relevant
examples. On is what happened in 1971. The international monetary system could no longer
function as it had. The dollar was tied to gold, and European central banks were cashing in their
dollars. The U.S. was running out of gold. The dollar was the world’s reserve currency, and the
U.S. did not have the freedom to change the value of the dollar, despite its balance of payments
problems. America’s trading partners were opposed to seeing the dollar devalued. On August 15,
1971, the U.S. imposed a 10% surcharge on imports and closed the gold window. The import
surcharge was technically inconsistent with U.S. obligations under the trading rules of the time —
the General Agreement on Tariffs and Trade (the GATT). As a result, U.S. measure was
condemned almost unanimously by the members of a GATT working party. The U.S. defense
was that it was justified under the rules to impose more stringent measures – quantitative
restrictions. This was not a legal defense at all. Another parallel with current events is that the
U.S. President’s proclamation was issued under a World War I national security statute.
However, the U.S. did not seek to defend its action in the GATT proceedings as necessary for
national security reasons).
As part of its package of measures, the U.S. made demands of its three major trading
partners – the European Communities, Japan and Canada — for unilateral unreciprocated
concessions. Negotiations ensued that quickly resulted in a stalemate.
At the Smithsonian Institution in Washington on December 18, 1971, an accord was
reached that allowed the U.S. dollar to be devalued. The Smithsonian Agreement led within a
relatively short time to agreement on a floating exchange rate system. The trade talks eventually
led to the launch in September 1973 of the Tokyo Round of Multilateral Trade Negotiations. The
result in 1979 was the first GATT nontariff trade agreements and further trade liberalization.
In short, a crisis, accompanied by unilateral U.S. action inconsistent with the trade rules
of the time, led to reforms. The crisis and how it was managed led to a better place for the world
economy. Can that happen again? It is possible. As the American humorist Mark Twain said,
“History does not repeat itself, but it often rhymes.”
With good will and effort, the world trading system can be updated and improved. It is
essential to do so, in order to have an effective functioning WTO for the economic well-being of