WITA Deep Dive on WTO Reform: Resolving the Impasse over the Appellate Body

07/23/2020

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WITA

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On Thursday, July 23rd, WITA hosted a webinar with panelists who explored ways to address the concerns raised by the U.S. and others about the WTO’s Appellate Body, and to restore a functioning and binding dispute settlement system. Longstanding systemic concerns of the United States about the Appellate Body’s operation and adherence to the Dispute Settlement Understanding (“DSU”) has led to the United States blocking appointments of Appellate Body (“AB”) members until the system is corrected consistent with original text of the DSU. With only one of seven AB members still in place as of December 11, 2019, the AB is unable to hear appeals (as all appeals must be heard by three AB members).

WITA Webinar Featuring:

Stacy Ettinger, Partner, K&L Gates

Ignacio Bercero, European Union Visiting Fellow, Oxford University, and author of the paper What Do We Need a World Trade Organization For? The Crisis of the Rule-Based Trading System and WTO Reform

Bruce Hirsh, Tailwind Global Strategies, and author of the paper Resolving the Appellate Body Crisis: Proposals on Precedent, Appellate Body Secretariat and the Role of Adjudicators

Rufus Yerxa, President, National Foreign Trade Council, and former Deputy Director General of the WTO

With Special Guests:

Jennifer A. Hillman, Council on Foreign Relations and former Member of the WTO’s Appellate Body

Ron Lorentzen, Kelley Drye & Warren LLP, and former Principal Deputy Assistant Secretary of Commerce

Warren H. Maruyama, Hogan Lovells, and former USTR General Counsel

Terry Stewart, Author, Current Thoughts on Trade, and former Managing Partner, Law Offices of Stewart and Stewart

Event Summary

This webinar began with Rufus Yerxa asking the panel how the WTO’s lack of ability to enforce rules upon its members impacted its credibility and asked the panel to overview what is causing the dissatisfaction with the WTO from some of its key members. Stacy Ettinger stated that the dissatisfaction with the dispute body settlement has led WTO to a crossroads. She also noted that the Trump administration’s clear mentality of unilateralism and decoupling has fueled mistrust amongst trading partners. Ignacio Garcia Bercero gave some insight on the European Union’s opinions of the WTO. He noted that the WTO needs to be working towards solving some of the systemic issues raised by the United States such as what are the proper roles of panels and the appellate body. He also suggested that the WTO needs to better enforce term limits on body members. Bruce Hirsh then responded saying that despite these problems raised by Bercero and Ettinger, the Dispute Settlement system has solved problems and is a useful tool as it can solve trade disagreements without trade wars. He emphasized that we should be focused on fixing the flaws in the Dispute settlement system and not focused on destroying it. Bercero also noted that the WTO needs to clarify the standard of review in the appellate body and in the dispute settlement body. Ettinger pointed out that the WTO at times puts too much emphasis on precedent and made the claim that if the Supreme court can change its mind on issues, so can the WTO. The webinar then shifted to a Q & A session where the panelists answered questions ranging from should appellate body reform take priority over China issues to whether the WTO should have clerks that serve on both the appellate body and dispute settlement body. After the Q & A session the panel was joined by special guests Terry Stewart, Warren Maruyama, Ron Lorentzen, and Jennifer Hillman who offered their perspectives on where the WTO should go from here.