1. What is the appellate body?
It’s the second tier of a binding dispute-settlement system that determines whether the WTO’s 164 members are abiding by the rules of international trade. The seven-member panel of trade experts has the ultimate say in WTO rulings that can affect the world’s largest companies and billions of dollars in commerce.
2. How is it being threatened?
Over the past two years, the U.S. has refused to consider any nominees to fill vacancies on the panel, which has been whittled down to just three members -- the minimum required to sign off on rulings. (Because all WTO decisions are made by consensus, the Trump administration’s refusal to consider nominations acts as an effective veto on filling seats.) The terms of two of those members end at 11:59 p.m. on Dec. 10, after which no new appeals can be reviewed.
3. What happens if the appellate body is paralyzed?
WTO members could still bring disputes to the trade body and receive an initial ruling, but any party to a dispute could appeal that ruling into legal limbo -- which effectively provides the loser with a veto. This would remove an important set of guardrails within the global economy, increasing uncertainty for businesses and creating the potential for escalating trade wars. WTO Director-General Roberto Azevedo has said that a world economy that lacks the ability to enforce international trade rules would mark a return to the “law of the jungle.” Under such a scenario, “investors will pull back, the economy will lose steam and jobs will be lost -- millions of jobs will be lost,” he said.
4. What happens to existing WTO cases?
The appellate body plans to complete its work on four disputes that have already received hearings -- two parallel cases brought by Honduras and the Dominican Republic over Australia’s tobacco plain packaging laws, plus ones brought by Canada over U.S. duties on glossy magazine paper and by Ukraine over Russian railway restrictions. (Under an existing WTO rule -- Rule 15 -- appellate members can “complete the disposition of appeals assigned to them prior to the end of their terms of office.” The U.S. rejects this approach, however.) All other WTO appeals would have to await the resumption of a fully functional appellate body. The WTO lists 10 pending appeals that could fall into that category. Another is an expected appeal by the European Union of an adverse WTO compliance ruling over subsidies for Airbus SE.
5. Is there a work-around?
The EU, Canada and Norway have adopted an alternate arbitration system that could fill in for the WTO appellate body in any disputes among those nations. The plan is to replicate the “essential principles and features” of the appellate body until the WTO impasse is resolved. Other WTO members could agree on an ad hoc basis to avoid the appellate process entirely and accept the WTO’s initial rulings as final. It’s also possible that WTO members could trigger a majority vote to begin appointing new members to the appellate body.
6. What is the U.S. objection to the panel?
It says the appellate body, in rulings, has overstepped its mandate by “adding to or diminishing rights and obligations” of WTO members. The U.S. Trade Representative’s office, in a 2018 report, accused the WTO of routintely failing to meet a 90-day deadline to decide on appeals, permitting panel members to serve beyond their terms and issuing opinions on matters not necessary to resolve a dispute. The U.S. has also criticized the WTO’s compensation structure for creating an incentive for appellate members -- who can make more than 300,000 Swiss francs ($303,000) a year -- to string out cases to boost pay. It’s worth noting that U.S. objections didn’t begin with Trump. Under his predecessor, Barack Obama, the U.S. rejected the reappointment of two appellate body members due to concerns that they had exceeded the scope of their mandate. But the Obama administration agreed to approve replacement candidates to keep the appellate body’s roster full. The Trump administration refuses to consider nominees until its concerns are fully addressed and hasn’t issued any formal reform proposal.
7. Who’s leading the U.S. campaign against the WTO?
Robert Lighthizer, the U.S. trade representative, spent much of his career as a trade-remedy lawyer representing clients who were parties to WTO disputes. He was nominated in 2003 to serve as an appellate body member, but WTO members chose a different candidate. He has since sought to prevent an erosion of America’s sovereignty due to membership in the WTO and has criticized previous administrations for their “slavish” dedication to the organization. Lighthizer told U.S. lawmakers this year that his ultimate goal is to reform the WTO and sees the appellate body impasse as a form of leverage in pushing his agenda forward.
8. Is the U.S. the only country with a gripe?
No. Other countries acknowledge that the appellate body has its flaws, including the length of proceedings and its approach to legal interpretations. But most members disagree with the American tactic of linking new panel appointments to its demand for reforms. More than two-thirds of the WTO’s membership signed onto a request urging U.S. to immediately start considering nominees to fill the four vacant seats. Members have also made specific reform proposals aimed at overhauling the appellate body, all of which have been rejected by the U.S.
To contact the reporter on this story: Bryce Baschuk in Geneva at firstname.lastname@example.org
To contact the editors responsible for this story: Brendan Murray at email@example.com, Laurence Arnold, John O’Neil
©2019 Bloomberg L.P.