New update for International Trade Regulation (Issue 53) in printed and digital format.

Nine panels and one arbitral body have reported in the last six months (see the list below), but these figures exaggerate the volume of litigation because the four reports on US Steel and Aluminium Products cover the same ground, and that is also largely true of the three reports on Indian Tariff Treatment. The number of reports continues at the low level established over the last year or so, and is no doubt largely due to the US block on appointments to the Appellate Body. The US has not itself initiated dispute settlement proceedings since 2018.

Although the US has just (too late to be noted in this update) agreed with Korea to put the panel 2022 report on Safeguard Measures on Washers up for adoption, it has appealed against, and therefore blocked further progress on, the four reports on Steel and Aluminium Products. Press reports indicate that India is likely to do the same regarding the Tariff Treatment reports.

The appeal-by-arbitration procedure (MPIA) in the Colombia – Frozen Fries dispute has now reported. Addressing the contentious subject of Article 17.6(ii) of the Anti-Dumping Agreement (which instructs panels to accept 'permissible' interpretations of the rules by national authorities) the arbitrators adopted an approach which appears to envisage a broader acceptance. In places they seem to be applying this interpretation to the general rules of interpretation of treaties (as enshrined in the Vienna Convention). And, as noted in the text, the Appellate Body has itself spoken of the Convention allowing for an 'interpretative range' of meanings. These views appear to have no support from international tribunals outside the WTO. However that might be, the doctrine clearly has a life within the field of application of the Anti-Dumping Agreement.

In that context the arbitrators' conclusion on the facts was no different from that of their predecessors – the interpretation proposed by the respondent was not a 'permissible' one. However, the US, at least, has greeted (document WT/DSB/M, par. 2.21) the analysis in the report as a rejection of the Appellate Body's approach, which it saw as in effect denying any scope for the concept. Unlike their predecessors the arbitrators attempted a definition of what would lie within the permissible interpretations, saying that they should have the 'required degree of solidness or analytical support'. They also favoured concentrating on the defending Member's interpretation rather than on one of their own. What practical help these approaches provide to future panels remains an open question.

An occasionally mentioned background to this issue is the US Supreme Court ruling in the 1984 Chevron case under which a government agency's interpretation of an ambiguous statute would be accepted if it was based on a 'permissible construction'' that being one which is not 'arbitrary, capricious, or manifestly contrary to the statute.' However, it seems that the Supreme Court has over time become less ready to invoke the ruling.

The Steel and Aluminium Products panel reports address the issue of how to classify a protective measure. In contrast to the circumstances in Indonesia – Iron or Steel Products (Chinese Taipei), the panels rejected the complainants' assertion that the action fell under GATT Article XIX as a safeguard measure. Instead, focussing on its design and application, they accepted that it was governed by GATT Article XXI (Security Exceptions) even though they also found that it did not satisfy the requirements of that provision.

Regarding Article XXI these panels, and that in the Origin Marking Requirement case, addressed the contentious issue of whether Members may make their own, unreviewable determination that the situation is one of 'war or other emergency in international relations'. All of them, like that in the earlier Russia – Traffic in Transit case, rejected the argument (which the US, in particular, had strongly promoted) that the matter is one which Members may 'self-judge'. Apart from the legal arguments, to which the panels gave detailed attention, there is the fear that such an interpretation would allow GATT obligations to be avoided with little justification.

The US attitude on national security issues was evidently a factor in its decision to prevent further progress in the Steel and Aluminium Products cases by invoking the blocked appeal process. It has however invited two of the complaining Members to invoke the rarely-used 'non-violation' procedure (see document WT/DS544/14). The effect would be to provide a panel determination of whether injury ('nullification or impairment' of benefits) had been caused by the US action but with nothing said regarding rule breaking. The inference seems to be that the US would not appeal such a panel's rulings. (No such invitation was made in the cases brought by China and Turkey.)

Given that there is no likelihood of amendment of these rules the most probably scenario is a continuation of recent practice on issues of national security: occasional breaches of the rules, some of which are met by panel proceedings on which appeals are blocked. At the present level of activity it seems that the consequent damage to the WTO system can be contained within this area.

A final point on the MPIA appeal-by-arbitration procedure (used to by-pass the US-imposed block on Appellate Body proceedings). Japan has recently announced its acceptance of the procedure.* Accepting the system does not necessarily imply agreeing to apply it in a particular dispute, but that has so far been the pattern in all relevant disputes.

*Current membership: Australia; Benin; Brazil; Canada; China; Chile; Colombia; Costa Rica; Ecuador; the European Union; Guatemala; Hong Kong, China; Iceland; Japan; Macao, China, Mexico; Montenegro; New Zealand; Nicaragua; Norway; Pakistan; Peru; Singapore; Switzerland; Ukraine and Uruguay

Dispute settlement reports published since issue 52

(Because of the non-operation of the Appellate Body 'appeal pending' means that further progress is effectively blocked)

Panel report Indonesia – Measures relating to Raw Materials, WT/DS592/R, 2022 'Indonesia – Raw Materials' (appeal pending)

Panel report United States – Certain Measures on Steel and Aluminium Products, WT/DS544/R, 2022 'US – Steel and Aluminium Products (China)' (appeal pending)

Panel report United States – Certain Measures on Steel and Aluminium Products, WT/DS552/R, 2022 'US – Steel and Aluminium Products (Norway)' (appeal pending)

Panel report United States – Certain Measures on Steel and Aluminium Products, WT/DS556/R, 2022 'US – Steel and Aluminium Products (Switzerland)' (appeal pending)

Panel report United States – Certain Measures on Steel and Aluminium Products, WT/DS564/R, 2022 'US – Steel and Aluminium Products (Turkey)' (appeal pending)

Arbitrators award Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands, WT/DS591/ARB25, 2022 'Colombia – Frozen Fries (Article 25)'

Panel report United States – Origin Marking Requirement, WT/DS597/R, 2022 'US – Origin Marking Requirement (Hong Kong, China)' (appeal pending)

Panel report India – Tariff Treatment on Certain Goods in the Information and Communications Technology Sector, WT/DS582/R, 2023 'India – Tariffs on ICT Goods (EU)'

Panel report India – Tariff Treatment of Certain Goods, WT/DS584/R, 2023 'India – Tariffs on ICT Goods (Japan)'

Panel report India – Tariff Treatment of Certain Goods in the Information and Communications Technology Sector, WT/DS588/R, 2023 'India – Tariffs on ICT Goods (Chinese Taipei)'

A full list of WTO dispute settlement reports with links to the reports on the WTO database and lists of the sections of the book where the report is cited, is maintained at http://www.globefield.com/tradereg/itr-refs.html

The WTO's summary of individual disputes is available at: https://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm

New update for International Trade Regulation (Issue 52) in printed and digital format.

Three panel reports have been issued since the last update along with one arbitrator's report on injury assessment.

In addition, the report on Turkey – Pharmaceutical Products (EU) is the first example of arbitration being used as a substitute for appeal to the Appellate Body. One achievement of this arbitration was to produce a report within 90 days, thereby respecting the outer limit set for conventional appeals, and avoiding one of the criticisms made by the US about the Appellate Body's practice. (However, the range of issues in this dispute was narrower than in many of those considered by the Appellate Body).

Although in this dispute the appeal-by-arbitration mechanism was a one-off creation, it was essentially the same as the MPIA system that has been agreed by many WTO Members in response to the blocking of Appellate Body action.

One of the recent panel reports (Colombia – Frozen Fries, WT/DS591/7) is being appealed using this MPIA procedure. Although it has been invoked in several disputes this is the first in which it is being carried to completion. The panel's rulings have been covered in this update, which will be amended as necessary following conclusion of the appeal (which is expected in a few months).

The small number of panels reporting in this period should not be taken as indicative of the overall situation. Although the figure has been slightly reduced by settlements, there remain over twenty distinct proceedings that are ongoing, with several promising to conclude in the near future.

The recent panels have continued the now common practice of including within their citations interpretations from reports of panels that, because an appeal has been blocked by the stalemate over the role of the Appellate Body, have not been adopted by the DSB. However, the Frozen Fries panel, while including such citations, chose to place its greatest reliance on those that had been adopted.

In addition to these dispute settlement reports Issue 52 incorporates the achievements of the WTO Ministerial Conference in June 2022. Notable among these is the decision to conclude a Fisheries Subsidies Agreement. In order to come into force this Agreement will require acceptance by two-thirds of WTO Members. A significant number of these were hoping for a more extensive set of obligations, and, reflecting this, the Agreement will last only four years unless more comprehensive disciplines are adopted within that time.

A second major achievement of the Conference was the adoption of a waiver on certain TRIPs rules on patents covering Covid-19 vaccines (both ingredients and processes). The rules concern conditions for allowing compulsory licensing. In this context the effect of relaxing the rules is typically indirect in that, rather than be subjected to such licensing, pharmaceutical companies will likely reach bilateral arrangements with purchasing governments.

Support for reform of WTO rules is now almost universal but in very large part it concerns proposals to expand the WTO's remit into areas such as e-commerce and investment, within the WTO's purview, rather than changing existing rules. As regards the latter there are perennial efforts to improve the level of respect for the WTO's numerous reporting obligations.

But the one significant movement for change is promoted by the US and concerns the dispute settlement procedures, in particular the role and functioning of the Appellate Body. The US has sought to achieve its goal by blocking new appointments, thereby preventing its operation.

Not only is there almost universal opposition to this action, but apart from some specific criticisms, the goal has not been articulated.

Regarding the specific criticisms, on could mention the Appellate Body's tendency to stray into factual issues when it should have confined itself to those of law. This is a particularly sensitive issue for international bodies because of the doctrine that for them the meaning of national laws is an issue of fact. (Surprisingly, despite this classification panels seem never to have used their power to call technical experts to help resolve such issues).

Another US complaint is that the WTO dispute settlement system was not intended to be one where appeals were made as a matter of course. During the Uruguay Round negotiations the US along with a few other participants, supported this view, but that did not stop it becoming a frequent appellant once the system was in operation.

There are other individual criticisms, but they should not be allowed conceal a much more serious issue: Is the non-voluntary nature of the system going to survive, or will the WTO slip back into the GATT regime, where a discontented defendant could always block the proceedings from being completed? Although the US is never explicit on the matter, this seems to be the preferred scenario of recent Adminstrations. By adopting the MPIA procedure a significant number of Members have shown a determination not to allow that to happen.

New update for International Trade Regulation (Issue 51) in printed and digital format.

This update covers four panel reports and one arbitrator's decision. Unfortunately, two further panel reports (DS583 and DS595) were circulated just too late to be included. The first of these is proceeding to appeal by arbitration and the resulting report should be available in time to be covered by our next update.

Approaching 30 panel proceedings are presently underway (i.e, submissions and hearings have commenced), of which five started in the last six months (one other that had begun has since been suspended).

The block on appointments to the Appellate Body continues, and the number of appealed, and therefore unadopted, panel reports continues to mount. As explained previously, since many later panels nevertheless cite such reports we are continuing to cover them in this work.

An alternative to Appellate Body appeal, using arbitration, has been commenced in one dispute (DS583). The MPIA appeal mechanism (below), which is also founded on the DSU arbitration provision, has been agreed on in several disputes but in none has it been put into operation.

The statistics given above indicate that the effective suspension of the Appellate Body's operations has not had the significant effect on litigation that might have been expected.

One of the four new panel reports (DS524, Costa Rica – Avocados) covered in this update involved a particularly lengthy and detailed application of the SPS Agreement, elucidating and illustrating many individual aspects of its provisions. Although the parties had agreed to the MPIA appeal-by-arbitration mechanism, neither chose to invoke it and the report has been adopted by the DSB.

As with many disputes applying the SPS Agreement the case involved highly technical issues, on which the panel obtained expert advice, the mastery of which no doubt added to the already considerable burden on the panellists. They will of course have discharged their responsibilities dutifully, and the Secretariat will certainly have thoroughly briefed them. But proceedings like this raise again the question whether a corps of professional panellists should not be available for handling at least the most complicated cases.

Russia has raised (e.g., WT/GC/245) the sanctions imposed on it by many countries following its invasion of Ukraine, but the dispute remains at a political level within the WTO. There is no legal means of ejecting Russian from membership, and while remaining a Member Russia could create difficulties for other Members by standing in the way of decisions requiring a consensus. The support of Belarus for the invasion has been given as a reason for the wide-ranging opposition to its accession to the WTO (WT/GC/246).

Finally, a reminder that an up-to-date table of WTO dispute settlement reports is maintained at http://www.globefield.com/tradereg/itr-refs/itr-cases.htm It lists the sections in International Trade Regulation were reports are cited and provides links to them on the WTO website.

New update for International Trade Regulation (Issue 50) in printed and digital format.

There is no change in the situation regarding the US block on appointments to the Appellate Body.

As announced in the previous update, given the practice of panels of citing unadopted panel reports (all of them reports subject to blocked appeals) such reports are noted in International Trade Regulation (11 in this edition), which is now up-to-date in that regard.

The practice was not followed by the panel in US – Safeguard Measure on PV Products, which, rather pointedly, confined itself to what it called 'previous DSB reports', and so ignored the relevant, but unadopted panel report in India - Iron and Steel Products. However, it seems that this policy change reflected the views of the particular panellists because the practice has since been restored in US - Ripe Olives from Spain (which was published on 19 November, too late to be included in this update)

One welcome feature of the PV Products report is its disdain for dictionary definitions, despite its consideration of the 'ordinary meaning' of treaty terms, the context in which they are most frequently invoked. One had become used to the almost ritual resort to dictionaries for even the most common terms (on one occasion the Appellate Body found it necessary to ascertain from the Oxford English Dictionary that the treaty term 'comparable' means 'capable of being compared'). Once having obtained a definition, panels might ignore it, or (without explanation) choose a particular synonym from the several that were provided. At times panels have proceeded on the basis of this synonym rather than the actual treaty term, as though the treaty drafters had not been aware of it when they chose not to use it.

The procedure (MPIA) involving using the arbitration procedure as a substitute for an appeal, which has been embraced by some Members, has yet to be fully implemented. Although accepted by the parties in several disputes these have either been settled or have not yet progressed to the stage of invoking arbitration.

With panels freed from the prospect of immediate correction by the Appellate Body one might expect them to indulge in more daring interpretations. One such instance is to be found in US – Facts Available where the panel favoured a dissenting view in the Appellate Body report on US - Supercalendered Paper as to the notion of when 'ongoing conduct' constitutes an actionable 'measure'.

As mentioned in the previous note, the Appellate Body blockage has not significantly reduced the number of new panels that have been established (nine so far in 2021). A steady flow of panel reports can therefore be expected, at least for the next few years. However, appeals, and therefore blockages, continue to be standard practice for completed panel reports (whereas before 2018 in a significant minority of cases they were not). Thus, no reports are being adopted. The blockage effectively extends to new compliance proceedings under Article 21.5 of the DSU. A few such proceedings were underway in 2019, and the blockage will likely prevent their moving to adoption. In that event it will be interesting to see the effect on the parallel arbitrations that are being held over the level of claimed retaliation.

New update for International Trade Regulation (Issue 49) in printed and digital format.

The block on the operations of the Appellate Body continues, despite the change of US Presidency. However, panels are still being established. Ten got underway during 2020, and two in the first four months of 2021.

Six panels reported during 2020 and two have reported in 2021. All of these reports have been appealed, and are therefore blocked, along with six from 2019 and five from 2018. As a consequence, none of these reports has been adopted by the DSB, so there is no question of the successful actions leading on to compliance proceedings or to retaliation being authorised for failure to implement panel recommendations.

However, the reports have not simply been left to gather dust. In an interesting development, rulings and interpretations in these unadopted reports are being cited by later panels in a manner no different from their citations of adopted reports.

As a result, and changing the previous practice of this volume of waiting until reports were adopted, we will now take the same approach and will incorporate relevant elements from unadopted panel reports. Because of the large number of such reports that has built up this process is being spread over the current and the following Issues (49 and 50). The fact that these reports have not been adopted will be noted in the footnote citations.

The new reports contain many noteworthy points. Two of the cases concerned the relatively untouched topic of customs valuation and the interpretation of the Customs Valuation Agreement. Other topics covered include the Safeguards Agreement, and the SCM Agreement.

Perhaps encouraged by the block on appeals, a panel has once again taken an unorthodox view of the practice of zeroing in the calculation of dumping margins. This time it concerns the Appellate Body's notion of a 'pattern' of exceptionally priced imports. Another familiar issue that has arisen in this context is the use of 'facts available' to impose prejudicial rates of duty.

Finally, it is worth mentioning the untypical Energy Package case, involving the EU, which has cast light on several GATS rules.

Regarding broader WTO issues, the main current concern is how Members should react to the COVID-19 pandemic. The proposal, initiated by India and South Africa, to suspend provisions of the TRIPS Agreement relating to the 'prevention, containment or treatment of COVID-19' is proving unsurprisingly controversial. At least as initially drafted it is very broad in scope, and countries with innovative pharmaceutical industries are likely to seek more precision even if, like the United States, they show general sympathy.

The experience of the existing exception (TRIPS Article 31bis) expanding compulsory licensing of pharmaceuticals is not encouraging. It is hedged around by detailed procedures, and has hardly been used. However, it has been invoked in one instance regarding COVID-19 and maybe more will follow.

The proposed waiver would extend, in particular, to the obligations on Members to protect patents and 'undisclosed information'. The information in patents is already public and the suspension would release firms from the ban on commercially exploiting that information.

In vaccine production, however, knowledge of the manufacturing processes is at least as important as that of the formulae of the products. These processes may not have been patented at all, but in any case many important aspects are likely to remain matters of undisclosed information ('knowhow'). Merely removing the obligation on Members to afford protection for such information does not in itself oblige them to abolish it. And abolishing the protection would not oblige the companies concerned to release the information. Drafting national laws to impose such an obligation would not be easy, and might run into constitutional difficulties.

A more immediate brake on the maximum production and distribution of vaccines and other COVID-19 medical supplies is the temptation on countries to hoard stock. This can be most obviously achieved by export restrictions, but the same effect can be obtained by government procurement or state-trading. While no doubt advantageous to individual countries the overall consequence of such measures is to introduce inefficiencies in distribution with consequent prejudice to all.

In so far as countries can be shamed out of such conduct the opportunities that WTO procedures provide for bringing it to public view contribute in some way to fighting the pandemic. Using the results of existing notification requirements the Secretariat has presented pertinent information, viz.:

'List of notifications and communications relating to the COVID-19 Pandemic', G/MA/W/157/Rev.__

'Summary of notified export restrictions and trade facilitating measures relating to the COVID-19 pandemic', G/MA/W/168.

These notification obligations are, however, limited in scope, and confined to the most explicit trade measures. Furthermore, Members are notoriously lax in their observance of the requirements. Proposals to strengthen the notification system have been stymied by opposition that invokes the increased administrative burden on weaker Members, but there is also a blunt refusal on the part of some to allow any extension of WTO obligations. In this regard the issue reflects the ongoing struggle to overcome the inhibiting effect of the WTO's consensus principle.

A TRIPS waiver is not the only pandemic-oriented proposal being considered by WTO Members. A significant group of countries (WT/GC/230/Rev.__) want the Secretariat to become involved with vaccine producers and organisations such as the WHO in ensuring that production capacity is used to the full, licensing partnerships are encouraged, and trade-related impediments to production are addressed, including the use of TRIPS options. How these goals would be implemented is not stated.