International Economic Law and Policy Blog

Is there an Abuse of the Arguendo Technique in WTO Panel Reports?

I have just finished reading the panel report relating to CVDs imposed by Mexico on Olive Oil from the European Communities, and it strikes me that the  arguendo technique has become pervasive in recent panel reports.

What panels are really doing through this technique (certainly out of fear of the appellate process) is to say 1) that they do not agree with a certain interpretation of a provision by the defending Member, but 2)  nonetheless they are going to refute the arguments of this defending Member,  assuming arguendo that this Member’s interpretation is right.

My impression is that this technique is confusing and more "diplomatic" that legal. If the panel does not agree with a certain interpretation of a provision, what is the point of using three of four pages of arguments to refute arguments based on an interpretation you don’t agree with? Is it the role of a panel to  examine arguments based of an interpretation of a provision which is wrong in the panel’s view?

For example, in the Olive Oil report, the panel says clearly that it disagrees with the European Communities that the first clause of Article 13(b)(i) of the Agreement on Agriculture, is relevant to initiation of CVD investigations (in contrast with the imposition of CVDs)  and  underlines that “  the plain language at issue is expressly limited to the "imposition of countervailing duties”.  Nonetheless, a few paragraphs later, the panel devotes three pages to refute certain EU arguments based specifically on the view that the panel has just rejected:

 We will examine each of these specific circumstances to determine whether Economía's actions in the olive oil investigation evince such a lack of restraint as to fall short of the "due restraint" obligation of Article 13(b)(i) of the Agreement on Agriculture as interpreted above, again assuming arguendo that that obligation applied to the investigation.

Of course, one suspects that the arguendo technique is used as a front to discourage an appeal by a dissatisfied Member. In other words, it is a way of saying to this Member that even if the panel’s interpretation of a provision is wrong, this would have no effect in its specific case. Unfortunately, the Appellate Body also uses frequently this technique, although its role is to say in principle  what the law means and not to avoid taking a position.

WTO Litigation Costs and the Seal Products Case

I was recently talking to someone writing a paper about the costs of litigating WTO disputes, so I found the following quite interesting.  Commenting on the Seal Products dispute, a lawyer who would probably know these things suggests the following in relation to that case:

A WTO challenge would likely take three years and cost $10-million, said McCarthy Tétrault trade lawyer Simon Potter.

It's a Canadian lawyer and a Canadian newspaper article, so I'm assuming this was in Canadian dollars.

For more or the Seal Products dispute, see the following articles:

» Ottawa Elevates EU Ban On Seal Products To WTO | AHN Ottawa, Ontario (AHN) - Canadian Minister of International Trade Stockwell Day and Minister of Fisheries and Oceans Gail Shea are pushing their battle with the European Union over the ban on seal products by elevating the issue to the World Trade Organization as they had threatened to do on Sunday.

» EU will defend Canadian challenge to seal product ban - theParliament.com The EU will "vigorously defend" the values of EU citizens in the face of a challenge to the ban on selling seal products says MEP Arlene McCarthy.

» Seal product ban will withstand WTO challenge: EU The European Union said Tuesday it will defend its ban on seal products based on scientific evidence and legislative guidelines that should withstand Canada's challenge of the ban at the World Trade Organization.

» A $10-million fight to save $1-million hunt - The Globe and Mail Canada is launching a trade challenge of Europe's ban on marketing seal products. But protecting the seal hunt's reputation in other markets, not selling fur to Europe, is what's really at stake.

» What the #!%* is the deal with the EU's seal ban - Posted - National Post

» EU bans seal product trade, Canada will go to WTO| Reuters BRUSSELS (Reuters) - The EU gave the final go-ahead on Monday for a ban on imports of seal products, prompting Canada to say it would launch a challenge at the World Trade Organization (WTO).

» AFP: Canada to take seal ban fight to WTO OTTAWA — Canada said Monday it would take its fight for the country's seal hunting industry to the World Trade Organization, vowing to appeal a European Union decision to ban imported seal products.

» Canada News Centre - Canada to Pursue WTO Consultations in Response to European Union's Seal Products Ban The Government of Canada is acting to protect the Canadian families and communities that will be hurt by the European Union’s regulation to ban trade in seal products.

» Canada appeals seal ban to WTO - canada.com OTTAWA — The Canadian government vowed to fight for the country's seal hunt industry Monday and said it will launch an appeal of the European Union's decision to ban the trade of all seal products, International Trade Minister Stockwell Day said at a news conference.

» The Canadian Press: Canada to appeal EU seal ban to World Trade Organization OTTAWA — Trade Minister Stockwell Day says Canada will go to the World Trade Organization to appeal a decision by the European Union banning imports of seal products.

» Department of Foreign Affairs and International Trade - Canada Requests that the European Union Reconsider Seal Products Trade Ban Canada Requests that the European Union Reconsider Seal Products Trade Ban

» Canada appeals seal ban to WTO OTTAWA -- The Canadian government vowed to fight for the country's seal hunt industry Monday and said it will launch an appeal of the European Union's decision to ban the trade of all seal products, International Trade Minister Stockwell Day said at a news conference.

» EU bans seal product trade despite Canada warning| Reuters BRUSSELS (Reuters) - The EU gave the final go-ahead Monday for a ban on imports of seal products, except from traditional hunts by indigenous people, brushing aside Canada's threats of action at the World Trade Organization (WTO).

» Seal product ban approved by EU - cbc news The European Union has approved a ban on the import of seal products, a move that the Canadian government has said would be an unfair trade restriction.

» EU approves ban on seal products The European Union has endorsed a regulation to ban the trade of all seal products within the EU.

» The Canadian Press: Ottawa threatens WTO action if EU bans Canadian seal products OTTAWA — The federal government made a last-ditch effort Sunday to persuade European politicians to vote against a ban on Canadian seal products.

 

Philippine Pharma Price Prohibitions on Patented Potions

Todays' WSJ reports that "President Gloria Macapagal Arroyo imposed price controls on several branded drugs when their manufacturers failed to comply with a new law designed to lower retail prices."  On a quick review, I don't see anything in TRIPS that would restrict the ability of a state to set price controls on patented pharmaceutical products.  What am I missing?  I suppose the manufacturer might decide to exit the market under these circumstances, but there will be good reasons to stay in valuable markets like the Philippines.  Nor can I imagine a successful non-violation nullification or impairment claim succeeding here.  It just seems like too much to claim that under TRIPS states gave up their ability to regulate prices when there is nothing specific that does that. 

GATT Article VI:5 and Dual Remedies for AD/CVD

GATT Article VI:5 states:

No product of the territory of any contracting party imported into the territory of any other
contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization.

In its first written submission in the DS379 dispute, the United States argued the following in relation to this provision:

397.  ... by its terms, Article VI:5 applies only to the circumstance in which a Member conducting concurrent AD and CVD proceedings on the same product finds “the same situation of dumping or export subsidization.” Article VI:5 provides that the importing Member can impose either AD duties or CVDs, but not both, to address this same situation. In so providing, Article VI:5 appears to contemplate that, at least under some circumstances, an export subsidy may result in a lower price for an exported product than might otherwise be the case. Therefore, in such cases, Article VI:5 does not allow the importing Member to impose AD duties to address the portion of the dumping margin that is presumed to be attributable to a price differential that has been caused by an export subsidy and would be remedied by imposition of CVDs to offset the export subsidy.

398. The context of Article VI:5 confirms its limited application to export subsidization as distinct from other types of subsidization. Article VI:3 provides:

No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term “countervailing duty” shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise. (Footnote omitted) (Emphasis added).

399. In defining the term “countervailing duty,” Article VI:3 states that CVDs offset subsidies granted in respect of the “manufacture, production or export” of a product. Similarly, Article VI:3 caps the amount of a CVD to the amount of the subsidy bestowed in respect of the “manufacture, production or export” of the product concerned. Thus, the language in Article VI:3 reveals that Members were aware that subsidies could be provided in respect of the manufacture, production, or export of a product, which confirms that the term “export subsidization” in Article VI:5 specifically refers to subsidies provided in respect of the exportation of a product and does not encompass subsidies provided in respect of the manufacture or production of a product.

So, in the U.S. view, dual remedies against dumping and subsidies are only prohibited where the subsidies in question are "export subsidies."  For other kinds of subsidies, dual remedies are permitted.

This seemed like a strange result to me, so I went where I always go for questions about the meaning of the GATT text:  John Jackson's World Trade and the Law of GATT.  At page 412, he says:

Article VI:5 "prevents the imposition of both antidumping and countervailing duties to compensate for the same situation -- one or the other can be utilized but not both at the same time."

It's interesting that his description does not distinguish between export subsidies and other kinds of subsidies.  And it may very well be that the drafters did not have this distinction in mind, and did not mean to carve out separate rules for export subsidies.  Nevertheless, as a textual matter, I find the U.S. argument difficult to rebut. 

I should mention that the underlying issue in the DS379 case is actually quite a bit more complex than this (relatively) simple interpretive issue.  On a related note, the first issue of Trade, Law and Development is out, and one of the articles touches on these issues:

Fair's Fair: Why Congress Should Amend US Antidumping and Countervailing Duty Laws to Prevent "Double Remedies"

Dana L. Watts

Abstract

This work examines the US Department of Commerce’s (DOC’s) new policy of applying countervailing duty (CVD) law to imports from nonmarket economies (NMEs). Since 2007, the DOC has applied countervailing duties to several imports from the People’s Republic of China. The DOC has long considered China a NME for the purposes of antidumping (AD) duties.

The legality of the DOC’s shift in policy under US law has not yet been directly tested in the US courts. The DOC’s current policy of applying both CVDs and AD duties to products from NMEs with no adjustments to the dumping margin is probably permissible under US law. The strongest argument for finding the policy illegal is that Congress did not intend, in enacting the relevant AD and CVD statutes, to allow the DOC to impose CVDs on NMEs. The stronger argument, however, is that it is unclear what Congress intended. Because the DOC’s interpretation is reasonable, it is a permissible interpretation of the statute.

 

After an analysis of the legality of the policy under US domestic law, this work seeks to assess the validity of the policy under WTO law. The analysis reveals that while the policy may be permissible under US law, it may violate WTO obligations of the US. China has already requested a panel hearing at the WTO to resolve the matter. The case will be heard in early July 2009. For the sake of fairness and to comply with international obligations, this work argues that the Congress should amend US countervailing duty law so that it simply levels the playing field for domestic producers rather than punishing exporters from NMEs. 

"Devaluations Cause Trade Tensions"

This statement comes from an article in this week's Economist.  Earlier in the piece, they talk about the Great Depression and make the following point that helps explain why devaluations cause trade tensions:

Countries that cut the link to gold quickly and allowed their currencies to fluctuate endured shallower recessions and recovered more quickly than those that stuck with it. Freed from the need to uphold a gold-price parity, these countries could lower interest rates and so stimulate spending. By devaluing against gold, their money also became cheaper against currencies that kept their gold parity, giving domestic producers a cost advantage over many foreign firms. (emphasis added)

I'm going to use this as an opportunity to make a point that I've made before:  Given the important effect currency values can have on trade, in particular the advantages they can give domestic companies over their foreign competitors, perhaps we need some trade rules in this area.

Chief Trade Adviser to Forum Island Countries

This looks like a great job for somebody:

The [Pacific Island Forum] Secretariat is looking to appoint a suitably qualified and experienced person to work as the:

• Chief Trade Adviser to Forum Island Countries for Pacific Agreement on Closer Economic Relations (PACER) Plus negotiations

The Chief Trade Adviser will be accountable to the Governing Board of the Office of the Chief Trade Adviser (OCTA) for:
• Establishment of the Office of the Chief Trade Adviser, including recruitment of staff;
• Providing timely, high quality policy analysis and advice in areas relevant to PACER Plus activities and negotiations;
• Providing timely, high quality technical advice in areas relevant to PACER Plus activities and negotiations;
• Management and coordination of the OCTA work programme, including financial management; 
• Representation of FICs when directed by the OCTA Governing Board; and
• Team performance and leadership of the Office of the Chief Trade Adviser (OCTA).

Applicants should have an advanced university degree with substantial relevant experience working on negotiating trade agreements at a technical level, including the negotiation of legal text. They should also have a detailed knowledge of regional trade relations between developed and developing countries and relevant WTO agreements. A good working knowledge of FIC trade capacity-building needs is also necessary as is an awareness and understanding of regional trade issues and extensive experience in analysis and report writing.

Previous managerial experience in leading a team of professionals, familiarity with the issues of Forum members and external agencies and experience in dealing with the media would also be beneficial to this position. Financial management and continuous improvement are core responsibilities of the role. Applicants should be willing to travel economy class.

This position will temporarily be based in Suva at the Pacific Islands Forum Secretariat prior to the establishment of the permanent Office in Vanuatu. The appointments will carry a competitive remuneration package. 

Applicants can request an information package on the job description and remuneration details from the Secretariat. Please contact either Shiu Raj, Acting Director, Economic Governance ([email protected]) or Josephine Dakar, Trade Policy Analyst ([email protected]) via email or tel: (+679) 331 2600. 

Applications, clearly marking the position, should be addressed to the Secretary General, Pacific Islands Forum Secretariat, Private Mail Bag, Suva and sent electronically to [email protected] . Applications should be received by close of business on 14 August 2009.

The office will be in Vanuatu.  Here's a picture of Vanuatu:

Even if this particular island is not where the actual office is located, it's still a pretty appealing opportunity! 

Charnovitz: USTR Advisory Groups Need To Be Improved

The final cross-post from Steve Charnovitz:

by Steve Charnovitz

Having advisory groups is important for governments and international organizations.  Left to themselves, government bureaucrats and international civil servants are often unimaginative and lack good ground-level information. As I have noted in my scholarship over the past decades (see my website athttp://www.charnovitz.org), the role of nongovernmental organizations (NGOs) has been especially fruitful and vital in international trade policy going back to 1920s.

Official US advisory committees for trade policy hark back to the Randall Commission in the 1950s.  The process was regularized in the Trade Expansion Act of 1962 which authorized the USTR to seek advice from industry, labor, and agriculture, and then further formalized in the Trade Act of 1974 which set up the advisory committee system.

Currently USTR has eight formal advisory committees.  Seehttp://www.ustr.gov/about-us/intergovernmental-affairs/advisory-committees.

For two of them, the Agricultural Technical Advisory Committee and the Industry Trade Advisory Committees (ITACs), there is no information on theUSTR website as to who got invited to sit on those Committees. Thus, I cannot comment on whether those committees have sufficient expertise and balance. In my view, the USTR website should be completely transparent as to who sits on those advisory committees. 

For the other six committees, the USTR web does have information regarding Committee membership.  For some of these, balance and diversity is lacking.

The top level committee is the Advisory Committee for Trade Policy and Negotiations (ACTPN).  Of the 32 members, 27 come from business, two from universities or think tanks, one from a labor union, one from the federal government, and one from a state government. 

Clearly that is imbalanced.  Other than the labor union member, there are no NGOs (such as Global Trade Watch), religious leaders, foundation representatives, well-known trade economists (such as Professor Jagdish Bhagwati), or experts in international trade law.  The lack of consumer NGOs is especially odd given that consumers are the biggest beneficiaries of trade. Also missing are experts from other countries, such as the South Centre inGeneva or CUTS in India.  I learned recently that China’s sovereign wealth fund has an international advisory committee. If China has grown out of its historical parochialism, why can’t the United States solicit the advice of most of the world that is outside of the United States?

The next most important advisory committee is the Labor Advisory Committee.  It has 13 members.  All of them are from organized labor unions. In my view, this is lopsided because it presents only one narrow viewpoint. Today, only about 12 percent of the wage and salary workforce is unionized. Of course, I do not mean to suggest that union leaders cannot reflect the interests of workers who work outside of union membership. They may.  But the fact that the Committee contains no workplace regulators, employers, labor economists, human resource and training specialists or professors of employment law is quite disturbing. 

The Agricultural Policy Advisory Committee is also important.  It has 36 members, all but one of whom appear to represent the business side of the sector.  I see there is one academic (Robert L. Thompson) on of the Committee, who writes about agricultural policy.  I do not know him but his appointment seems to me to be a good one.  Clearly, however, this committee is totally imbalanced.  Although it is hard to tell by the descriptions of the members, I don’t see any agronomists, nutritionists, food policy specialists, or food safety experts.

Another important committee is the one on Intergovernmental Policy.  It has 24 members drawn from states courts, state legislators, state regulators, state and local associations in  Washington, state cabinet officials, state elected officials, and others.  I don’t know anything about the dynamics of this group, but from the list of participants, this one seems balanced and diverse.

The TEPAC is the Trade and Environment Advisory Committee.  It was set up in the early 1990s and thus is newer than most.  It has 23 members drawn from industry, think tanks, environmental NGOs, consumer NGOs, and local law firms and consultants.  I know many of these members and would say that this Committee is diverse and distinguished.  I doubt that is has had much impact on USTRpolicy over the past 15 years, but that is another story.

The newest Advisory Committee is the one on Africa..  It is unclear to me why if USTR is to have regional advisory committees, there is only one on Africa and not on the other continents.  Indeed, by its description, the Committee does not focus on all of Africa, but only sub-Saharan Africa.  In any event, Committee has 23 members drawn from trade associations, trade consultants, NGOs, foundations, business, and one academic.  I don’t see anyone from Africa on it.  Aside from that obvious omission, the Committee seems balanced and has significant expertise. 

Looking over the list in total, it’s clear that additional Committees should be added. One would be a committee on Trade and Public Health to discuss issues relating to the intersection of trade rules and health regulation.  Another would be a Committee on International Trade Law to discuss the architecture of new trade agreements and the problems of compliance and trade law enforcement. 

On July 16, I used the “Ask the Ambassador” program on the USTR website to ask Ambassador Kirk a question regarding trade enforcement.  Sad to say, my question has not been answered or posted by USTR on its blog.  This is especially amusing as I read in “Inside US Trade” today that Lisa Garcia, a USTR official, has told the Congress that Ambassador Kirk’s “number one priority” is “public outreach.”  I guess what the Administration means by public outreach is getting its message out, not listening to the public or answering its questions.  Indeed, there is no way on the USTR website for the public to post questions in order to hold USTR officials accountable for answering the questions.  The new era of government accountability promised by President Obama has apparently not yet been arrived at UST

Since it has been not officially posted by USTR, I will post my question here:

July 16, 2009

    Mr. Ambassador:

    Today you announced “New Trade Enforcement Efforts.” In your speech you affirmed “this Administration’s commitment to trade enforcement.”  You also suggested “holding a magnifying glass” to the action of America’s trading partners so “they’ll be less likely to break the rules.” 

    My question is whether as part of these new efforts, you will commit the United States to immediately comply with all of the international judicial decisions where the United States is violating international trade rules?  One thinks, for example, of the recent World Trade Organization decisions regarding the notorious “zeroing” practices where the United States was found to be violating antidumping rules (e.g., Cases DS294, 322).  And the NAFTA case regarding trucking services.  If the Obama Administration does not bring the United States into compliance in the cases where the United States is breaking the rules, then isn’t it hypocritical for you to point to other countries?  Shouldn’t the United States lead by example in the being the most law-abiding country on trade?  With all due respect, Mr. Ambassador, I would submit that rather then use a magnifying glass on the smaller countries of the world, the USTR should use a mirror to look at whether the Obama Administration has a commitment to trade enforcement when the United States is the scofflaw in trade law cases"

It will be interesting to see what response I get from my inquiry or whether I get any response at all.

This will be my last of the five posts this week.  I want to again thank Public Citizen for inviting me to be a guest blogger this week.

by Steve Charnovitz

Having advisory groups is important for governments and international organizations.  Left to themselves, government bureaucrats and international civil servants are often unimaginative and lack good ground-level information. As I have noted in my scholarship over the past decades (see my website athttp://www.charnovitz.org), the role of nongovernmental organizations (NGOs) has been especially fruitful and vital in international trade policy going back to 1920s.

Official US advisory committees for trade policy hark back to the Randall Commission in the 1950s.  The process was regularized in the Trade Expansion Act of 1962 which authorized the USTR to seek advice from industry, labor, and agriculture, and then further formalized in the Trade Act of 1974 which set up the advisory committee system.

Currently USTR has eight formal advisory committees.  Seehttp://www.ustr.gov/about-us/intergovernmental-affairs/advisory-committees.

For two of them, the Agricultural Technical Advisory Committee and the Industry Trade Advisory Committees (ITACs), there is no information on theUSTR website as to who got invited to sit on those Committees. Thus, I cannot comment on whether those committees have sufficient expertise and balance. In my view, the USTR website should be completely transparent as to who sits on those advisory committees. 

For the other six committees, the USTR web does have information regarding Committee membership.  For some of these, balance and diversity is lacking.

The top level committee is the Advisory Committee for Trade Policy and Negotiations (ACTPN).  Of the 32 members, 27 come from business, two from universities or think tanks, one from a labor union, one from the federal government, and one from a state government. 

Clearly that is imbalanced.  Other than the labor union member, there are no NGOs (such as Global Trade Watch), religious leaders, foundation representatives, well-known trade economists (such as Professor Jagdish Bhagwati), or experts in international trade law.  The lack of consumer NGOs is especially odd given that consumers are the biggest beneficiaries of trade. Also missing are experts from other countries, such as the South Centre inGeneva or CUTS in India.  I learned recently that China’s sovereign wealth fund has an international advisory committee. If China has grown out of its historical parochialism, why can’t the United States solicit the advice of most of the world that is outside of the United States?

The next most important advisory committee is the Labor Advisory Committee.  It has 13 members.  All of them are from organized labor unions. In my view, this is lopsided because it presents only one narrow viewpoint. Today, only about 12 percent of the wage and salary workforce is unionized. Of course, I do not mean to suggest that union leaders cannot reflect the interests of workers who work outside of union membership. They may.  But the fact that the Committee contains no workplace regulators, employers, labor economists, human resource and training specialists or professors of employment law is quite disturbing. 

The Agricultural Policy Advisory Committee is also important.  It has 36 members, all but one of whom appear to represent the business side of the sector.  I see there is one academic (Robert L. Thompson) on of the Committee, who writes about agricultural policy.  I do not know him but his appointment seems to me to be a good one.  Clearly, however, this committee is totally imbalanced.  Although it is hard to tell by the descriptions of the members, I don’t see any agronomists, nutritionists, food policy specialists, or food safety experts.

Another important committee is the one on Intergovernmental Policy.  It has 24 members drawn from states courts, state legislators, state regulators, state and local associations in  Washington, state cabinet officials, state elected officials, and others.  I don’t know anything about the dynamics of this group, but from the list of participants, this one seems balanced and diverse.

The TEPAC is the Trade and Environment Advisory Committee.  It was set up in the early 1990s and thus is newer than most.  It has 23 members drawn from industry, think tanks, environmental NGOs, consumer NGOs, and local law firms and consultants.  I know many of these members and would say that this Committee is diverse and distinguished.  I doubt that is has had much impact on USTRpolicy over the past 15 years, but that is another story.

The newest Advisory Committee is the one on Africa..  It is unclear to me why if USTR is to have regional advisory committees, there is only one on Africa and not on the other continents.  Indeed, by its description, the Committee does not focus on all of Africa, but only sub-Saharan Africa.  In any event, Committee has 23 members drawn from trade associations, trade consultants, NGOs, foundations, business, and one academic.  I don’t see anyone from Africa on it.  Aside from that obvious omission, the Committee seems balanced and has significant expertise. 

Looking over the list in total, it’s clear that additional Committees should be added. One would be a committee on Trade and Public Health to discuss issues relating to the intersection of trade rules and health regulation.  Another would be a Committee on International Trade Law to discuss the architecture of new trade agreements and the problems of compliance and trade law enforcement. 

On July 16, I used the “Ask the Ambassador” program on the USTR website to ask Ambassador Kirk a question regarding trade enforcement.  Sad to say, my question has not been answered or posted by USTR on its blog.  This is especially amusing as I read in “Inside US Trade” today that Lisa Garcia, a USTR official, has told the Congress that Ambassador Kirk’s “number one priority” is “public outreach.”  I guess what the Administration means by public outreach is getting its message out, not listening to the public or answering its questions.  Indeed, there is no way on the USTR website for the public to post questions in order to hold USTR officials accountable for answering the questions.  The new era of government accountability promised by President Obama has apparently not yet been arrived at UST

Since it has been not officially posted by USTR, I will post my question here:

July 16, 2009

    Mr. Ambassador:

    Today you announced “New Trade Enforcement Efforts.” In your speech you affirmed “this Administration’s commitment to trade enforcement.”  You also suggested “holding a magnifying glass” to the action of America’s trading partners so “they’ll be less likely to break the rules.” 

    My question is whether as part of these new efforts, you will commit the United States to immediately comply with all of the international judicial decisions where the United States is violating international trade rules?  One thinks, for example, of the recent World Trade Organization decisions regarding the notorious “zeroing” practices where the United States was found to be violating antidumping rules (e.g., Cases DS294, 322).  And the NAFTA case regarding trucking services.  If the Obama Administration does not bring the United States into compliance in the cases where the United States is breaking the rules, then isn’t it hypocritical for you to point to other countries?  Shouldn’t the United States lead by example in the being the most law-abiding country on trade?  With all due respect, Mr. Ambassador, I would submit that rather then use a magnifying glass on the smaller countries of the world, the USTR should use a mirror to look at whether the Obama Administration has a commitment to trade enforcement when the United States is the scofflaw in trade law cases"

It will be interesting to see what response I get from my inquiry or whether I get any response at all.

This will be my last of the five posts this week.  I want to again thank Public Citizen for inviting me to be a guest blogger this week.

Danny Bradlow on Foreign Buying of African Land

He has some suggestions over at Vox for how to make sure those selling the land benefit:

• Ensure adequate transparency by either following or adopting similar transparency standards to those contained in theExtractive Industry Transparency Initiative;
• Ensure that the projects conform to best social and environmental practices by either committing to follow or adopt ing similar standards to those contained in the World Bank’s safeguard policies, the IFC’s Performance Standards, or theEquator Principles. These standards, in addition to ensuring that the deals are preceded by adequate environmental and social impact studies, will also ensure that adequate attention is paid to the rights of all involuntarily resettled people, regardless of whether or not they have formal title to the land they occupy, and adversely affected minorities and indigenous people. In this regard, they should also pay attention to the work of the UN Special Representative of the Secretary General on Human Rights and Transnational Corporations and Other Business Entities, who is calling on corporations to cooperate with governments in implementing a “protect, respect, and remedy” approach to the human rights of those affected by their operations.
• Ensure that adversely affected people share in the benefits of the project.
• Ensure that the transactions have a grievance mechanism so that any disputes that may arise in connection with the rights of affected people are fairly and effectively dealt with.

If the host state and foreign investors act in conformity with these suggestions, they will maximise the prospects that any large-scale land transaction benefits all stakeholders and minimise the chances of concluding harmful deals. As both the former President of Madagascar and the President of Daewoo Logistics have learned, failing to do so can have very unpleasant consequences indeed.

Russian Worries about Anti-Dumping Actions

From Reuters:

Steel makers in Russia, the world's fourth-largest producer, have suffered from a decline in orders from the construction and automotive sectors as the global economic slowdown cuts demand.

In response they have boosted exports, though this has led to a growing threat of tariffs and other anti-dumping measures against Russian steel by Chinese and other buyers.

Thus far, China's sole move has been a June investigation into Russian and U.S. electrical steel, though a recent Citibank report cited industry newsletters reporting Beijing had also order a probe of Russian flat steel imports.

"The Chinese investigation into transformer steel is mainly against American companies, but Russian companies also suffer," Industries Minister Viktor Khristenko told the meeting.

I'm not sure this really needs to be said, but I thought it was worth mentioning that joining the WTO would be very helpful in limiting the harms from these anti-dumping actions.

Charnovitz: USTR Should Devote More Attention to Worker Issues

Cross-post #4 from Steve Charnovitz:

by Steve Charnovitz

Does USTR care about the workers who produce the goods and services in world trade? 

There is reason for doubt. 

In my 34 years of being a USTR-watcher, I have observed that the level of interest in labor, employment, and worker issues at USTR is exceedingly low. Labor is viewed by USTR as a problem, not an opportunity.

A quick look at USTR's website confirms this disinterest.  Under the “Trade Topics” being addressed by USTR (see http://www.ustr.gov/trade-topics), the topics of Employment and Workers are not listed.  The topic of "Labor" is listed, but perusing it today, on July 23, 2009, one sees that the most recent USTR press release was in June 2007 and the most recent speech was in 2005.  Think about that! 

Over seven months into the Obama Administration which promised change, USTR has not said or done anything reportable about the topic of Labor.  Seehttp://www.ustr.gov/trade-topics/labor. 

The USTR 100 Days Progress Report (dated May 1 posted athttp://www.ustr.gov/sites/default/files/USTR%20100%20DAYS%20PROGRESS%20REPORT.pdf) shows a similar inattention to issues relating to "workers," "employment", "labor," or "jobs."  Sadly, those words do not appear in the Report.  Perhaps USTR is doing something constructive behind the scenes, but if so, they should be more transparent about it.

What is the employment dimension of US trade policy? That's simple. USTR should be paying attention to how trade helps or hurts workers in the United States and in other countries.  US trade policy should be crafted with an eye toward assuring that it benefits US workers and consumers, but all too often, USTR has shown much more interest in using trade policy to help special interest producer groups.

On July 16, 2009, I tested out the new "Ask the Ambassador" feature on the revamped USTR website to ask Ambassador Kirk what USTR has done during the Obama Administration regarding trade adjustment assistance, a program to help US workers, firms, and communities hurt by international trade.

So far I have not received an answer to the question I asked.  Moreover, my question was not selected for posting on the USTR blog.  In the three days after Monday when I wrote about the USTR blog on this website and noted how USTRemphasizes photos of Ambassador Kirk rather than questions and answers from citizens, I see that the Ambassador's staff has posted four new photos of him (dated July 22).  Apparently at USTR these days, photos of the Ambassador’s travels is more important than answering questions from the public.

 Here is the question I asked the Ambassador through the USTR website:

“Mr. Ambassador:

Under 19 USC Sect. 2392, the Deputy US Trade Representative serves as chairman of the Adjustment Assistance Coordinating Committee. The Committee includes officials from the Departments of Labor, Commerce and SBA.  Although neglected by the Bush Administration, this Committee can play a central role in improving the capacity of the US government to deliver vital adjustment benefits to workers, communities and firms. I have two questions.  

First, how often has this Committee met since January 20, 2009? Second, will you commit to holding these Committee meetings in public so that there will be more transparency and accountability?

Thank you.

Steve Charnovitz” 

I eagerly await an answer to my question about when USTR will step up to meet its statutory responsibilities to coordinate the delivery of trade adjustment assistance benefits.  As I pointed out in an article I wrote many years ago in the California Management Review, “Worker Adjustment: The Missing Ingredient in Trade Policy” (seehttp://cmr.berkeley.edu/search/articleDetail.aspx?article=4686), an effective worker adjustment program is a prerequisite for gaining greater public support for open trade. 

Sadly, the Obama Administration seems more interested in photo opportunities rather than fulfilling its responsibilites to use trade policy to help American workers. 

More from the World Trade Report 2009

I found a lot of interesting things in the WTO's World Trade Report 2009, released yesterday.  Here are a few tidbits.

From page 51, questions about the problem of applying safeguards to services:

How could the notion of safeguards be extended to the movement of consumers, under mode 2, and to investment and labour flows under modes 3 and 4? For example, in the case of mode 3, who would be protected from whom? All domestically established service suppliers, regardless of nationality, would be protected from all new entrants? Or only domestically owned suppliers would be protected from new foreign entrants? In the latter case, how would established foreign companies be treated?

From page 65, an explanation of why firms dump:

Dumping is generally seen either as an exercise by foreign firms of monopoly power in international trade or as a response to changing demand coupled with an inability to adjust production capacity over the course of the business cycle.

What they have in mind here is explanations based on economic theories of dumping.  As to why firms dump in the sense of anti-dumping laws, the answer may often be that the firms had no idea they were dumping. 

From pages 68-69, whether anti-dumping duties trigger FDI:

Another complication is that foreign firms who are the subject of anti-dumping action may decide to “jump” the anti-dumping tariff by establishing a presence, through direct investment, in the importing country. There are some who argue that tariff-jumping FDI may be even more of a threat to domestic producers than dumped imports (Ellingsen and Warneryd, 1999). They argue that a high level of protection in the form of anti-dumping duties may be damaging to an import-competing industry as this would encourage inward FDI, which could be even less desirable to the domestic industry than import competition. A government that is unduly influenced by the domestic import-competing industry will consequently set the level of protection low enough to limit direct foreign entry.

I found this one particularly interesting.  Do anti-dumping authorities really take this factor into account when setting the duty level?

From pages 84 and 101, the impact of subsidies and use of CVDs to deter them:

If the perfect market assumption is relaxed, situations may arise where a government subsidy improves national welfare. An efficient subsidy would correct a market failure, bringing social and private costs and benefits into alignment.

...

CVDs may deter subsidization altogether and thereby confer benefits to producers in the importing country who compete with subsidized goods in their export markets.

Charnovitz: Transparency Chapter of KORUS FTA Is Problematic

A third cross-post by Steve Charnovitz:

by Steve Charnovitz

The Korea-US Free Trade Agreement (KORUS) is one of the three pending US free trade agreements that have been negotiated and signed, but not yet approved by the United States. 

Chapter 21 of the KORUS is titled “Transparency” and contains useful rules regarding publication of laws and regulations, administrative proceedings, provision of information, and review and appeal. But a number of these rules raise questions as to whether the United States is in compliance.  If the United States is not in compliance, that may be a barrier to US approval and implementation of the Agreement.

Article 21.1.2 provides that each Party “to the extent possible” shall publish in advance the measures that it proposes to adopt respecting any matter covered by the KORUS.  Parties are also required to provide interested persons a reasonable opportunity to comment on such proposed measures.  My reading of this provision is that it applies to laws as well as regulations.  If so, one wonders whether the US is in compliance with this provision, particularly with regard to the Congress.  The Congress routinely adopts bills without giving interested person in the American or Korean public an opportunity to comment on such proposed measures.

Article 21.5 is titled “Policy on Private Purchases.”  It states: “Recognizing the benefits of liberalized and expanded bilateral trade and investment, each Party affirms that it is not its policy to discourage private persons in its territory from purchasing or using goods or services of the other Party through formal or informal means of influence or persuasion.”

 
This is an unusual provision.  As far as I know, it does not typically appear in US FTAs.

What does it mean?  As I read it, the United States is saying that it does not discourage its own nationals from purchasing goods or services of Korea; relatedly, Korea is making the same statement to the United States.  At the time this provision was finalized, June 2007, it may have been the case that both countries could affirm that such formal or informal boycotts were not official policy.  But can the United States continue to affirm that today?

On April 30, President Obama delivered a major address on the Auto Industry at the White House where he outlined the Administration’s new policies.  Seehttp://www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-the-Auto-Industry/.  Toward the end of his speech, Obama said: “So these are some of the steps that we're taking to make it easier for Americans to buy a car. If you are considering buying a car, I hope it will be an American car.”  In that statement, the President expressed his hope to the American public that if anyone is considering buying an automobile, that he hopes it will be “an American car.” 

Given the affirmation in Article 21.5 of the KORUS, one can legitimately ask whether that treaty affirmative is still operative today.  If it has become untrue, then this provision would need to be renegotiated before the KORUS could be sent to the US Congress.  Clearly, President Obama is encouragingprivate persons in its territory from purchasing goods of the other party (Korea).  He is doing so through formal means of influence and persuasion. The legal questions then becomes whether encouraging domestic persons to buy American cars is the equivalent of discouraging them from buying Korean (or Japanese cars).  In my view, given the limited number of countries that produce cars for the American market,  urging consumers to buy American is the same thing as urging consumers not to buy Korean.  If so, then anti-boycott provision would need to be removed from the KORUS because the United Statesno longer has the prescribed policy. 

In summary, in today’s blog entry, I have identified two provisions of the Transparency Chapter of KORUS that the United States may not be in compliance with.  These provisions presents yet another barrier to USlegislative approval of the KORUS.

 
In discussing the KORUS let me also offer an observation about the inadequacy of the USTR website.  For KORUS, and for all existing and pending US free trade agreements, the USTR website does not provide a full text of the agreement in one document that can be downloaded in a word processing program.  Instead, the KORUS is listed only article by article which makes it much harder for stakeholders to study the agreement.  (See http://www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text.)  Moreover the format on the USTR is a non-copyable PDF format.  So in writing this blog entry, there was no way I knew of to copy the language of the KORUS into a Microsoft  Word document.  Instead, I had to retype.  In my view, the unwillingness of USTR to provide full text downloadable documents on its website of US legal texts is unacceptable.

WTO Report: Dumping is Good

At least in most cases.  From page 67 of the World Trade Report 2009, released today:

What are the effects of dumping on the economic welfare of the importing country? Economic theory suggests that, with the possible exception of predatory dumping, all other instances of dumping either increase, or at worst, have an ambiguous effect on, the economic welfare of the importing country. Of course, for the most part, economic literature has treated dumping as an example of the exercise of market power. But within this context of imperfectly competitive markets, dumping may increase efficiency in resource allocation. In most circumstances, the welfare of the importing country increases as a result of dumping, as consumers and users of the product benefit from lower import prices, even though the reason for the reduction in price (the dumping) may vary.

ADDED:  But anti-dumping laws have value nonetheless.  From page 68:

Anti-dumping policy can act like a safety valve to let off protectionist steam which might otherwise threaten a government’s programme of trade reform.

Pascal Lamy on "Contingent Protection"

From a speech:

We generally think of contingency trade policy as actions available to deal with unanticipated market situations. It is well understood such measures are fundamental to the effectiveness and stability of trade agreements. In their various guises, they can be thought of as safety valves, a form of insurance, an instrument of economic adjustment or as a deterrent against the trade-distorting policies of others.

Here's a question I have about such measures:  Do the least developed countries have the institutional capability to make use of this "safety valve"?  If not, should we be doing something more than we are to help them?

 

Charnovitz: USTR Misleads the Public on the Status of Unimplemented Free Trade Agreements

The second cross-post from Steve Charnovitz blogging at Eyes on Trade:

by Steve Charnovitz

Although President Obama claims to be for "free and fair" trade, he and his Administration have made no progress in securing the implementation of the three already-negotiated U.S. free trade agreements (FTAs) with Korea, Panama, and Colombia.

Yet while I can understand how the Administration would continue to sit on these agreements, since Obama campaigned against trade during the election, I do not understand why USTR seeks to misrepresent the status of these FTAs in the American political process.

The US-Korea Free Trade Agreement was signed on June 30, 2007. Neither President Bush nor Obama have sent “the final legal text of the agreement” plus implementing legislation to the Congress pursuant to Section 2105 of the Trade Act of 2002. Nevertheless, the USTR website states that the status of this agreement is “Pending Congressional Approval.” Obviously, this USTR statement is untrue. Before Congressional approval can occur, President Obama will need to formally send an implementing bill to the Congress along with a copy of the FTA. That discretionary Presidential action has not occurred, and so it is incorrect for USTR to suggest that any action on the FTA is now “pending” in the Congress.

The US-Panama Trade Promotion Agreement was signed on June 28, 2007. The status of the Panama FTA is the same as the Korea FTA, that is, the agreement continues to collect dust on the shelf within the Executive Branch. No implementing legislation has been sent to the Congress. Nevertheless, the USTR website states that the status of the Panama agreement is “Pending Congressional Approval.” Again, the USTR website promulgates a falsehood.

The US-Colombia Trade Promotion Agreement was signed on September 22, 2006. A protocol of amendment was signed later to make changes in the agreement to accommodate new U.S. demands on labor, environment, investment, and other issues. The revised agreement was sent to the Congress by President Bush with implementing legislation. I discussed this sad episode in my blog posting of December 14, 2008, “The Bush-Schwab Policy on the Colombia FTA Has Failed.” Because the implementing legislation sent by President Bush expired at the end of the 110th Congress, that legislation is no longer pending in Congress. To my knowledge, no one has introduced it in 2009. Nevertheless, the USTR website states that the status of the Colombia agreement is “Pending Congressional Approval.".

On July 17, 2009, I attended a presentation by Larry Summers, the Director of the White House National Economic Council. During the Q&A session, I asked Dr. Summers about the status of the three pending FTAs. He responded: “There are particular issues with respect to each of the regional -- each of the agreements that you referred to that need to be worked through. But at the appropriate point on the political calendar, if the appropriate steps can be taken, we would very much like to see those agreements completed, as we would very much like to see the Doha Round brought to a successful conclusion.” Read his full answer to my question about trade.

So as of July 17, it was clear that the Administration still sees “particular issues” barring each of the three FTAs that “need to be worked through,” with “appropriate steps” taken before those agreements can be “completed.”

In summary, the statement on the USTR website that the three agreements are “pending Congressional approval” is an example of the way that the Obama Administration seeks to evade responsibility for its own actions and inactions. The website should say that the status of each of these agreements is “Pending a Decision by the President To Send It To the Congress." That would be the most transparent and honest thing to tell the public.

As a result of this posting on “Eyes on Trade,” I predict that USTR will correct the misrepresentation about the FTAs on their website. I hope that they do so soon and will be watching to see how long it takes.

Honey Standards and Foreign Competition

Just the other day, USTR Ron Kirk mentioned technical barriers to trade as a focus of future U.S. trade enforcement.  He said:

The second new tool will take on one of the biggest obstacles our manufacturers face: technical barriers to trade, such as technical regulations and standards that restrict U.S. exports of safe, high quality products. Now, we will seek out these barriers and tackle them head-on.

Technical regulations and standards are a tricky area.  Such measures can blur the lines between legitimate regulation and discrimination against foreign products.  In addition, there is the even more sensitive question of whether, regardless of any discrimination, these measures are more trade-restrictive than necessary and thus not allowed under trade rules.

It's not just the United States that is concerned about these issues, though.  Here's an example of a U.S. regulation that might aggravate some of our trading partners (I had this post mostly written before the Kirk speech, but after the speech it made sense to tie it in here). 

The state of Florida has just adopted standards as to what can be sold as "honey."  From the Palm Beach Post:

Florida has instituted the first honey regulation in the nation, and perhaps in the world, prohibiting any additives, chemicals or adulterants in honey, that is produced, processed or sold in Florida, Florida Agriculture and Consumer Services Commissioner Charles Bronson said Monday.

The regulation that takes effect July 14 is aimed at protecting both consumers and Florida's beekeeping industry from adulterated honey. Honey containing anything other than the "natural food product resulting from the harvest of nectar by honeybees" will be considered adulterated and mislabeled. Merchants, manufacturers or processors who sell such products could be served with a "stop sale" order, and repeat offenders would face fines of up to $500 per violation.

See also here and here. The main point of this measure seems to be to prevent honey products that are diluted, such as with high-fructose corn syrup, from being sold as honey.

So far, this measure seems fine to me under the relevant trade rules.  Developing these kinds of standards helps consumers understand the product they are buying, which is useful.  And they are not very trade-restrictive:  You can still sell the products, you just can't label them as "honey."

Here's where it gets tricky, though.  There is a little bit of history of U.S. honey producers asking for protection from foreign competitors.  In particular, there have been anti-dumping duties imposed on foreign honey in the past.  And the state of Florida's press release about its new standard explains the circumstances under which it came up with this regulation as follows:

As a result of a flood of adulterated honey from overseas into Florida in 2006, a petition was submitted to the U.S. Food and Drug Administration (FDA) later that year by five major honey producers and processors, asking the federal agency to establish a U.S. standard of identity for honey.  Two years later, the FDA responded that due to other pressing matters, it would be unable to review the petition.

At that point, the industry asked [Florida Agriculture and Consumer Services Commissioner Charles H.]  Bronson’s department if it would consider developing a standard of identity for the product, and today’s announcement is the culmination of that effort.

So, it was a "flood" of "overseas" honey that prompted Florida to act.

This leads me to the following questions:  Should we view this standard, which on its face seems fine to me under WTO rules, any differently give the history of protection?  And does it matter if protection from foreign competition plays a small role in the development of a regulation or standard?  These are difficult questions, in my view, and I'm not sure I have any good answers.

Charnovitz: USTR Can Do Better at Fulfilling its FOIA Responsibilities

Steve Charnovitz is posting at Eyes on Trade this week and asked me to cross-post over here.  Here's his first post:

by Steve Charnovitz

I want to thank Public Citizen for inviting me to be a guest blogger this week. I believe this invitation is especially noteworthy given that I am a free trader. Many blogs do not welcome a diversity of views, but clearly Public Citizen does.

For my Monday post, I want to address is USTR's handling of Freedom of Information Act (FOIA) requests. Or rather I should say mishandling, since their actions certainly violate the spirit of FOIA if not its letter.

One of the most unfair and least accountable aspects of World Trade Organization policy is accession, that is, the negotiations that occur when countries seek to join the WTO. As I have explained in my paper, “Mapping the Law of WTO Accession," now posted on SSRN, the WTO routlnely demands that applicant countries agree to higher obligations than ordinary members have (i.e., applicant WTO-plus obligations). These discriminatory requirements sometimes arise in bilateral accession negotiations that precede the multilateral negotiations.

Russia has been trying to join the WTO since that organization was established in 1995 and first sought to join the WTO predecessor organization, the GATT, in June 1993. In my view, the WTO cannot truly be a “world” trade organization so long as it keeps out important countries like Russia. A few years ago, Russia was finally able to secure a bilateral accession agreement with the United States, an important step toward WTO membership. The USTR announced this accession pact when it was signed on November 19, 2006. At that time, I sought a copy of the pact, but USTR refused to release it. I was interested in studying the agreement to see what onerous conditions the United States demanded. I tried again in 2007 and once again in early 2008. USTR has consistently refused to make the agreement available to the American public.

Despite reaching an agreement with the United States in 2006, Russia has made only limited progress toward getting the WTO to agree to its membership. In June 2009, it was reported that Russia gave up on trying to join the WTO and decided to seek accession jointly with Belarus and Kazakhstan through a customs union. US Trade Representative Ron Kirk reportedly criticized that move while in Paris. Recently, I have read that Russia has agreed to go back to the original plan of seeking accession on its own. Thus, the content of the Russia-US WTO accession agreement remains highly relevant.

Last November, I formalized my efforts to get a copy of the US-Russia WTO accession agreement. I filed a FOIA request on November 19, 2008. I did not receive any response from the Bush adminstration.

After the Obama administration took office, I decided to revive the request. I had read that the Obama administration was pledging greater transparency and had adopted a presumption in favor of disclosure. I waited until a new USTR was in place.

On March 19, 2009, I wrote Ambassador Kirk renewing the request and sending him a copy of my November 19, 2008 letter. On April 22, 2009, USTR official Jacqueline B. Caldwell sent me an acknowledgement of that request. That is the last I’ve heard of it.

In my view, USTR should disclose any trade agreement that has been signed by the United States as this one was in 2006. I understand that there was a USTR meeting recently with NGOs on the topic of transparency and that the Administration is arguing that it should not have to release negotiating texts in FOIA requests. Whether or not such negotiating texts should be disclosed to the American public is a matter perhaps on which reasonable people can differ. But surely there is no reasonable argument for keeping a trade agreement secret after it has been negotiated and signed by the United States and a trading partner.

I should also note that this US-Russia agreement is not available from the WTO. Alas, the WTO is especially secretive when it comes to accession negotiations. Looking at the WTO website today, I see that the last document posted by the WTO regarding the Russia accession negotiations was on October 25, 2000, over eight years ago.

Seeing that the USTR website has an “Ask the Ambassador” feature (“Ask the Ambassador your questions, and we will answer selected inquiries on the USTR blog.”), I asked Ambassador Kirk a couple of weeks ago for an update on the status of my request. So far, I have not received a response from USTR and my inquiry was not answered on the blog. Indeed, I don’t see a single citizen’s question answered on the blog. Apparently, none have yet been selected.

What I do see on the blog are a lot of photos of Ambassador Kirk. Looking back at the last 30 days, I see photos posted on July 16 (3 pics), July 7 (2 pics), July 1 (1 pic), June 29 (slideshow), June 25 (6 pics), June 24 (5 pics), and June 22 (1 pic). Perhaps USTR imagines that photos of the Ambassador are a sufficient response to members of the public who send him trade policy questions, but I certainly do not.

by Steve Charnovitz

I want to thank Public Citizen for inviting me to be a guest blogger this week. I believe this invitation is especially noteworthy given that I am a free trader. Many blogs do not welcome a diversity of views, but clearly Public Citizen does.

For my Monday post, I want to address is USTR's handling of Freedom of Information Act (FOIA) requests. Or rather I should say mishandling, since their actions certainly violate the spirit of FOIA if not its letter.

One of the most unfair and least accountable aspects of World Trade Organization policy is accession, that is, the negotiations that occur when countries seek to join the WTO. As I have explained in my paper, “Mapping the Law of WTO Accession," now posted on SSRN, the WTO routlnely demands that applicant countries agree to higher obligations than ordinary members have (i.e., applicant WTO-plus obligations). These discriminatory requirements sometimes arise in bilateral accession negotiations that precede the multilateral negotiations.

Russia has been trying to join the WTO since that organization was established in 1995 and first sought to join the WTO predecessor organization, the GATT, in June 1993. In my view, the WTO cannot truly be a “world” trade organization so long as it keeps out important countries like Russia. A few years ago, Russia was finally able to secure a bilateral accession agreement with the United States, an important step toward WTO membership. The USTR announced this accession pact when it was signed on November 19, 2006. At that time, I sought a copy of the pact, but USTR refused to release it. I was interested in studying the agreement to see what onerous conditions the United States demanded. I tried again in 2007 and once again in early 2008. USTR has consistently refused to make the agreement available to the American public.

Despite reaching an agreement with the United States in 2006, Russia has made only limited progress toward getting the WTO to agree to its membership. In June 2009, it was reported that Russia gave up on trying to join the WTO and decided to seek accession jointly with Belarus and Kazakhstan through a customs union. US Trade Representative Ron Kirk reportedly criticized that move while in Paris. Recently, I have read that Russia has agreed to go back to the original plan of seeking accession on its own. Thus, the content of the Russia-US WTO accession agreement remains highly relevant.

Last November, I formalized my efforts to get a copy of the US-Russia WTO accession agreement. I filed a FOIA request on November 19, 2008. I did not receive any response from the Bush adminstration.

After the Obama administration took office, I decided to revive the request. I had read that the Obama administration was pledging greater transparency and had adopted a presumption in favor of disclosure. I waited until a new USTR was in place.

On March 19, 2009, I wrote Ambassador Kirk renewing the request and sending him a copy of my November 19, 2008 letter. On April 22, 2009, USTR official Jacqueline B. Caldwell sent me an acknowledgement of that request. That is the last I’ve heard of it.

In my view, USTR should disclose any trade agreement that has been signed by the United States as this one was in 2006. I understand that there was a USTR meeting recently with NGOs on the topic of transparency and that the Administration is arguing that it should not have to release negotiating texts in FOIA requests. Whether or not such negotiating texts should be disclosed to the American public is a matter perhaps on which reasonable people can differ. But surely there is no reasonable argument for keeping a trade agreement secret after it has been negotiated and signed by the United States and a trading partner.

I should also note that this US-Russia agreement is not available from the WTO. Alas, the WTO is especially secretive when it comes to accession negotiations. Looking at the WTO website today, I see that the last document posted by the WTO regarding the Russia accession negotiations was on October 25, 2000, over eight years ago.

Seeing that the USTR website has an “Ask the Ambassador” feature (“Ask the Ambassador your questions, and we will answer selected inquiries on the USTR blog.”), I asked Ambassador Kirk a couple of weeks ago for an update on the status of my request. So far, I have not received a response from USTR and my inquiry was not answered on the blog. Indeed, I don’t see a single citizen’s question answered on the blog. Apparently, none have yet been selected.

What I do see on the blog are a lot of photos of Ambassador Kirk. Looking back at the last 30 days, I see photos posted on July 16 (3 pics), July 7 (2 pics), July 1 (1 pic), June 29 (slideshow), June 25 (6 pics), June 24 (5 pics), and June 22 (1 pic). Perhaps USTR imagines that photos of the Ambassador are a sufficient response to members of the public who send him trade policy questions, but I certainly do not.

India's View of Carbon Tariffs (and Carbon Caps)

From Bloomberg:

India won’t bend to demands from the Obama administration or threats from the U.S. Congress to adopt legally binding caps on its carbon emissions, the country’s environment minister told visiting U.S. Secretary of State Hillary Clintonyesterday.

“There is simply no case for the pressure” the U.S. is exerting, considering India produces among the lowest per capita emissions in the world, Minister Jairam Ramesh told Clinton during an unexpected discussion of climate negotiations during an event intended to showcase U.S.-Indian cooperation on clean energy at a “green” office building outside New Delhi.

“As if this pressure was not enough, we also face the threat of carbon tariffs on our exports to countries such as yours,” Ramesh said, referring to a climate-change bill passed by the U.S. House of Representatives on June 26 that imposes tariffs on exports from countries that refuse to adopt greenhouse gas controls by 2020.

Dr. Larry Summers on Trade

This is an excerpt from the Summers speech Q&A in Washington on July 17 (from Federal News Service).

Q I'm Steve Charnovitz of George Washington University. Thank you for that great presentation and for your excellent work over the last several months.

My question is about trade policy. You didn't say much in your talk about trade policy, and I'm wondering whether the administration thinks that trade policy is part of rescuing and rebuilding the U.S. economy. You did say at the end of the speech that you want the U.S. economy to be -- or the administration wants the economy to be more export-oriented. So does the administration therefore favor sending the pending -- three pending free trade agreements to the Congress so that they can be approved and help promote exports?

MR. SUMMERS: Somehow I had a feeling that I wouldn't get in and out of the Peterson Institute -- (laughter) -- without that question being asked.

The president's made very clear his commitment to an open trading system. He's made it clear with his insistence that the stimulus bill be WTO-compliant. He's made it clear in talking about climate legislation that he is very much aware of the dangers of protectionism. He joined the G-20 leaders and the G-8 leaders, more recently, in making clear a commitment to maintaining and moving forward on openness during this period.

There are particular issues with respect to each of the regional -- each of the agreements that you referred to that need to be worked through. But at the appropriate point on the political calendar, if the appropriate steps can be taken, we would very much like to see those agreements completed, as we would very much like to see the Doha Round brought to a successful conclusion.

At the same time, I think it's very important to recognize what has to be top priority right now, which is resisting -- and there are reasons for concern in many parts of the world -- steps back towards economic nationalism.

That's why the president has been very committed to increasing our efforts to enforce existing trade remedies and to pursue -- and to pursue issues of violation at the WTO. That's why we have been very focused as an administration on supporting exports and assured that trade finance was a major -- was a major subject in the context of the G-20 and the G-8 discussions.

But I think one does have to look at the numbers, Steve. And I think what you see when you look at the numbers is that there's been a very substantial, almost -- unprecedented contraction in trade in the last six to nine months, and that it is very substantially explained -- some people would say totally explained, some people would say there's a residual, but everybody would agree dominantly explained -- by the global macroeconomic contraction.

And so for any friend of trade, the most important issue right now has to be achieving economic expansion, and as we achieve economic expansion, do so in a cooperative way. And I think the president has made an important contribution in that regard by putting the growth strategy questions at the center of the G-20 agenda in London and, of course, in Pittsburgh in September.

Zookz Update

The Antigua government is not amused by the Zookz position on the impact of the WTO Article 22.6 Gambling decision:

St. John's, Antigua (PRWEB) July 17, 2009 -- It has come to the attention of the Government of Antigua and Barbuda that there is a web site named Zookz.com that offers unlimited entertainment downloads for a fixed monthly fee. The company claims it is operating from Antigua and therefore it is permitted to offer downloads under the auspices of a 2007 World Trade Organization ruling in the remote gaming case brought by Antigua against the US. The company's claims to be "authorized" by Antiguan government approval or under the WTO case are without merit.

This press release is written to clarify the situation from the point of view of the Government of Antigua and Barbuda. The Zookz.com web site is not operating under the authority or with the knowledge of the Government of Antigua and Barbuda. More specifically, Zookz.com is not authorized by the Government of Antigua and Barbuda, or by the World Trade Organization, to offer entertainment downloads in contravention of international law.

Minister of Finance, Harold Lovell states, "The operators of Zookz.com have not played any role in the Antiguan gaming industry or in our country's case pending before the WTO. Only the Government of Antigua and Barbuda has the right to implement and oversee the intellectual property sanctions it was awarded by the WTO. As of this time, the Government of Antigua and Barbuda has not authorized any person or entity to implement sanctions. While we may in the future consider exercising the right to impose sanctions, as of this moment, I am instead looking forward to meeting with the United States Government in the near future and focusing on a mutually beneficial resolution of the issues raised by the remote gambling case."

Under the US-Gambling case before the WTO, Antigua retains its right to implement intellectual property sanctions against the U.S. if the remote gambling matter can not be brought to a negotiated solution. If and when the Government of Antigua and Barbuda invokes sanctions it will follow WTO protocol.

The Zookz.com matter has been referred to the Antiguan Ministry of Legal Affairs for a full investigation.

"Today, on behalf of President Obama, I am here to affirm this administration's commitment to trade enforcement."

A key statement in USTR Ron Kirk's speech to Pennsylvania steel workers.  More highlights:

I am announcing several concrete new measures that will help to guarantee America's workers, businesses, and families a fair deal.

We will take new steps to protect the rights of American farmers and small business owners. We will hold our trading partners to their word on labor standards. And we will use work we're already doing to fight even harder for the men and women who fuel our economy and support their families.

...

Americans have believed that our government hasn't done enough to protect our trade rights. And, while our trading partners largely respect our agreements, sometimes those rules are violated. That's why enforcement cannot be an afterthought. It needs to be a centerpiece of trade policy.

...

The Office of the United States Trade Representative is strengthening trade enforcement efforts because we will do everything we can to support those jobs and the workers who hold them.

...

Our new approach to enforcement is simple. We will deploy our resources more effectively to identify and solve problems at the source. But make no mistake: we will pursue legal remedies when other options are closed.

...

Legal remedies are never our first choice. Not because they are not effective, but because right now, many American companies, and the people who work for them, can't afford to wait years for an international legal case. So we will emphasize vigorous oversight, frank dialogue, and negotiation as faster means of getting trade back on track.

...

First, we will build on what works. One of the best ways we guarantee America's trade rights is by consistently monitoring our partners' trade practices. If they know we are holding a magnifying glass up to their actions, they'll be less likely to break the rules. So, we will use that magnifying glass on behalf of more American businesses.

Some of our best results have come from two targeted enforcement tools: one to stop violations in telecommunications trade, and one called Special 301, that does the same for American intellectual property rights.

That last one is a technical name for something fairly basic: one of our biggest, strongest enforcement tools.

...

We're going to apply the lessons of those successful programs to address other, equally important trade barriers. Two new, innovative tools will provide strong support for U.S. farmers, ranchers, and industry.
The first new tool will confront barriers that other countries raise to prevent our farmers and ranchers from marketing their products abroad. We must more strongly address sanitary and phytosanitary barriers, like the restrictive regulations some countries slapped on American pork because of the H1N1 flu scare. And we must address them across the board, as well as on a case by case basis. This will ensure our agricultural producers see their rights restored abroad, and their businesses saved here at home.

The second new tool will take on one of the biggest obstacles our manufacturers face: technical barriers to trade, such as technical regulations and standards that restrict U.S. exports of safe, high quality products. Now, we will seek out these barriers and tackle them head-on.

...

We will also continue to use trade remedies, like anti-dumping and anti-subsidy laws that the U.S. has on the books, and that are vitally important tools. We use them to correct distortions of trade - situations where the playing field is artificially tilted against us - and to ensure that the field stays level everywhere else.

Finally, we will hold our trading partners to their commitments on workers' rights.

Since 2001, the United States has entered into free trade agreements with 14 countries.
Every one of those agreements contains an obligation to enforce domestic labor laws, and to strive for labor standards that adhere to international norms. Now, we will insist that our trading partners hold up their end of the bargain. American workers should not be expected to compete against substandard labor practices.

To date, we have enforced our trading partners' labor obligations only on a complaint-driven basis. Well, no longer.

In close partnership with Labor Secretary Hilda Solis, Secretary of State Hillary Clinton, and their staffs, we will immediately identify and investigate labor violations...before they can disadvantage American workers.

Together, we will engage governments of countries that violate the rules, to restore workers' rights quickly. If those governments can't seem to fix their labor problems, we will help them find a way. And if they won't fix their labor problems, we will exercise our legal options.

Taking WTO Rulings A Bit Too Far

Many readers are probably familiar with the Antigua-U.S. Gambling dispute.  I don't want to go through all the details here, but if you need a refresher, here's an overview from an ASIL Insight I did in 2008.

I hadn't heard anything about the case recently and had been wondering what was going.  Well, here's an interesting development: An Antiguan company claims that, based on the WTO ruling, it is allowed to violate U.S. intellectual property rights as part of a music and movie download service it has set up!  Specifically, it is selling these downloads at very low prices, presumably possible because it is not paying for the rights.

I don't mean to encourage this sort of thing by linking to the site, but it's here if you want to check it out.  On its About page, the company says:

ZookZ operates under the parameters of the 2007 WTO ruling between Antigua and the United States, and is the only website that can legally offer members unlimited digital entertainment.

I read about this first at TechDirt, which had this to say:

... it doesn't seem like the WTO ruling gave random private companies carte blanche to offer up music and movies. In fact, the Zookz interpretation gets even odder, where it interprets the $21 million to mean how much it can make, rather than the value "lost" to the industry. In fact, because of this Zookz claims that if it gets too close to selling $21 million (or if others enter the market, and combined they approach $21 million), they'll just have to start giving music and movies away for free to avoid going over the limit. While the WTO did want to give Antigua a weapon against the US, it's hard to believe that was what it meant. So, while this may be amusing to watch, the likelihood of Zookz lasting very long seems slim, at best.

TechDirt got the story from the LA Times, which had some interesting back and forth between the parties involved:

Copyright holders say the WTO ruling doesn't give companies in Antigua a free pass to violate the copyright laws of Antigua or any other nation, or other international copyright treaties that Antigua has agreed to. The Office of the U.S. Trade Representative contended in an e-mail, “There is no website anywhere in the world that has WTO authorization to engage in copyright piracy. Any representation to the contrary is false, and should be dealt with by the appropriate domestic authorities.”

It's not clear what, in fact, the ruling would let Antiguan firms do. According to Neil Turkewitz, an executive vice president at the RIAA who specializes in international issues, the first step would be for the government of Antigua to seek the WTO's approval for a method to impose the $21 million worth of sanctions. "There’s been no request, and there’s been no consent granted to proceed in this manner," Turkewitz said. And even if the WTO did permit a downloading service, he said, it would have to be confined to Antigua and limited to U.S. intellectual property. No Beatles songs, in other words.

That's a total misreading of the WTO's ruling, argued William Pepper, the company's legal counsel. "There is no burden on Antigua to go back and do anything with anyone," he said in an interview. He claimed that the ruling is much more expansive than the USTR or Turkewitz acknowledge, trumping all other intellectual property laws and agreements and imposing no limits on where Antiguan firms can do business online. The only restriction set by the WTO, he said, is that companies in Antigua can take in no more than $21 million a year through the sale of copyrighted material. Zookz is the only one so far, he said, but if others launch, they'll have to work together to observe that limit. And if Zookz nears the $21-million threshold on its own, Pepper said, it may have to start giving away movies and music.

...

Naturally, the MPAA doesn't see Zookz as a modern-day Robin Hood. Said spokeswoman Elizabeth Kaltman in an e-mail, "The suspension of intellectual property rights is not an action this pirate Website can undertake on its own. It is, pure and simple, another example of a movie pirate, stealing movies from creators, and attempting to profit from its theft."

All in all, this has been one of the most interesting WTO disputes ever, and it seems there is still more excitement to come!

ADDED:  Now that I think about it, here was a better title for this post:  "Taking WTO Law Into Your Own Hands!"

 

The WTO GMO Dispute Is 1/3 Over

The 1/3 being Canada's complaint.  The complaints by Argentina and the United States remain unresolved.

From the EC press release:

EC regulatory procedures on genetically modified organisms are working normally, as evidenced by 21 authorisations since the date of establishment of the WTO panel. The European Commission has held regular discussions on biotech-related issues with the three complainants in this case – Canada, Argentina and the United States - since the adoption of the WTO panel report in 2006.

The settlement reached with Canada provides for bi-annual meetings between competent services of the European Commission and Canadian authorities on agricultural biotechnology market access issues of mutual interest, including:

• GM product approvals in the territory of Canada or the EU as well as, where appropriate, forthcoming applications of commercial interest to either side.

• The commercial and economic outlook for future approvals of genetically modified products.

• Any trade impact related to asynchronous approvals of genetically modified products or the accidental release of unauthorised products, and any appropriate measures in this respect.

• Any biotech-related measures that may affect trade between Canada and the EU, including measures of EU Member States.

• Any new legislation in the field of agriculture biotechnology.

• Best practices in the implementation of legislation on biotechnology

From the Canadian press release:

"Today’s resolution on GMOs shows that the WTO dispute settlement process works,” said Minister Day. “Canadian canola producers now have greater access to European markets. In ending this long-standing dispute, the European Communities has committed to an ongoing dialogue with Canada on biotechnology that will continue to help improve market access and avoid unnecessary obstacles to trade. This is positive news for Canadian producers of all agricultural GMO products.”

“Canadian farmers are the best in the world at producing healthy, high-quality canola,” said the Honourable Gerry Ritz, Minister of Agriculture and Agri-Food. “Our government always stands up for Canadian farm families, and it is good to see that the European Communities is implementing the WTO panel’s ruling. Reopened access to the European Communities means Canadian farm families will have more buyers bidding on their canola.”

...

In the early 1990’s, before European countries began restricting imports of genetically modified products, Canadian canola exports to the EC showed increasingly strong potential, peaking at $425 million in 1994.

From Canada's perspective, the resolution seems to be all about canola.  I assume there was some approval for GMO canola that satisfied Canada, although I did not see anything about it when doing some quick web searches.

ADDED:  The NY Times answers the canola point:

Trish Jordan, a spokeswoman for Monsanto Canada, which produced genetically modified canola seed, said Europe approved the last modified seed used by Canadian farmers in March.

“All issues for Canadian biotech farmers have essentially been approved,” she said. “That should allow the marketing of Canadian canola to Europe. “

A New Approach to Food Aid?

Is our approach to food aid about to undergo a major transformation?  From the NY Times:

The food aid initiative, agreed upon at the Group of 8 summit meeting, is intended to transform traditional aid to poorer countries beyond simply donated produce, grains and meats to assistance building infrastructure and training farmers to grow their own food and get it to market more efficiently.

More on this from Obama's news conference:

 we have committed to investing $20 billion in food security — agricultural development programs to help fight world hunger. This is in addition to the emergency humanitarian aid that we provide. And I should just note that going into the meeting we had agreed to $15 billion; we exceeded that mark and obtained an additional $5 billion of hard commitments. We do not view this assistance as an end in itself. We believe that the purpose of aid must be to create the conditions where it's no longer needed — to help people become self-sufficient, provide for their families and lift their standards of living. And that's why I proposed a new approach to this issue — one endorsed by all the leaders here — a coordinated effort to support comprehensive plans created by the countries themselves, with help from multilateral institutions like the World Bank when appropriate, along with significant and sustained financial commitments from our nations.

...

There is no reason why Africa cannot be self-sufficient when it comes to food. It has sufficient arable land. What's lacking is the right seeds, the right irrigation, but also the kinds of institutional mechanisms that ensure that a farmer is going to be able to grow crops, get them to market, get a fair price. And so all these things have to be part of a comprehensive plan, and that's what I was trying to underscore during the meeting today.

It sounds like food aid will now be less about giving food to poor countries, and more about helping them grow their own food.  Generally speaking, I think this is a good development, although I am curious about the details.  Specifically:

-- What percentage of food aid will be devoted to giving food, and what percentage will be for encouraging self-sufficiency in food production?

-- What forms will the self-sufficiency promotion take?  Will money now be given to pay for purchases of locally produced food?  And what would "local purchases" mean exactly, that is, how "local" does the food have to be?  Also, what will the other efforts to help African famers grow their own food look like?

It will be interesting to see how these pledges are implemented.

 

Obama on Economic Development

From an Obama news conference at the G-8:

when my father traveled to the United States from Kenya to study, at that time the per capita income and gross domestic product of Kenya was higher than South Korea's. Today obviously South Korea is a highly developed and relatively wealthy country, and Kenya is still struggling with deep poverty in much of the country. And the question I asked in the meeting was, why is that? There had been some talk about the legacies of colonialism and other policies by wealthier nations, and without in any way diminishing that history, the point I made was that the South Korean government, working with the private sector and civil society, was able to create a set of institutions that provided transparency and accountability and efficiency that allowed for extraordinary economic progress, and that there was no reason why African countries could not do the same. And yet, in many African countries, if you want to start a business or get a job you still have to pay a bribe; that there remains too much — there remains a lack of transparency.

The comparison of South Korea (and, similarly, Taiwan, Hong Kong and Singapore) to various African countries is well-known to those who have studied economic development.  Why did the East Asian "Tigers" develop and industrialize while others did not?  Obama's answer stresses "efficient" governance as a key factor (although many people might quibble with the "transparency and accountability" he refers to, especially in the period from 1961-1979).  There are other possible explanations for South Korea's growth as well, including:

-- significant amounts of aid from the United States, provided because South Korea was a strategic ally

-- openness to trade, in the sense of stressing the importance of export markets

-- protection from foreign competition, through import substitution

Obviously, the last two are somewhat contradictory, although perhaps they could both be true:  A country could encourage exports at the same time that it discourages imports.  But they are contradictory in the sense that there is a general split among those who use Korea as a model for how to achieve development.  One side argues that openness to foreign trade was the cause of Korea's amazing growth, while the other side says it's the protection from imports that did it. 

Swedish "Climate Labeling"

I've said before that I am a fan of carbon labeling.  Here's a new example from Sweden:

Sweden is developing standards to help consumers make conscious choices about the impact of their decisions on global warming. Products with at least 25% greenhouse gas savings will be marked in each food category, starting with plant production, dairy and fish products.

 

The NY Times on How to Complete Doha

From an editorial:

Big developing countries have been reluctant to reduce tariff ceilings, allowing themselves the option to increase their tariffs at any moment. They have been unwilling to open service sectors, like accounting or electricity generation, to foreign competition. They insist on being able to increase their barriers to protect farmers against sharp increases in food imports from cheaper producers abroad. They must be willing to make concessions on these points.

The rich West will also have to give more. The United States and Europe must slash agricultural subsidies more aggressively and refrain from adding more. The United States will have to reduce its own agricultural barriers — such as the one against Brazilian ethanol. It might have to offer more visas to professionals from countries like India.

It all sounds so simple when you see it written up this way, but it's easier said than done!

Brief Diversion

Perhaps I am injecting too light a note into the Blog, but such is life.  As I sit here preparing one of the classes in my Trade Law course - on the economics of trade - I decided to inject a joke or two about economics and economists into the class. After all, it is rare for a lawyer to be able to have jokes told at the expense of another profession.  Searching on line I found one that I thought worthy of sharing on the blog:

 

"Man walking along a road in the countryside comes across a shepherd and a huge flock of sheep. Tells the shepherd, 'I will bet you $100 against one of your sheep that I can tell you the exact number in this flock.' The shepherd thinks it over; it's a big flock so he takes the bet. '973,' says the man. The shepherd is astonished, because that is exactly right. Says 'OK, I'm a man of my word, take an animal.' Man picks one up and begins to walk away. 'Wait,' cries the shepherd, 'Let me have a chance to get even. Double or nothing that I can guess your exact occupation.' Man says sure. 'You are an economist for a government think tank,' says the shepherd. 'Amazing!' responds the man, 'You are exactly right! But tell me, how did you deduce that?' 'Well,' says the shepherd, 'put down my dog and I will tell you.'

 

[from http://netec.mcc.ac.uk/JokEc.html, where there are plenty more]. 

 

Now back to work.

"Plagiarism" by the Appellate Body?

Sorry, I didn't mean to alarm anyone with the title of this post.  I'm not accusing the Appellate Body of wrongdoing!  Rather, what I have in mind is this post from David Zaring over at the Conglomerate:

In another neat use of plagiarism software, Brian Calvin, Paul Collins, and Pamela Corley have had a look at the percentage of Supreme Court opinions that are lifted from the lower court decision being reviewed.  The insight is that language borrowed from the lower courts might show what influences the Supreme Court and goes to the question that apparently animates the entirety of law and courts literature - does law matter?

The basic idea, as I understand it, is to use software designed to catch plagiarism to determine the extent to which the higher court's reasoning overlaps with the lower court's.

A previous post of David's talks about a similar study of whether courts lift language from the winning party's brief:

As you might imagine for a very unbusy Court overloaded with law clerks, time, and amici, the Court didn't borrow too much from the party briefs when it writes its decision, at least for the opinions issued in the 2002, 2003, and 2004 terms.  The average overlap between opinion and winning party brief then was roughly 10%.  I bet the percentages are higher in the appellate courts, and especially in the district courts. 

Sometimes, however, the Court found winning briefs to be, shall we say, highly persuasive.  In one case, Justice O'Connor used 41% of a respondents' brief in her opinion, and in another, she used 33% of an appellant's brief.  Rehnquist and O'Connor were the justices most likely to borrow from the briefs (they comprised 14% WJR/11.5% SDO of the content of the justices' majority opinions authored during those three years, depending on respondent/appellant), Souter the least (7% either way).

The reason I bring all this up is that I wonder what this kind of analysis would show when applied to the Appellate Body.  My instinct is that the Appellate Body relies on briefs and panel reports for its reasoning less than many other courts, but I have no empirical evidence to support this.  If any professors/grad students -- or anyone, really -- are looking for a project, this could be an interesting one.

The methodology of doing this with WTO decisions may be tricky.  There is a good deal of summarizing of the parties' arguments, even in the parts of the report that appear at first glance to be the reasoning.  So, you'd really have to be careful to identify the actual reasoning of the Appellate Body and then compare that to the briefs/panel reasoning.

Gary Horlick on Climate Change Measures and Trade

In testimony before the Senate Finance Committee, Gary Horlick raises a number of important issues related to climate change measures and trade: