International Economic Law and Policy Blog

Memo to the Trump Administration: The Sunset Clause is a Lost Cause

Here's a tweet from Daniel Dale of the Toronto Star:

Trudeau says he wanted to meet with Trump to resolve NAFTA, but Pence told him that he couldn't meet with Trump unless Canada accepted an auto-termination "sunset clause" in the deal. He said Canada could never accept a sunset clause in NAFTA. Meeting never happened.

A lot of so-called "poison pills" have been discussed in the context of the NAFTA renegotiation. Some big ones are: The sunset clause, an ISDS opt-out, eliminating Chapter 19, weakening Chapter 20, gutting government procurement liberalization, and certain US proposals on auto rules of origin. On everything but sunset, I can imagine an overall package where the U.S. gets some of what it is asking for. But with regard to the sunset clause (usually described as NAFTA expiring in 5 years unless each government -- in the U.S., the President -- agrees to continue it), there is no way this will happen. Canada and Mexico will not agree to it, and even if they did, Congress would not agree to it. Congress would not want to shift this power to the Executive (and would not want to exercise this power itself).

So if the Trump administration is that determined to get a sunset clause, where does that leave us? Unfortunately, not in a very good place. They can get some of the other things, for better or worse. But if this is really what they want, we are in for a bumpy ride in the coming weeks and months.

Farewell Speech of Appellate Body Member Ricardo Ramírez-Hernández

You can read the full farewell speech by Appellate Body Member Ricardo Ramírez-Hernández here. There's a lot of good stuff in it. This is an excerpt, with some comments from me thrown in here and there: 

Now I'm going to share with you some thoughts about the serious crisis that the dispute settlement mechanism and, in particular, the AB are currently facing. I will try to lay out some considerations for helping the Membership address some of the problems raised, trying always to keep in mind that, at the end, as an adjudicator you speak through your decisions and work with the body of law you are provided with.  

Let me start by a personal reflection. It seems to me that the crisis we now face could have been avoided if it had been addressed face-on, as it began to escalate. The WTO is a consensus-based collective. This means that this crisis should not be attributed to one Member. Rather there is a need to recognize the need for leadership within and outside this house. A need to recognize that there must be genuine engagement when one Member is raising problems. The signals have been there for some time. No matter how difficult or insurmountable the issues may seem, all those who are part of the WTO community must be willing to engage, and must refrain from putting personal or national trade interests before attempting to come up with a solution. The first question is whether the Membership still wants to have an instance to review panels reports.

"[W]hether the Membership still wants to have an instance to review panels reports" is a really big and fundamental question. My sense is that the answer is yes, even for the U.S. The U.S. might want to change the way the Appellate Body works, but I haven't heard a suggestion yet that the U.S. prefers no appellate review.

If the answer is affirmative then we have to face the conceptual differences among the Membership as to the nature of the WTO, i.e. Is the WTO a contract or a constitution? And, following immediately from that question, what is the nature of the AB? Is it or should it be an International Court? Many of the issues identified in the lead-up to the current state of affairs go to the core and the nature of what the AB is or should not be. If Members want to make progress and solve the current deadlock maybe this is a good place to start. Or, alternatively, maybe there needs to a pragmatic discussion which leaves this conceptual notions aside and goes to the very basic or minimal elements with which all Members can live with to have a fully functioning AB. But it is undeniable that there needs to be a discussion. With this in mind, I will now address each of the issues that have been identified:

The conceptual questions are, "Is the WTO a contract or a constitution? and "Is [the AB] or should [the AB] be an International Court?" The practical questions relate to "the very basic or minimal elements with which all Members can live with to have a fully functioning AB." The conceptual questions are fun, but I'm not sure it makes sense to go too deep into them when governments talk about all this. It may be best to search for pragmatic solutions, and then let commentators argue about the conceptual points afterwards.

Rule 15. Rule 15 is an operational rule. It was designed to expedite the dispute settlement process by avoiding a “reset” of a dispute if an ABM's term ended before a dispute was finalized. Nothing more. Perhaps an objective criteria as to the circumstances in which such a "reset" would be appropriate would help.  But in my view, a rule that leaves discretion to the Membership whether or not to extend an ABM's term after it has expired would not only create uncertainty but also jeorpardize an expedited solution to a dispute.  

Here was my suggestion on this: "Is there some role the DSB could play that would satisfy everyone? Requiring a consensus at the DSB in favor of extending service could be a mistake, because a party facing an appeal it expects to lose would have a reason to object to the extension, in order to slow down the Appellate Body's work. Instead, perhaps the reverse consensus rule could be useful here: The Appellate Body Member's term would be extended by the DSB unless all WTO Members were opposed." 

90 days. The 90-day rule is a great rule. It was for a long time a unique feature of the AB process. Nevertheless, the growing complexity of WTO disputes, the high rate of appeal of panel reports and the number of issues appealed, the amount of jurisprudence, and size of the submissions, among other things, meant that this turned out to make a 90-day deadline unrealistic.

On top of that, as my colleague and friend Peter used to say, brevity requires time. So, if the Membership wants to keep the 90-day rule, it may require some sacrifices. Attempts to address some elements that will help expedite the process have been made. For example, not long ago the AB put forward the idea of reducing the length of the submissions. The idea was rejected by most of the Membership. If you want to preserve the 90-day rule, the praxis needs to change. For instance, by introducing summary judgements.

When I was at the AB Secretariat (1999-2001), I worked on several SCM Agreement disputes. These were the first SCM cases, so there was not much in the way of precedent to worry about. We could just go straight into the text, context, etc. Now there is a lot of precedent, which the Appellate Body usually sets out before doing its analysis. For example, in the latest AB report, take a look at paras. 5.166-178. That kind of analysis is helpful to readers for understanding what's going on in the case, but it takes time. Is all of this necessary for an AB report? I can see how some portion of it could be left out, which would make appeals go a little more quickly.

Reappointment. This is an issue in which I believe the text is crystal clear. Reappointment is an option not a right. Upon reflection, this is an issue that is within the realm of only the Membership. Again, however, engagement is needed. The Membership has adopted a process for the initial appointment of ABMs. WTO Members together need to agree on whether a process is needed for reappointment and, if so, what form it should take. 

Advisory opinion. There is much scope for differences of opinion, in good faith, as to what rulings are necessary to resolve a dispute, and the extent to which rulings should be supported by reasoning. Moreover, all active users have at some point or in some instance requested a finding of the AB that is not necessary to solve a dispute.  I’ve seen Members seek an AB interpretation of a covered agreement despite the fact that such clarification was not necessary to solve the dispute. I’ve seen Members ask the Appellate Body to disapprove unappealed panel statements and to set aside portions of panel reports, not to mention the frequent invitations to revisit the factual findings of panels.   In this regard, the membership needs to solve the tension between the principle that the aim of the Dispute Settlement Mechanism “is to secure a positive solution” to a dispute with the obligation of the AB to “address each of the issues raised” on appeal.

Gap filling. No adjudicative entity is infallible and I believe this is also true of the AB.  No system can exclude that some interpretations may diverge from expectations or be unacceptable to large parts of a constituency.   Such risk needs to be mitigated through an operational negotiating branch that can adjust or realign the rules when this occurs.. In addition, I haven’t seen a WTO dispute in which all parties involved agree that there were mistakes made in the interpretation or that gap filling occurred. Maybe a serious discussion needs to take place about the method used for interpreting the covered agreements, for example, the Vienna Convention. Members might decide that the significance to be attributed to negotiating history should be elevated beyond the role attributed to it in Article 32 of the Vienna Convention. Finally, let me express my concern that whilst trade evolves and becomes more and more sophisticated, WTO disciplines are at risk of remaining static. It adds an extra hurdle when the Membership wants to fix current problems with old rules. Membership needs to engage in a serious update of its current disciplines and clarify or correct those that it considers have not worked.   

A discussion of methods of interpretation would be useful, although I sometimes wonder how much this guidance matters. Rules of interpretation are open to interpretation, and I can imagine that we end up in pretty much the same places regardless of which rules we specify (putting aside some extreme version, such as "no looking at context").

Reliance upon previous cases. I've never seen a Member who has not argued its case based on previous case law. This type of reliance upon de facto precedent seems to be one that Members themselves value and attach importance to—it is, after all, closely linked to the idea of security and predictability of trading relations. Membership could very well stop doing this and ban the cogent reasons approach. I would just caution that this is precisely why many countries are complaining in the context of ISDS, that is, fragmentation and lack of cohesiveness in the ISDS jurisprudence. 

The role of precedent is an important issue, but as I said here, I'm not always sure what exactly the distinctions are in the different approaches people are advocating.

Independence and Impartiality. In my view this is the only non-negotiable aspect of our process if the Members decide to preserve the AB. As my former colleague David Unterhalter used to say, “the virtue of independence may seem self-evident, but it is not to be taken for granted”.

The AB now has only four Members. The AB is on the verge of becoming non-operational. Before some Members decide to take other routes such as Article 25 or plurilateral agreements, it is essential, as the AB Chair said recently, that the Membership truly engages in a constructive dialogue and tries to come up with a compromise. You, the Members, need to ask yourselves, what is the contribution of the AB to the international rule of law? What does this paralysis do to the WTO Dispute Settlement System as a whole? This institution does not deserve to die through asphyxiation. You have an obligation to decide whether you want to kill it or keep it alive.  

In their discussions, there are also topics that Membership may want to reflect under the current system.

Transparency. Membership has been pretending to be transparent, and the AB has been an accomplice to it. WTO hearings are not public. The fact that a few of them are broadcast, sometimes even days after the actual hearing takes place, in a room at the WTO headquarters is just simulating transparency. To truly achieve transparency, all WTO dispute settlement hearings should be broadcast live, of course always addressing any confidentiality consideration.

Damages. The great limitations or defects of the current prospective remedies system are well known. Back in 2002, Mexico, among other Members, made a first attempt to address one of the major defects of the DSU, the prospective nature of the remedies. The best deterrent for unilateral actions is that they are not free of consequences. 

Remand. Remand is a tool that would greatly facilitate the work and streamline the dispute settlement process. It would be worthwhile to explore proposals that have already been tabled by some Members.  

WTO and RTAs. Maybe the Membership could revive the discussion about the interactions between the WTO and regional agreements dispute settlement. Given the amount of expertise and knowledge developed over the past decades, the WTO could become the dispute settlement centre for all RTAs. We need to brand the name.    

Henry Gao will be pleased with this. I like the idea, too. Maybe some governments negotiating an RTA will give this a try? Even if it doesn't work out, they don't have much to lose, given how few RTA disputes there actually are.

Spanish. Aunque algunos países de habla hispana presentan sus casos en español, no todos lo hacen o en algunos casos lo hacen de manera parcial. De alguna forma hemos sucumbido a que los procedimientos de solución de controversias se ventilen en ingles. Si este es el caso, dejemos de pretender y ahorremos dinero y recursos a la Organización. Si, por el contrario, queremos preservar el idioma, debemos de hacerlo relevante. Cela s’applique aussi en français. Aprovecho esta oportunidad para agradecer la valiosa labor de los intepretes y traductores quienes realizan un trabajo espléndido que a veces no se valora lo suficiente. Confieso que soy su fan.

Although I’ve seen countries argue their cases in Spanish, not all Spanish-speaking countries plead in Spanish. In many ways, we have surrendered dispute settlement to English. If that is what you decide then let’s stop the pretending game and accept that all disputes be adjudicated in English. We will save a lot of money and resources if we do so. If on the other hand, you want to preserve the Spanish language, you have to make it relevant. The same applies to French. I take this opportunity to give special thanks to our interpreters and translators who do a splendid job that sometimes is not valued enough. I am your fan.

Tony Blair on "What do to about Brexit?"

Here is something Tony Blair said on Fareed Zakaria's TV show last week-end: 

ZAKARIA: What do do about Brexit? 

BLAIR: Well, I would still like to see it changed. I mean, I think that the truth is there is no answer to the fundamental dilemma. So in this whole Brexit negotiation, the government's got a choice, and it keeps kicking the can down the road because it can't really make this choice and because the Cabinet and the government are on different sides of the argument.

And the basic choice is this, if you want to stay close to Europe -- because half of our trade is with Europe, at least the commercial relationships that really matter to the U.K. and to jobs -- then Europe's going to say "You can't stay close to us unless you abide by the rules," OK? 

But then, if you abide by the rules, people will say, "Well, what's the point of leaving?"

Alternatively, you say, "I want to free myself of all those rules, in which case you had a clean break from Europe, in which case you're going to do significant short-term and medium-term damage economically as you adjust, in which case the country's going to ask, "What's the price?"

So that dilemma, "What's the point or what's the price?" -- at some point in the next weeks, months, maybe, the government is going to have to decide which is right. And once they come down on one side or the other, that's when I think they're going to hit a very difficult patch in Parliament. The government's lost its majority. I don't think the Labor Party will vote for whatever government proposition they bring forward. And I think there are significant numbers of conservative MPs who will say to their own constituents, "Look, I can't support this; if you, the people, want to vote for it, let's put it back to you in order that you who made the original referendum decision should take a final vote on the outcome."

This is pretty close to my view on Brexit. At some point, the UK government will have to come up with a specific plan for Brexit. When that happens, the question moves from an abstract one to a concrete and specific one, and will be subject to scrutiny and criticism. I think it's going to be very hard for this government to come up with a plan that generates the necessary support.

Will the U.S. - China Trade Deal Violate MFN?

This is from the FT:

US presses China to sign long-term import contracts

Washington is pressing Beijing to enter into multiyear contracts to buy US agricultural and energy imports as part of a broader trade deal aimed at reducing the $337bn bilateral trade deficit with China.

But the move could mean taking Chinese business away from key US allies such the EU, Australia, Brazil and Argentina, whose exports could be hit by President Donald Trump’s gambit.

Commerce secretary Wilbur Ross is expected to discuss a list of products that China sources from other countries but could buy from the US on a visit to Beijing later this week. The list was presented to Beijing this month.

...

The US push for long-term “product-by-product” contracts with China is intended to insulate an eventual trade deal from political pressures on either side of the Pacific, according to people familiar with the discussions.

...

During his trip next week, Mr Ross will push China to firm up commitments on additional purchases from the US that its negotiators made during a visit to Washington this month. The US wants those to be “contractualised” and enforceable, a feature officials say has been missing from past US trade deals.

Mr Ross is expected to focus on US exports that can be substituted for commodities that China currently imports from elsewhere such as crude oil and refined products, liquefied natural gas, and agricultural exports such as beef, poultry and soyabeans. 

It's hard to know what to make of this, in part because I don't know who in China will be taking action here. Are they talking about the Chinese national government? Chinese state-owned enterprises? Chinese companies taking direction from the government? Chinese companies taking direction from the U.S. government (if that is even possible)?

But assuming it is some part of the Chinese government taking action here, wouldn't this violate MFN? Here's the text of GATT Article I:1:

With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III,* any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

The "matters referred to in paragraphs 2 and 4 of Article III" include "laws, regulations and requirements affecting ... internal sale, offering for sale, purchase, transportation, distribution or use."  I would think that a Chinese government direction to switch the purchase of other imported products to U.S. products as part of a contract would constitute a "requirement" that affects the internal sale of the product. And pretty clearly there is an "advantage, favour, privilege or immunity" accorded -- through the contract -- to one country (the U.S.) but not to other countries.

So with the caveat that I don't fully understand what anyone has in mind here in terms of this "trade deal," it sounds to me like an MFN violation, if any affected country wants to bring a claim.

The EU General Data Protection Regulation

The GDPR is coming into force soon and I'm trying to sort out the consequences in general and for this blog in particular. With regard to this blog, over 2,000 people have signed up for email notifications, and presumably some of those people are from an EU country. Here's my question for any GDPR experts out there. All of the people who receive email notifications signed up on their own at some point. Do they now need to give fresh new permission in order to continue receiving these emails?

EU – PET (Pakistan): The Appellate Body confirms the validity of the traditional "break the causal link" approach

In a previous post, I indicated that Pakistan lodged an appeal  regarding the "break the causal link" approach adopted by the European Commission in  EU – PET (Pakistan).  

In this case, the EU Commission began, as usual, its causation analysis by considering first  that a causal link existed between subsidized imports and injury to its domestic industry. The Commission then assessed the “effect of other factors” and found that none broke this link. Thereafter, the Commission concluded that the imports from Pakistan have caused material injury to the EU industry.  

Before the Panel,  Pakistan argued  that the  EU Commission should have adopted the reverse approach. Namely, ensuring in  a  first stage that “the injurious effects caused to the domestic industry by increased imports are distinguished from the injurious effects caused by other factors” and then in a second  stage, determining that subsidized imports cause injury to its domestic industry. The Panel rejected Pakistan's claim that such a reverse approach was necessary for satisfying  the non-attribution requirements of Article 15.5/ SCM. 

The Appellate Body has recently  upheld  this Panel' s rejection:

Article 15.5 does not prescribe any particular methodology an investigating authority must use in carrying out such analysis. Thus, it is possible for an investigating authority to address the two components of causation in two separate steps. In doing so, an investigating authority can consider a "causal link" to exist between the subsidized imports and the injury on the basis of the first step of its analysis, provided that the authority compares the significance of such a "causal link" with the significance of the injurious effects of other known factors and objectively assesses whether this link qualifies as a "genuine and substantial" causal relationship in light of those other factors. We have observed that the Panel correctly found that, while the Commission stated that a "causal link" existed between the subsidized imports and the injury before it turned to its non-attribution analysis, such consideration of a "causal link" was not a final conclusion, and it had not necessarily prejudged the Commission's assessment of the effects of the other known factors.

Is Trump Backing Off China?

This is from an article in the Washington Post:

Even before the overnight developments, Trump supporters — and those cheerleading his get-tough approach to trade with China — began reckoning with the likelihood that the president is abandoning the cause. 

Trump all but confirmed he’s backing away from a showdown with the nation’s leading economic rival in a series of tweets Monday. Trump’s tell: Rather than pledging to keep up the pressure on Beijing, the president began declaring a premature victory over a deal not yet sketched in pencil. 

Let me start by saying I have very little idea what's going on with Trump's trade policy. What are the U.S. goals on China, NAFTA, the WTO, and everything else? I'm really not sure.

With that caveat in mind, I'll say that I would be surprised if what we have heard over the last few days from Trump and his trade team is the final word on their China policy. They may have reasons to be conciliatory at the moment, but my guess is that, at some time in the near future, we will see a return to tough talk and tariff threats. I hope not, of course, but that's my prediction.

The Future of the Airbus-Boeing Dispute

This is from Bloomberg: 

Airbus SE is ready to tell the World Trade Organization that the threat posed to Boeing Co. by its most ambitious program ever, the double-decker A380 jetliner, is so marginal that any U.S.-led sanctions against the European Union over illegal aid should be minimal.

The European company will cite the superjumbo’s slow sales and also contend that state support for the more popular A350 model was only slightly more of a benefit given cheap alternative funding available at the time amid historically low interest rates, its head of litigation Karl Hennessee said in an interview.

Airbus is on the back foot after Boeing last week won the latest in a series of disputes over illegal subsidies for the A380 and A350 spanning more than a decade. The WTO ruled that the Toulouse, France-based planemaker failed to adequately address what amounts to billions of dollars in funding from state backers, opening a route for President Donald Trump’s administration to levy tariffs against EU goods. 

The U.S. is expected to begin those proceedings in coming weeks, setting up the next stage of arguments: how much financial damage Airbus’s subsidized jets have done to Boeing. That process could take years, Hennessee said.

...

Chicago-based Boeing told Bloomberg that the final WTO ruling makes clear that $9 billion of illegal launch aid to the A380 and A350 caused it real and ongoing harm that will “translate into billions of dollars in tariffs on European exports to the U.S. annually.”

...

Airbus is betting its arguments on the A380 and A350 will limit the scale of punitive levies that the WTO arbitrator deems appropriate. The manufacturer is also holding out for a ruling by the trade regulator on a counter-claim that Boeing has similarly benefited from illegal funding for its 777 and 787 wide-bodies that would expose the U.S. to tariffs from the EU, Hennessee said.

Airbus has meanwhile agreed terms with the governments of France, Germany, the U.K. and Spain to roll back subsidies in line with with the WTO’s report, it said Tuesday. The confidential changes amount to “minor adjustments” and the company is confident that it’s now in “full compliance” with the trade body’s stipulations, General Counsel John Harrison said in a statement.

While the WTO has yet to determine to what extent Airbus has benefited from illegal aid, the figure is expected to reach into the billions, whereas Boeing’s exposure could be as little as $377 million, based on previous rulings.

Ultimately, Airbus is hoping to negotiate a settlement with Boeing, Hennessee said.

“We’d rather extend a hand in friendship,” he said. “If we end up with sanctions on both sides, if those are imposed, what are we going to achieve?”

A couple thoughts. First, the bad news for anyone tired of reading Airbus/Boeing panel/Appellate Body reports is that Airbus claims it has rolled back the subsidies to come into compliance with the reports, which could mean an Article 21.5 proceeding to determine whether there really is compliance.

Second, with regard to the Article 22.6 arbitration over the level of nullification or impairment, Airbus says it could take "years," while elsewhere Boeing's lawyer says that "sanctions could be imposed as early as six or seven months from now." It could end up being somewhere in the middle.

Finally, Airbus asks, “[i]f we end up with sanctions on both sides, if those are imposed, what are we going to achieve?” I've always figured the U.S. goal here was to create an imbalance of sanctions, with the U.S. authorized to impose a lot more than the EU, and the resulting leverage used to force changes in relation to EU subsidies to Airbus. I'm not sure if that will work, but I see that as the goal.

Will the U.S. - Gambling Dispute Return?

Many people seemed to enjoy the U.S. - Gambling WTO dispute back in its heyday. Is it possible a recent U.S. Supreme Court ruling could revive it? This is from Law360:

The U.S. Supreme Court's landmark decision giving states a green light to legalize sports gambling raises a slew of implications for foreign companies looking to get a piece of the action and casts new light on a 15-year-old trade case that saw a tiny island nation clash with the mighty U.S. over its gambling restrictions.

The 7-2 ruling struck down a federal law that kept states from moving ahead with their own gambling laws and essentially blew the door open for the mostly shadowy sports betting industry to step into the limelight.

As with any industry poised for a likely explosion, questions of international competition loom large. The U.S. appetite for sports gambling — industry analysts project about $150 billion is already being wagered yearly, much of it through currently illegal channels — makes it a likely market for companies in places like the United Kingdom that have allowed their gambling sectors to flourish.

"In theory, [foreign gambling companies] love this, they say, 'Now here is an opportunity for some more business,'" Cato Institute trade policy analyst Simon Lester told Law360. "But if they don't get access to it, they will look for ways to file complaints about it."

In some respects, offshore sports books and websites have had a leg up for years, as they've already made modest inroads into the U.S. market, evading law enforcement, while U.S. providers have remained mostly nonexistent outside the state of Nevada.

But foreign providers' modest gains into a mostly black market will be a pittance compared with the revenue those companies can expect when U.S. sports betting gets up and running, and it is not yet clear exactly how welcoming the U.S. will be to foreign competition.

The high court's ruling only allows states to decide their own fate on sports gambling rather than legalizing it writ large, so it is difficult to sketch the contours of a possible trade case against betting rules that are not yet in place.

But states that already have passed sports betting laws, such as New Jersey, which litigated the case up to the Supreme Court, are likely to move quickly to open up their gambling sectors, with others not far behind. In the coming weeks and months, attorneys and trade policy experts will be keeping a close eye on exactly how those states prop up their gambling regimes and bring providers into their markets.

"It remains to be seen whether these states will give an opportunity to foreign-based betting operations and gambling operations to provide services in the state," Cassidy Levy Kent LLP partner Yohai Baisburd told Law360. "That goes for brick-and-mortar, like at casinos and racetracks ... or for web-based betting. How will that play out, it's going to be interesting."

I have no idea what Antigua is thinking about any of this right now, and it's hard to say what the chances are of them taking this ruling into account and pushing forward with their WTO efforts. But I can imagine how they could point out the increased size of the market they are being shut out of, and arguing that the level of nullification or impairment will soon increase.

Putting aside the WTO law issues, I'm curious to see how the states that legalize sports gambling deal with the issue of licensing providers of these services, in particular how they handle applications from foreign companies. How many foreign companies will apply for these licenses? Will foreign companies be allowed to operate in this sector at all? Will they be required to work with a local partner?

G2 Conference on Resolving Disputes in International Economic Law

From the IIEL and the Graduate Institute: 

July 11, 2018 ◊ Georgetown Law, Washington, DC

Download the Summer 2018 G2 Program

RSVP Now 

Join Georgetown’s Institute of International Economic Law and the Graduate Institute, Geneva’s Center for Trade and Economic Integration for a conference on resolving disputes in international economic law on July 11th, 2018.  The conference will be the 18th year in which the two institutions (the “G2”) have organized summer events, and this year the meeting will take place at Georgetown Law, in anticipation of the Society of International Economic Law’s 6th Biennial Global Conference.

The G2 conference will explore dispute resolution broadly, comparing insights and strategies from international trade, financial regulation, tax and monetary affairs.  Academics from law, economics, and political science, as well as regulators and policymakers, are invited to participate, and we hope to provide exceptional conversations and strong networking opportunities for those in the field.

Conference highlights include:

• Keynote address by Ricardo Ramirez, Former Chairman, WTO Appellate Body;
• Screening of "China: The New Silk Road" episode from the Foreign Policy Association/PBS' "Great Decisions" series, featuring discussion and Q&A with leading global experts; and panels on
• Are Europe’s Digital Taxes and U.S. Tax Reforms (Economically Equivalent to) Subsidies—and are they Compliant with WTO Law?;
• Can International Economic Law Accommodate Populism?; and 

• Strategies by Which Countries are Making and Taking Innovation.

We hope to see you in Washington on July 11th!  RSVP Now and contact IIEL with any questions. 

DSU Article 11 and the Reasoning of Panels

This is from a separate opinion by an Appellate Body Member in yesterday's EU - PET (Pakistan) report:

5.57. As I see it, the Panel's ruling on whether it needed to continue to make findings with respect to the claims challenging the expired measure at issue was essentially based on the possibility of re-imposition of the same or similar measure, as well as the fact that such investigations had been initiated in other jurisdictions, and that a wide range of Pakistani exports other than PET benefit from the MBS. In this regard, I consider that the Panel did not properly engage with the European Union's argument that the expired measure at issue could not be easily re-imposed. According to the European Union, the Commission would first need to initiate a new countervailing duty investigation on the MBS within the meaning of Article 11 of the SCM Agreement. This new countervailing duty investigation would necessarily cover a different investigation period from that covered by the countervailing duty investigation at issue. At the time when the European Union requested that the Panel cease its work on this dispute, the European Union had not received any application to initiate such an investigation.154 Moreover, as the European Union points out on appeal, the MBS Old Rules that the Commission examined in the context of the countervailing duty investigation at issue have since been replaced by the MBS New Rules.155 As such, any new investigation concerning the MBS would be focused on the MBS New Rules.156 Therefore, I consider the European Union's assertion – that there was no reasonable possibility for the European Union to affect Pakistan's imports of PET in the near future on issues involving the same or similar WTO inconsistencies that were alleged in the present dispute – to be prima facie credible. 157 The European Union's assertion, regarding the absence of a risk of re-imposition of the same measure, therefore warranted a detailed examination by the Panel. Yet the Panel dismissed this assertion summarily.

5.58. That said, I recognise that, as the majority seems to suggest, the Panel Report may be read as suggesting that the Panel was concerned with the correct interpretation of the relevant provisions of the SCM Agreement and the GATT 1994, and the conformity, with this correct interpretation, of the Commission's reasoning and findings underpinning the now expired measure. However, such a reading of the Panel Report is anchored in a single sentence in paragraph 7.13 of the Report by the Panel acknowledging the parties' disagreement "on a fundamental level" about the Commission's findings as to what extent duty drawback schemes like the MBS may constitute countervailable subsidies.158 As discussed at paragraph 5.19 above, among its inherent adjudicative powers is the authority of a panel to assess objectively whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, has been fully resolved or still requires to be examined, following the expiry of the measure at issue. A panel should make this assessment before undertaking its duty under Article 11 of the DSU to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements". Turning to the case before us, I do not see any reasoning in the Panel Report demonstrating an objective assessment by the Panel of whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, had been fully resolved or still required to be examined, following the expiry of the measure at issue.

5.59. Thus, in my view, none of the three considerations relied upon by the Panel, at paragraph 7.13 of its Report sufficiently demonstrates that the Panel objectively assessed whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, had been fully resolved or still required to be examined, following the expiry of the measure at issue in this dispute.

5.60. For these reasons, I disagree with the finding of the majority that the European Union has not demonstrated that in the circumstances of this case, the Panel failed to comply with its duty under Article 11 of the DSU, as informed by Article 3 of the DSU, by deciding, at paragraph 7.13 of its Report, to proceed to make findings on Pakistan's claims in this dispute, notwithstanding the expiry of the measure at issue.

And this is the part of para. 7.13 of the panel report that was in question:

7.13. ... Third, we consider it a reasonable possibility that the European Union could impose CVDs on Pakistani goods in a manner that may give rise to certain of the same, or materially similar, WTO inconsistencies that are alleged in this dispute.³⁷ In particular, we note that Pakistan claims, not contested by the European Union, that a wide range of Pakistani exports benefit from the MBS³⁸ and that the parties dispute, on a fundamental level, how investigating authorities should determine the extent to which duty drawback schemes like the MBS may constitute countervailable subsidies within the meaning of the SCM Agreement. Given such circumstances, we proceed with this dispute.³⁹

I can understand the desire to encourage well-reasoned panel reports, and to have each issue addressed in depth. In my view, however, if the standard described in the separate opinion is used, panel reports would end up being three times as long as they are now, and they are already too long. Panels simply cannot engage in depth with every argument put forward by the parties. On appeal, it's easy for the Appellate Body to take the view that a particular issue is of great importance, and to think that the panel should have done more with it. But panels cannot anticipate which issues the Appellate Body will deem important, and therefore the only way they could follow such a standard is to treat every issue as equally important. This would overwhelm them.

More generally, as I've been reading the EC - Aircraft, Article 21.5 AB report from Tuesday, I've been thinking that there are too many findings of DSU Article 11 violations these days. 

Negotiating With Different Tariff Levels

Here is something from a speech by Commerce Secretary Wilbur Ross:

We are now constrained by two sides of a WTO pincer.

One is the most-favored nation clause, or MFN.

This rule says that we must apply the same tariff to every nation with which we do not have a free trade agreement.

The second one is the so-called “Bound Rate."

This is an upper limit on the tariffs we can charge foreign nations, even with application of MFN.

The combination of MFN and Bound Tariff Rates prevent us from having reciprocal tariffs because, in most cases, our bound rate ceiling is at or near our very low MFN applied rate, while other nations have higher levels of both.

They, therefore, have little incentive to negotiate.

And yet, countries do negotiate in these circumstances. For example, in the NAFTA, Mexico had high tariffs and the U.S. and Canada had lower tariffs, and the three countries agreed to get rid of virtually all tariffs. Zero tariffs, with reciprocity.

There are agreements in which the U.S. accepted higher tariffs from its trading partners, but I've often wondered whether that was because the U.S. wanted other things instead (e.g., labor or IP provisions).

This is one of the strangest ways of thinking about MFN and bound rates that I've ever come across. There are plenty of other statements in the speech that deserve a rebuttal, but I'll leave that for others.

VERs, the Safeguards Agreement, and GATT Article XXI

The Section 232 steel/aluminum tariffs are in place for some countries but not all, as exemptions are under negotiation.  A few countries are still talking with the Trump administration about this, but others (Argentina, Brazil, South Korea, and possibly Australia but I'm not sure) have gotten out of the tariffs by agreeing to replace them with quotas.  Here's how USTR explained the arrangement with South Korea: "U.S. negotiations with Korea have resulted in a satisfactory alternative for addressing U.S. national security concerns with respect to steel imports. ... Korean imports of steel products into the United States will be subject to a product-specific quota equivalent to 70% of the average annual import volume of such products during the period of 2015-17. This will result in a significant reduction in Korean steel shipments to the United States."

While some details are lacking, these agreements on steel/aluminum quotas almost certainly violate Safeguards Agreement Article 11.1(b), which provides: 

(b) Furthermore, a Member shall not seek, take or maintain any voluntary export restraints, orderly marketing arrangements or any other similar measures on the export or the import side.^3,4 These include actions taken by a single Member as well as actions under agreements, arrangements and understandings entered into by two or more Members. Any such measure in effect on the date of entry into force of the WTO Agreement shall be brought into conformity with this Agreement or phased out in accordance with paragraph 2.

3 An import quota applied as a safeguard measure in conformity with the relevant provisions of GATT 1994 and this Agreement may, by mutual agreement, be administered by the exporting Member.
4 Examples of similar measures include export moderation, export-price or import-price monitoring systems, export or import surveillance, compulsory import cartels and discretionary export or import licensing schemes, any of which afford protection.  

I'm not sure exactly what kind of measure the steel/aluminum quotas are, but "voluntary export restraints" or "similar measures" are probably good descriptions.

But there is also Article 11.1(c), following directly after Article 11.1(b) but seeming to apply more broadly, which says:

(c) This Agreement does not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX, and Multilateral Trade Agreements in Annex 1A other than this Agreement, or pursuant to protocols and agreements or arrangements concluded within the framework of GATT 1994.

It's pretty clear that "provisions of GATT 1994 other than Article XIX" includes GATT Article XXI, so it's easy to imagine the U.S. invoking Article XXI/Article 11.1(c) if the steel/aluminum quotas were challenged as violations of Article 11.1(b).

But what if it were not the U.S., but the other party to the VER, that is the subject of the WTO complaint? Just for fun, let's say that the EU challenges the South Korea - U.S. quota through a complaint against South Korea, rather than against the U.S. Could South Korea point to Article XXI/Article 11.1(c) as a justification? South Korea's national security is not at issue here, right? Or could South Korea invoke Article XXI/Article 11.1(c) based on the claimed national security interests of the U.S.?

Is there such a thing as obiter dictum in the WTO DSM?

Yesterday's General Council meeting was quite entertaining, to say the least, with "hatchets", "rabbits" & "dogs" flying in the air when the US and China engaged in several rounds of heated exchange. While China blamed the US for wrecking "the crown jewel of the WTO", the US repeated its attack on the Appellate Body by saying:

"Despite years of warnings from my predecessors, and expressions of concern from respected WTO voices, including former Directors-General, the Appellate Body not only has rewritten our agreements to impose new substantive rules we Members never negotiated or agreed, but has also been ignoring or rewriting the rules
governing the dispute settlement system, expanding its own capacity to write and impose new rules."

As the US stated when it blocked the reappointment of Prof. Seung Wha Chang two years ago, its main problem with the alleged "unapproved rule-breaking and rule-making" by the AB is reflected in 4 cases, i.e, DS 437, DS 449, DS 453, & DS 430. In three of these cases, Prof. Chang was accused of giving out "obiter dicta", something that he was not supposed to do. But could there really be something called "obiter dicta" in the WTO dispute settlement system?

In a paper just published in the World Trade Review, I reviewed the issue with a detailed examination of each of the three possible underlying premises of the US argument, i.e.,

1, the WTO legal system based on Common Law;

2, WTO follows stare decisis; or

3, the WTO has rules against dicta.

Unfortunately. none of these premises can stand. Thus, the US allegation is nothing but "dictum on dicta"!

 

 

 

Call for Papers: ASIL IEcL Interest Group, CCIL and CIGI Conference

This is from a call for papers for a Joint North American Conference on International Economic Law Incorporating the 2018 ASIL IECLIG Biennial, to be held September 21-22, 2018 at McGill's Faculty of Law in Montreal:

I. Overall Concept and Theme

Theme: Managing International Economic (Dis)Integration: Challenges and Opportunities

The international community continues to grapple with potential moves toward international economic disintegration, such as Brexit, withdrawals from ICSID and BITs, the aftermath of the Euro crisis and the Trump administration’s re-negotiation of the NAFTA and other FTAs. The current moment also presents opportunities for innovation and for new alliances: the CPTPP may come into force without the United States, and efforts to construct an African Continental Free Trade Area and to establish a multilateral investment court continue apace. Moreover, emerging economies increasingly take the lead on multilateral initiatives. In the WTO, India and Brazil have proposed new agreements on trade facilitation in services and investment facilitation, respectively. China’s One Belt One Road initiative and the new Asian Infrastructure Investment Bank are increasingly shaping investment patterns in the region. The conference will take stock of the fast-moving developments at this crucial moment in the evolution of international economic law.

We welcome unpublished paper proposals relating to the conference theme, but will also consider submissions on other topics in international economic law.

II. Unpublished Paper and Panel Proposal Submission

The deadline for both unpublished paper and panel proposal submissions is Monday, June 4, 2018. Submissions should be sent to [email protected] where they will be peer-reviewed with decisions issued in early July.

Papers:

Please submit an abstract of no more than 500 words and confirm that the paper will not be published before the conference. Please also provide a CV or resume, your current affiliation, and indicate whether you are a member of any of the institutions organizing the conference.

Panels:

Please submit a proposal, in no more than 1500 words, on the approach, anticipated content and format of the panel, and proposed speakers with their affiliation and their field(s) of expertise. Please note that panel proposals may be combined or amended by the conference organizers to take into account the range of submissions.

All papers will be due on September 10, 2018 and should be sent to [email protected] for dissemination to other panelists, moderators and conference participants in advance of the event.

The full call for papers is here.

As Midterms Approach, Where Do Democrats Stand on Trade:In an Urban Texas District,Prominent Candidate Laura Moser Speaks In Favor of Trade Agreements (With More Attention to Workers, Environment-& Less to Entrenched Corporate Lobbies)

There's an enormous energy (and optimism) among Democrats, including many new congressional candidates, as we head toward the November midterm elections.  But little media attention has been paid to where the Democratic hopefuls stand on  trade policy. Some months ago a group of Senate Democrats including New York's Charles Schumer put together a trade platform premised on outdoing Donald Trump as a protectionist (I blogged on that here back last August). 

In a recent candidates' debate in Houston, the Democratic primary finalists for multicultural urban District 07 were asked to address trade (you can listen at the last 10 minutes or so of the podcast). Laura Moser, a Texas-born and -bred writer and activist whose campaign has attracted national and international attention, set out a different Democratic vision than Schumer & company. Moser said she believes in trade agreements and while noting that NAFTA has hurt some Americans she freely admitted it's benefited others, including in her own region of the country. She even supports TPP, stressing the importance of an accord in the Pacific region, but criticizes the existing agreement as giving inadequate consideration to environment and labor laws, while important parts have been drafted to suit entrenched corporate interests. One can debate these criticisms of TPP as it stands (now a signed agreement minus the US)-I tend to agree with them. But it's refreshing to hear a progressive Democrat state clearly for the record that trade agreements are necessary for a globalized world, and that there is no answer for the economy or indeed for workers (Moser enjoys strong union support) in backing away from negotiated trade rules. At the same time, Moser takes stock of the challenge of China (she's no one's fool): "We do not want China to eat our lunch." 

Moser's opponent Lizzie Fletcher seemed to stumble off her script when asked the trade question: she said that trade agreements are the only way to avoid other countries controlling what we import into the United States. While it is true that China's export controls on raw materials and rare earths have been a subject of WTO disputes, it seems very odd to focus on other countries' export restrictions rather than the limits they impose on access to their markets as a key reason we need trade agreements.

Disclosure: I have donated to Laura Moser's campaign.                 

 

 

Could the US-China trade conflict be dealt with within the WTO framework?

The United States and China engaged in a high-level trade negotiation in Beijing on May 3 and 4. The two sides exchanged views but did not reach any agreement on specific issues. The FT has now published the Draft Framework prepared by the US in advance of the negotiation.  The Framework, titled “Balancing the Trade Relationship between the United States of America and the People’s Republic of China”, contains a list of specific negotiation positions under eight section headings. Here is a quick analysis on the extent to which the US positions can be dealt with within the existing WTO framework.

1. Specific targets of trade deficit reduction–China to reduce US bilateral trade deficits by $200 billion by the end of 2020 as compared to 2018. The US trade deficit is a structural problem. Even if China were willing to accommodate, it would not be possible without resorting to voluntary export restrictions (VERs), which would violate the Safeguard Agreement.
   
   
2. IP and technology transfer. The key components include: (i) China ceases providing government subsidies and support that “can contribute” to the excess capacity in industries targeted by the “Made in China 2025” program. (ii) China will eliminate “policies and practices with respect to technology transfer” by Jan. 1, 2019. (iii) China to cease government-sponsored or tolerated cyber intrusions and thefts. (iv) China to withdraw its WTO complaint on US Section 301 (DS543) and not to retaliate against the US by any trade means in response to possible US restrictions on China imports and investment.
   
   On (i) government subsidies to technology sectors covered by the “China 2025” program, the US should be able to get remedies under the SCM Agreement and certain subsidy provisions under China’s accession protocol (more below). To the extent no violation can be found, US may seek non-violation remedies. On (ii), China already made a WTO-plus commitment under its accession protocol not to require technology transfer. For unknown reasons, the US has decided not to enforce this obligation within the WTO, and instead has resorted to Section 301. If a lack of hard evidence is the reason due to non-transparency in the Chinese system, the US should tackle the non-transparency problem head-on, especially in light of China’s WTO-plus obligations on transparency. On (iii) cyber theft, it is largely beyond the reach of WTO, but China should be able to agree on this issue in principle. On (iv) US 301 action and China’s counter-301 action, to the extent these are trade measures, they are clearly within the WTO jurisdiction.

3. China will not oppose or retaliate against US restrictions on China’s investment in the United States. This issue is largely beyond the current WTO framework.

4. Removing specific investment restrictions in China. With respect to investment in services, China can always unilaterally lower barriers under GATS Mode 3, provided they are multilateralized through MFN. With respect to investment in manufacturing, the US can enforce the several WTO-plus provisions on investment under China’s accession protocol, including national treatment. But most of the market access issues are beyond the reach of existing WTO rules.

5. Reduction of tariff and non-tariff barriers. (i) China to reduce tariffs on all products in non-critical sectors to the same levels of US tariffs by July 1, 2020. (ii) China to remove specified nontariff barriers. (iii) China to recognize that US may impose import restrictions on products in critical sectors, especially those under the “China 2025” program. All of these items are within the WTO framework. China may agree to unilaterally reduce tariffs, provided that the reduction is multilatealized through MFN.

6. Services. China to commit specified ways to improve US access to the Chinese market. These are within the scope of GATS, subject to MFN.

7. Agricultural products. China to improve US access to the Chinese market. Clearly within the WTO, subject to MFN.

8. China to withdraw its WTO complaints against the US and EU on the “nonmarket economy” status (DS515 and DS516), and refrain from challenging the treatment of China as a nonmarket economy. This issue is clearly within the WTO framework. Many may not have realized that even if the US and EU lose these two cases, they can still effectively treat China as an NME in trade remedies, thanks to the provision of Section 15(b) of the China accession protocol:
   
   "(b) In proceedings under Parts II, III and V of the SCM Agreement, when addressing subsidies described in Articles 14(a), 14(b) 14(c) and 14(d), relevant provisions of the SCM Agreement shall apply; however, if there are special difficulties in that application, the importing WTO Member may then use methodologies for identifying and measuring the subsidy benefit which take into account the possibility that prevailing terms and conditions in China may not always be available as appropriate benchmarks. In applying such methodologies, where practicable, the importing WTO Member should adjust such prevailing terms and conditions before considering the use of terms and conditions prevailing outside China."
   
   Considering that the US and EU complaints are primarily directed at China’s industrial policies, subsidy disciplines are the more appropriate place to register their complaints than antidumping rules. Most importantly, unlike the NME provision in the antidumping context, Section 15(b) has no built-in expiration date. While it is understandable why China does not wish to call attention to Section 15(b), it is puzzling why the US and EU have not availed themselves of it.

In sum, it appears that a majority of the US concerns could be addressed within the WTO framework. It is unfortunate that the US is not prepared to fully utilize the existing WTO rules, especially the special provisions of China’s accession protocol regarding technology transfer and subsidies, to address those concerns.

Fair and Equitable Treatment/Manifest Arbitrariness in the new EU-Mexico Global Agreement

Recall that CETA Article 8.10 identifies the following examples of "treatment" that is not "fair and equitable":

1. Each Party shall accord in its territory to covered investments of the other Party and to investors with respect to their covered investments fair and equitable treatment and full protection and security in accordance with paragraphs 2 through 7.

2. A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 if a measure or series of measures constitutes:

 

...

(c) manifest arbitrariness;

(d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief;

Focusing on (c), what exactly makes arbitrariness "manifest"? How arbitrary must arbitrary treatment be in order to constitute "manifest arbitrariness"?

In the recently announced EU - Mexico Global Agreement, we now have some additional details on this in Article 15:  

1. Each Party shall accord in its territory to covered investments of the other Party, and to investors with respect to their covered investments, fair and equitable treatment and full protection and security in accordance with the following paragraphs.

2. A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 if a measure or series of measures constitutes¹⁶:

...

(c) manifest arbitrariness, including targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; or

...

¹⁶ For greater certainty, in determining whether a measure or series of measures amounts to a breach of fair and equitable treatment, a tribunal shall take into account, inter alia, the following:

...

ii) With regard to the subparagraph 2 (c), whether the measure or series of measures were patently not founded on reason or fact, or were patently founded on illegitimate grounds such as prejudice or bias. The mere illegality, or a merely inconsistent or questionable application of a policy or procedure, does not in itself constitute manifest arbitrariness as referred to in the subparagraph 2 (c), while a total and unjustified repudiation of a law or regulation, or a measure without reason, or a conduct that is specifically targeted to the investor or its covered investment with the purpose of causing damage are likely to constitute manifest arbitrariness as referred to in the subparagraph 2 (c).

...

There can be no doubt that the drafters have added more words. But have they clarified anything, or just raised more questions? Here are some questions I had:

-- With the merging of the manifest arbitrariness and targeted discrimination provisions, is a burqa ban now manifestly arbitrary in addition to being targeted religious discrimination?

-- What does it mean that a measure was "patently not founded on reason or fact"? What are some examples of this?

-- How do we know if measures were "patently founded on illegitimate grounds such as prejudice or bias"? Are we looking here at statements of legislators, such as those voting for burqa bans?

-- The provision makes clear that "[t]he mere illegality, or a merely inconsistent or questionable application of a policy or procedure" does not "in itself constitute manifest arbitrariness," but can these things nevertheless be looked at, along with other factors, as evidence of manifest arbitrariness?

-- What are some examples of "measures without reason"? Does this mean without good reason, or without any reason? Has there ever been a measure adopted without any reason at all?

It would definitely be interesting to litigate about this new language, at which point we would learn more about its precise scope. Overall, though, my sense of this standard is that it was originally broad and vague and it remains broad and vague, for better or worse.

If you are of the view that this standard is a problem (as I am), another way of dealing with it is through the use of exceptions. The new EU - Mexico agreement does have exceptions, but while they apply to many parts of the agreement, as usual for the EU, they do not apply to this part of the investment chapter, where they are most needed.  Some investment agreements do have exceptions that apply to this kind of standard, though, and perhaps the EU will come around on this at some point. I sense that some people think the obligation is written clearly enough to ensure that arbitrators take into account other policy goals, but I have serious doubts about this.

More GATT Article XXI Negotiating History

Negotiating history often raises as many questions as it answers, but that's part of what makes it interesting. Recently, I stopped by the  University of Pennsylvania library to look at the Clair Wilcox collection of International Trade Organization documents, and I found a document dated September 15, 1947, entitled "Preliminary Summary of Geneva Draft of ITO Charter, Changes from New York Draft." In this document, there is a brief reference to the national security exception that may be of interest to people. The relevant pages of the document are here.

At the outset, the document notes that it describes "[c]hanges obtained by the United States in response to criticisms and suggestions" by a number of groups, including hearings before the Senate Finance Committee. In other words, the U.S. negotiators took the New York draft to these groups to get their input, and in response to the comments provided, the negotiators sought changes during the Geneva draft discussions.

With regard to national security, the document states:

The national security exceptions have been moved from Article 37 (New York), where they only applied to Chapter V (New York), to new Article 94, where they apply to the whole Charter. They have been so worded as to make it clear that members will be able to apply them as they themselves determine. (Senate Finance Committee)

Recall the history of the Article XXI drafting that I described here. The September 15, 1947 document seems to explain how the U.S. negotiators viewed those key language changes, including the addition of the word "considers."

SIEL 2018 Conference

This is from the SIEL 2018 conference organizers:

The Society of International Economic Law (SIEL) 2018 Global Conference will take place in Washington D.C. on July 12-14, 2018, with the theme International Economic Law in Unsettling Times.

 

The Conference will be the largest conference SIEL has ever organized, quite likely the largest international economic law conference ever to be held. 

 

The Conference will discuss exciting issues from the NAFTA renegotiation to national security exceptions, the threats to the global trading system from Brexit to One Belt One Road, and, of course, the Investment Court System.

 

We have made the program available here. You can register for the Conference at here. Logistical information can be found at AU’ SIEL 2018 webpage here.

 

We hope to see many of you in Washington DC in July!

The SIEL 2018 Conference Team