With Trump complaining about the WTO treating the U.S. unfairly, I get asked now and then about U.S. "wins" and "losses" in WTO disputes. How does the U.S. fare as a complainant and as a respondent? It's a difficult question. A government might bring 10 claims in a particular case, win 8 of them, and consider it a loss because it lost the two claims it cared most about. Or it might bring 10 claims and win just 1, but consider it a win because that was the big claim. It's really difficult to judge these things as an outsider, as governments will often publicly spin the result of particular cases in their favor no matter the result.
As a result, I haven't tried to characterize WTO disputes in terms of wins and losses. Instead, in the data we gather on WorldTradeLaw.net, we look at whether a complaining government won at least one of the claims it brought, that is, it proved a violation and the respondent did not successfully invoke an exception. That's not very satisfying, but it's the simplest methodology I could come up with. Implicitly, I guess, we are suggesting that this is a "win" for the complainant, but we don't use that term and we try not to overstate the significance of the data.
Someone recently ask me about this data, so I'm going to post some of it here for everyone's reference. As of today:
- There have been 225 total cases (including Article 21.5 compliance cases) with a panel and/or AB ruling that was adopted by the DSB
- There have been 201 cases with at least one finding of violation
- That makes 89.33% of total cases with at least one finding of violation
(this figure is roughly the same for standard disputes and for Article 21.5 compliance disputes)
Turning to the U.S.:
- There have been 56 cases brought by the U.S. (including Article 21.5 compliance cases, and sometimes with co-complainants) with a panel and/or AB ruling that was adopted by the DSB
- There have been 51 cases with at least one finding of violation
- That makes 91.07% of cases with at least one finding of violation
- There have been 84 cases brought against the U.S. (including Article 21.5 compliance cases) with a panel and/or AB ruling that was adopted by the DSB
- There have been 72 cases with at least one finding of violation
- That makes 85.7% of cases with at least one finding of violation
Those figures indicate that the U.S. does a little better than average as a complainant and also as a respondent, although the variance from the average is pretty small.
An additional issue is how the United States has fared before panels as compared to the Appellate Body. Of course, there are plenty of differences in reasoning between panels and the Appellate Body, as well as differences in findings on specific claims, but that's not what I'm looking at here. Again, for simplicity's sake, I am just looking at whether one or more violations exist. In terms of going from a finding of violation before a panel to no finding of violation after the Appellate Body report, here are the three cases I see that involved the U.S. as complainant or respondent:
- U.S. - Tax Incentives (DS487)
- Canada - Dairy, Article 21.5 (DS103,113)
- EC - Computer Equipment (DS62,67,68)
For cases not involving the U.S., there was Argentina - Financial Services (thanks to Bryan Mercurio for pointing that one out). If someone sees a case I missed, please let me know. [ADDED: I just thought of another case in this category: Guatemala - Cement I (DS60)] (I didn't see any cases that went from no violation before the panel to a violation finding by the Appellate Body.)
There are a bunch of methodological issues with these numbers (for anyone who is a glutton for punishment I can go through them all with you!), so please take this as a rough approximation. And also feel free to offer alternative approaches to measuring this or try to poke holes or point out mistakes in mine.
Finally, just to emphasize again, I don't mean to overstate the importance of these numbers. They probably mean something, but to repeat what I said at the outset, judging "wins" and "losses" in WTO disputes is challenging.
