At today's House Ways and Means Committee hearing on the Biden administration's trade policy agenda, Congressman Schweikert and U.S. Trade Rep. Katherine Tai had the following exchange on WTO dispute settlement:
Congressman Schweikert:
I owe you a thank you for all your work in helping Mr Kind and those of us who are interested in the WTO, we'll call it resolution. But this becomes one of those moments now that you're behind that dais. If you were redrafting it again today, would you draft it differently?
Ambassador Tai:
Well that's a great question, Mr Schweikert, and I could probably write you an essay about this but I know we've just got a little time. So, let me say this. We can't go back in time, but today where we are in 2021, yes, I think that the fundamentals of the WTO itself needs reform and needs to reflect the realities of today.
Congressman Schweikert:
... for many of us here, and Representive Kind and his staff, we've had this running conversation. It's both the adjudicatory body ... but for many of us in particular, it's speed. I actually, truly believe in the coming decade, the disputes are going to be on things from synthetic biology, to things that are truly cutting edge but very disruptive to the economy. But speed will be crucial, and you can't have a decade of the games going back and forth, and by the time you actually come to a decision, the economics of the dispute are gone.
... What can we as members of Congress do to help the argument that the reforms of the WTO also have to be about the timelines, these timelines can't be a decade anymore.
Ambassador Tai:
Congressman, I think that the number one thing that you can do is what you're doing right now which is to be deeply engaged, it matters so much for US leadership and US participation at the WTO, for the WTO and its members to know that the United States cares, that it's not just USTR, it's not just the executive, but that US participation and leadership is backed up by Congressional interest and Congressional requirements.
With respect to the dispute settlement system, I hear you on speed. The large civil aircraft cases, Boeing - Airbus, that we've had, were first launched in the mid 2000s. That is part of what is motivating me in really putting the nose to the grindstone with the European Union to try to resolve these cases now. It's in part to show that all of this time has led to something, that this hasn't been just a colossal waste of time.
I think that there are other aspects to dispute settlement that we really need to think about and we really need to think holistically about dispute settlement, not just as one part of the WTO, but one key component, that is important for itself, but that also directly impacts the other part, which is the negotiating function. As strong as the dispute settlement system has become, it has taken a long time, it has become very active, we have also seen an atrophying of the negotiating function. These two things are connected.
Congressman Schweikert:
But is there a way, I mean there's some articles out there that talk about everything from a a quick ruling and escrow, then continued dispute, something it forces more pressure, more value for actually the negotiations to come to a close, and do we need to produce some mechanism that creates almost a leverage that you will negotiate in good faith to a final decision, instead of the game that appears to be going on now, where make it take forever, and at that point, if it's an IP type case ... , the value of it has already faded away.
Ambassador Tai:
I like the way you're thinking about it, and I would really like to continue to work with you and others on this committee on some of these ideas.
I have a couple comments here.
First, I sometimes hear people say that WTO dispute settlement has undermined WTO negotiations. I haven't seen evidence of that, though, and WTO negotiators I have asked about this have been skeptical. It seems to me that the main reason for the failure of WTO negotiations in recent years has been the growing number of assertive Members, and the unwillingness of many key governments to compromise, and the difficulty this creates for reaching agreement.
And second, some suggestions for speeding up WTO dispute settlement from Jim Bacchus and me are here.
