Four separate WTO panel reports related to the U.S. Section 232 tariffs on steel and aluminum were circulated on Friday, in complaints brought by China, Norway, Switzerland, and Turkiye. Here are some questions I had about these disputes.
What will the complainants do now?
Assuming the U.S. appeals these panel reports into the void (it would be an interesting surprise if it did not!), what will the complainants do now? China may read the current political tensions in a way that convinces it not to ratchet things up further. But what about, say, Norway, Switzerland, and Turkiye? Would they consider the approach that has been adopted under the EU's Anti-Coercion Instrument, and start the rebalancing process based on the panel report? I tend to doubt they would do this, but without some action here, they are letting the trade restrictions they just challenged, and which were found in violation, off the hook.
How would the Panel's analysis have gone if the U.S. had pointed to a different "emergency in international relations"?
In response to the question of what exactly is the "emergency in international relations" under GATT Article XXI:b(iii), it appears that the U.S. focused on the crisis caused by steel overcapacity (see paras. 7.133-148 of the China report), which the Panel didn't buy as an emergency. But I wonder what would have happened if the U.S. had cited to, say, China, or the Middle East, or the Ukraine war as the emergencies, and said it needed steel for those situations. I don't think the ultimate result would have been different, but I'm curious about how the Panel would have applied Article XXI to such an argument.
What if the complainants had brought a non-violation complaint?
Non-violation nullification or impairment complaints are hard to win, and I'm not sure if the complainants could have proven that the Section 232 tariffs could not reasonably have been anticipated at the time of the relevant concessions. Nevertheless, if I understand the U.S. position correctly, the U.S. takes the view that Article XXI does not prevent non-violation claims. If that's right, then we could have had litigation that focused on whether there was nullification or impairment here, rather than whether there was a violation. One thing I'm not sure about in this context is what the U.S. would have done if non-violation nullification or impairment had been found. Would it have agreed to rebalancing? Or would it have argued that non-violation nullification or impairment findings just mean that the parties should try to negotiate a settlement?
What's happening with India's complaint?
India and Russia brought complaints that were on the same schedule as the four noted above. It's easy to imagine why there is no panel report in the Russia complaint, but what's going on with the India one? Presumably India and the U.S. are negotiating about something here, but I haven't heard anything specific.
