Here's an exchange between Rep. Don Beyer (D-VA) and U.S. Trade Rep. Katherine Tai at a House Ways and Means Committee hearing in mid-April:
Beyer: I, with a number of my colleagues here, visited the WTO a couple of years ago, in the midst of all the ongoing multi-decade fights over the Appellate Body. You mentioned that you made more progress in the last year than in the previous 20 years. And I was fascinated by noting that it was a shift in emphasis from leading negotiations based on positions to being asked to identify and share the interest that they want served. Could you explain what that means in English?
Tai: Thank you so much, Mr. Beyer, for tracking this very closely because this is one of the areas that is so important to us. Myself personally, having litigated at the WTO, appreciate how many challenges we have with the dispute settlement system, but also, I remain very, very committed to a vision for having a dispute settlement system that's effective, that can be accessed by everyone at the WTO, and not just a small handful of the WTO Members.
The interest based approach to negotiations at the WTO: We really endorsed this idea from the beginning because we know we have very, very deep extensive concerns with how the Appellate Body was operating before and other aspects of the dispute settlement system. And that if we were to approach these negotiations on dispute settlement reform in the traditional Geneva-based way, where you have to think through what your ideal outcome is, and kind of what you can live with, and then from there, because it's a paper based exercise, you're incentivized then to dial up every single one of your proposals to 150 or 200 just to be able to survive a negotiation process that involves almost 200 other participants. That for us looked like it was going to be a very, very long, tortured and unsuccessful road to move forward. Because we are genuinely in good faith interested in a reform project.
What we really endorsed and got behind was an approach at the WTO to identify not what your position is, which creates that dynamic of dialing up 150 this way, dialing back 150 this way, and then fighting your way to the middle, but to encourage a conversation that was inclusive, that started not with the question of what's your position, but starts with the question of what is the interest that you want as a WTO Member served by a dispute settlement system. And as a result of that approach to the negotiations, we were collectively able to make more progress in one year than in the 20 years before of dispute settlement understanding reform that was run along a positional basis. So I think the most critical question in terms of dispute settlement reform going forward is how do we continue this work? My negotiators and my legal advisors in Geneva have told me that this is the one negotiation area in an institution that is showing a lot of age and brittleness, that is dynamic, where negotiators come and they're actually talking to each other and listening to each other rather than just reading points at each other. So it's tremendously consequential. We're very invested in this process.
I know this is going to sound naive and a bit off the wall, and will demonstrate to the world that I've never been a trade negotiator, but what if instead of dialing things up to 150, governments just proposed sensible things that they believed in, and put forwarded strong defenses of those things? Maybe this is just crazy enough to work!
In terms of how the interest based negotiations on WTO dispute settlement have gone, I feel like this situation is a bit unique, because there is an underlying disagreement about the Appellate Body that brought everyone to the table. These circumstances have made governments willing to talk constructively about a lot of dispute settlement related issues. But have they made progress on the big issue here, which is dealing with the Appellate Body crisis so as to eliminate appeals into the void? It is not clear to me whether they have, so I'm going to reserve judgement on whether this new approach works until we see how things play out with fixing that.
