刚刚发生在WTO什么？你需要知道的一切An interview with Assistant Professor of Law at Queen’s University
Earlier this month, the WTO stopped hearing new appeals by countries that object to a WTO ruling当剩下的三个成员中的两个人的上诉机构退休时。Because the U.S. government has blocked all new appointments to the WTO’s Appellate Body, it has made the body inoperable, since three Appellate Body members are needed to hear an appeal.
BRINK asked professor Nicolas Lamp, a WTO expert at the Faculty of Law of Queen’s University, Canada, about the significance of this move.
尼古拉斯灯：For the first time since the establishment of the WTO in 1995, the Appellate Body cannot accept any new appeals, and that has knock-on effects on the whole global trade dispute settlement system. When a member appeals a WTO panel report, it goes to the Appellate Body, but if there is no Appellate Body, it means that that panel report will not become binding and will not attain legal force.
上诉机构的缺失意味着members can now effectively block the dispute settlement proceedings by what has been called appealing panel报告“进入空白”。
The WTO panels will continue to function as normal. When a panel issues a report, it will normally be automatically adopted — unless it is appealed. And so, even though the panel is working, the respondent in a dispute now has the option of blocking the adoption of the panel’s report. It can, thereby, shield itself from the legal consequences of a report that finds that the member has acted inconsistently with its WTO obligations.
What Percentage Goes to Appeal?
BRINK:What percentage of cases heard by the panel generally go to appeal? Is it most of them or a small percentage?
灯先生：It’s a majority. It varies, but it’s been around 60% going to appeal. But that may change, of course. One possibility is that WTO members could conclude agreements where the two parties essentially agree in advance that they’re not going to use appeal.
If they refrain from going to appeal, then the system would continue functioning as normal; you would still have legally binding panel reports, as well as the entire mechanism that the WTO has for authorizing retaliation in the case of noncompliance.
灯先生：The issue of functionality of the dispute settlement procedure has no impact whatsoever on the legal force of other WTO obligations. Sometimes it’s portrayed that these obligations can no longer be enforced, but we have to keep in mind that the way in which WTO rulings are enforced is by trade sanctions imposed by individual WTO members.
灯先生：Yes, that’s exactly the risk. Take the example of a WTO member who brings a case, say, against the United States. There will be a panel report, but now the U.S. has the option of blocking the adoption of that panel report by appealing it into the void, as it just did for the very first time in a case brought by India. Then the WTO member — in this case, India — is deprived of remedy in the sense that it won’t be able to get authorization from the WTO to retaliate against the United States.
如果美国不接受印度施加的报复并通过施加自身的报复，您将有一系列循环，因此您最终会获得贸易战。这是潜在的担忧 - 导致严格的正义会有扩散。
对BREXIT和US / CHINA的影响是什么？
BRINK:Does it have any impact on the U.S.-China trade dispute?
灯先生：No, because when it comes to China, the U.S. has essentially already done what everybody’s feared, namely, taken the law into its own hands. It has imposed the tariffs on China under U.S. law, namely, Section 301 of the Trade Act of 1974, without any basis in WTO law at all. China has challenged these measures in the WTO, but has also just retaliated without waiting for authorization from the WTO.
We could see a bit more vigilante justice, but in a way that ultimately tries to incentivize countries to stay in the system and to play by the rules.
What About Reform of the WTO?
BRINK:A number of countries have had complaints about the WTO and its structure over the years. Do you believe that the WTO is in need of serious updating?
One of the big flashpoints at the moment, for example, is whether China and India can still claim to be developing countries. The U.S. is pushing very hard, insisting that China and India shouldn’t be allowed to be treated as developing countries.
Regarding the Appellate Body, not everybody was happy with the way the Appellate Body had evolved. But no other WTO member was supporting the United States in its decision to just dismantle the Appellate Body by blocking the reappointment of Appellate Body members. It was only the U.S. that took that stance.
灯先生：At the moment, under U.S. law, the U.S. can act as prosecutor, judge and jury and decide when other members have acted unreasonably and then implement sanctions.
They’re saying, if you play along by either agreeing to adopt the panel report or following our appeal arbitration procedure, then we will not retaliate with sanctions. I think that’s a really interesting approach to trying to deal with this new situation.