Transcript: Ep. 8 “Fixing What (Mostly) Ain’t Broke”

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Tradecraft Podcast | @tradecraft_pod

Recorded Friday, September 28

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Collin Janich

Over the past few weeks, we’ve witnessed a flurry of WTO reform activity. The EU recently released a WTO reform concept paper. The Canadian government followed suit and released its own 8 page proposal, and they will play host to the EU and a dozen other WTO members in Ottawa later this month to review the proposed reforms...And finally, last Tuesday, the US, Japan, and the EU came together to issue their own statement regarding WTO reform. 

Set the scene for this reform wave.

Marc Busch

The backstory is obviously that there had been reform efforts underway since the Doha Round was launched in 2001 and we've seen a great number of submissions on ways to enhance the dispute settlement system.  But I really do feel that this is in reaction to president Trump's questioning of the value of the WTO and in particular the US's reluctance to see the appellate body staff up and gear up for the many cases that are undoubtedly going to be heard in the future by a very limited appellate body minus the outgoing members and no new members being processed.

It is worth pointing out that the papers all seem to speak directly to President Trump and are very concerned about the individual appellate body reports in particular that the US identifies as having been examples of overreach, where the Appellate Body seems to have done more than it's right and gone beyond what was necessary to solve the dispute at hand.

Collin Janich

 You note that all of the reform white papers address the United States’ concerns over Appellate Body overreach, and that is but one of many overlapping issues and even overlapping proposals... Why are we seeing a splintered approach to WTO reform with so many players?

Marc Busch                      

The biggest users of dispute settlements in particular seem to be the ones most animated and most capable and eager to submit white papers on how things could be done better and they've had years to think about this and let's keep in mind as we said in a prior episode that dispute settlement in particular has been a work in progress since day one. We had no real rules on the books until 1979, we had some of the major defects of the old GATT system finally remedied in 1989, but surely not all of them. The DSU, the Dispute Settlement Understanding, comes into effect in 1995, it didn't take many years before shots were already being fired at whether this was the most efficacious we could get, but it is interesting to reflect on the warmth with which the DSU was received, especially by those who had been frustrated by the diplomacy of the GATT system and who heralded the new dispute settlement understanding as literally being the victory of law over politics.

There are important reasons for these countries in particular to get right the relevance of the wet on the two most important front of the WTO operates namely legislation and litigation and the legislation is in recent years almost nonexistent outside of a couple of the plurilateral deals like the trade and services agreement, the environmental goods agreement, and for that matter the information technology agreement part two. But the litigation is really where I think most of the interest will be in the discussion about whether the WTO can or should be fixed to make it more applicable to the world in which we live. And that seems to be the key theme on which these countries are speaking to President Trump's criticisms, insisting that the WTO has worked wonders and augmenting the predictability and stability of the global economy.

Collin Janich                   

Has it, in fact, worked wonders?

Marc Busch                     

Sure like any system of this sort, it could be improved at the margins and there are some weaknesses that go deeper than that, but you still hear in all of these documents praise for the WTO that it has done what it was meant to do namely bring predictability and stability to the global trading system and to ensure that something akin to a roadmap is available to figure out what opportunities lie abroad and which opportunities are more obvious than others and when you don't get what you're looking for, how do you make that actionable.

Collin Janich                   

So we have the EU concept paper on WTO reform, Canada’s proposal, titled, “Strengthening and Modernizing the WTO,” and a joint US/EU/Japan statement from the trilateral meeting between the respective trade ministers...Was there anything that surprised you in these different documents?

Marc Busch                     

For me, the biggest surprise is the emphasis on revisiting the question of special and differential treatment. You see this in the write up by the EU and Canada where the question becomes how do we make the following balance work? We recognize that developing countries don't necessarily have all the same capacity as richer countries in terms of making use of and contributing to the development of the rules. But that said, you also hear and this is the surprising part, some sense that maybe we got this S&D thing, this special and differential thing wrong.

It's almost as though S&D has been built in with the idea being that trade is good for everyone except for the developing countries and that we need to protect them against more of it. And now you have the EU and Canada asking whether in fact it's time to potentially sunset some of the S&D emphasis. Maybe not so much in the mechanism, but in the mentality that more trade is actually better for lifting many more people out of poverty and that it's time to get off this position that protection from this trade is the way to further the development goals of many of these countries.

Collin Janich                     

And these are the “Special and Differential” Treatment provisions...Or S&D Provisions...Walk us through these S&D provisions if you would.

 

Marc Busch                    

The S&D provisions pop up in specific agreements and in dispute settlement. For example, there is a special clause on subsidy that allowed developing countries to take longer to phase out their subsidies, an issue that popped up in Canada and Brazil went to the WTO to battle over aircraft. Brazil was keen to invoke this S&D provision insisting that the WTO afforded it more latitude in getting rid of its subsidies. Canada, however pointed out that it subsidies weren't simply taking a long time to go away, they were in fact increasing over time and that surely was not what was meant by S&D.

Collin Janich                     

And in the context of dispute settlement?

Marc Busch                     

 In the context of dispute settlement, there are both very formal proclamations that a given instrument is meant to be S&D, but there's also a lot of coaxing going on and the dispute settlement understanding that more care and attention should be paid to the concerns and issues raised by developing countries in litigation, especially with rich countries. Now empirically that is not the norm, rich countries and poor countries generally are not at loggerheads in the vast majority of disputes, but developing countries are litigating more and are popping up a lot more as third parties in litigation. These S&D provisions are generally discussed as capacity building efforts and they certainly matter in that regard, but you would have to take a look at how S&D was originally framed to appreciate how far this language has come from that time, and how different the tone is.

Collin Janich                    

In what way?

Marc Busch                     

It's almost as though S&D, which at one point had been truly held as sacrosanct is now being openly and seriously questioned in terms of whether it's good or bad on its face, but moreover whether it undercuts or furthers real development goals and that I think is interesting.

Collin Janich                    

In particular, why are the EU and Canada interested in this?

Marc Busch                     

I think the EU is really playing this one out on a much broader playing field as the EU considers graduating more countries from its generalized system of preferences, as it begins to negotiate many more bilaterals with developing countries like Vietnam. It seems to be part and parcel with that… That in other words, at the WTO, they're raising questions about S&D for the sake of augmenting their bilat negotiating strategy as well. Canada is less vocal about its future plans for GSP, but certainly maybe following this for the sake of negotiation strategy and yet it might also simply be a reaction to President Trump.

This could be relatively easy fodder to offer as being a guiding principle for getting things different in the future and it certainly would help appease what in the Us like in the European Union is an opening question or is an open question about the future of GSP and S&D in that same context. Is S&D really needed in 2018, how long before countries that look more like Brazil and more like India versus say more like certain of the aspirants to join the WTO like Somalia? When do you cut the cord and let the Brazil's and the India's compete on par rather than offering them this special and differential treatment? I wouldn't say that Europe is attacking all S&D, they're really going after the Indias and the Brazil's. They're asking at what point do these countries no longer merit the kind of special capacity building and S&D treatment that they have had and enjoyed since 1995.

Collin Janich               

Fascinating…Well, we’ve addressed the surprises. Were there any elements in these proposals that you found unremarkable, that you expected to be there?

Marc Busch                      

Well, in the same spirit thinking about negotiating strategies for the bilats, what didn't surprise me was the emphasis on encouraging the WTO to continue forward with plurilaterals. Those are those deals that, as we've mentioned in previous episodes, involve coalitions of the willing not the full membership, and you see in these white papers a lot of discussion about how maybe the plurilaterals are the way forward and then different ideas like in the Canada right up on how those plurilateral is could be designed to grow or whether they're closed, one signed, et cetera. But that really is a self-preservation mechanism being offered to the WTO at a time when all the legislative action is really happening in the preferential trade agreements.

Collin Janich                   

Expound on that a bit more if you would.

Marc Busch                                   

This is about keeping WTO is legislative function relevant in a world congested with preferential trade agreements, some of which really don't know how to relate to the WTO despite nice recitals in their preamble that they promise to work hand in glove with the WTO as much as they can. Problem there being that since business and labor aren't going to be asking for the same that they've already got, these deals will either be chalked full of plus provisions meaning deeper than or not covered by the WTO, or they're just simply not going to get done, so in that environment, the WTO is looking for a lifeline. It was certainly generous of several of the contributors of these white papers to offer the WTO that lifeline.

Collin Janich                     

The Trump Administration continues to block judicial appointments to the Appellate Body (AB), the WTO’s highest adjudicative body. By December 2019, the Appellate Body will cease to function...Obviously, this issue has helped inspire the WTO reform wave, but do these proposals address longstanding issues with the AB?

Marc Busch                     

They're all about timelines and they're all about reappointing Appellate Body jurists, and for that matter, how many Appellate Body jurists should ultimately serve. There is an awful lot of minutia being detailed in these write-ups and they're all looking to achieve the same outcome, which is to coax the United States to clear the log jam into appoint new members to the AB so the AB doesn't start to flounder in 2019. That's a laudable goal and one could imagine that given the circumstances, almost anyone will say almost anything that might appease the trump administration to begin to get back to the business of appointing Appellate Body jurists. Whether there's a magic being to be found in this harvest I don't know, but there's certainly a lot of discussion that would seem useful in as much as there are some novel ideas being bounced around and some of them are worth a second look.

Collin Janich                   

The Appellate Body has been the subject of intense debate since 2001 under the Doha reform proposals. How has that debate shifted in the intervening years?

Marc Busch                     

There, it was all about remand, it was all about whether the appellate body should be returning verdicts to the panel, were fact finding wasn't done to an appropriate degree, and while that certainly bears on the US criticism that the appellate body oversteps, what is interesting is that we're seeing none of that being cut and paste into these documents. These documents are about clearing the log jam here and now, these are not about innovating a fuller and better understood role for the Appellate Body.

Collin Janich                     

How is that reflected in the proposals themselves?

Marc Busch                      

They are not about optimizing mechanisms that would facilitate either better first or better second verdicts in dispute settlement. This is really just to get us back to the business of having a functioning AB, you don't see nearly the creativity in reform proposals that we've been seeing since 2001.

Collin Janich                   

You see a lack of creativity, but do you also sense a lack of sincerity?

Marc Busch                    

Oh No, they're sincere, they're just stop gap. They're not the deep creative stuff that we've been seeing in the debate over remand for example. They are about what can be done in the short term to replenish a depleted AB, and in that regard you are hearing a little creativity and as much as there is the question about fact finding. There is a discussion about whether the appellate body should be completing an analysis that the panel has failed to finish, but you're hearing this in the context of appeasing the United States.

Moreover, you're hearing about potentially new consultative ways in which the appellate body might better explain itself to the members who might be annoyed by the efforts of the appellate body and this and the European writeup is clearly aimed at appeasing the Trump administration. The message being that in those circumstances where the appellate body does complete an analysis that maybe it shouldn't have, perhaps there's a way to have a sidebar with the member's concerned or even with the entire membership and justify why that had to happen. Now, the caption of all of this is that everyone is also at the same time adamant that the appellate body maintain its independence and no one wants a politicization of the appellate body, but you are seeing a lot of investment in time and energy spent in trying to allay what have been the various concerns of the United States in recent years about what the appellate body is and isn't allowed to do, and it's true.

The appellate body at times in the past has completed analysis that the panel didn't complete and in that regard, that's a little more than simply correcting errors in law but there are lots of issue avoidance techniques that both panels and the appellate body implement.

Collin Janich                    

Give us an example if you would.

Marc Busch                   

In this regard, my favorite example is that one paragraph from US stainless steel file by Mexico in which the appellate body cautions panels not to deviate from received wisdom unless great cogent reasons exist. That same paragraph that everyone talks about also ends with the appellate body saying, “Having reversed the panel, we are now in no need of going on to decide whether in fact the panel lived up to its DSU 11 obligations to solve all that was at issue in this dispute.”

We have issue avoidance techniques. We call them judicial economy, we call them a number of names that nonetheless are available and have always been available since 1995 to panels on the appellate body. It would be a shame to add too much by way of consultative mechanisms for the sake of apologizing for a few cases that the US feels especially jazzed about. The zeroing case and trade defense cases in general thrown in with FSC, the Foreign Sales Corporation case, the US now has these documents all aiming at the same couple of cases where the antagonism seem to derive from and that is a shame because it leads to a less robust discussion about some of the more creative ideas that were bounced around since 2001 and deserve more attention than these handful of cases.

Collin Janich                   

Will these proposals placate President Trump and be enough to break the Appellate Body judicial appointment logjam?

Marc Busch                   

My hope has been that as soon as the US begins to entertain the idea of certain offensive efforts at litigation, that streamlining the appellate body and re-staffing, it will become much more of a priority, whether this is simply a negotiating tactic for the time being or whether it reflects a mortal wound owing to the zeroing cases that can't be fixed forever or at least not for this administration, this one is a hard one to get.

Let's go back to the first few days of the Trump administration when suddenly we began to see a lot of criticism of DSU article 3.2. It was really interesting to see the early days of the Trump administration and USTRs efforts to crank out documents in which we got a lot of attention to this add to or diminished clause under DSU 3.2. The idea of DSU 3.2 is that verdict should not add to obligations or diminished rights and that's a prohibition on legislation from the bench. What the Trump administration is saying in essence right now is that the appellate body is want to legislate from the bench and that it should be curtailed in this regard and should be limited to doing what it is rightfully entitled to do, namely correcting the panels errors in law. And that means not doing any fact finding that might be necessary to correct these errors in law, but the attitude or diminishes actually much bigger than this and it's a shame that we've had so much concern about whether in fact there is legislation from the bench all because of the zeroing cases when much of what the appellate body has been doing has lived up to the terms of settling the case at hand and not necessarily looking for the big precedent.

Collin Janich

Sure.

Marc Busch                      

Think about some of the cases that have really grabbed headlines, the appellate body is certainly keen on listening to submissions by third parties. We've had cases like the Canada, Brazil aircraft cases where third party submissions, including by the United States by the way had been taken so seriously that the appellate body has asked other countries to comment on US third party submissions. So there's a lot of effort to correct the case at hand and to correct errors in law that aren't overstepping, that aren't overreach, but getting to the question of whether the appellate body has been consistently overstepping is both an empirical question and a theoretical one.

Collin Janich                   

Break that down for us.

Marc Busch                     

Empirically, there aren't many cases that the United States has been pointing to. Theoretically, the appellate body has always gone out of its way to explain why it did what it did and it has even at times offered very interesting paragraphs titled concluding remarks where it seems to have been doing exactly what the Europeans and the Canadians were calling for, namely explaining itself. So if the idea is that more consultation with the appellate body might foster better relations, especially with the United States, so be it, but it does come at the risk of politicizing the appellate body and the appellate body is certainly not immune to politics.

Certainly in the past, the appellate body has gone out of its way to try and stay away from certain politically charged issues. This after all seems to be the greatest cue that the appellate body and the panels for that matter take from third party submissions and so you get a case like Mexico telecom, where Australia as a third party warns the panel not to go too far because the cases verging on antitrust, if not having already made it to antitrust, you get a lot of commentary back. If somehow in some way more consultation is going to facilitate a greater sense of clarity and a greater sense of efficacy, so be it, but not at the price of overly politicizing the appellate body or the panels for that matter.

Collin Janich                     

Marc, let's turn just to the EU proposal for a moment. In that proposal precedent played a pretty big role. Get into that for us if you would.

Marc Busch                      

Precedent is one of those wonderful words that we like to use in the context of WTO, even though we're not technically allowed to use it. The idea of course is that something at the WTO works like binding precedent and we call it de facto stare decisis tracing to a wonderful trilogy written by a lawyer, Raj Bhala from way back when, something that is still on a lot of syllabi out there. Bhala's point at the time he wrote was that it's only our intellectual training and maybe a little sense of embarrassment that keeps us from uttering the term de jure stare decisis. That this system works by case law, we take the precedent seriously. We have something called the WTO analytical index, which is an inventory list of precedent by sentence, by paragraph, by article, and yet we don't say or admit that it's really precedent even though it is.

Collin Janich                     

Why is that?

Marc Busch                   

It's a diplomatic system and the irony is that it would seem by virtue of some of the US submissions that we are having a fond recollection of those days when it was a diplomatic system and when diplomacy, not law allegedly ruled the roost. But even in the early years of the victory of law over politics, dispute settlement patterns were still identical to the way they were under GATT. It really is very recently that suddenly the bargaining effect has been lessened in recent years and by the way to no one's betterment, but the notion that it was a diplomatic system and the fact that we have no binding precedent in international public law writ large has always led people to say there's no such thing, but we know there is precedent at the WTO. We talk as though there's precedent, we have our favorite cases bearing on gap three to GATT 32, GATT 34, we teach our students to trot out Japan alcohol too for GATT 32, we tell them Korea beef for GATT 34, and we've added new language to our repertoire so that we can sound more intelligent at dinner parties, but the truth is it's real and it guides us.

Collin Janich                   

How formal, then, is the precedent?

Marc Busch                      

Here the interesting thing is that at a time when an investor rights, there's a call for more binding precedent or something closer to de facto stare decisis, that the US position on trade is that we should have less of it. Now, less of it means less of a roadmap, less of it means less predictability, and no one at the WTO would argue that it is literally binding precedent. But it's de facto in the sense that as the appellate body explained in the zero in cases all things equal, the guidance of the appellate body is well more than just guidance. It should be followed in subsequent cases, not withstanding cogent reasons to the contrary.

If that's the point, we're going to them up, sure, but let's have the academic courage, if not the intellectual integrity to fess up that we need it and the US more than most. So if you think about the way that these cases are actually discussed among the lawyers, the robustness of the ruling is crucial because a loss on say US tuna to can set up or offensive victories against countless defendants based on the idea that there are a multiplicity of standards that could be used to achieve the same outcome. This language is key and the US knows this. It's the reason why the US appealed it's own victory against Airbus, looking for a bigger win on the word program so that the victory could be rounded out in a way that would stop the need for going after subsequent launches of airplanes by Airbus in the future, the language matters.

Collin Janich                   

The language does matter, and the term “precedent” appears in the reform proposals... What do you take from that?

Marc Busch                     

It's a long standing irony that it is impolitic to say the word precedent, and yet even the papers that we're talking about today submitted by the EU, Canada, Japan, and the United States in the EU together all have that word clearly displayed in their write ups. In fact, Europe dedicates an entire paragraph. Canada, unfortunately in the paper that we've seen, doesn't really get into any specifics about what it sees as being good or bad about the use of the word precedent, but Europe is seemingly willing to talk in more politic terms about precedent and certainly seems to be anxious to allay any US concerns that precedent is unduly correlated with overstepping.

Collin Janich                     

Marc, all these reform efforts take as a given that the WTO is worth saving despite being ill-equipped to fully address today’s trade realities. Is it worth saving?

Marc Busch                  

It is an interesting question. Is the WTO salvageable in terms of it's legislative function? It's been doing nothing for so long that it is almost as though we've inherited the status quo and have come to accept it.

We admire when voices are heard in favor of a little plurilateral, but you don't hear that negotiations are imminent or even necessary in Geneva because of all the action in the preferential trade agreements. It really now is a race in favor of preferential market access over what almost seems like a relic today, namely MFN, but on dispute settlement it's totally different. On dispute settlement, it's clear that there is an understanding that this function can't be done without. That no matter how many preferential trade agreements you have popping up across the global economy, the form of choice will be the WTO. Now, obviously some of those magical plus provisions can't be actioned at the WTO because it's not WTO law, but for those that do hinge on incorporated text and for those that sound like they are inevitably going to draw upon case law from those infamous precedents that sound like Japan alcohol and Korea beef and others, the benefit of going into the WTO is that it's so much more efficient.

Collin Janich

Draw out this idea of efficiency.

Marc Busch                      

You signal to so many more countries that the actions under review here can be also actioned against them. That in a preferential trade agreements, it's me against them and maybe another country whereas at the WTO it's me against them and 162 other countries, that's a lot more efficient.

Collin Janich                     

President Trump has raised fascinating questions about the WTO’s utility in 2018...From your perspective, what are the main questions he has raised?

Marc Busch                      

Are these countries still as developing as they once were? Should they be treated differently now? And that's why the S&D is in play and that's why you're hearing a lot more of the soul searching that wasn't part of the DSU reform discussion from 2001, but a number of wealthier countries are taking advantage of the moment and as we've said in prior episodes, the one learning lesson of the Trump administration on trade is you don't get what you don't ask for.

Collin Janich                  

How does China interpret these WTO reform efforts?

Marc Busch                

Given China's litigation and the fact that two thirds of its cases are trade remedies cases, I would imagine that China's views or solidly behind current practice. That the Chinese would find little reason to believe that each challenge of an antidote would be a de novo exercise, and that predictability is precisely why China has spent such a sizable portion of its caseload challenging anti-dump, a couple of countervails, some safeguards, but especially anti-dump. The Chinese are going to be eager for the status quo to prevail, but it's hard to imagine that the status quo won't prevail and the future with respect to trade remedies is doubtful to be viewed differently even by those countries submitting these papers.

I doubt that the Chinese are against the status quo. the Chinese probably would like the status quo to prevail and my sense is that the status quo will prevail with respect to most of what we mean by precedent, most of what we see the appellate body doing, et cetera. The interesting part to the question though comes in with respect to how China may litigate in the future. What about when China is not preoccupied with trade remedies as being the main basis for its complaints? What happens when China goes after some of the more interesting issues that sound like the non-tariffs that we've been discussing in prior episodes? What then? What about when there's more defensive liability in getting too big of a win when you take down a foreign government’s non-tariff?

Then you might get some more sentiment in line with what we're seeing from the European Union and Canada, but I have to say that if you take a look at what China has submitted since 2001 in terms of DSU reform, they're very consistent and what I like most about what China has stated is for whatever reform proposals are pursued, don't mess with consultations. There should be no investment in making consultations more transparent. there should be no investment in trying to make consultations more crowded, i.e with third parties, that whatever happens in terms of reform, let's not play with the part that really is not broken and that is consultations.

Collin Janich                  

Do you see China peddling its own WTO reform proposals in the near term?

Marc Busch                      

China is seeing this as very functional and as their trade capacity scales up and as their portfolio of cases becomes more varied, it will be interesting to see what kinds of reform initiatives China proposes then because in the past it has been very much about the fundamentals, transparency, access, and much more curtailed than other developing countries, if you want to call China a developing country, but much more conservative than some of the proposals we've seen from say Jamaica and India.

Various groups of African countries proposing very radical reforms to the dispute settlement and understanding, China has had no part in that. They've been very much about the fundamentals and about recognizing what the system is and what the system isn't. And at the end of the day, our discussion about precedent and where the appellate body oversteps, et cetera, let's keep in mind that the system was never meant to have most disputes end in a ruling. It is still in a lot of ways just like it was in the old GATT days, it is a system in which the countries bargain in the shadow of the law. The rulings are very helpful in those cases where we get one, but winning market access on a one off basis is really the purpose in consultations.

Collin Janich

Every player--including China--is seeking greater clarity. So, along those lines, I want to turn to another issue cropping up in the proposals...And that is the issue of notification.

Marc Busch                    

Notification is a legendary problem and what I enjoyed reading most was Europe's condemnation of the relative lack of efficacy of the notification system. Everyone fails to notify at the WTO and for that matter were you to ask many countries about European notification efforts, they would complain as well. Notification is really important, it is the fundamental building block for transparency. I can't fix what I can't see and it is incumbent upon every WTO member to notify their measures. You're seeing a lot of discussion about notification of subsidy, we can say the same thing about notification of technical regulations, these are all generally speaking things that are not well notified

What this really is leading toward, and here we kind of square the peg is how to make some progress at the sub litigation stage and you're hearing both Canada and the European Union celebrate the fact that under the TBT agreement and under the SPS agreement, we have committees that are doing tremendous work to resolve disputes before they even go to litigation. And the messages in both documents, "Yeah, do more of that." The neat thing there is that as we've discussed in prior episodes, under TPP, there was a lot of work given to the committee under technical barriers. Their job was to evolve the agreement as needed to stop disputes, and that kind of consultative function would certainly be important to replicate at the WTO. In fact, we learned it at the WTO and the WTO does a fine job especially under SBS and TBT, but notification always invariably goes along with this thing called a specific trade concern. To do both will be better than to do just notification, but let's keep in mind that virtually every member is accused by someone of failing to notify.

 In terms of disputes element, the one really interesting reform proposal that should be pursued no matter what actually isn't part of dispute settlement at all, it's getting these specific trade concerns right in committee. They'll serve a lot of good. They work well under SPS, they work well under TBT, that's what the EU says, that's what Canada says, and the right to say it.

Collin Janich                   

And Marc, explain what Specific Trade Concerns are and how they work?

Marc Busch                  

Specific Trade Concerns are generally raised by industry and sent to government but not for litigation. They are points of inquiry, they are requests for clarification. They get drafted in maybe a paragraph or uttered orally to a member of the United States trade representative to be raised in committee. The committee meets every three months and the idea is that under SPS and TBT, there's this moment where the specific trade concerns become the talk of the town and there could be questions, questions and answers, points of concern, points of clarification to be followed up on, but the numbers dwarf the case load in terms of litigation by a factor of greater than 10 to one.

 So in committee, you can solve a lot so long as the language is properly conveyed and so long as the other side is willing to respond but it's been wildly successful. It has helped preempt a lot of litigation and the EU in Canada are right to point to this as being something that should be replicated far and wide. So in the scheme of things, there are some really good concrete steps being proposed here and with a little bit of patience in handling some of the longstanding objections by the United States for the past ... look, more can be done. That can be said of any given institution, that's easy, but these countries offering white papers are going to have to be patient with the United States, not just for the sake of the content of the complaints fielded by the United States, but for the timing of politics in the United States.

Collin Janich                    

As always, thanks so much for your time and insight.

Marc Busch                   

Thank you, Collin.

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Tradecraft is a new, bi-weekly podcast exploring the strategic maneuvering, political messaging, and diplomatic posturing that makes and moves markets. It is hosted by Collin Janich and Marc Busch, and produced by Andrew Gore.


Collin Janich