The WTO Trading Regime Functioning, Equity

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The World Trading System Post-Seattle: Institutional Design,

Governance and Ownership

A CEPR/ECARES/World Bank Conference

Université Libre de Bruxelles, Brussels, 14/15 July 2000

The WTO Trading Regime: Functioning, Equity

and

Democratic Legitimacy

by

Paolo Guerrieri

University of Rome 'La Sapienza'

IAI Institute

E-mail: [email protected]

Preliminary notes for my presentation. Please, do not quote.

mailto:[email protected]

mailto:[email protected]



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Introduction

New problems are affecting the management of the world economy and theinternational trade regimes at the start of the second millennium. The rise in the

multilateral trading system of the new trade issues has brought issues traditionally

in the domain of national sovereignty in the global arena. So, new complexities

are associated not only with matters of governance "at different levels" (national,

regional, multilateral), but also with the involvement of state actors at different

levels of development and, for the first time, of non-state actors. Economic and

world trade issues are becoming increasingly complex and are slowly shifting to

the field of non-trade issues, aggravating the risk of tension between jurisdictions

and systems of governance.

The failure at Seattle to launch a new round is a symptom of this complexity of

the new international trading system and expresses the problems in searching new

rules for better governance of the multilateral system.

The challenge today is how to move beyond Seattle, both metaphorically and

concretely. In ten years time Seattle could mean two very different things

(Hufbauer, 1999): a temporary but enlightening standstill in the post-war course

towards greater openness and international integration; or a dramatic turnaround

sending the world economy back onto a long and impervious path of

protectionism and fragmentation.

To avoid this second scenario so to get the considerable benefits that remain to be

reaped from further global integration, small adjustments do not suffice. Urgent

deep reforms are needed to avert a system breakdown and keep the trading system

going in the next years. The main reason is that the current international regime

for trade encountered increasing difficulties to deal with the new challenges

stemming from global integration

What I want to do in this presentation is first to summarize the main structural

weaknesses of current WTO trading regime and then highlight the most urgentchanges and procedural reforms needed in the international trade governance

system. Finally, I will draw very briefly some conclusive remarks

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The structural weaknesses of the WTO trading regime

For many decades the international trade regime of multilateral cooperation was

able to promote very successfully a dramatic increase of international tradeliberalization by both reducing the costs of making agreements, through

established rules and practices, and by providing information about the

implementation and functioning of the negotiating agreements.

More recently the transformative changes in the trade and international

system have gradually eroded the efficacy of the system by revealing a few

structural weaknesses of the WTO regime. I have grouped these changes into four

main categories.

A first source of stress comes from the fact that the current phase of

globalization has involved certain qualitative transformations of the internationalsystem, distinguishing it from other past experiences in internationalization

processes. These radical transformations have produced embryonic forms of what

has been defined as a process of "deeper integration" among formerly distinct

national economies (Lawrence, 1996). Deeper integration, as we know, involves

many issues related to virtually all non-border policies and practices. In the

present global economy, various areas of policy and government intervention

which were once considered domestic now have huge spillovers effects on the

welfare of other countries. They have also increasingly been perceived as

important determinants of the international competitiveness of firms. So in the

trade regime, international negotiation was less and less centered on trade and

increasingly on domestic regulation and legal systems.

Globalization has also generated a proliferation of non-state agents,

including NGOs - and this is the second transformative change - which has an

increasing role in the multilateral trade negotiations. The MAI-OECD

negotiations and the Seattle meeting proved that international negotiations are no

longer matters reserved for a few adepts, by showing the variety of such

organizations - from NGO coalitions to labor unions, business associations - and

the strength of their voices. Non-governmental agents (Nga) has broadened

further the agenda of WTO by introducing a large set of new links between trade

and other issues, such as labor standards and environmental protection. They alsodemanded more direct access to the international trade negotiation system. Thus

the problem is how to foster participation in the "civil society", and how to

strengthen institutional concerted action on international level.

The third change is that many new developing countries entered into the

formerly restricted club of the trading countries. Developing countries include at

present a large majority of the members of the WTO, four-fifths of the members,

and cover a quite large and increasing share of world trade and investment. They

express their own agendas for trade negotiations, quite different from that of rich

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countries, and demand participation to the decision making process of the trading

regime. In Seattle the developing countries felt completely excluded from the

negotiation process, and the majority of them ‘could not even enter the premises’

where the negotiation were taking place. A major task that lies ahead, therefore, is

to involve these new actors in a pro-active role. It means reconciling the further promotion of open contestable markets at multilateral level with the goals of the

developing world to follow effective independent growth strategies.

Finally the entire international governance architecture, into which the

WTO regime was inserted, has experienced long-term significant changes. The

international system has found itself in what could be termed a "after-hegemonic"

mode (Gilpin, 1987; Keohane, 1989). This can be defined as an oligopolistic

international context in which no one country is able unilaterally to supply the

public goods necessary to operate the international system; or, in other words, as a

set of rules that would assure the orderly functioning of the system. Because the

distribution of international power is no longer hegemonic, the supply capabilityof international public goods has remained constant or has even diminished.

Parallel to this trend, the globalization of markets has led to an increasing demand

for public goods; in other words, a demand for new "rules". The international

system is thus in the midst of a situation of "institutional deficit" because of the

excess demand for public goods. The difficult, tense and increasing conflictual

economic relationship between the US and the EU - on which I will turn later - is

both a reflect and a determining factor of this ‘global governance’ problem.

These four transformative changes of the international system have put

increasing pressures to the trading regime in providing effective solutions - in

terms of higher participation of the many actors involved, widening of the

negotiating items in the Agenda, stronger linkages with other global issues - to the

new challenges stemming from global integration. But the answers have not been

adequate so far, revealing a series of structural weaknesses in the operation of the

trading system. The list of these structural weaknesses is quite large and it

contains many and heterogeneous items. I have grouped all them into three main

categories: functioning, equity, and democratic deficit of the trading system.

First there is the problem of the current structure of bargaining and

negotiating of the WTO. The GATT decision-making system worked well

because there were far fewer countries and the issues were less complex. It is clear that the WTO membership has become much more diverse and that the issues

being addressed are increasingly complex. The failure of the Seattle Ministerial

Conference to deliver the launch of a new multilateral Round has increased the

attention of participants and external observers on the issue of the functioning of

the WTO. There is no doubt that work needs to be done on this aspect, especially

for improving the functioning of WTO and enhancing internal transparency. The

demand for change comes not only from the new actors, such as the more

powerful developing countries and the largely excluded poorer countries, but also

from many advanced countries. The EU Trade Commissioner spoke of a

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‘medieval process of decision making’ with regard to the WTO procedure. A

more effective WTO functioning requires establishing a careful balance between

effectiveness and transparency-participation. A number of proposals have been

made in this area and some procedural changes have been put forward but with

very scarce agreement among member countries so far.

Second there is a growing perception that the trading system is not

affording symmetrical and equitable shares of the overall costs and benefits

among countries and between various groups within each country. As to

developing countries, though there is no doubt that trade agreements have brought

about benefits to them in terms of improved market access and more

liberalization, it is also true that a large group of developing countries are quite

disappointed with the formation and implementation of the WTO agreements. In

the follow-up of the Uruguay round it is clear that developing countries have

encountered huge problems to implement trade agreements and felt frustrated by

the behaviors of developed countries that in many cases have evaded or evendistorted the previous commitments. The widespread perception is that in some

cases the trading system gives special prerogatives to the rich countries and does

not take into account the real needs of the weaker countries. It was reinforced by

the fact that the majority of developing countries were ‘de facto’ excluded from

the preparation and the procedure of the Seattle ministerial meeting. What is at

stake in this case is the distribution of benefits of the trading system and the

balance between efficiency and equity objectives. Greater attention to the needs of

developing countries together with their strengthened capacity to deal with the

WTO is required to avoid that most of these countries could go back to the old

protectionist habits.

But at stake at present is the democratic legitimacy in itself of the world

trading system. In recent years the WTO agreements have brought in issues

considered in the past to be in the domestic domain and not necessarily trade

issues. Also the strengthened dispute settlement procedures has created more

instances where domestic policies are challenged from the viewpoint of trade

policy. All that has been viewed by many as an ‘intrusion’ of WTO into domestic

sovereignty. In particular the interest of ‘civil society’ in WTO matters has grown

as the WTO ‘intrusion’ in domestic policies has become more evident. The most

common reaction is to put into question the legitimacy of such interventions by

assessing the ‘undemocratic’ nature of the international institution that producesthem. These critics have emphasized in particular three sets of issues: a lack of

transparency in the WTO process; barriers to the participation of interested groups

and ‘civil society’ in general; the lack of effective mechanisms of democratic

accountability of the WTO as international institution. Furthermore Seattle made

very clear the difficulties that the activism by Nga can create for international

trade negotiations. To be more sensitive and responsive to the legitimate concerns

of ‘civil society’ could help to restore the legitimacy of the world trading system

as well as an increasing transparency and accountability of the WTO processes.

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Deep changes and procedural reforms

The weaknesses of the current trade regime related to its functioning, equity and

democratic legitimacy are not temporary phenomena: they are reflections of themore basic changes of the world trading system mentioned above. These

structural weaknesses make highly ‘uncertain’ the future of the world trading

system. This does not mean that the current trading regime must be entirely

discarded, but it requires deep changes and urgent procedural reforms. Even more

so since a further liberalization of world trade under an effective WTO discipline

could provide substantial gains to both developed and developing countries in the

next decade.

There is no consensus on what strategy to be pursued. Some want the

WTO to go back to more traditional trade issues and remain a ‘closed shop’

governmental forum; while others demand that the WTO broaden its agenda toinclude the second generation of new trade issues and adopt more transparent

procedures that afford participation to private-sector groups and NGOs.

To highlight the most urgent changes and reforms needed to keep the

system going is useful first of all to distinguish – as done in what follows –

between issues of substance and issues of procedure in the three fundamental

areas mentioned above: functioning, equity and democratic legitimacy of the

trading regime. It is also important to distinguish between possible initiatives in

the short and long run. Even more so since the steps to be taken in the short run

should be necessarily compatible with the possibility of the relaunching of a

multilateral Round. A new multilateral round in effect should remain a

fundamental goal in the trade Agenda and can not be given up, although it could

hardly determine - by itself and in the lack of necessary reforms - a new positive

successful phase of the world trading system

Functioning

A number of steps could be rapidly taken to improve the functioning of WTO and

to enhance its transparency. These could cover improvements in the preparation

and organization of WTO ministerials; simplification of WTO working methodsand notification requirements and enhanced transparency and consultations with

member countries. For instance: (i) open-ended formal meetings to be convened

after informal meetings; (ii) contents of the debate at informal consultations to be

reported at open-ended meetings in which all members should be given an

opportunity to express their views; (iii) the Director General and the Secretariat

could be asked to present specific proposals to simplify existing notification

requirements (while maintaining high standards of transparency) and working

methods in WTO Committees and the Councils; (iv) immediate derestriction of

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most WTO documents (such as Secretariat background papers, meeting minutes

and agendas and panel reports) could be ensured, with a few limited exceptions.

Progress in each of these fields would reinforce the WTO and facilitate the launch

of a New Round of Trade negotiations. Progress can also be achieved without

introducing changes of existing WTO rules and procedures.

It is also important to further reflect on the best consultation procedures to

foster consensus in a manner that is transparent and participatory, while ensuring

effectiveness. Thus the idea of creating a consultative group could be advanced to

improve the functioning of the WTO system. Other international organizations

have executive committee with power to adopt decisions on a defined number of

issues. In view of the nature of WTO decisions, it may be difficult to envisage the

establishment of such an executive committee in the case of the WTO given the

fact that national governments will accept only trade agreements that they

approved and signed. The procedures established by article IX of the WTO

agreement appear to be sound and the fundamental principles of consensus inWTO has not to be changed. So decision taking is better to remain based on

consensus among all members.

But informal consultations among major player within a smaller body with

multi-country constituencies broadly representative of the WTO membership

could be useful for effective and efficient decision-making. Such smaller bodies

would have exploratory and preliminary roles. It could advise the Director

General and, where appropriate, make recommendations to the General Council.

A similar type of body, the Consultative Group of Eighteen (CG 18) was in

function between 1975 and 1990, when the Director General suspended it. Its

purpose was to provide a forum for senior officials from national capital to

discuss policy issues.

Thus the establishment of a consultative group could contribute towards

ensuring greater involvement of senior level capital-based officials in the

management of the WTO and promoting discussion of long term strategies of

structural reforms. The composition of the group could be based on a mix of

economic weight and regional representation so to establish a committee of

reasonable size and rotating membership to ensure that all countries and regions

would be members within a given time frame.

At the same time, it is essential to repeat that such a group must not be a

decision-making body and would not provide an alternative to informal processes

aimed at facilitating consensus, in particular in the context of a negotiation.

Finally the role of the Director General and the WTO Secretariat could be

reviewed with a view to give them a more active role in the management of the

WTO and in the negotiating process than in the past. However they must remain

neutral in negotiations given the present state of relations between member

countries.

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Equity

We have already outlined the frustrated feeling of most developing countries

deriving from the implementation of the commitments of the UruguayAgreements and the exclusion from the negotiation process in Seattle. This has

led to the only partial or non-realization of the expected benefits to developing

countries of their joining the WTO. The complaints of many of them is that the

multilateral trading system in many cases seems to give special rights to the

stronger countries and take poorly into account the real needs of the weaker ones.

That seems even more paradoxical since during last year a number of statements

were made by developed countries Ministers that the next round of multilateral

trade negotiation should be a ‘development round’.

It is thus clear that the possibility of a comprehensive round somewhere in

the future should be seen as an opportunity to reconcile the further promotion of

open trading system with the goals of the developing world to follow independentgrowth strategies. To achieve it the rich countries should increase their market

access to products from developing countries and the issues to be addressed are

first of all issues of substance directly related to the content of the trade

negotiation Agenda.

In this perspective a next Round should certainly include a relevant

chapter on the elimination of remaining tariff and non-tariff border barriers. Are

all topics where positive-sum games are predominant. Insofar they can influence

the Agenda, developing countries have a considerable stake in further progress in

this area, such as in the elimination of the very high tariffs on agricultural imports

and many apparel and textile exports, even more so in the light of the significant

weight of these sectors in their production and trade structures (Krueger, 1999).

The Uruguay Round in this regard represented a major advance by

converting agricultural quotas into tariffs, removing quota protection from textiles

and apparel, and obtaining bindings of most duties. One major effort is to fully

implement these outcomes and offer new important results on this ground. That

means that quantitative barriers in the textiles and clothing must be removed by

developed countries and not replaced by alternative restrictions. On the other hand

in agriculture a substantial reduction in export subsidies of developed countries

should be attainable, facilitated by the structure of commitments which emergedfrom the Uruguay Round. Developed countries, particularly the EU and Japan,

should also reduce bound tariffs from the 50-150% to the 0-15% range that

characterizes manufactures, thus providing substantial benefits to developing

country suppliers.

But the implementation issue contains also another set of problems that are

related with the difficulties arising from the obligations of the developing

countries themselves, including financial burdens in meeting the various

procedural and enforcement obligations of the multilateral agreements as well as

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the economic implications of adjustment of their domestic producers to new rules

(such as in TRIMS, TRIPS).

As some proposed, if future trade negotiations introduce agreements that

require more difficult or more costly adjustments for developing countries, the

latter should be fully recognized in terms of longer periods, more flexible rules,and in specific offers of technical assistance (Wang and Winters, 2000).

Furthermore special and differential treatment might also be given to developing

countries in negotiation on rules changes, by taking into consideration their

different domestic environment (Finger and Hoekman, 1999).

There are also the new trade issues, where negotiations are centered mostly

on removing the obstacles stemming from domestic rules and policies that impede

access of many products and services. The latter includes very sensitive matters in

which divergences among developed and developing countries are more

pronounced given the different extents and contents of the domestic social

regulations of the two groups of countries (Mattoo 1999).Also in this case the greatest restrictions maintained by developed

countries are precisely in those sectors in which developing countries have a

comparative advantage, such as low- and high-skill labor-intensive activities that

require either temporary entry or work permits. For example in the construction

sector the problems are linked to the temporary nature of the work and the

restrictions on the movement of natural persons. So developing countries are

paying particular attention to the negotiations on the movement of natural persons,

in which advanced countries have posed several limitations (in the "mode 4" of

the GATS). Since the liberalization of the movement of persons is undoubtedly

lagging behind that of the circulation of capital, greater symmetry of treatment in

the WTO of the factors of production - capital and labor - is important, especially

for low-labor-cost countries (Chanda, 1999).

The protection of the environment and the link between labor standards

and trade are very sensitive issues and risk generating a head-on battle with

developing countries. In terms of the next Round I believe that labor and

environmental standards should not be negotiated in the WTO (Guerrieri and

Falautano, 2000). Instead the standards should be designed and adopted by other

international forum (such as ILO), including ad hoc groups The strong hostility on

the part of the developing countries is based on a number of arguments,

particularly they assert that the request for minimum labor standards conceals protectionist intentions. The last suspicion is shared by a large part of the

literature (Anderson, 1996; Maskus, 1997) and is also confirmed by the abuse of

the anti-dumping measures in the recent time. However a first step, such as

cooperation among the different international agencies and the ILO and WTO on

the matter of social standards, should certainly be supported.

Finally to bring the developing countries much more effectively into the

trading system one should also deal with issues of procedure particularly by

introducing mechanisms to reinforce participation in the life and management of

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the Wto. As the number of countries increases, mechanisms are needed to

reinforce participation in the decision-making processes. It has been demonstrated

that over 50 percent of the developing countries belonging to the WTO have

serious difficulties in just taking part in the meetings or presenting their

negotiating positions (Michaelopulos, 1998). The elaboration of trade strategiesinvolves collecting information, coordinating domestic action, pinpointing

priorities, analyzing costs and benefits and monitoring the effects of

commitments. This is very costly, both in economic terms and for the human

resources involved. However, the continued poor participation of developing

countries is and will become a serious problem for the future of the WTO.

If there is to be full participation of all members countries, alternative

solutions are needed. These include: a) the activation of technical support

mechanisms during both the accession and participation phases (but assistance-

driven reforms have to be internalized and managed by recipient countries; b)

cooperation with other international development assistance agencies (UNCTAD,

World Bank); c) support for initiatives fostering a kind of common"representation" among like-minded countries or groups.

Furthermore to avoid what happened after the UR when most of these

promises have not been delivered the next Round should make promises of

technical assistance binding and subject to retaliation.

Democratic Legitimacy

As already said the WTO agreements have brought in issues considered in the

past to be in the domestic domain and the DSP has created more instances where

domestic policies are challenged from the viewpoint of trade policy. The interest

of ‘civil society’ and non-state actors in WTO matters has grown as the WTO

‘intrusion’ in domestic policies has also grown. The most common reaction was to

put into question the legitimacy of such interventions and the democratic nature of

the WTO, in terms of scarce participation and accountability in the WTO process.

Thus the problem is how to increase the public legitimacy of the trading system

by increasing external transparency and removing restrictions on participation of

WTO process while maintaining the effectiveness of the system.

It is clear that there is the need for a growing involvement of “non-state

actors”, according to the WTO's definition of the "civil society”: industrial andsectoral associations, trade unions and lobbies, but also non-governmental

organizations.

But the question of involvement is a very complex one and raises a

number of issues concerning the WTO institutional design.

The first request of ‘non-state actors’ and NGOs is for more access to

WTO documents and evidence. It is the easiest task since in this regard we have

already outlined the great progress made on this front in recent years by WTO and

the further significant steps that could be taken in this direction.

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A second request is for more participation in WTO activities, i.e. ‘ a seat at

the table’. The involvement of the "civil society" in a strict sense was initiated in

Marrakech with informal dialogues. This was later institutionalized by the

participation of non-governmental organizations (NGOs) in the Singapore

Ministerial Conference of 1996, and the recent innovations of the General Councilof 1998, launching an information and transparency policy.

With regard to strengthen procedures for consultation with Nga there has

been considerable discussion in the General Council and various initiatives to

enhance consultations with civil society on different issues are considered with

favor, such as: (i) the introduction of a formal accreditation system for NGOs,

taking into account the experience in other international organizations; (ii)

enhance contacts and exchange of information between the WTO Secretariat and

accredited NGO's, by also reinforcing the WTO Secretariat budget (iii) ensure a

more regular organization of other forms of informal dialogue with civil society

on a broader range of WTO issues; (iv) hold an annual open meeting of the WTO

to present and discuss a report on the activities of the WTO and significant policyissues affecting the trading system, as already envisaged earlier

But there are other more difficult and controversial issue with regard to the

demand for participation. Thus it seems to be excluded an involvement of the Nga

into decision-making or adjudication process, nor even to give them the status of

observers at the Council meetings. The WTO is an intergovernmental

organization and most member countries want to maintain this status.

It is very clear in effect that although diffusing power has the potential to

increase legitimacy, it can also increase the public politicization of issues, and it

often makes it harder to make any clear decisions.

It is also highly doubtful if and to what extent the Nga should be allowed

to participate to the DSP. They require the right to observer status and to present

amicus curiae briefs before dispute settlement panels and the Appellate body. The

US has been the strongest proponent of ‘opening up’ the WTO DSP, but these

proposals are strongly rejected by the Southern countries.

On the other hand it is very clear that major efforts should be done to

enhance transparency of the system, also by developing transparency mechanisms

that are parallel to and independent of the WTO. One possibility would be for the

private sector and the Nga to jointly establish a transparency body that would

operate in parallel to the WTO process (Hoekman and Mavroidis, 1999).

Although it should be stressed again that there are compelling reasons whygovernments should continue to have sole access to DSP

Conclusions: The WTO regime: Functioning, Equity and Legitimacy,

(to be added)

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The WTO Trading Regime Functioning, Equity