Paulo Roberto de Almeida
Globalization in Retreat
How China Swallowed the WTO
The U.S. helped create the group to
smooth global commerce and integrate a rising China. Instead, it’s
become a battleground for intense national rivalries
GENEVA—Inside the cement compound housing the World Trade
Organization lies a colorful Chinese garden of cultivated rocks, arches
and calligraphy. The gift from the Chinese commerce ministry symbolizes
“world prosperity through cross-cultural fertilization,” according to a
It’s not the only way China has left its mark on the institution.
Sixteen years after becoming a member, the world’s second-largest economy is in an increasingly tense standoff with the U.S. and Europe that threatens to undermine the WTO’s authority as an arbiter of global trade.
Photo: Xinhua/ZUMA PRESS
China has sued both the U.S. and European Union demanding the change, calling it “nonnegotiable,” and Chinese officials are likely to reiterate that demand when they talk trade next week with President Trump during his Beijing visit. Steelworkers have jammed the streets of Belgium and Germany protesting that ultimatum, while Europe’s parliament voted 546 to 28 to fight it, one Italian lawmaker saying acceptance “would be carrying out the suicide of the European industry.”
Washington’s role challenging the WTO marks a reversal from the giddy mid-1990s heyday of globalization, and a reminder of how nationalism is increasingly the byword in global economic competition. When the WTO was forged in Morocco as a new international trade overseer, replacing the less-powerful General Agreement on Tariffs and Trade, the Cold War had ended and the U.S., as the sole superpower, saw a chance to weave economies together around American-style capitalism.
GATT and the WTO have, over the past seven decades, greased the wheels of interdependence. Under Geneva’s guidance, tariffs world-wide have plunged nearly 80% and trade’s share of the global economy has more than doubled. More than 160 countries representing 98% of world commerce are now WTO members, and most of the few remaining nonmembers—like Belarus and Timor-Leste—are negotiating to join.
The WTO’s defenders say it still plays an important role. Roberto Azevedo, the director-general of the WTO, credits his organization with preventing a recurrence after the 2008 financial crisis of the trade wars that exacerbated the Great Depression. “If we didn’t have the WTO, we would be in much worse shape,” Mr. Azevedo said in an interview.
Mr. Azevedo, who as a Brazilian trade diplomat successfully used WTO courts to challenge American cotton subsidies, plays down U.S. complaints that his body isn’t properly equipped to handle China. “We have 164 countries,” he said. “China is one of those countries that have their own practices, their own methodologies. The system was designed to respond to that diversity.”
These failures have elevated the importance and prominence of the WTO’s judicial system, as countries concluded their only option for advancing their cause in Geneva was litigation, not negotiation.
At the WTO, disputes are handled before “panels,” not “courts,” terminology carefully chosen in deference to home-country political concerns about sovereignty. In a similar vein, judges are called “members,” and wear business attire, not robes, though they do preside from an elevated bench.
The courts are structured as an arbitration system, with a dispute-settlement panel and a more powerful appellate body. WTO officials call the process their “crown jewel” and say members comply with 90% of its rulings.
One of the most active litigants has been Beijing.
Clogging the Courts
Most countries combine their WTO diplomatic corps with delegations to other global bodies in Geneva. Beijing built a mammoth stand-alone “Permanent Mission of the People’s Republic of China to World Trade Organization” about a mile up the shore of Lake Geneva, flying the large red flag with yellow star.
The Chinese government was at first shy about using the WTO courts, modeled after the unfamiliar Western legal system, and filed just one complaint in its first five years after joining. But the surge in Chinese exports following its WTO entry, which suddenly made it the world’s largest exporter, thrust Beijing into the center of the legal system.
Since 2007, China has been party to more than a quarter of all WTO cases, as trading partners scrambled to erect barriers protecting their industries while demanding better access to China’s markets.
Facing such pressures, Chinese officials set about to master the process. China sought out disputes in which it had no direct stake and joined more than 100 as a “third party,” giving officials access to proceedings as observers. The Chinese offered large stipends to prominent American and European trade-law scholars to teach seminars in China for young bureaucrats. They retained top U.S. law firms. Steptoe & Johnson LLP became the go-to firm for combating a new American policy imposing extra-steep duties on Chinese imports aided by allegedly illegal subsidies; one member of the Steptoe China team had staffed the WTO appellate body for six years.
WTO defenders note the U.S. has still won the vast majority of cases it has filed in Geneva, and say it should be pleased that China has chosen to pursue its trade grievances through global arbiters.
“Since our accession to the WTO, China has always followed the WTO rules,” Cui Tiankai, China’s ambassador to the U.S., said in a recent interview with a Chinese TV station. “Sometimes we don’t have 100% agreement with them, but still we play by the rules. I hope America could do the same.”
The losses rankled the Washington trade community. In May 2016, aides to then-President Barack Obama cited two rulings favoring China as part of a broader list of grievances designed to block the reappointment of a South Korean judge on the appellate body.
At a tense meeting at WTO headquarters, the U.S. delegate told fellow trade diplomats that the judge, South Korean law professor Seung Wha Chang, had shown a pattern of judicial overreach and suggested that he had acted as an “independent investigator or prosecutor” on behalf of parties such as Beijing.
It was seen as a surprisingly hostile act in the genteel Geneva community. Thirteen veteran WTO jurists complained the U.S. had traversed “a Rubicon that must not be crossed,” putting “the very future of the entire WTO trading system at risk.” Mr. Chang himself responded through an interview with a Korean newspaper, saying he had been made a scapegoat. He added that the U.S. may have wanted him removed before the trade court heard a pending challenge to American restrictions on South Korean washing machine exports., an insinuation U.S. officials have rejected.
Peter Van den Bossche, a Belgian judge on the appellate body, wrote a 2015 essay warning of the “dangerous institutional imbalance in the WTO between its ‘judicial’ branch and its political ‘rule-making’ branch,” that could “drastically weaken” the system.
Since the WTO doesn’t have detailed rules governing Chinese-type state-owned-enterprises, some observers say jurists have had to make decisions case by case.
The Trump administration has escalated the Obama administration’s battle over the appellate body, blocking appointments of any new judges and sparking fights even with members sympathetic to the U.S. campaign against China. By year’s end, the seven-member appellate body will have three vacancies, heightening worries about its ability to manage a mounting backlog and a looming “tsunami of cases,” as one judge warned in a recent speech. At an Aug. 31 meeting of the committee overseeing the courts, the U.S. said it would block any attempt to fill those slots until its “longstanding” complaints about the courts were addressed.
That’s just one of many ways Mr. Trump is testing the WTO. He’s staffing his trade team with longtime WTO detractors. As private lawyers, both Mr. Lighthizer and Gilbert Kaplan, nominated to be the Commerce Department’s trade point-man, helped shape strategy for U.S. industries combating Chinese imports after its WTO entry. Both won protections from the U.S. government—Mr. Lighthizer for steel pipes, Mr. Kaplan for various types of paper—that were later deemed improper by the WTO appellate body for taking too many liberties in asserting Chinese misbehavior.
There’s no sign Mr. Trump intends to follow through on the idea he once floated during the 2016 campaign of pulling the U.S. out of the organization. But aides have said they are exploring a number of policies that openly challenge the WTO’s authority, reflecting their skepticism about the body’s ability to handle China. They have openly discussed imposing sanctions unilaterally against China. Commerce Secretary Wilbur Ross in April launched an official study of “the structural problem” of the WTO and its courts, arguing the body has “an institutional bias…toward the exporters rather than toward the people that are being beleaguered by inappropriate imports.”
Who Wins at the WTO
The success rate of WTO members in filing claims, or defending against them, at the dispute panel level
A looming challenge to the WTO is the pending case determining China’s official status in the world trading system—whether members are now required to treat it as a “market” economy. The debate is complicated because there appears to be no clear answer in WTO rules, which some participants say were left intentionally vague in the agreement governing China’s entry.
Beijing reads the pact as having automatically guaranteed it market status 15 years after its December 2001 accession. The U.S., Europe, Japan and others say the change was intended to be a privilege contingent on liberalization promises Beijing has yet to keep.
The penalty China pays for its WTO label as a “nonmarket economy” is high, as would be China’s benefits for wiping it away. The “nonmarket” designation makes it easier for trading partners to impose inflated tariffs on goods they conclude have been “dumped”—or sold below “fair” value. That’s because prices and costs are seen as so distorted in a “nonmarket economy” that other countries are given wide latitude to determine on their own what they consider “fair.” That contrasts with a stricter burden of proof and analysis required when leveling the same charges against a “market economy.”
China has waged a diplomatic campaign asking nations to grant it market status, winning over more than 70 countries, mainly in Africa, Latin America and Asia. On Dec. 12, 2016—the day after the 15th anniversary of its accession—Beijing filed separate complaints in Geneva against the U.S. and the EU demanding similar treatment from them, arguing that the stance of the two Western powers “nullify or impair benefits accruing to China.”
The European case is moving first, and a panel was appointed in July with veteran arbiters from Jamaica, Switzerland and New Zealand. The deliberations are likely to take more than a year, but interest is already intense, an unusually high 20 countries registering as “third parties,” including Ecuador, Russia, Tajikistan, and Japan.
WTO defenders and critics alike say the Geneva courts are the wrong way to resolve what are ultimately political and economic questions left ambiguous in the underlying rules.
“That gray zone is the key point of tension,” says Chad Bown, a WTO expert at the pro-free-trade Peterson Institute for International Economics. “How you deal with that is ultimately going to determine whether the WTO system in its current form can hang together or not.”
Write to Jacob M. Schlesinger at firstname.lastname@example.org