Um dos mais importantes artigos que já li no Wall Street Journal: simplesmente o futuro do comércio internacional com a admissão (ainda oficiosa) da China como "economia de mercado" na OMC, e um estudo dos casos sendo examinados sob o seu sistema de solução de controvérsias. Repito: IMPORTANTE, para os que seguem o comércio internacional.
Paulo Roberto de Almeida
Globalization in Retreat
How China Swallowed the WTO
By
Jacob M. Schlesinger
The Wall Street Journal, November 2, 2017
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
marble plaque.
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.
“The WTO’s abject failure to
address emerging problems caused by unfair practices from countries like
China has put the U.S. at a great disadvantage,”
Peter Navarro,
a trade adviser to President
Donald Trump,
said in an interview. “The message to the WTO from this
administration has been clear. Things have to change.”
Such criticism has percolated over many years in the U.S. with
growing bipartisan intensity. Now it is coming to a head under the
first American presidency of an open free-trade skeptic, in a case just
starting to wend its way through the Geneva process. The issue: whether
China has graduated to a “market economy,” a change of status that would
make it considerably harder for other nations to block imports they
believe are improperly aided by Chinese government distortions.
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.”
“This is without question the most serious litigation matter
we have at the WTO right now,”
Robert Lighthizer,
the Trump administration’s trade representative, told Congress in
June. A China victory, he added, “would be cataclysmic for the WTO.”
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.”
But critics say the system is badly in need of an overhaul.
After the violent 1999 street battles that killed the Seattle round and
the effective 2015 death of the Doha Development Round, the world trade
regime has now gone nearly a quarter-century without a comprehensive
rules upgrade—the longest such period since World War II.
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.
China’s 2001 WTO entry was a transformative moment.
Negotiations took 15 years—longer than those creating the WTO itself—and
included more strings and conditions than had been imposed on any other
member. The shared, underlying assumption was that China’s economy was
undergoing a historic transition from state-run to market-oriented, and
that WTO membership would ensure, and accelerate, that evolution.
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.
Beijing’s lawyers started notching notable court wins over the
Americans who shaped the system. In a series of rulings from 2011
through May 2017, the appellate body concluded that Washington had cut
too many corners in asserting that the state underwrites Chinese
exports. Those decisions, covering four dozen industries, from off-road
tires to wind towers to, literally, kitchen sinks, raised the bar for
U.S. policy makers trying to block Chinese imports. And they complicated
American efforts to impose higher duties on Chinese goods.
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.
The Chang tensions exposed a bigger problem: The WTO’s failure
to complete negotiating rounds aimed at updating rules for 21st-century
business has forced judges to use often-outdated 1990s guidelines in
settling disputes. That has fed complaints that the WTO courts were
relying increasingly on their own interpretations of those rules,
engaging in judicial overreach and activism.
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.”
Research shows WTO courts tend to favor countries suing to
challenge trade barriers over those defending them. In a study of all
WTO disputes litigated from 1995 through early 2016 for the Journal of
World Trade, Louise Johannesson and Petros Mavroidis concluded the
plaintiffs won 71% of the claims filed at the panel level. But their
data also show the U.S. is one of the most successful plaintiffs,
winning far more of the cases at the panel level that it initiates than
China does.
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.”
A flip from “nonmarket” to “market” would boost EU imports
from China by as much as 21%, or $84 billion, according to a 2016 study
by CEPII, a French-government affiliated think tank on international
economics. The same report noted the U.S. uses the nonmarket discretion
more aggressively than the EU, both slapping penalties on a greater
portion of Chinese imports and applying a steeper rate. The study
concluded that Washington applied an average duty of 162% against
Chinese goods, compared with a 33% rate for market economies.
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
jacob.schlesinger@wsj.com
