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WTO’s ‘Crown Jewel’ Under Existential Crisis: Problem Explained

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World Trade Organization (WTO) is an international body that acts as a watchdog keeping an eye on the rules of trade between nations. WTO came into operation in 1995 and was founded as a successor to the General Agreement on Tariffs and Trade (GATT), which was incorporated in 1948. It acts as a forum where WTO members discuss and negotiate trade issues. Moreover, it works in the form of different multilateral as well as plurilateral WTO agreements. These agreements live at the heart of WTO as they deal with different aspects of trade policy.  Agreements like General Agreement on Trades and Tariffs; General Agreement on Trade in Services; The Agreement on Trade-Related Aspects of Intellectual Property Rights etc. forms the centerpiece of WTO.  Through these agreements, one WTO member enters into obligations and formulates the relation of reciprocity with the other WTO member.

Undeniably, the Dispute Settlement System (DSS) that works under the WTO is considered to be the ‘crown jewel’. No matter how stringent the laws are, unless they couldn’t be enforced, they are of not much worth. DSS functions as an effective mechanism to settle disputes and to enforce obligations in case of violation by any WTO member.  The ration d’etre of giving birth to DSS was to ensure settlement of disputes in a timely and structured manner.  DSS is committed to impede and further mitigate trade imbalances between stronger and weaker players by having their disputes to be settled on the verge of rules and not power. Since the day it came into force in 1995, 595 disputes have been brought before the DSS and out of which 350+ disputes are settled.

DSS is governed by the Dispute Settlement Body (DSB) through the rules incorporated in Disputes Settlement Understanding (DSU).  The DSS works as a two-tier redressal forum and is the most important and busiest international tribunal having a binding authority on the parties to the dispute once they adopt the report of findings. On the first level comes the Consultation as per Article 4 of the DSU rules. Article 4 states that “each WTO member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.” Therefore, Consultation is mandatory before any dispute is addressed to DSB. Once the consultation is failed, the complaining party can request the DSB under Article 6 for the establishment of a panel body that shall aim to settle the disputes between the parties.

On the top of the hierarchy comes the appellate body which shall hear the appeal from panel cases. Any party to the dispute can formally notify DSB of its decision to appeal. Under Article 17 of the DSU rules, DSB shall establish a standing appellate body. Unlike the Panel body, the appellate body is a permanent body composed of seven persons out of which three shall serve on any one case. These members are appointed for a term of four years. It is the duty of DSB to ensure that the vacancies shall be filled as they arise so as to confirm the smooth and timely functioning of the hierarchical mechanism of dispute redressal. Principally, the decision under DSB is taken through consensus methodology. Article 2.4 of DSU explains this method stating that “the consensus is said to be achieved when no WTO member, present at the meeting, formally opposes to the proposed decision”.

The genesis of the crisis is attributable to the U.S. who through its non-consensus has blocked the selection procedure to fill the vacancies alarming in the Appellate Body. The minimum requirement for Appellate Body to function is at least three persons out of total strength of seven. However, on 11th December 2019, the term of two of the remaining three members came to an end. At present, the Appellate Body has only one member and thus, it is dysfunctional and the resolution mechanism has brought to a grinding halt. The political façade started long back in 2017 when the U.S. cleared its intention of not allowing the selection procedure to taken place in order to fill the vacancies in the Appellate Body. Nonetheless, the Appellate Body continued its function as the compositional requirement was manageable due to the tenure of three of its members remaining but ultimately the crisis knocked the doors of WTO in the last month of 2019.

Although, at present, the composition of the Panel Body has not been interjected and the process of addressing disputes through Panel Body is still in continuance. However, the problem is as per the trends, in 67 percent of the cases, one of the parties to the dispute appeals the finding of the panel body and thus; when the Appellate Body is itself dysfunctional, the order remains non-binding and the whole mechanism of the dispute resolution is disrupted severing the gravity of the political disaster. The reasons for the U.S. to block the normal functioning of the Appellate Body have been shared with other countries as well. Fortunately, no other country has repelled in the way the U.S. is exclaiming to address the loopholes. The dissatisfaction of the U.S. administration with the WTO is not a secret anymore when Mr. Donald Trump labeled the WTO as ‘disaster’ for their nation.

The reason for the U.S. to express dissatisfaction is because of the overreaching power that Appellate Body enjoys. To combat that, on a lighter note, the U.S. has shown a preference of going back to the non-binding dispute settlement system that was prevalent at the time of GATT, 1948. Ironically, it was the U.S. who during the Uruguay round of negotiations (1986-1994) pressured and voted for creating a dispute redressal system that is binding and enforceable, however as the tables have turned now and the Appellate Body has become an irksome affair for the U.S.

The central issue of the U.S. to cordon the appointment revolves around the problem ofjudicial overreach.  To elaborate the claim, the U.S. believes that the dispute settlement system interprets the WTO rules in such a way that instead of simplifying, it rather creates new obligations for the WTO members. What the U.S. believes is that the Appellate Body drifts away from its original mandate due to its practice of issuing decisions that either burden the WTO members with new obligations or diminishes the right they enjoyed earlier.

Further, the U.S. has raised the objections against the procedural irregularities by the Appellate Body. Entangling the issues of the procedure, firstly, the U.S.has pointed out the contradiction of the DSU rules adopted by the WTO members and the Appellate Body Working procedure which are drawn up by the Appellate Body itself. As per the Rule 15 of the latter, it allows the Appellate Body members to remain on board and to continue to serve on appeals which are pending during their terms; however, as per Article 17.9 of the former, a member enjoys the position for a fixed four-year term. Thus, the Appellate Body working procedures violate the provisional requirement as laid down in DSU rules.

The second procedural issue raised by the U.S. deals with the violation of completing the report by Appellate Body within the time frame of 90 days as prescribed by the DSU rules. The US has pointed out that the extraordinary delay violates the mandate of a speedy trial and further it negates the right of the complaining party as well as the party brought to dispute due to the hauling of their economies to a hiatus. It is the belief of the U.S. that the prospective incapacitation of the Appellate Body is undoubtedly a menace for the WTO and its members because once the report of panel body is appealed, it cannot be made enforceable unless the appellate body decides and thus, it holds the country for the indefinite timeframe not authorizing the party to retaliate on whose favour the panel body decided the dispute.

It is indisputable that the DSS need to undergo a series of reform in order to gain the lost confidence. Unfortunately, the step taken by the U.S. has been termed as harsh and politically motivated. One move of the U.S. has paralyzed the ability of the ‘crown jewel’ to resolve international trade disputes. Even going against the decision of the U.S. and outcasting the consensus power it holds won’t serve the purpose as the U.S. is an important player of WTO and if the U.S. is not a party to it; the WTO would be synonymous to a toothless tiger. 

Nevertheless, arbitration under Article 25 of the DSU rules can act as an alternative to the hierarchal redressal system, as well as, solving disputes through bilateral agreements can be another alternative during the time of this existential crisis. The proposed idea of forming a Multi-party Interim Appellate arrangement will not succumb for long because the U.S. will not be its part and as it is certain, U.S. forms a considerable part of international trade, thus, there will again be a situation of deadlock. Moreover, choosing such interim mechanisms for the long run can raise a threat to the uniformity of rulings that WTO embraces. All in all, WTO is currently under jeopardy and it can be the beginning of the end if a solution to the crisis is not found in a timely manner. As of now, the Supreme Court of the international Trade ceases to exist and is in a life or death moment.

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Economy

Of IMF’s Debt Trap and Chinese Debt Peonage

Abdul Rasool Syed

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With the mandate of fostering global monetary corporations, securing financial stability, facilitating international trade, promoting high employment and sustainable growth, and reducing poverty around the world, IMF formally came into existence in 1945 at Bretton Wood conference. Ever since its inception, the fund has been under severe criticism by economic luminaries, celebrated academicians, and the enlightened political scientists belonging to different parts of world exclusively to the third world countries.

For many observers, the problems of the fund are congenital; Bretton Wood produced a deformed infant and a little has been done through the years to overcome such deformities. The assertion is often made the fund was created by and for industrial countries with no concern for the developing countries. Much of the criticism on fund revolves around the conditions attached to its lending facility.

According to well-versed economists, when the fund prescribes austerity to the recipient country, the health budgets are cut down, children are forced to leave schools and the workers are thrown out of work. Education and health sectors suffer the worst consequences of IMF’s prescribed austerity drive. IMF with utter disregard to domestic affairs of the host country prescribes its own recipe to cure the ills of borrowing economy.

It dispatches a team to assess the economy of the host country, measure its performance, and to recommend corrective measures and remedial actions; of what Joseph Stieglitz– a former World Bank chief economist famously scorned as second-rate economists from first-rate universities–says, “They are well-meaning people and I am sure they want to help. But their visits are painful reminders of riots in Bolivia, Indonesia, and strikes in Nigeria…”

Another renowned economist Jeffery Sachs argues that the IMF’S “usual prescription is budgetary belt-tightening to the countries who are too poor to buy such belts”. Furthermore, it reminds me the prophetic words of Harry White former assistant to Secretary of the U.S treasury who once said “I don’t think the fund should butt into every country’s business and say “we don’t like this or that”.

Moreover, for the developing country like Pakistan, the IMF prescriptions are force-fed and according to one economist, we have to swallow the IMF prescribed medicine because we have no other choice. He adds that some of the recommendations of the fund are like a doctor stemming the bleeding of your arm by stopping your heart. Thus, such prescription incompatible with the domestic market of the borrowing country does not bear any fruit. It rather redoubles the difficulties for the host country to cope with its socio-economic challenges.

In addition, there is also a widespread perception in developing countries that by giving its own program, the fund entraps the borrowing country and thereby penetrates deep into its economic system. The fund’s undue intervention in the country’s internal economic dispensation results in economic chaos and uncertainty. The policymakers are therefore unable to craft economic programs in accordance with requirements of the home economy. Consequently, the country is forced to surrender its economic independence and financial sovereignty.

Another allegation leveled against the IMF is that it is a tool of U.S foreign policy that furthers its strategic and economic interests.
Being the only nation with an outright veto helps Washington sway decisions to its benefits. The U.S, therefore, exploits the fund to lure the borrowing country into a debt trap and thereby makes it as its lackey. Such entrapment helps U.S advance her imperialist agenda and meet her global interests. This can be plainly grasped in our relations with the fund, whose pockets are generous to us when we serve the interests of the U.S as it happened after 9/11 and penny-pinching otherwise.

The undue clout of Washington on IMF has raised many questions on its credibility.  Rightly did Lord Keynes describe the views of America on the future of IMF. He wrote in 1944, before Bretton Wood Conference. “In their eyes, the fund should have wide discretionary and policing powers and should exercise something of the same measure of the grandmotherly influence and control over the central banks of the member countries, that these central banks, in turn, are accustomed to exercise control over the other banks of their own countries”… this is how the game to control the economy of the borrowing country is played by U.S in cahoots with IMF.

It seems that China too is following the footprints of IMF. It is employing the same tactics to create its global hegemony as that of the U.S. by using its heavy influence on IMF. It has been keenly observed by political cognoscenti and leading defense analysts that China is colonizing smaller countries by lending them massive amounts of money that they can never repay. The country is accused of leveraging massive loans it holds over small states worldwide to snatch their assets and increase its military footprints.

Developing countries from Pakistan to Djibouti, the Maldives to Fiji all owe huge amounts to China. There are examples of many defaulters being pressured into surrendering control of their assets or allowing military basis on their land. This move of China is being dubbed by its detractors as “debt-trap diplomacy” or debt colonialism- offering enticing loans to countries unable to repay and then demanding concessions when they default. Sri Lanka provided a prime example of last year.

Owing more than $1 billion in debts to China, Sri Lanka was forced to hand over Hambantota port to the companies owned by the Chinese government on a 99 years lease. And Djibouti, home to US military base in Africa, also looks likely to cede control of a port terminal to a Beijing-linked firm. Apart, America is eager to stop the Doraleh container terminal falling into Chinese hands, particularly because it sits next to China’s only overseas military base.

While commenting on the Chinese debt- trap diplomacy, Rex Tillerson said” Bejing encouraged “dependency using opaque contracts, predatory loan practices, and corrupt deals that mire nations in debt and undercut their sovereignty”.

Additionally, China’s debt empire has also been rearing its head in the Pacific, prompting fears the country intends to leverage the debt to expand its military footprint into south pacific. Beijing’s creation of man-made islands in the disputed South China Sea for use as military bases suggests the concern may be warranted.

Another case worth mentioning here is of Tonga. It also carries some big debts and is struggling hard for the repayment. Tonga’s Prime Minister, Akilisi Pohvia voiced his concerns saying that Beijing was planning to seize assets from his country. Inter alia, a report from the Center for Global Development offers some insight into spreading China debt. It depicts that the infrastructure project loans to the likes of Magnolia, Montenegro, and Laos have resulted in millions or even billions in debts, which often account for huge percentages of countries’ GDPs.

Many of these projects are linked to the belt and road initiative- a bold project to create trade routes through the swathes of Eurasia, with China at the center. Mahathir Mohammad, the Malaysian Prime Minister while talking to press expressed his reservations about Chinese investment in the following words” We welcome foreign direct investment from anywhere certainly from China. But when it involves giving contracts to China, borrowing huge sums of money from China- and Chinese contractors prefer to use their own workers from China, use everything imported from China even payment is made in China. So we gain nothing at all”.

Therefore, Pakistan in dealing with both IMF and China must remain cautious so that it might neither fall prey to Chinese debt peonage nor to IMF’s debt trap. It may not be possible in case of IMF because a beggar cannot be a chooser while in case of engagement with China, we need to maintain caution and outline our own rules of engagement based on monitoring, evaluating, and allowing discussions to weigh the pros and cons of each and every development project.

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Economy

Armenia’s inability to solve pandemic-related economic problems

Orkhan Baghirov

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According to data from the Armenian government, in 2019 the country’s economy grew by about 7.6%,which was the highest figure since 2008. Further data from the Statistical Committee of Armenia show that the trade and service sectors were the main drivers of economic development. In the same period, 9% growth in industrial output and a 4% reduction in agricultural output were also recorded. Inspired by these growth numbers, during a cabinet meeting in January, Prime Minister Nikol Pashinyan said that he was confident that, as a result of the joint efforts of government members, even higher figures will be registered in 2020. However, as a result of subsequent pandemic-related events, his confidence disappeared and difficulties in solving economic problems have proven the inability of the Armenian government to act independently.

Since the declaration of an emergency situation on March 16, economic activity has significantly slowed, thus leading to the creation of various economic problems and a financial deficit. Even though some restrictions were softened in May, that did not lead to a noticeable increase in economic activity. As a result, the economic forecasts for Armenia in 2020 worsened. According to the European Bank for Reconstruction and Development, the economy of Armenia will contract by about3.5% in 2020 as a result of global uncertainty and falling demand. However, the Armenian government is more optimistic in its prediction of a decline in GDP of 2%.

One of the main problems created by the pandemic-related economic restrictions is the impossibility of implementation of government-approved budget projects for 2020. As the forecast for Armenia’s GDP worsens, it will lead to lower tax revenues than initially planned for. According to the Finance Minister, Atom Janjughazyan, with the forecast 2% decline of GDP at the end of the year, tax revenues will decrease by about 10% compared with the planned volume. If the economy diminishes by more than 2%,that will lead to an even greater reduction in tax revenues. Janjughazyan also noted that the government plans to keep budget spending unchanged in order to mitigate the negative consequences and create the preconditions for a quick recovery. Although this decision could help to prevent social discontent and avert some economic problems, it could have long-lasting economic consequences by significantly increasing the budget deficit. With a reduction in taxes generated of about 10%, the budget deficit will double, reaching 5% of the projected GDP or $676.4 million (1 Armenian Dram=0.0021 USD). To run the budgeted projects with such a high level of deficit, the government will have to amend the budget legislation in order to exceed existing restrictions.

Another financial problem for Armenia is related to the implementation of support programs. As the emergency situation has substantially impacted economic development, the government has had to implement support programs. Even though these programs have been important in supporting the economy, they have also created financial problems as the government does not have enough resources to implement them independently. To support the economy, the government approved a support package of $315 million. Of these funds, $168 million will be used for long-term economic development programs;$52.5 million for the elimination of economic problems, social tension and liquidity issues; and $42 million for the redistribution of reserve funds. So far, the Armenian government has approved 20 crisis measures for the implementation of support programs.

Financing the high budget deficit and extensive support programs creates financial problems as Armenia does not have sufficient financial resources. Therefore, Armenia must attract funds from other countries or international financial institutions. Based on the calculations of the Armenian government for financing the combined support programs and budget deficit,it needs to raise an additional$546 million. Armenia already has a large volume of external debt (40% of GDP in 2019) and raising additional funds will significantly increase that debt. Taking on an additional $546 million of debt will increase the government’s external debt by about 10%. Taking into account that, during 2019, the total public debt of Armenia increased by about 14.8%, the increase of external debt by about 10% from only one source shows how seriously it will affect the financial security of the country.

Armenia also is facing economic problems in the energy sector. On April 1,GazpromArmenia, the Russian-owned natural gas distributing company, declared that it was going to ask the Public Services Regulatory Commission (PSRC) for changes to gas prices in Armenia. It proposed to set the same price for all customers beginning from July 1. This change would eliminate the discount for low-income families, thus leading to a 35% increase in price for them but a2.2% decrease for consumers that use up to 10,000 cubic meters of gas per month. The Armenian government was dissatisfied with the offered gas rates as it was already dealing with pandemic-related economic problems and it requested that Russia decrease the price of gas that they sell to Armenia.

As the talks with Russia did not lead to desired results, the PSRC accepted the changes but kept the price for domestic users and low-income families unchanged. The PSRC wants the average weighted price of 1,000 cubic meter of gas be set at $266.7 USD,$16.43 below the price that Gazprom Armenia had proposed. The price of natural gas will increase from $212 to $224 per thousand cubic meters for agricultural companies, and from $242 to $255.92for consumers who use more than 10,000 cubic meters of gas per month. The new prices will enter into force on July 19, except for thermal power plants. Despite the fact that PSRC was able to prevent price changes for ordinary citizens, the new rates will create unemployment problems. In order to operate with accepted price changes Gazprom Armenia has to lay off about 1500 employees and reduce its annual revenues about 6%.

The inability of the Armenian government to solve its economic problems with its own financial resources or to diversify its energy imports will lead to significant economic problems. Many countries around the world are facing economic and financial problems and are therefore looking to obtain foreign assistance, and this reduces opportunities to access foreign finance by intensifying competition. Therefore, it is not currently easy for Armenia to attract financial resources. The dependence of the energy sector on the price policies of other countries also creates economic instability. Even though the PSRC was able to avoid natural gas price rises for ordinary citizens, it cannot prevent unemployment issues and price rises for businesses. Therefore, countries that are dependent on foreign financial assistance and are unable to implement independent economic and energy policies during the pandemic and in the post-pandemic period will face serious economic issues. Taking into account that social and economic problems were among the main drivers of the change of government in Armenia in 2018,the pandemic-related economic problems will also have political consequences.

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Economy

Coronavirus Impact On The World Of Work Traverses National Borders

Dr. Arshad M. Khan

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With the coronavirus lockdown, one aspect of our lives has been revolutionized … the world of work.  Computers have facilitated the transition and the coronavirus forced a real-life test.  For jobs where it is possible, we are working from home and many of us like it that way.

There are countries that have been doing it long before the coronavirus — at least in numbers far in excess of other industrialized countries.  In the Netherlands 14.1 percent of workers say they usually work away from the office compared to 4.7 percent in the UK and only 3.6 percent in the US.  Only Finland is comparable.  

Finland also allows flexible hours.  Indeed such flexibility has a basis in law ever since the 1996 Work Hours Act giving most workers the right to adjust workplace time.  Thus 92 percent of companies allow flexible hours there (a notable example being an employee who works remotely from Malaga, Spain!) compared to about three-quarters in the US and UK, a half in Russia and only 18 percent in Japan.   Employees can start or finish their workday up to three hours earlier or later.  A new Working Hours Act came into effect on Jan. 1, 2020 through prior legislation, fortuitously given Covid-19.  This now permits workers to schedule up to half their working hours away from the workplace.

Both Finland and the Netherlands also benefit from a culture of trust and equality; also practicality, a quality that small countries nurture to compete with the giants beside them.  Think Russia in one case and Germany for the other.

Flextime has other benefits.  Studies report higher output and efficiency.  When workers are allowed to pick their hours, they drift towards when they want to work.  In Finland, they still have to average 40 hours per week over each four-month period.  Nevertheless, working at a time most suitable for their individual circumstances implies they are working at their best, which also translates to most productive.

HSBC, the large UK bank, looked at what is driving UK productivity growth in a 2018 study.  Eighty-nine percent of respondents cited the importance of flexible working hours and work-life balance rating them higher than financial incentives.  One-in-five also cited poor work-life balance as the main reason for leaving a prior job, ranking it higher than limited opportunities or salary increases.

Meanwhile in the Netherlands, where 98 percent of homes have high-speed internet access, there is also a culture of trust, plus a combination of technology, attitude and expectation to make remote working a success.  King Willem-Alexander issued a photo of himself working from home to encourage others to do the same during the pandemic.

But then, the Netherlands is different.  ING, an Amsterdam-based bank, is now trying out a policy of unlimited vacation time for pilot groups of workers.  They can take as much time off as they want provided their work and set tasks do not suffer.

There must be something in all this for Dutch men averaging 163 cm (6 feet) are the tallest people on earth.  At 179.6 cm, the Finns are not far behind. 

Perhaps employers over here in the US will be enlightened by the statistics.  If there is a silver lining in this dark coronavirus cloud then, it could be in the world of work.

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