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The WTO is struggling – as many have pointed out (Wolff, 2022, Srinivasan 2020, Gao 2021, Hopewell 2021). It’s easy to understand why. Built around yesterday’s consensus to tackle yesterday’s challenges – the WTO is being pushed to breaking point by the entrenched disagreements of today. It will need reimagining if it is to rise to the 21st century challenges confronting humanity. And rise it must. In a new paper, we argue that while hopes of a return to doing big multilateral trade deals or a full restoration of the WTO’s judicial system seem remote, a WTO reinfused with resources and political energy is nevertheless necessary to meet humanity’s greatest challenges (Baldwin and Grozoubinski 2022).1 Climate change, the pandemic, and persistent economic and social inequalities threaten untold millions of lives. While trade alone cannot solve these threats, this column argues that viable solutions require more trade, and stronger multilateral trade governance. This means that world leaders must reimagine the WTO as critical to saving lives, not just livelihoods – a vital tool in the struggle against humanity’s existential threats. We argue that world leaders should grant the WTO the status and resources it needs to rise to the challenges. This is what we call the ‘WTO rising’ imperative. In our short paper, we focus on a few specific trade angles related to two of humanity’s grand challenges: climate change, and restoring the pre-Covid trends towards poverty reduction and sustainable catch-up growth in the Global South. Think of these as a challenge, and a transformation. The challenge: Climate change and trade When it comes to climate change, trade is simultaneously: a contributor – through the carbon footprint of moving goods and services vast distances between suppliers and consumers; indispensable – through the dissemination of greener technologies, the skills they require, and the capital they need; a potential risk – through regulatory arbitrage by firms using foreign producers to sidestep local sustainability measures; and vital to mitigation – through increased global resilience to localised production shocks caused by extreme weather and other climate change factors. There is another interaction here. If global warming and biodiversity losses are to be mitigated, governments must energetically and aggressively change business as usual. Such climate-linked policies will create winners and losers. They will have trade effects. And that means trade partners will complain. Handling the resulting trade frictions in the form of WTO complaints will put an enormous strain on the WTO dispute settlement mechanism. How to fix this? In an ideal universe, all WTO Members would unanimously agree a single, binding intergovernmental agreement providing clarity on the measures they consider appropriate in pursuit of climate objectives. This, however, is not to be seen in the tarot cards that lay before us. WTO Members are far too divided, and do not yet know the policy tools they will want to employ well enough, to tie their hands through new rules. In the absence of a single, climate-specific rulebook, governments are likely to go their own way. Policies designed with the purest of intentions will be seen as distorting markets by some. This in turn risks retaliatory measures, especially if governments fall into competing to house a handful of politically attractive sectors, such as solar panel or electric vehicle manufacturing. Worse yet, if WTO rules are used to prevent policies designed to mitigate global warming or to adapt to its consequences, the credibility of the organisation could be undermined. To avoid a cycle of retaliation and escalation that renders the cure worse than the disease, the WTO can, and indeed must, play a vital role in easing such frictions through its commonly overlooked but significant pillar: monitoring, transparency, and dialogue. If leaders reinvest in the organisation, its established and authoritative committee structure and procedures offer the best hope for a multilateral space where new and contemplated environmental policies impacting trade can be transparently shared and openly discussed; where Members can raise concerns, identify distortions, and encourage the modification of measures that would unduly hurt their producers or consumers in ways that serve no environmental benefit. Supported by a Secretariat enhanced with the resources and political mandate to engage more substantively, the WTO as an institution could support governments as they attempt to navigate the complex policy waters of a global fight against climate change. The transformation: Telemigration and the services revolution Covid-19 has devastated livelihoods as well as lives. A recovery is under way, but it is moving slowly and unevenly and is now imperilled by economic shocks arising from war in Europe. However, recent developments in international commerce offer hope through the rise of services trade, especially ‘telemigration’, which means international telework (Baldwin 2019). Trade in goods has stagnated for a decade, but trade in services has not (Figure 1). Moreover, two of the three regions hardest hit by the pandemic – Africa and Latin America and the Caribbean – saw goods exports fall during 2011–2019 but saw service exports boom. Figure 1 Export growth in goods and services Trade, 2011–2019, and 2019 export shares Notes: Pandemic disruptions caused travel and transport services to collapse in 2019 and 2020. World goods trade and world services trade amounted to $17.6 trillion and $4.9 trillion, respectively, in 2020. Source: WTO Trade in Commercial Services (WTO Stats), https://stats.wto.org/. Digital technology is what opened the door to this transformation of the link between trade and development. A key concept is trade in ‘intermediate services’ – services that go into the production of things, but which do not get delivered directly to the clients. For example, legal research behind a court filing is an intermediate service, while the court filing itself is the final service. Before the information and communication technology (ICT) revolution made it easy to coordinate complex processes over long distances, most intermediate services were undertaken domestically by the company producing the final service. Now, however, many intermediate services are provided by contract suppliers, increasingly those sitting abroad. This is creating export-linked jobs for bookkeepers, forensic accountants, CV screeners, administrative assistants, online client help staff, graphic designers, copy editors, personal assistants, travel agents, software engineers, and the like. Telemigration means more opportunities for some, but more competition for others. Governments are likely to push back with protection. We think the WTO should be tasked with exploring how inevitable tensions can be best resolved. Specific recommendations The measures we call for in our paper are not dramatic. The world finds itself in a situation where perfect is the enemy of progress. Rather, we focus on practical, politically achievable steps. Recommendation 1: A revitalised WTO process for discussing climate-related disputes around trade policy Together with the WTO leadership, Members must begin preparing the ground for climate-related disputes, and ultimately build new infrastructure – including a strengthened and better funded Secretariat – within the WTO for handling climate-related frictions via mediation, negotiation, discussion, and perhaps adjudication. In doing so, leaders should consider, inter alia, the Trade and Environmental Sustainability Structured Discussions (TESSD) that are already ongoing at the WTO. Given their openness to non-participants, Members should positively consider engaging in TESSD meetings even if they are unprepared to formally join the initiative or contemplate any rules it may or may not produce. Recommendation 2: A new regular meeting on trade and climate at the Climate Change Conference of the Parties (COP) The climate and trade communities are siloed and separated. This should end. The WTO should be explicitly included in efforts to advance, amplify, and coordinate the climate rescue. A high-level meeting, at every COP, with the WTO as a co-chair alongside the United Nations Framework Convention on Climate Change (UNFCCC) Executive Secretary or COP Presidency would signal from the very top that trade policy is an ally of the climate fight, and that climate is an indispensable consideration for trade policy. Recommendation 3: An eminent persons’ group to consider the inevitable backlash to and development potential of telemigration. An eminent persons’ group should be created to think ahead about how the WTO can anticipate and monitor the backlash, suggest updates to the rules-based multilateral trading system necessary to accommodate the rapid rise of services trade, and rethink the trade–development nexus and the WTO’s role. Concluding remarks: The ‘WTO rising’ imperative The WTO needs an infusion of the political capital to rise up to the challenges of the 21st century. Above all, a mindset change is needed. Leaders must recognise that the WTO is not just about commercial calculations best left to diplomats and trade ministers. It is about coming together to find ways of countering the challenges that endanger humanity. It is about saving millions of lives. It is about countering developments that threaten to lock billions into perpetual poverty. It is a place that requires head-of-state attention and the status to match.

Does the WTO work as an international regime? From a rationalist perspective, the answer is a qualified yes. A core function of the institution is transparency, and as such a good starting point in discussing its effectiveness as a regime is with a rationalist analysis of the extent to which it increases the efficiency of international cooperation. The WTO’s primary function, from an efficiency perspective, is to improve property rights in the issue-area of international trade. The rules of the international trading system, the core of the WTO, are in effect specifications of property rights, and the DSM is a mechanism for clarifying and adjudicating these rights. The specification of these property rights is not perfect, but it is clearly better than what had gone before (better in the sense of more efficient, not necessarily fairer). In this sense, the WTO, as a regime, has been remarkably successful (although the current politicization of the DSM undermines that conclusion somewhat). It has also had some success at decreasing transaction costs and at improving information flows, but this success has been more muted. Trade negotiations carried out under the WTO’s auspices retain high transaction costs, in that they can last decades and employ thousands of people, although this process is probably more efficient than holding a large number of bilateral trade negotiations. The WTO improves information flows by collecting and publishing trade statistics, although this often duplicates information available elsewhere.

From a reflectivist perspective the answer is also a qualified yes. As suggested earlier in the chapter, the WTO and its predecessor the GATT have been enormously successful at institutionalizing the idea of rule-governed trade as a fundamental and widely accepted norm of the international political economy. And the DSM has come to be accepted as the core adjudicative body in the realm of international trade. But there are threats to the WTO’s role as the legitimate core of the international trading system stemming from the failure of the Doha Round of negotiations and the broader deadlock in multilateral trade negotiations. The lack of progress has led many of the world’s major trading powers to focus on regional and bilateral trade agreements instead. At a certain point, the increasing diplomatic focus on regional and bilateral agreements will inevitably threaten to undermine the concept of global cooperation and of nondiscrimination that the WTO was designed to legitimate (e.g., Bhagwati 2008).

This paper presents an assessment of the impact of strong Intellectual Property Rights (IPRs) protection and adoption of Utility Model Laws on export diversification in both developed and developing countries. The study covers 89 developing and developed countries (of which 55 developing countries) over the period 1975 - 2003. Using Lewbel (2012)'s Instrumental Variable approach in a pooled panel setting, we obtained evidence that strong IPRs – notably patents rights - protection and adoption of utility models laws encouraged significantly the diversification of exports in both developed and developing countries. More specifically, the results suggest evidence that the adoption of utility model laws exerts a strong positive effect on developing and developed countries alike. However, the impact of strong IPRs protection in reducing the concentration of their exports baskets appears to be higher in developed countries compared to developing ones. In examining the economic growth effects of IPRs system, many authors (for e.g., Maskus, 2000; CIPR, 2002; Kumar, 2002; Dolfsma, 2006;) argued that developed and developing countries that have achieved substantial growth rates have all fine-tuned their IPRs system to match their development needs, rather than implement a wholesale IPRs policy. In the same line, Kim et al., (2012) have also shown evidence that it is not only the strength of intellectual property rights protection that matters for innovation and growth, but also the type of protection. In other words, these authors have underlined that the availability of legal protection for minor, adaptive inventions should most be useful to firms with low technological capacities and limited resources. Developing countries, when acceding to the WTO often agree to reform their IPRs systems as part of their accession negotiations. As noticed by Adams (2008), the challenge of reforming IPRs systems requires a strategy of maximizing the gains of tightening IPRs protection, while limiting the potentially adverse effects of improved protection to facilitate the access of local entrepreneurs to the fruit of the IPR systems, as it was the case in India and the Republic of Korea. In this respect, the adoption of utility model laws by these countries, in particular the lower income countries would be very helpful in creating incentives for innovation, technological development and 25 thereby export diversification. Such strategy, by acting as a springboard to export diversification, could allow a progressive strengthening of the intellectual property systems in order to establish a viable technological base. At the international level, lower income countries could have the support of both the World Trade Organization (WTO) - given their flexibilities in the TRIPs Agreement and despite the lack of an explicit reference to utility model laws in this Agreement - and the World Intellectual Property Organization (WIPO) conventions, one of which explicitly recognizes the importance of utility models for them. Moreover, WTO and WIPO provide significant technical assistance to these countries. Finally, it is worth highlighting that an important limitation in this study is our incapacity to perform the analysis on the category of Least Developed Countries (LDCs) because of data constraints. This could be a future research avenue when data becomes available.

Just as the Global South has become increasingly frustrated by the Global North’s incessant demands for higher international intellectual property standards, a group of middle-income countries seemed to have found a formula for success. In the past two decades, these countries selectively adapted international intellectual property standards, to the extent allowed by the TRIPS Agreement and acquiesced by the more powerful WTO members.18 As a result, this group of emerging countries gradually obtained a greater share of the benefits provided by the TRIPSbased international intellectual property regime. As former WTO Director-General Roberto Azevêdo recalled: [I]n 1995, and earlier in the negotiations leading to the conclusion of TRIPS, the international [intellectual property] system was largely seen as a trade interest of the developed economies. Today, the picture differs dramatically. Some middle-income countries are among the major users of the global [intellectual property] system, and many other developing countries are increasingly engaged with it.19

Brazil, China, and India are oft-cited examples. Together with Russia and South Africa, they are frequently discussed in the context of the BRICS countries. Other fast-growing emerging countries have also received similar benefits from the WTO and the TRIPS-based international intellectual property regime. In a book chapter written about a decade ago, I identified the ten largest economies outside the Organisation for Economic Co-operation and Development (OECD) that had a gross national income per capita of less than US$15,000, but some of the world’s highest volumes of high-technology exports. 20 Referring to them as “middle intellectual property powers,” that chapter highlighted the considerable economic and technological improvements in the world’s fast-growing middle-income countries (see Tables 1 and 2). In addition to the BRICS countries, the ten surveyed economies included Argentina, Indonesia, Malaysia, the Philippines, and Thailand.

This paper presents an assessment of the impact of strong Intellectual Property Rights (IPRs) protection and adoption of Utility Model Laws on export diversification in both developed and developing countries. The study covers 89 developing and developed countries (of which 55 developing countries) over the period 1975 - 2003. Using Lewbel (2012)'s Instrumental Variable approach in a pooled panel setting, we obtained evidence that strong IPRs – notably patents rights - protection and adoption of utility models laws encouraged significantly the diversification of exports in both developed and developing countries. More specifically, the results suggest evidence that the adoption of utility model laws exerts a strong positive effect on developing and developed countries alike. However, the impact of strong IPRs protection in reducing the concentration of their exports baskets appears to be higher in developed countries compared to developing ones. In examining the economic growth effects of IPRs system, many authors (for e.g., Maskus, 2000; CIPR, 2002; Kumar, 2002; Dolfsma, 2006;) argued that developed and developing countries that have achieved substantial growth rates have all fine-tuned their IPRs system to match their development needs, rather than implement a wholesale IPRs policy. In the same line, Kim et al., (2012) have also shown evidence that it is not only the strength of intellectual property rights protection that matters for innovation and growth, but also the type of protection. In other words, these authors have underlined that the availability of legal protection for minor, adaptive inventions should most be useful to firms with low technological capacities and limited resources. Developing countries, when acceding to the WTO often agree to reform their IPRs systems as part of their accession negotiations. As noticed by Adams (2008), the challenge of reforming IPRs systems requires a strategy of maximizing the gains of tightening IPRs protection, while limiting the potentially adverse effects of improved protection to facilitate the access of local entrepreneurs to the fruit of the IPR systems, as it was the case in India and the Republic of Korea. In this respect, the adoption of utility model laws by these countries, in particular the lower income countries would be very helpful in creating incentives for innovation, technological development and 25 thereby export diversification. Such strategy, by acting as a springboard to export diversification, could allow a progressive strengthening of the intellectual property systems in order to establish a viable technological base. At the international level, lower income countries could have the support of both the World Trade Organization (WTO) - given their flexibilities in the TRIPs Agreement and despite the lack of an explicit reference to utility model laws in this Agreement - and the World Intellectual Property Organization (WIPO) conventions, one of which explicitly recognizes the importance of utility models for them. Moreover, WTO and WIPO provide significant technical assistance to these countries. Finally, it is worth highlighting that an important limitation in this study is our incapacity to perform the analysis on the category of Least Developed Countries (LDCs) because of data constraints. This could be a future research avenue when data becomes available.

China’s economic rise poses a unique challenge to the world trading system, but WTO dispute settlement has more potential to address China’s practices than most U.S. politicians and pundits understand. Indeed, the United States could today file a lengthy list of legal challenges to an array of Chinese trade practices under existing WTO rules, including on intellectual property protection and enforcement; trade secrets protection; forced technology transfer; and subsidies.

Nonagreement Cooperation: Connecting With the Growing Interest in Innovation One way to change the framing around intellectual property would be for the United States and likeminded nations to tap into the growing number of countries—such as Costa Rica, Estonia, and Peru—which have made innovation a priority and are looking for policy ideas, including on IP. In fact, at least 50 countries worldwide have created special agencies or foundations to maximize the innovation output of their enterprises and organizations—and virtually all of these countries have also articulated national innovation strategies.163 But to achieve this, the United States and likeminded countries will need to develop a more comprehensive and proactive strategy to engage—whether individually or collectively—with these countries to harmonize existing procedures and processes, and build institutional capacity to more effectively administer and enforce intellectual property rules. A more considered and active strategy for cooperation on IP will help countries that want to improve their innovation systems by sharing experiences, policies, and capacity-building efforts. These countries understand that relying on markets shaped by price signals alone will not generally be as effective as public-private partnerships in spurring higher productivity and greater levels of innovation. A wide range of studies have shown domestic policies such as support for a robust science and engineering workforce, an entrepreneurial culture, public investment in research, and favorable tax treatment of R&D all foster innovation.164 This type of engagement is mutually beneficial, as the receiving country improves its ability to leverage IP to support innovation, while the leading countries receive the assurance that intellectual property—whether foreign or domestic—will be better protected in the future. More of this type of cooperation complements the binding rules established in trade agreements, as they can help ensure these rules or those enacted unilaterally are enacted and operationalized; helping to ensure these rules do not just exist on paper. It is also a useful complement, both to trade agreements and supporting innovation, as not every intellectual property issue that may impact trade and innovation can be dealt with in a trade agreement. Each country’s lead intellectual property agencies—such as the U.S. Patent and Trademark Office and the European Union Intellectual Property Office—should take a leading role in operationalizing this strategy to engage with developing countries interested in improving their intellectual property systems. This would complement, and extend, similar convening and capacity building work being performed by WIPO. Existing arrangements outline how this type of engagement by specialist IP offices could be achieved. The “five IP offices” (IP5) of the European Union, Japan, Korea, China, and the United States should work together to improve the efficiency of the examination process for patents worldwide. The heads of the IP5 offices meet annually to decide on strategy and review progress. They also operate a number of working groups on various patent-assessment issues and potential harmonization efforts.165 Related to this, the U.S. Patent and Trademark Office expanded its Office of International Patent Cooperation with a new division that focuses on international outreach. In addition, one or more leading nations should work with a third party to organize a global innovation policy conference that would focus on these nations and help them learn from each other, including how to develop a stronger IP system. In an ideal world, WIPO and WTO would take on this type of cooperation and engagement because of their broad membership and technical expertise. But due to institutional and ideological reasons, both organizations are inherently limited in what they can do. WIPO does (and can continue to) play a constructive role in providing technical advice and capacity building, on request, to member states on intellectual property laws and other issues. While this work has largely escaped critique, the ideological opposition that has come to define the debate on intellectual property at both organizations largely stops or stymies deliberations around new IP rules and enforcement, or expanded programs of engagement and cooperation.

[Legal Consultant, 3 years at Suffolk University, 2 years at Istanbul University, 5 years at Koc University. She worked as a professor at Suffolk University for a year, and then became an IP lawyer at Bener Law Office before starting her own law firm.]

In evaluating access to pharmaceuticals, WHO differentiates between essential and non-essential medicines. Essential medicines are those that must be available at all times in adequate amounts at affordable prices. WHO has been publishing essential medicines lists based on current health needs since 1977. WHO’s periodically updated lists provide a guideline for countries to develop their own lists. The latest WHO list includes drugs ranging from antibiotics to drugs used for the treatment of cancer, HIV, and malaria. Access to essential medicines is “a key component of the fulfillment of the human right to health.” The models here thus focus on essential medicines. The models aim to increase access by reforming patentability standards to leave some essential medicines enabled by AI outside the scope of patentability, or alternatively, decreasing the patent term available for such medicines. Non-essential medicines will remain under the existing system, as they are less likely to have a significant impact on global health. Patents on these medicines will allow innovating companies to freely decide prices in the absence of competitors and help raise funds for future R&D investments. 2. The Path to Patent Law Reform Congress is limited by the United States Constitution in determining the sphere of patent protection and granting exclusivity for limited terms. That said, Congress is free to decide the scope and breadth of intellectual property rights. It may impose conditions on patent rights, limit duration, refuse granting privileges, or provide special rights for certain industries, as opposed to employing a uniform intellectual property system. As such, Congress has the authority to subject inventions concerning essential medicines enabled by AI to different eligibility standards, as well as to confer a different scope of rights to such inventions. Nevertheless, any reform to the existing patent system must be compliant with the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS requires patentability of all novel, useful, and non-obvious inventions, and prohibits differential treatment based on technology. Article 27.2 provides an exception to this rule in cases where protection of human life and health require exclusion of patentability. However, the provision indicates that an invention cannot be excluded from patentability based on this exception “merely because the exploitation is prohibited by . . . law.” The models proposed here do not exclude pharmaceuticals from patentability in general but merely change the standard of patentability, or alternatively the exclusivity period, for essential medicines enabled by AI with an aim to ensure wider access to pharmaceuticals. There is thus an argument to be made that the proposed law reforms fall within the scope of the exception. However, the best course of action is to urge the World Trade Organization to recognize the right of countries to subject essential medicines enabled by AI to different standards.

The WTO’s website provides a wealth of information on the history of the negotiations, current issues and reviews of dispute settlements involving IP. The relatively small number of disputes, 42, and the fact that a large number were resolved through mutual agreement show that the system works. There is criticism, of course: such issues as the balance between patent protection for pharmaceutical products and access to generic drugs in developing economies or the limitations that health regulations can impose to trademark rights for tobacco products are not easy. Attacks come from diametrically opposed quarters: there are constant cries both against too much protection and for higher standards or more intrusive regulation. Challenges and Opportunities Nonetheless, there are two fundamental challenges that could also be viewed as opportunities. The first has to do with the position of the WTO against a shifting global political environment. Looking at what is happening under the aegis of the WTO is not enough. Bilateral trade agreements use IP as either a sword or a barrier; members move toward territorial arrangements rather than international agreements; tariff and non-tariff barriers are threatened without too much consideration for their knock-on effects; both real and exaggerated concerns regarding sovereignty and the role of the Appellate Body have brought the dispute resolution mechanisms of the WTO into a state of quasi paralysis. The list of geopolitical challenges is long. Still, the WTO is evidence of a rules-based architecture: ignore it, knock down walls according to interest and might, and the unintended consequences of unilateralism could be to bring the whole house down. Should the WTO reinvent itself as a bastion of rules-based systems and redefine itself as a forum that influences businesses to address their impact on human rights and the environment? This question applies as much or more to IPRs as it does to other areas. The second challenge is linked with the effects of artificial intelligence (AI) — and here there are a couple of issues to consider. The first is how AI will influence the way we perceive IP and apply IPRs, focusing in particular on copyright and patents. From a copyright perspective, we dealt with aspects of the “who is the author or the inventor” question when at the turn of the century we considered computer-generated works. That problem was easy to resolve: the machines were following programs created by humans; they were preprogrammed by humans, unable to exercise their own choices. But how far would we be willing to link the work of a machine with the creator of the machine if the machine itself could exhibit intelligent behaviour, similar to that of a human? Alan Turing, the father of theoretical computer science who came up with the Turing test, once said, in terms of what were then hypothetical creations that could pass off as human, “The isolated man does not develop any intellectual power. It is necessary for him to be immersed in an environment of other[s]...The search for new techniques must be regarded as carried out by the human community as a whole, rather than by individuals.”5 There is a debate to be had here, between communitarianism and liberalism, as philosophers call it, but for the skeptic the answer may be hidden in the second part of Turing’s statement. Who, now, is an individual? Perhaps the WTO, supported by WIPO and other international bodies, is the right forum in which to explore these existential IP questions. From a patent law perspective, there is a related “inventive step” consideration; determining what would appear obvious to a person skilled in the art is challenging when that person is aided by machines that can intelligently analyze enormous amounts of data. This is a fundamental issue, in terms of the scope of protection, when the inventor is aided by the machine, but also from the perspective of patent validity, when much more would appear obvious following an analysis executed exclusively by a machine. It may be that these questions can be answered within the current parameters of copyright and patent law; but, equally, one could argue that there is a fundamental shift in terms of what we want to protect: should the law give IP protection to pure outcomes rather than to the results of human creativity? Such a shift could mean that the way we view IP will change so radically that the TRIPS Agreement will become irrelevant. It is the regulation of AI and the flow of data at a global level that will become the new essential requirements for international trade. But, as always in a challenge, there is a hidden opportunity. Perhaps the WTO, supported by WIPO and other international bodies, is the right forum in which to explore these existential IP questions and, if required, to come up with a new architecture for preserving free trade.

In addition, by developing intellectual property protection outside the traditional fora, like WIPO and the WTO, the negotiation of ACTA undermined the stability of the international trading system and the preference for the multilateral process. 612 It also alienated the trading partners of the ACTA negotiating parties, making it more difficult to undertake future multilateral discussions.

To some extent, it reminds us of a major shortcoming of the unilateral approach embodied in the Section 301 process. As Helen Milner wrote two decades ago of Special 301 and Super 301: Aggressive, bilateral reciprocity violates central tenets of the postwar international trading system. GATT upholds the principles of multilateralism, nondiscrimination, and neutral dispute settlement .... Violations of international law by leading powers will induce other states to violate those laws as respect for them declines. Disregarding GATT norms will bring the entire system into question and may lead to its breakdown, as U.S. actions did to the Bretton Woods monetary regime in the early 1970s. Since GATT has helped provide a stable, prosperous trading environment for forty years, ending it should not be done lightly. Moving from a system of multilateral negotiation and dispute settlement to a bilateral one will increase the costs of negotiating trade liberalization and will greatly politicize the process. Undermining the GATT system in exchange for marginal improvements in the U.S. trade balance does not seem to be a ra tional strategy. 613 Likewise, Assafa Endeshaw expressed concern within the TRIPS context: [The] United States approach will work towards overthrowing any measure of success that the United States has achieved in placing intellectual property on an arguably 'international' pedestal (the TRIPs) after passing through long periods of bilateral arrangements. Consequently, the quiet overhaul that the international IP system has been subjected to through the TRIPS may now be in danger of collapse by the American insistence that it will interpret IP treaties and take any measures it deems appropriate, unilaterally and from its own national perspective. Each move of the United States to take IP matters throughout the world in its own hands will increasingly reduce the global significance of the TRIPs formula to a national system that has been outdated for quite some time.614

Engage in Trade Agreements and Include IP Provisions in Them

Not only has the Biden administration paused new trade agreements, but it has also neglected IP provisions in less-formal trade negotiations. This practice needs to reverse course. The United States and its allies can present a united front against the CCP’s IP theft by harmonizing their IP laws that state-sponsored espionage hides in countries where laws do not deter such theft; unified IP provisions in trade agreements leave thieves with few options. If U.S. policymakers intend for America to retain its global innovation leadership, they should provide innovators and investors with protection mechanisms and market security by including robust IP in trade agreements.

The TRIPS Council serves as chief administrator for the TRIPS Agreement, responsible primarily for monitoring compliance with its provisions.172 Compliance in this regard should be viewed not as a constraint on the scope of the Council’s jurisdiction but rather as an explicit grant of authority to, in the first instance, interpret and give full force and meaning to the obligations contained in the TRIPS Agreement and to foster ongoing cooperation among member states with respect to global IP issues. In carrying out its monitoring functions, the Council exercises enormous power over the conceptual framework and practical orientation of the global IP system. This incorporates issues of particular concern to DCs and LDCs, but also attends to the importance of securing the Uruguay bargain against threats that might unravel states’ commitment. Article 68 provides that the Council is the forum where WTO members can ‘consult’ on matters ‘relating to trade-related aspects of IP rights’ and receive assistance with respect to dispute settlement procedures. Thus, the consultative function of the Council offers a tremendous opportunity to leverage diplomacy to overcome resistance to IP issues in an environment in which broader concerns could also be aired. Nothing in the language of the Council’s mandate suggests a limited jurisdiction with respect to IP matters to which the TRIPS Council may direct its attention. The use of ‘trade-related intellectual property rights’ to qualify the issues which members can bring to the Council for consultation cannot reasonably be viewed as anything but a polite effort to avoid explicitly marginalizing WIPO’s role in promoting global IP protection and the measures (i.e., primarily treaties) designed to enhance such protection.173 Indeed, the TRIPS Council may ‘consult with and seek information from any source it deems appropriate’, notwithstanding the formal cooperation with WIPO. In effect, the Council’s mandate authorizes activities that span and pervade the full spectrum of the global IP architecture, from overseeing members states’ domestic laws and ensuring compliance with TRIPS obligations, to discussions and negotiations regarding established norms and obligations in IP generally, and participation as needed in the context of dispute settlement. The scope of the Council’s activities clearly extends beyond the obligations currently embodied in the TRIPS Agreement and it would seem to legitimately encompass any issue which affects the interests of the global IP system structured around the Uruguay bargain. This is evidenced by the additional issues directed to the Council under the Doha Ministerial.174 Nothing would suggest, for example, that the TRIPS Council is precluded from discussing any IP issue on the grounds that the topic is not ‘trade-related’. Indeed, the seemingly unlimited scope of the Council is reflected in the fact that it is charged to ‘carry out such other responsibilities as assigned to it by the Members’. Presumably, then, nothing precludes a WTO member from raising concerns not directly addressed in TRIPS before the Council. For example, considerations of political prudence aside, it is unlikely that interposing concerns raised by the WIPO Development Agenda175 would raise outcries that such work is beyond the scope of the Council. As mentioned earlier, the government of Brazil has requested just this very thing, namely that the normative basis for technical assistance in the Development Agenda should inform the discussions and work on the same issue in the TRIPS Council.176 Indeed, given the development concerns referenced in the TRIPS Agreement177 but not in the WIPO Convention, the TRIPS Council clearly is more directly and extensively charged to address and foster cooperation over issues at the intersection of IP and development. This is evidenced by the formal recognition in TRIPS of the special interests of LDCs.178 Further, the TRIPS Agreement recognizes the need for balance and the mutual interests of users and owners of IP rights to promote social and economic welfare.179 Neither the Paris or Berne Conventions reflect an acknowledgement of IP as a means to accomplish social end

GREAT-POWER RIVALRY is undermining economic interdependence as a source of prosperity and security in East Asia. Collective international action to support the multilateral system could avoid turning economic interactions into a zero-sum game and a source of rivalry and conflict.

Economic interdependence, built on confidence in an open, rules-based multilateral system, has brought countries in East Asia closer together economically, socially and politically. Political rivalries and unresolved historical issues have been kept in check in Northeast and Southeast Asia by deepening economic integration founded on an embrace of open economic policies. The same cannot be said, however, for neighboring South Asia, as well as for many other regions.

Trade and health has emerged as an issue as a result of COVID-19, putting pressure on the WTO to contribute through trade to the management of the pandemic. Elements of traditional trade policy relating to exports and imports are involved. These market access issues involving pharmaceuticals, personal protective equipment and vaccines are now being monitored. A major sticking point has been the proposal that certain elements of intellectual property (IP) rights relating to COVID-19 vaccines and other products relevant to the control of the pandemic should be relaxed in order to ensure adequate availability of these items on a global scale. Work is continuing on this set of issues, and there are those who believe that relaxing IP rights would not help and may hinder access to the products concerned. Although this may not be a systemic issue per se, the WTO’s reputation is on the line, considering the nature of the emergency and its implications for health. Agriculture is a long-standing issue that that has proven exceedingly difficult to solve. It has strong north–south characteristics, pitting many developed economies against developing ones. For the former, it generally represents a very small share of the economy, but involves significant political interests and social considerations that militate against trade openness. For many developing countries, agriculture is key to livelihoods, although over time successful diversification towards higher value-added production will ameliorate the pressure. Given the interests involved, the WTO’s capacity to influence outcomes is limited. Negotiations among a subset of WTO members on e-commerce have made some progress.7 These efforts reflect recognition of the need to ensure the relevance of the WTO in the face of changing policy imperatives and far-reaching developments in technology. This negotiating initiative is being played out alongside a work programme on e-commerce that has yielded little or nothing for over 20 years. The WTO needs a modern rulebook in this area. One of the challenges that emerges is that since the virtual economy is largely a networked industry, if policies and regulations are not sufficiently aligned, it becomes more difficult to avoid discriminatory outcomes that can put a strain on the trading system. Negotiations are underway on investment facilitation for development, and on micro, small, and medium-sized enterprises (MSMEs). Both of these negotiations are taking place among a subset of the membership and are further discussed below. The issue of gender was raised at the 17th Ministerial Conference in 2017 and an Informal Working Group was established in September, 2020. The Working Group is tasked with examining various aspects of gender in relation to trade and the work of the WTO. The Chairs of the Working Group prepared a draft outcome document intended for discussion at MC12. This work will continue.

Finally, labour standards are not subject to WTO rules but have been a long-standing issue of concern for some developed countries. The 1996 Singapore Ministerial Declaration reaffirmed WTO members’ committed to international core labour standards and the work of the International Labour Organization to promote them. The Declaration also rejected the use of labour standards for protectionist purposes. Some developed countries have made observance of labour standards a pre-condition of access to unilaterally granted preferences under the Generalized System of Preferences. The United States has also introduced the issue of forced labour into the negotiations on fisheries subsides. The alleged use of forced labour in China has surfaced as a trade-related matter. Labour issues are not going to fade away from trade discussions. 4.1 The Dispute Settlement Crisis The GATT/WTO dispute settlement system has often been acclaimed as a path-breaking and unique system for settling disputes between governments. Over many years, the record of disputes that were successfully settled and acted upon has been impressive. With the addition of the Appellate Body (AB) in the Uruguay Round, things began to change. Although the AB seemed to have worked well in the early years of its existence, difficulties started to arise in the early 2000s. Although an operational dispute settlement system is essential to the effective working of the GATT/WTO, in practice dozens of WTO members have rarely if ever had recourse to the dispute settlement system. Two of the major users of the dispute settlement system – the United States and the EU – have never been entirely aligned philosophically in relation to the reach of authority of juridical bodies operating at the international level. It is not far-fetched to suggest that these two trading powers are at the centre of the present difficulties. The EU more readily submits to international adjudication than does the United States. The history of dispute settlement has been punctuated by efforts to resolve the differences. In the 1980s, the then Director-General, Arthur Dunkel, was pressured into dividing the dispute settlement function into two units. The Rules Division was made responsible for disputes involving contingency trade measures (anti-dumping, countervailing duties, and safeguards). The Legal Affairs Division was responsible for the rest. The split reflected tensions between the United States and the EU and did not contribute to coherence. There was at least one occasion in the memory of this author when a sitting Director-General had to negotiate the appointment of a Director of the Legal Affairs Division – a clear departure from normal practice where directorlevel appointments are not subject to veto or approval from delegations. Prior to the entry into force in 1995 of the Dispute Settlement Understanding (DSU) with the establishment of the WTO, the consensus rule had made it possible for a complainant or a respondent in a dispute to block a finding. The DSU eliminated this possibility, and in exchange members agreed to the option of a second layer of adjudication with the establishment of the Appellate Body (AB). In this manner, authority was essentially transferred to the adjudicators of the system (dispute settlement panels and the AB). A revealing anecdote on the implications of this decision was a conversational remark to the author by Professor Robert Hudec shortly before his untimely death. His musings turned on the question whether these new arrangements were a step too far for the institution. Were governments really ready to forego the diplomacy and attention to political exigencies that the consensus rule allowed? Was too much sovereignty assigned to an inter-governmental body? The answer to this question turns in part on the view taken of what went wrong with the AB and whether it can be fixed.8 The concerns that have been voiced, mostly by the United States but doubtless shared in other quarters, are well known.9 A central concern is that the AB exceeded its remit by arguably on occasion crossing the line between legal interpretation of the WTO agreements and law-making. Other concerns involve the re-interpretation of the facts of a case, which are supposed to be outside the AB’s scope of authority, and the time taken to resolve cases. These tendencies have given rise to particular objections relating to such matters as the definition of public bodies, the use of safeguard provisions, and the practice of zeroing in dumping margin calculations. Since it is obvious that the WTO cannot function effectively without some form of dispute resolution, agreement here is a sine qua non of the WTO’s rejuvenation. When President Trump, for example, invoked the WTO’s national security provisions to impose additional import barriers or export restraint agreements on steel and aluminium imports from a number of countries, this was widely seen as a violation of the spirit, if not the law, of the WTO. The retaliatory measures taken by most of the affected countries were not WTO consistent, at the very least in procedural terms. It is episodes like this, and the fact they are allowed to fester, that emphasize the need for robust and respected dispute settlement arrangements. In the meanwhile, a group of some 25 members have signed onto the Multi-Party Interim Appeal Arbitration Arrangement pursuant to Article 25 of the Dispute Settlement Understanding (MPIA). Initiated in April 2020, the MPIA is a temporary solution for a subset of the membership that wanted to have the possibility of availing themselves of an appeals process. By the end of 2021, however, no cases had reached the MPIA’s arbitrators. If the parties to a dispute do not agree to use the MPIA, a panel finding can be appealed into the void. Will the solution be to revert to the old consensus arrangement? This is unlikely to work in the way that it used to, where many, but not all, disputes calling for action by a respondent were acted upon in accordance with panel findings. Members are arguably too far apart and diversified in their interests and priorities today for the old system to operate with a comparable degree of effectiveness. A solution therefore is most likely to be found through a better system of checks and balances than has prevailed so far. It is too early to say whether such an accommodation will be forthcoming in the foreseeable future. 4.2 Development and the Balance of Rights and Obligations in the WTO Issues surrounding the appropriate balance of rights and obligations among members at different levels of development have troubled the multilateral trading system since the beginning. Differences over claims of developing country status by certain members and entitlement to special treatment have frequently slowed and frustrated trade negotiations. Early manifestations of the problem concerned the product composition of trade liberalization efforts that began with the founding of the GATT. The thrust of early drives to lower tariffs and other border measures was selective from the outset, and generally excluded agricultural products and labour-intensive manufactures. Early attention was brought to this problem by the 1958 Haberler Report,10 which, among other things, noted that high tariffs on agricultural products and labour-intensive manufactures, and tariffs that escalated with the degree of added value were adversely affecting the growth and development of developing countries. The response to this on the part of developed countries was to introduce non-contractual preferential access to their markets for developing countries in lieu of MFN-based reductions in protection levels of interest to the latter. The unilateral nature of these preferences meant they were reduced or removed as beneficiaries became more competitive, and they were also often entailed with conditionality on non-trade matters such as labour standards and other public policy aspirations of concern to the preference providers. Tariff escalation and high tariffs thus persist in sectors key to development. At the same time, arguably as a quid pro quo for a flawed preference-based market access regime, in those early years developed countries tended not to press developing countries too hard to open their own markets. The arrangement has also built a constituency opposed to multilateral, non-discriminatory market-opening, arguing that the erosion of preference margins hurts the development prospects of the poorest developing countries. This ‘minimalist bargain’ based on transient preferences continues to blight the multilateral trading system and attenuate its contribution to the reduction of barriers to trade.11 From the late 1960s and 1970s onwards, as the GATT and subsequently the WTO became more concerned with non-tariff measures, the issue of differentiated rights and obligations was clarified and legally formalized, and regulatory issues became far more prominent in the mix. These arrangements were part of the results of the Tokyo Round (1973–1979) in the form of the 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, also referred to as the Enabling Clause. The Enabling Clause replaced time-bound waivers from the most-favoured-nation (MFN) principle, making a permanent exception for tariff preferences. The same was done for non-tariff regulatory measures.12 This latter addition was important because another significant outcome of the Tokyo Round was the introduction of stand-alone non-tariff measure agreements based on existing articles of the GATT. They included agreements on technical barriers to trade, anti-dumping, subsidies and countervailing duties, customs valuation, and import licensing. Each of the agreements included special and differential treatment (STD) provisions for developing countries. These regulatory instruments were further developed in the Uruguay Round, and a number of other agreements were added. The main contention here is that a solution to the perennial debate about the balance of rights and obligations assumed by individual countries under the WTO would be significantly facilitated if an analytical distinction were to be made between market access and regulation. As alluded to above, all countries continue to maintain high tariffs in particular areas. No two tariff schedules are identical, and there is no presumption that all WTO members will eventually converge around tariff-free trade. In these circumstances, it is unclear what constitutes Special and Differential Treatment (SDT) in market access. Yet much of the underlying discussion about developing countries not pulling their weight in the WTO alludes to tariff levels and the degree of market openness. It would make more sense to treat market access as a matter for negotiation that implicates all members rather than as a pressure point aimed at developing countries in relation to SDT. An additional consideration supporting this argument is that the GATT/WTO has never been particularly successful at market opening. Industrial countries did, however, significantly reduce tariffs on some manufactured products during the GATT/WTO’s first 50 years.14 The GATT’s role here was largely one of coordinating liberalization decisions among countries who were not impervious to terms-of-trade concerns. Nevertheless, as already noted, these reductions were selective and largely excluded agricultural and labour-intensive manufactured products.15 In addition, there have been very few instances where developing countries have reduced MFN applied tariff rates on the altar of a multilateral trade negotiating round. The only exception to this general resistance is in the case of GATT/WTO accessions. This does not mean that trade liberalization has not occurred in developing countries. It has happened either unilaterally in terms of unbound applied rates, or under preferential trade agreements. In short, the WTO has not proven to be a particularly effective instrument overall for moving the needle on trade openness via the removal of tariffs.16 In this domain, perhaps the ideal role for the WTO would be to periodically meet to determine the degree to which national or preferential actions already in place could be consolidated under the WTO. This brings us to the other key rule-making role of the WTO, namely the writing of rules in the regulatory sphere. Here the WTO has been far more successful. The question, then, is how do regulatory issues play out in the STD debate? A useful document prepared by the WTO Secretariat17 has divided SDT provisions into a number of categories. These include: (i) bestendeavour (effectively non-justiciable) provisions that increase trade opportunities and safeguard the interests of developing countries; (ii) provide flexibility of commitments, action, and use of policy instruments; (iii) offer transitional time periods for implementation of commitments; (iv) offer technical assistance; and (v) provide additional special treatment for LDCs. The WTO Secretariat document identifies 183 such provisions in the Marrakesh Agreement Establishing the World Trade Organization (hereafter the WTO Agreement18). The transitional timeframes are self-executing in that they come to an end after a specified period. This leaves only the flexibility category that may include regulatory SDT provisions that can be exercised unilaterally by developing country beneficiaries. This category accounts for 44 of the 183 SDT provisions (24%) contained in the WTO Agreements. For the rest (excluding LDC-specific provisions), action is required by those granting the SDT. This delineates the scope for the possible opportunistic use of SDT provisions by undeserving developing countries. Focusing on the specifics in this way helps to reduce the SDT debate to manageable specificities and thus detoxify the discussion and find a solution. Rather than trying to define developing country status by reference to a number of quantitative metrics, as a recent submission by the United States has proposed,19 it may be better to allow development status designations to remain in the eye of the beholder, and focus instead on which countries use what measures. If this approach were to be adopted, a survey would be required of what is being used by way of regulatory SDT in each developing country. It is quite possible that many of the developing countries targeted for possible abuse of SDT are not in fact making use of these provisions. In this case, they could undertake not to do so in the future, and this would leave a much more manageable subset of SDT provisions upon which to focus in terms of their contested use. An alternative approach in future might be to fashion negotiated outcomes on rules in the way the Agreement on Trade Facilitation (ATF) was designed. The particular feature of the ATF relevant here is that members were invited to link their implementation timetables to their development capacities. This was done by establishing three categories under Article 14 of the ATF that specified implementation timetables for individual members. The first list (Category A) included measures each member would implement upon entry into force of the Agreement. Category B set a timeframe for implementation of further provisions, and Category C for the remainder whose implementation was conditioned upon receipt of required technical assistance. This arrangement is fully transparent, and enhances buy-in by making members individually responsible for defining their needs. The challenge for members is then to ensure compliance rather than disappearing down a bottomless rabbit hole to debate entitlement. A final note is warranted on the approach adopted to SDT in the General Agreement on Trade in Services (GATS). In this case, the starkness of binary positioning in terms of SDT is blunted. The expression SDT does not appear in the Agreement and the issue of developing country participation is couched in more general terms of appropriate progressive liberalization. Whether this is an effective approach, however, is yet to be tested in negotiations that have yet to occur since the entry into force of GATS. 4.3 Decision-Making in the WTO Much of the stasis plaguing the WTO is attributable to the practice of consensus decisionmaking. Article IX of the WTO Agreement states that the ‘WTO shall continue the practice of decision-making by consensus’, which is interpreted to mean that there is no dissenting voice among the members present when a decision is taken. The WTO also provides for certain circumstances where in the absence of consensus, outcomes may be decided by voting, with the required majority depending on the issue at hand. The voting option to override a lack of consensus is a road very rarely travelled. Voting might have historically been a more popular pathway were it not for the one-country one-vote rule.20 In practice, the consensus requirement has permitted the de facto exercise of veto power by minoritarian interests. Motives for blocking decisions may have nothing to do with the matter at hand.21 This state of affairs has led many members to think about ways of making progress on agendas and agreements under the WTO umbrella without the need for a consensus decision implicating the entire WTO membership.22 As things stand, agreements among a subset of the membership, or inter se23 agreements, are explicitly provided for under Annex 4 of the WTO Agreement. These are referred to as Plurilateral Trade Agreements in the legal text. The agreements contain rights and obligations that apply only to the signatories. They are thus an exception to the MFN rule and discriminate against the rest of the WTO membership. Currently, only two active agreements exist under Annex 4 – the Agreement on Government Procurement and the Agreement on Trade in Civil Aircraft. Since the end of the Uruguay Round and the entry into force of the WTO in 1995, several additional inter se agreements have entered into force. Up to this point, these agreements are intended to be MFN-consistent, in contrast to Annex 4 agreements. The initial ones were in telecommunications and financial services, and were in effect a continuation of the Uruguay Round negotiations. This meant that the decision to negotiate was made by consensus as part of the Uruguay Round, but the outcomes were adopted through the schedules of specific commitments of the parties involved under GATS Article XVIII (additional commitments) and not on the basis of a consensus decision. On the goods side, the Information Technology Agreement (ITA) was signed in 1996 and it removed tariffs on a wide range of covered products imported by the signatories. These changes in the tariff schedules of parties to the ITA were entered into their tariff schedules. The agreement was extended to further products in 2015. The second iteration of the ITA in 2015 brought the number of signatories to 81, accounting for around 97% of covered products. As already noted, the inter se agreements on services and information technology products resulted in new commitments by signatories that benefit all WTO members on an MFN basis. With these agreements as precedents, a significant move occurred at the 11th Ministerial Conference in Buenos Aires in 2017 when a subset of members signed up to Joint Statements on electronic commerce, investment facilitation for development, and Micro, Small and Medium-Sized Enterprises (MSMEs). These Joint Statement Initiatives (JSIs) sought to initiate work programmes and negotiations in the relevant areas. They clearly started life as inter se arrangements, but they also established an open-ended approach to membership and espoused MFN treatment for all WTO members regardless of whether they participated in the initiatives. Other discussions on domestic regulation in services and gender equality and women in trade have taken on the characteristics of the JSIs and could end up as non-discriminatory inter se agreements.24 Another formulation, in the case of the JSI on MSMEs, for example, could be a declaration by a coalition of the willing that would not be legally binding but rather a platform for deliberation, the exchange of ideas, and learning. This is consistent with the WTO objective referred to above of fostering deliberation. In the unlikely event that all WTO members were to sign up to negotiated outcomes that involved new rights and obligations, these agreements could be adopted by consensus as additions to Annex I of the WTO Agreement. In the absence of consensus, however, they remain inter se agreements and in this case the intention of the signatories would be to add new obligations to their individual schedules of commitments. This approach to achieving progress in a situation where the alternative appears to many as one of endless frustration with negotiating inaction provoked by minoritarian veto activity and an intensifying assault on the utility of the WTO. India and South Africa, however, have raised objections to this approach, regardless of the fact that it creates obligations only for signatories and additional rights for all.25 They consider the approach an assault on the binding force and fundamental principle of multilateralism, as well as a tactic to dodge the consensus imperative, and circumvent the WTO rules on amendments.26 Responses to the legal objections argue there is nothing that violates the rules relating to negotiating processes and outcomes arising from the scheduling approach to consolidating the results of inter se agreements.27,28,29 These papers systematically spell out the legal arguments why the WTO is ultimately permissive in relation to inter se agreements, provided they do not undermine the rights of non-signatories. The Zampetti et al. paper also argues that Article 41 of the Vienna Convention on the Law of Treaties provides for inter se agreements provided that the treaty concerned allows for modifications, does not undermine the rights of other parties to the treaty, and does not derogate from the underlying purpose of the treaty in question. A point that is made explicitly in the Zampetti et al. paper, and not contradicted by Mamdouh in his papers, however, is that by going down the scheduling route, the final decision-making authority on the inter se outcomes is effectively being taken away from members and assigned to the adjudicators (to WTO dispute settlement) in the event that an objection arises in relation to changes made in members’ schedules. In order to address this problem, the authors cited here recognize the desirability of finding ways of amending the WTO in order to put inter se agreements on a firmer footing. Mamdouh, for example, argued for the addition of an Annex 5 for agreements binding only on signatories while creating rights for all members.30 This is in recognition of the fact that Annex 4 agreements are binding only on signatories and essentially exclude non-signatories from benefits as well as obligations A wide range of members espouse inter se agreements, and mostly assume that these will be non-discriminatory. There are systemic reasons for preferring that the necessary adjustments be made to the WTO Agreement to allow for variable geometry that would incorporate nondiscriminatory inter se agreements. Existing non-discriminatory inter se agreements are often referred to as ‘critical mass’ agreements. The label is useful in that it distinguishes them from plurilaterals, which in strict WTO-speak is a term that should be reserved for Annex 4 agreements.31 The words ‘critical mass’ are instructive. They reflect the reciprocity imperative that, for good or ill, dominates much negotiating behaviour in the WTO. If the trade share of participants is not considered sufficient in terms of some threshold, critical mass agreements will not reach the finishing line. What this means is that power politics and relative economic size play a part in deciding how, when, and with what scope and subject matter non-discriminatory critical mass agreements will take shape. In this connection, it is perhaps worth recalling the fate of the so-called Tokyo Round Codes on non-tariff measures referred to in the previous section on development. These agreements on technical barriers to trade, anti-dumping, subsidies and countervailing duties, customs valuation, and import licensing were effectively non-discriminatory inter se agreements because countries had the option of not signing them but still enjoying any benefits accruing. This construction was an important part of regulatory SDT that was swept away by the Uruguay Round single undertaking. This point supports the observation that larger countries will be the main architects – but not necessarily the only beneficiaries – of non-discriminatory inter se agreements. As already noted, this is a strong argument for regularizing the status of non-discriminatory inter se agreements, bringing them into the ambit of decision-making by members. This would be better than risking a greater likelihood of fractious dispute settlement in a process that relies solely on the certification of schedules by adjudicators when members disagree. An amendment under Article X of the WTO Agreement introducing non-discriminatory inter se agreements form part of the WTO architecture would require a consensus decision or a vote. If this approach is blocked out of hand by India, South Africa, or others, and a vote is ruled out, it would be better to allow the adjudicators to take the driving seat on this issue rather than submit to further stasis and shrinkage of the WTO’s contribution to global trade governance. Judging by the number of countries that have signed on to JSIs it seems reasonable to assume there would be broad support for a second-hand outcome if that is what it takes to awaken the WTO.

III. NEW INDUSTRY-STANDARD: LEGAL LANDSCAPE POST-EBAY MAKES ROOM FOR ENVIRONMENTAL CONCERNS

eBay marked the demise of courts’ nearly automatic grant of injunctive relief based on the presumption of irreparable harm. As the Federal Circuit has since certified, “eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief.” Granted, the Federal Circuit has specified this development “does not swing the pendulum in the opposite direction,” noting the fundamental exclusivity of a patent property right must still be considered in the analysis. Nonetheless, a trend began in the post-eBay era for district courts to forgo permanent injunctions and instead award ongoing royalty damages.

Climate change is an existential risk to human civilisation: that is, an adverse outcome that would either annihilate intelligent life or permanently and drastically curtail its potential.

Temperature rises that are now in prospect, after the Paris Agreement, are in the range of 3–5°C. At present, the Paris Agreement voluntary emission reduction commitments, if implemented, would result in planetary warming of 3.4°C by 2100,30 without taking into account “long-term” carboncycle feedbacks. With a higher climate sensitivity figure of 4.5°C, for example, which would account for such feedbacks, the Paris path would result in around 5°C of warming, according to a MIT study.31 A study by Schroder Investment Management published in June 2017 found — after taking into account indicators across a wide range of the political, financial, energy and regulatory sectors — the average temperature increase implied for the Paris Agreement across all sectors was 4.1°C.32 Yet 3°C of warming already constitutes an existential risk. A 2007 study by two US national security think-tanks concluded that 3°C of warming and a 0.5 metre sea-level rise would likely lead to “outright chaos” and “nuclear war is possible”, emphasising how “massive non-linear events in the global environment give rise to massive nonlinear societal events”.33 The Global Challenges Foundation (GCF) explains what could happen:

Fowler 24—JD from Villanova University School of Law with experience in Patent Law, MS Bioengineering and B.Sc. Chemical Engineering (Addison. “No Need to Reinvent the Wheel: The Positive Relationship Between Green Technology and Patent Enforcement.” Villanova Environmental Law Journal, vol. 35, no. 1, Feb. 2024, pp. 151–52, https://digitalcommons.law.villanova.edu/elj/vol35/iss1/4)//mgm

2. Current Injunction Law Is Equipped to Maintain the Fight Against Climate Change

This CP pics out of the “presumptive” remedy of injunctions, and instead creates a new standard for courts to use to determine if the injunction should be granted. Specifically, it reverses 3 out of the 4 prongs established in eBay but keeps the “public interest” standard. The CP would increase the authority of the courts to issue injunctions (sufficient to solve the aff) but preserves the courts ability to use the “public interest” standard to let helpful technology stay in production (like green tech). The Public Interest DA is the net-benefit.

Our world is much more resilient than it was even a generation ago, especially with regard to food. The food shock of 2022 is not a good-news story. The news is bad. But our “bad” is less bad than ever before.

Russia and Ukraine are massive growers of grain, especially wheat. Russia produces about 10 percent of the planet’s wheat; Ukraine about 4 percent. Some of that production is consumed at home, but after their domestic use, Russia and Ukraine together provide about one-quarter of all the planet’s wheat exports. They are important exporters of corn and barley as well, and of cooking oils, especially sunflower oil. Now the Russian invasion has closed the ports through which Ukraine’s wheat moved to world markets. Insurance costs have jumped for all shipping in the Black Sea. Spring crops will probably go unplanted in Ukraine; Russian crops face sanctions and embargo. Russia and its ally Belarus also are—or were—important exporters of the fertilizer that other food-raising countries use to grow their own crops.

It is perhaps surprising, then, that there is little scholarly merit in the notion that a short-term reduction in access to food increases the probability that conflict will break out. This is because to start or participate in violent conflict requires people to have both the means and the will. Most people on the brink of starvation are not in the position to resort to violence, whether against the government or other social groups. In fact, the urban middle classes tend to be the most likely to protest against rises in food prices, since they often have the best opportunities, the most energy, and the best skills to coordinate and participate in protests.

Accordingly, there is a widespread misapprehension that social unrest in periods of high food prices relates primarily to food shortages. In reality, the sources of discontent are considerably more complex---linked to political structures, land ownership, corruption, the desire for democratic reforms and general economic problems---where the price of food is seen in the context of general increases in the cost of living. Research has shown that while the international media have a tendency to seek simple resource-related explanations---such as drought or famine---for conflicts in the Global South, debates in the local media are permeated by more complex political relationships.