TENTH WTO MINISTERIAL CONFERENCE, NAIROBI, 2015
Briefing note: Negotiations on rules — anti-dumping and subsidy disciplines (including fisheries subsidies) and regional trade agreements
WTO members agreed at the 2001 Doha Ministerial Conference to launch negotiations in the area of “WTO rules”. This “rules” negotiating mandate relates to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT) 1994 (better known as the Anti-Dumping Agreement, or ADA); the Agreement on Subsidies and Countervailing Measures (SCM Agreement) and, in this context, WTO disciplines on fisheries subsidies; and WTO provisions applying to regional trade agreements (RTAs).
The mandate states that the rules negotiations should “clarify and improve” anti-dumping and subsidy disciplines while preserving the basic concepts and principles of these agreements, and taking into account the needs of developing and least-developed participants. Members also agreed at Doha to clarify WTO disciplines regarding fisheries subsidies and RTAs. Intensive work in all of these areas began in 2002, with hundreds of proposals submitted, and a number of Chair texts, most recently in 2011.
As in most other areas of the Doha Development Agenda (DDA), work on rules paused in 2011 and did not resume in earnest until 2015, when the Negotiating Group on Rules (NGR) sought to develop a rules contribution to the work programme called for by ministers at the 2013 Bali Ministerial Conference.
After the 2015 summer break, some members identified transparency in the rules area as a possible deliverable for the Nairobi Ministerial Conference. In that context, over the course of autumn 2015, the NGR actively considered proposals for rules outcomes at Nairobi relating to transparency and other aspects. Proposals were submitted in relation to all four pillars of the rules negotiations (anti-dumping, fisheries subsidies, horizontal subsidies disciplines, and RTAs). Intensive work in all of these areas continued at Nairobi, during the Ministerial Conference. On the first three pillars, these efforts did not, however, result in any outcomes in the rules area. On RTAs, the Nairobi Ministerial Declaration contains language relevant to further work in this area.
Anti-dumping (and countervailing measures)
Over the course of the DDA, anti-dumping has been perhaps the most active area of the rules negotiations. Many of the proposals were submitted by the self-described “Friends of Antidumping Negotiations” (FANs), who are among the main proponents for reform of the rules. Many other members also submitted proposals to amend the ADA.
Members' proposals for Nairobi outcomes focused on transparency in a variety of ways: some members, such as the European Union, sought to limit any such outcomes to WTO transparency, and specifically to a proposed mechanism to review the anti-dumping practices of members. The FANs sought a transparency and due process outcome also in respect
of the specific investigations conducted by members. The Russian Federation pursued a proposal for a post-Nairobi process in the Anti-dumping Committee to develop guidelines on specific anti-dumping due process and transparency issues. Members' positions regarding these proposed outcomes remained sharply divided in the lead-up to and at Nairobi. A number of delegations objected that proposals for investigation due process and transparency were too ambitious given the “recalibrated” outcome being sought in the context of Nairobi (i.e. a modest, manageable package), and more generally considered that there was too little time to envision amendments to the ADA. Some of these delegations favoured WTO transparency outcomes, if any outcomes were to be achieved. Other delegations, however, cautioned that WTO transparency proposals could impose unacceptably burdensome obligations on developing countries, and in any event were unnecessary in light of existing tools. Others were more supportive of the proposals, in whole or in part, saying they would represent a positive step forward if adopted.
Finally, some members believed that any outcome on anti-dumping also should apply in the context of countervailing measures.
The anti-dumping work in Nairobi culminated with the circulation by the Rules Facilitator, Minister A. J. Nicholson of Jamaica, of a draft decision text that would have referred a series of transparency-related issues to the WTO's Antidumping Committee for consideration. Members' differences remained, and no consensus was reached.
The elaborated negotiating mandate on fisheries subsidies contained in the 2005 Hong Kong Ministerial Declaration called for strengthened disciplines on fisheries subsidies, including the prohibition of certain forms of fisheries subsidies that contribute to overcapacity and overfishing, along with special and differential treatment provisions. Intensive work was pursued on the basis of this mandate, including a Chair text in 2007, a 2008 “roadmap” for discussions, and finally, in April 2011, a Chair's report on the state of the negotiations.
While like the rest of the Doha Round negotiations, work on fisheries subsidies paused in 2011, intensive activity in this area resumed in the lead-up to the 2015 Nairobi Ministerial Conference. This activity began with a paper proposing a “recalibrated outcome” on fisheries subsidies, for adoption by the Ministerial Conference, put forward by a group of delegations (Argentina, Iceland, New Zealand, Norway, Peru and Uruguay).
The activity on a possible Nairobi outcome on fisheries subsidies continued to be pursued throughout the autumn of 2015 and at the Nairobi Ministerial Conference. A number of members submitted proposals for fisheries subsidies outcomes in an eventual Nairobi package, variously focusing on transparency alone (Australia, EU) and on transparency plus certain disciplines and special and differential treatment (African, Caribbean and Pacific Group, Peru). The transparency elements related to submission of fisheries-related information in the regular subsidy notifications to the WTO, and the discipline elements included proposed prohibitions on subsidies to illegal, unreported and unregulated (IUU) fishing and to fishing in respect of overfished stocks.
Members' positions on these proposals were sharply divided. Objections spanned a wide range; some considered the proposals too ambitious, while others thought they were insufficient. In addition, some considered enhanced transparency a necessary prerequisite to substantive negotiations, while others considered the transparency elements overly burdensome and justifiable only if there were new substantive disciplines on fisheries subsidies.
The Nairobi work on fisheries subsidies culminated with the circulation by the Rules Facilitator of a draft decision text that would have included a specific work programme on new disciplines accompanied by new transparency provisions. Ultimately, members' differences of view remained and consensus was not achieved. All of the proponents expressed the view that work on fisheries subsidies should continue post-Nairobi.
As part of the DDA WTO members have worked on proposals to “clarify and improve” the existing “horizontal” disciplines on subsidies of the SCM Agreement, which apply across the board to all subsidies relating to goods. While these horizontal subsidies negotiations were less active than those on fisheries subsidies, a significant number of substantive proposals were vigorously debated over the course of the rules negotiations.
The only specific proposals for a subsidies outcome at Nairobi came from the European Union, and related to proposed new mechanisms for the notification and review of subsidies and countervailing measures. While certain members supported some of the ideas proposed, some developing members responded that the proposals would impose an unacceptable burden that would outweigh its limited value-added.No active work on horizontal subsidies disciples took place at Nairobi, and the Facilitator produced no text.
Regional trade agreements
Assessing whether RTAs meet WTO rules has been challenging as the interpretation of the rules remains open to debate. In 2001, members agreed in the Doha Declaration to negotiate a solution with the aim of “clarifying and improving disciplines and procedures under the existing WTO provisions applying to regional trade agreements”. The 2006 General Council Decision that established the provisional transparency mechanism for RTAs was the first result from such negotiations. In December 2010, members agreed to start the review of the mechanism, with a view to making it permanent and discussions were held up to April 2011 in the Negotiating Group on Rules.
On clarifying and improving the disciplines on RTAs, proposals have mainly focused on how to quantify or define the phrase “substantially all the trade” in Article 24 of the General Agreement on Tariffs and Trade (GATT), which states that customs unions and free trade areas are permitted if they eliminate tariffs on substantially all the trade between the parties. Proposals have also focused on special and differential treatment for developing countries, which has received “sharply divergent” reactions. There have been proposals for a post-Doha work programme on all systemic issues but reactions to this have also been varied. Some delegations have deemed it premature to engage in such outcomes until there is greater clarity in other areas of work such as in agriculture and non-agricultural market access (NAMA). Talks on RTAs are handled by the NGR as well.
At the 10th Ministerial Conference in Nairobi, WTO members agreed to work towards the transformation of the current provisional Transparency Mechanism into a permanent mechanism, without prejudice to questions related to notification requirements.
Dumping: When goods are exported at a price less than their normal value, generally meaning they are exported for less than they are sold in the domestic market or third-country markets, or at less than production cost.
Anti-dumping duties: WTO rules allow anti-dumping duties to be imposed on goods that are deemed to be dumped and causing injury to producers of competing products in the importing country. These duties are equal to the difference between the goods’ export price and their normal value, if dumping causes injury.
Countervailing measures: Action taken by the importing country, usually in the form of increased duties to offset subsidies given to producers or exporters in the exporting country.Subsidy: There are two general types of subsidies: export and domestic. An export subsidy is a benefit conferred on a firm by the government that is contingent on exports. A domestic subsidy is a benefit not directly linked to exports.