Commentary: The global retreat of free trade has just begun

BUENOS AIRES: In the 1980s, US President Ronald Reagans administration forced Japan to accept “voluntary” restraints on its exports, particularly of automobiles, in order to reduce Americas trade deficit and protect its companies from Japanese competition.

By 1994, the deficit hadnt shrunk, but US car manufacturers had become more competitive, so the restrictions were discontinued.

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The next year, the World Trade Organisation was established, and such unfair “voluntary” restraints were outlawed.

Since then, Japan – for which trade represents about 35 per cent of GDP – has been a staunch defender of multilateral trade rules. But that may be changing in response to US President Donald Trumps escalating attacks on the rules-based trading system.

OPEN MARKETS TO SOLVE NATIONAL SECURITY CONCERNS?

Japan recently agreed to negotiate a preferential trade agreement with the United States that could challenge one of the pillars of the multilateral trading system: The “most favoured nation” (MFN) obligation, which states that any concessions or privileges granted to one country in a trade deal must be extended to all WTO members.

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Here, Japan is again acting “voluntarily,” under strong pressure from the US.

According to press reports, Trump has presented Japan with a stark choice: Open its (very protected) market to American agricultural exports, or face increased US tariffs on automobiles and other industrial goods.

Gaining access to Japans agricultural market would, it seems, render moot Trumps “national security” concerns over imported Toyotas and Hondas – the justification that allows him to circumvent WTO rules with his tariffs.

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According to the MFN obligation, however, whatever concessions the deal produces would have to be extended to the rest of the WTO. This would not be the case if the US and Japan were to create a free-trade area to which the MFN obligation did not apply.

But qualifying as an FTA requires the elimination of duties and other restrictive regulations on “substantially … trade” – interpreted to mean no less than 90 per cent of all bilateral exchanges. The impending US-Japan trade deal would go nowhere near meeting that standard.

GAMING THE SYSTEM

The Trump administration is unlikely to be deterred. In the brave new world of managed trade toward which Trump is dragging us, his own negotiated deals matter more than multilateral rules or norms.

As with the national security exception, he might try to game the system, claiming that the bilateral deal is the first step in a process that will culminate in a comprehensive FTA, even though, technically, that still wouldnt exempt it from the MFN obligation.

The United Nations is – perhaps unwittingly – adding another nail to the WTOs coffin with its Convention on International Settlement Agreements Resulting from Mediation.

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Although the WTO already has a proven dispute-settlement mechanism, the convention, now open for signature, is supposed to offer an “alternative and effective method” of resolving trade disputes.

A CROWN JEWEL RENDERED IMPOTENT

The WTOs dispute-settlement mechanism has long been considered one of its crown jewels. The body has compulsory jurisdiction over disputes arising under its covered agreements, with members required to comply with “panel reports” (recommendations produced by three independent experts).

Appeals of those reports are heard by the seven-member Appellate Body, which can uphold, modify, or reverse the panels findings. Once adopted by the Dispute Settlement Body, Appellate Body reports must be accepted by all parties to the dispute.

Thanks to Trump, this system is on the brink of death. His administration has been blocking the replacement of Appellate Body judges once their terms expire, claiming that they have exceeded their mandate.

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The Appellate Body now has just three members, the minimum needed to sign off on rulings. Unless the US changes course by mid-December, when the terms of two more judges expire, the Appellate Body will be rendered impotent.

At that point, a country that is unhappy with a panel report could send the ruling into limbo by filing an appeal.

DISMANTLING THE RULES-BASE SYSTEM

The new UN convention aims to fill the vacuum that the Appellate Body will leave behind. But mediators cannot interpret rules or impose solutions; they can only help parties to reach agreement.

(Good luck convincing the Trump administration to budge.)

Saving the WTO dispute-settlement mechanism would go a long way toward preserving the multilateral trading system. Replacing it with something weaker could have the opposite effect.

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