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What the world has learned from Trump’s trade war."
September 4, 2018 6.35am EDT
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Where Trump gets it wrong
To begin with, it’s worth considering why the U.S. gets sued in the first place.
Part of the explanation is simple: the U.S. hasn’t been shy about protecting its domestic industries, deploying a wide variety of policies to insulate them from foreign competition.
Some of these are highly controversial .. [excerpt outed here A Guide to Antidumping Laws: America's Unfair Trade Practice July 21, 1992 30 min read Bryan Johnson Visiting Fellow Introduction Many American policy makers over the past decade have replaced calls for more free trade with demands for "fair trade." The United States, they say, should keep its markets opened to imports, but must also act aggressively against "unfair" trade practices by foreign businesses and governments. One of the pillars of this "fair trade" approach is a set of so-called antidumping and countervailing duty laws. (Both antidumping laws and countervailing duty laws shall hereinafter be referred to simply as antidumping laws, unless otherwise noted.) Antidumping laws seek to prevent products manufactured overseas from being sold by foreign firms in the U.S. at "less than fair value." Countervailing duties seek to offset the subsidies that foreign governments provide for some exporting firms by imposing duties on the goods these firms export to the U.S. P - While duties and restrictions designed to achieve so-called fair trade seem reasonable to many Americans, in reality their effect is anything but fair or beneficial to U.S. consumers. The antidumping laws are confusing and arbitrary, and in many instances merely allow American firms to secure punitive tariffs against competing importers where no unfair trade practices are involved. Worse, these laws drive up the costs of imported components used by other American enterprises, making their products less competitive in world markets. As a result, American consumers pay higher prices for both imported and domestically produced goods, and American workers find fewer employment opportunities in less competitive American firms.] .. https://www.heritage.org/trade/report/guide-antidumping-laws-americas-unfair-trade-practice . For example, the U.S. is a world leader in the use of anti-dumping, a form of duty applied to foreign goods sold below normal market prices.
In order to use anti-dumping legally, countries have to demonstrate material harm to their domestic industries. Naturally, proving that dumping has occurred is open to some debate.
Hence, there have been 126 individual disputes over this policy, accounting for almost 25 percent of the WTO’s entire case load. This includes the U.S., which has been sued more than 50 times for its use of anti-dumping duties alone.
Thus, relying on controversial policies at home exposes the U.S. to trade litigation abroad.
Perhaps more importantly, Trump misrepresents America’s losing record.
Yes, the U.S. loses nearly 90 percent of panel rulings. But the fact is that every respondent almost always loses to the tune of at least a comparable 90 percent.
That’s one of the plain realities of WTO dispute settlement. If a country gets sued, and that case ends up before a panel, the respondent will likely lose. That’s true of the U.S., the EU, China or anyone else. That’s partly because litigation isn’t free. Complainants are more likely to file, and proceed to a ruling, when there’s high confidence of winning. Otherwise it isn’t worth it.
In sum, the numbers simply don’t support the argument that the U.S. is targeted without cause or that it is treated unfairly. Insistence in Washington on using contentious trade policies increases the rate of filings against the U.S. And, while the America loses a lot, it doesn’t lose any more often than the membership at large. The escalating crisis in Geneva
None of this is to say that the system is perfect.
Legitimate grounds for disagreement have created calls for reform. Downstream compliance remains a problem across its 160-plus members. And efforts by the U.S. or others to reform the system – such as to the appeals process to reduce lengthy delays and judicial overreach – have gone nowhere.
As a result, the U.S. has blocked all appointments of appellate judges since Trump took office, reducing the total number from seven to three, which could potentially paralyze the body’s ability to work.
This is bad news for the system. The majority of panel rulings are appealed, and the process cannot function without a consensus over judge appointments. Losing America’s seat at the table
In spite of the system’s flaws, the WTO has benefits beyond trade promotion. Having a rules-based system is also important for limiting the kind of trade discrimination the White House frequently alleges.
Yet, Trump continues to talk like the WTO is a one-way street. He seems to forget that the U.S. isn’t just the most frequent respondent. It’s also the most frequent complainant.
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A political compromise over the appeals process is needed to ensure the WTO functions efficiently. But withdrawing from the agreement, and giving up America’s seat at the table, isn’t going to do much to protect U.S. interests – as we have seen in other areas of international law.
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