WTO PUBLIC FORUM 2011 What Next For The Trading System?

WTO PUBLIC FORUM 2011What Next For The Trading System? KEI and IQsensatopanel Proposal for a WTO Agreement on the Supply of Knowledge as a Public Good Presentation by ShandanaGulzar Khan Legal Affairs Officer Permanent Mission of Pakistan to the WTO

What Next for the Trading System? OBJECTIVE: To identify how the rules-based multilateral trading system should respond to the rapidly changing global environmentand promote coherence at the international level to better address global trade challenges.

The premise: • Undersupply of global public goods, including those involving knowledge goods • Lack of capacity of current international trade architecture to address the problem • The WTO is the appropriate institution to host an international instrument to address the chronic undersupply of global public goods (?) • Proposals involving government commitments to increase the supply of global public goods in specific areas are important, but are not a sufficient response to the problem identified …

Some of the “W’s” AND AN “H” In context • Who is the demandeur? • Why the WTO? • When is it the right time ? • How can it be done?

Some answers….Who is the Demandeur? • A large number of Governments, academics, organisations, both national and international • Secondly, and perhaps more importantly, the following excerpt from the DG’s introduction to he 2011 public forum (on the WTO website) says it all: “The political, economic, and social aspects of the world we live in today are very different to those that existed a decade ago.”

In other words … “The world has changed. The political, economic, and social contours of the world we live in today are very different to those that existed a decade ago. As a result there is a widening gap between existing trade rules and the new realities.” (excerpt from WTO website on the public forum) The real demandeur is the reality of today

Some answers….Why the WTO? • “Strong enforcement mechanisms” i.e. the dispute settlement mechanism • “A (diverse) portfolio of agreements and/or negotiations” • “Linkage(s) in the negotiations…to outcomes” (According to KEI/IQSensato)

Is there room for an inbuiltmandate ? • This questions shifts the balance and burden • Surgical splicing of the legal texts is unnecessary, all legal texts and covered agreements are read in their respective contexts • BUT…… To assert that such a context i.e. for delivering on public goods and services , does NOT EXIST AT ALL OR CANNOT BE GLIMPSED from various provisions, would be glossing over the legal texts

Some answers….Why the WTO? Back to the drawing board; a legal perspective ? • Does WTO have the mandate to deliver ? A look at various WTO legal instruments has some answers • Such a mandate could be “found”( as distinguished from “gap-filling” or cobbling together something that does not exist currently)

1.(Excerpts from) Preamble to Marrakesh Agreement Establishing The WTO The Parties to this Agreement, • Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ….and expanding the production of and trade in goods and services, …… • Recognizing …. need for….. efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development • ….by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade ……..

2.(Excerpts from) Preamble to the GATT 1947 • Recognizing that their relations in the field of trade ….. should be conducted with a view to raising standards of living, ensuring full employment….. (similar to Marrakesh Agreement) • Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce….

3.(Excerpts from) Preamble to the GATS Members, • Recognizing the growing importance of trade in services for the growth and development of the world economy; • Wishing to establish a multilateral framework of principles and rules for trade in services with a view to ……… and the development of developing countries; • Recognizing the right of Members to regulate, and to introduce new regulations, ….. given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of developing countries to exercise this right;

4.(Excerpts from) The Agreement on TRIPS Article 7: Objectives • The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

4.(Excerpts from) The Agreement on TRIPS Article 8: Principles • 1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

Key words for an inbult agenda / mandate to deliver on public goods and services • Raising standards of living (Marrakesh Agreement, GATT) • Expanding the production of and trade in goods and services (Marrakesh Agreement, GATT) • Secure a share in the growth in international trade (Marrakesh Agreement, GATT) • Needs of economic development(Marrakesh Agreement, GATT) • Substantial reduction of tariffs and other barriers to trade …….. (Marrakesh Agreement, GATT)

Key words for an inbult agenda / mandate to deliver on public goods and services • Development (needs) of developing countries (GATS) • Given asymmetries .. as to the degree of development of services regulations in different countries (GATS) • Protection and enforcement of intellectual property rights should be … carried out in a manner conducive to social and economic welfare (TRIPS) • Members may, …. adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. (TRIPS)

When is it the right time? • “Just do it” may not be the appropriate mantra: timing is of the essence • My guess: post –Doha , for a new round

How ? • The Research agenda of the KEI/Iqsensato is more than adequate as a rather large first step. • Only when the confidence of the membership fully rests in the following points, the paradigm shift will become the new reality: • The idea • The need • Details (need to keep the devil out) • The how-to’s • The possible legal text • Possible failings • Best practices

WTO PUBLIC FORUM 2011 What Next For The Trading System?