Updated: Jul 25
In United States – Tariff Measures on Certain Goods from China, WT/DS543/R (15 Sept 2020), a WTO panel grappled with issues raised by China’s challenge to the United States’ highly-contentious decision to impose tariffs on approximately $250 billion of imports from China, under Section 301 of the Trade Act of 1974. A link to the panel’s report is here.
The panel first addressed an important preliminary issue, by rejecting the United States’ argument that there was no need for the panel to resolve the issues raised by China because the United States and China had entered into bilateral negotiations to address the underlying trade issues and hence had reached a “mutually satisfactory solution” under Article 12.7 of the DSU.
On the merits of the dispute, the panel noted that the United States did not attempt to directly refute China’s arguments that the Section 301 tariffs violated the MFN provision of Article I:1 of the GATT and the prohibition against excessive duties under Article II:1(a) and (b). Rather, the United States claimed that the tariffs were necessary to protect “public morals” and thus were excepted under GATT Article XX(a). The panel agreed with the United States (and several third parties) that economic concerns can have a “public morals” dimension, which would permit an exception under Article XX. But the panel concluded that the United States had failed to explain the necessity of the specific measures at issue. That is, the United States had failed to articulate a “genuine relationship” between the challenged measures (tariffs imposed on a broad range of imports from China) and the public morals objective.
The report includes unusual closing comments in which the panel recognized the larger context of this dispute and the existence of “a range of unprecedented global trade tensions”. Meanwhile, response to this report has been remarkably muted – perhaps signifying either that the outcome was not a surprise or, more ominously, that the credibility of the WTO as a dispute settlement body has been eroded. And given that there is currently no method by which a panel report in a dispute involving the United States may be appealed, this panel decision will remain on uncertain ground for the foreseeable future.