Video Transcript: The Common Law of International Trade and the Future of the WTO

Una Fitzgerald - Good evening, ladies and gentlemen. It's my pleasure to be  here tonight. Welcome to welcome you on behalf of the Center for International  Governance Innovation. My name is Una Fitzgerald, and I am the director of  CG's International Law Research Program. And it's a real honor to be here  tonight. I would like to thank our public event sponsor, Wordsworth Books, for  their ongoing support of the CG Signature Lecture Series. Thanks for to  Wordsworth for providing us with authors' books on sale in our lobby for many of our public lectures. Thanks also to all of you for joining us at this event, whether  you are here as part of our live audience or the many joining us through our live  webcast. Following this evening's address, we welcome questions from both  audiences at the microphone here at CG or through the live chat function on  your screen. So please remember to state your name and to keep your  questions brief, so we can get lots of time for answers. So I am now going to  introduce our speaker tonight, and it's a great pleasure for me. Our speaker is  Dr. Thomas Cottier. Dr. Thomas Cottier is emeritus professor of European and  international economic law at the University of Bern. He is a former managing  director of the World Trade Institute and the Institute of European and  international economic law, as well as former co-director of the National  Research Program on Trade Law and Policy located at the World Trade  Institute, the National Research Program on Trade Law and Policy that he  directed was on international trade regulation from fragmentation to coherence,  Dr. Cottier is an associate editor of several journals and currently teaches at  Wuhan University, China, and the Europa Institute Sabrooken, Germany. He's  been a visiting professor at the Graduate Institute in Geneva as well, and other  places, he was a member of the Swiss National Research Council from 1997 to  2004, and served on the board of the International Plant Genetic Resource  Institute in Rome during the same period. He served the Baker and Mckenzie  law firm, served as one of their council from 1998 to 2005. So on top of all that,  and before that, he also Professor Cottier had a long-standing involvement in  the the GATT and the World Trade Organization activities. He served on the  Swiss negotiating team of the Uruguay Round from 1986 to 1993, first as chief  negotiator on dispute settlement and subsidies for Switzerland, and  subsequently as chief negotiator on TRIPS, he held several positions in the  Swiss External Economic Affairs Department and was the deputy director  general of the Swiss Intellectual Property Office. In addition to his conceptual  work in the fields of services and intellectual property, and legal counsel role, he  has also served as a member or chair of several GATT and WTO panels. So, on top of all that, Dr. Cottier is a member of the advisory committee for CG's  International Law Research Program, and on that committee he is one of  several distinguished academics and scholars in international law, providing  strategic guidance and advice to the new program which I direct. Most recently,  Thomas Cottier has been visiting CG International Law Research Program 

Professor at the University of Ottawa. He did that last month, and while he was  in Ottawa, he he made a couple of public presentations on issues of intellectual  property law and trade, and on climate change. So, how could we sum up  Dr.Cottier's intellectual richness? There's a wonderful word in French,  polyvalent, which I'm probably going to translate a bit improperly, but it really  means that capacity to be multidimensional and. Look at things from many many angles, and perhaps have many arms. Well, he's definitely polivalent. He's an  expert in intellectual property and innovation, trade, obviously, environmental  law issues, even questions of equity and human rights. So he spans a really  broad range of international law, all of which interests us greatly. So his talk  today is on the common law of international trade and the future of the WTO. No doubt, you will hear some very interesting views about the evolution of  international law. Thank you. Let's give a hand to Thomas Cottier. Thank you. 

Thomas Cottier - Thank you now for this very warm welcome and good evening. It's a great pleasure and honor to be here this afternoon, this evening, and to  talk about questions of governance in trade, trade upon which we all depend in  our daily lives, but which often fails to see proper structures in decision making.  And CG, I think, is one of the centers who is dedicated to think about how trade  and governance structures should evolve, and this is the topic I would like to  address this evening. You may be familiar with this chart. This is a chart  indicating the increase of so-called preferential trade agreements. You may  recall that after World War II, we started off with the GATT, the General  Agreement on Tariffs and Trade, which had some 47 members, which grew over time, but which was a multilateral order. Everybody played by the same rules.  The principle of MFN created level playing fields. In '57, the European  integration started, and that was the first movement towards regional trade  agreements with the monitor with the customs union. And over time, the  numbers increased. The next step was the end of the Cold War and the fall of  the Soviet Union and the Berlin Wall. This triggered a great deal of preferential  trade agreements, which then started to go beyond the region, actually into  intercontinental preferential trade agreements. And today we see a large  number of such agreements, and actually the action and is is is in that camp.  Governments invest in creating new preferential trade agreements. That is  equally true for for Canada. And all this, of course, leads to the question: What  shall we do with the GATT? What shall we do with the WTO? And I'd like to draw the attention to an important difference between perceptions and the realities of  this organization. The perception is that the World Trade Organization is in  decline, is of declining importance for a number of factors, which you see on on  the slide here. We are not able to make progress with the current Doha  development agenda, which is on since 2001. we see this shift to these 

preferential trade agreements, particularly the TTP on the Pacific and CETA,  which we should add on the Pacific side with European Union, the Americans  with the TTIP, and the Chinese with RCP, the world is no longer bilaterally  dominated on the Atlantic between the United States and European Union.  When it comes to trade, it's multipolar. There are many players who need to  agree, and that is makes things very difficult here. On the other hand, in terms of the realities, we should not forget that we have seen no major protectionism  during the financial crisis and the debt crisis. If you compare this with the 1930s, where there was no multilateral system in place, it is like day and night. While  trade in the 1930 s collapsed and was reduced by 50% we we've seen a slump  of 10% which recovered. And governments actually refrain from taking  protectionist measures at a large scale, and this is. Thanks to the rules we find  in the WTO, we also see an increase of WTO members over time since 1995.  Here, it's almost universal, and the centerpiece of this organization today is the  dispute settlement system, which is very sophisticated and has been dealing  with more than 500 disputes since 1995. Here, and most of all, WTO law is the  true foundations of all these RTAs, these regional trade agreements. You cannot read the Canadian-European agreement, the CETA agreement, without referring back to the WTO and its foundational and its principles. Here, the values and the basic norms are the same. They are derived from WTO law. The core concepts  are the same: tariffs, quantitative restrictions, principles of non-discrimination.  Here, if you look at the structure of these agreements, they essentially follow the structure of the WTO. You have the same chapters. Sometimes they simply  repeat what is in the WTO. Sometimes they add additional stuff to it. Sometimes even take things away. For example, in services, and they add on new areas.  For example, regulations on labor, on environmental competition investment,  and most recently, on protecting traditional knowledge. So there is new areas  are evolving in these in these preferential agreements here, but they are all  rooted in the WTO and these fundamental principles. So please, when you read  in the news the WTO is not making progress. Do not forget that it is the very  foundation upon which the whole edifice rests, including the preferential trade  agreements here. It's also worthwhile looking a bit into the history, and we can  describe this as a dialectical relationship between the multilateral system on the  one hand and bilateral agreements on the other hand. For example, in the 19th  century, the first area where we see multilateral agreements is in the field of  intellectual property, and these conventions, the Berne and the Paris  Conventions-they were based upon a host of bilateral agreements, which were  concluded prior to that among European states to foster copyright and  trademark laws. So you had a critical mass to actually come up with a  multilateral framework here, and the same was true for the GATT. The GATT of  1947 was built upon the U.S. reciprocal trade agreements, which evolved under  the Roosevelt administration as of 1934. And some of the language we still have

in the GATT and today in the WTO comes directly from from these from these  agreements. Here, we see also the other way round. For example, in services,  in services we started to build new disciplines in the Europe way round. They  didn't exist in preferential trade agreements before, except for the European  Union. And during the negotiations and services, the first chapter was  incorporated into the NAFTA, and from there it got into into the into the  preferential trade agreements here. So the start was multilateral, and then  branched out here. And today we're back in a phase where we essentially work  with preferential trade agreements. These are in the news. They make the news  here, and we can expect that these the results of these agreements will go back  into into the multilateral system in the time period of 2020 to 2030. The the  elephant in the room here is China. China is operating or is being dealt with at  the moment under a doctrine of encircling. The American president would say  that we need TTP in order to be able to make the rules. Otherwise, others will  make the rule. It's a question of time when China will have to come in to be the  full partner in this, and I expect this will be the case when we start  multilateralizing these results here. Another interesting dimension is looking  back into history and to reflect a little bit, what does it take to build a solid  system? What does it take to build governance in this global field? Governance,  which we know on local levels, on provincial level, on national levels, with our  governments here. And my message here is that Governance and institution,  governance and the law depend on strong institutions. We can we can take the  example of Roman law and the way the glossatores in the 11th century started  to work on it, to systematize it, to codify it, which prepared the ground for the  civil codes on the European continent. Here, we can we can look at the  formation of the common law in England, which was essentially dependent on a  very strong central role of the King's Bench. Here, without the King's Bench, the  common law could not have been created here. We can we can think of modern  federalism, the building of modern states like Canada, the United States,  Switzerland, Germany. They all they all depend on on strong central institutions,  and to the extent the central institutions fail or lack, the governance is not really  really assured here. It's not only about institutions in the government sense; it's  also about scholarship. So, for example, the the process of modern codification  civil law in Europe was essentially a process which was driven by scholars, by  researchers at the time, and then got into into the lawmaking process. And you  also need strong civil society support. So I was looking at the ad for this talk this  evening, which really comes from the period where a lot of people were  resenting the WTO, were considering the WTO as a threat. Here, I think we  have moved on from this stage. People rather perceive preferential trade  agreements as this kind of threat, and consider the WTO as a foundation which  is perhaps a little bit more even than some of these some of these agreements  here, but it is obvious without the support of civil society, these institutions 

cannot work, cannot flourish, and so we need to we need to work on that here.  Now, when we look at the institutions of these preferential trade agreements,  which are now flourishing, which are coming up like the TTP, with the exception  of the European Union, they have no institutions. The TTP, which will be  discussed in this country, has no secretariat. It has no central body. It has no  permanent dispute settlement staff who could acquire expertise. It's really it's  really built upon the tradition of 19th century ad hoc arbitration, and we will see  that this probably is going to be quite weak. We can also compare with NAFTA.  It's not an accident that the disputes between Canada and the United States are mainly carried to Geneva, and they're not dealt with in NAFTA because in  Geneva you have the strong institutions who have the expertise to deal with  these with these disputes here. So when we look at the relationship between the WTO today and these preferential trade agreements like the TTP, we can we  can say that this is a situation of splendid isolation. They they they relate to each other. The preferential trade agreements are built upon the WTO, but in terms of institution, they do not they do not interconnect here. So, for example, when you have a dispute which you bring in Geneva under the WTO, a WTO panel is not  allowed to look into any aspect of these preferential trade agreements, and vice  versa. If you bring a dispute under a preferential trade agreement. That panel  would not be allowed to look into the WTO rules, in particular claims beyond  simply taking it into account, and the so-called so-called Vienna Convention. On  treaties rules on interpretation here, that basically the two fields are are quite  isolated, and that that may cause quite interesting problems. And I'd like to to  give you the example of protecting geographical indications in Canada. This is a  a concept which came in from Europe. It's a particular form of intellectual  property protection where you grant protection to special products, mainly  foodstuffs, who originate in a particular region and who own their quality to that  particular region here, so I think maple syrup could be if you have a region  where a special maple syrup comes from, then that could be a typical GI of this  country. Now the rules on GIs are different in the TRIPS Agreement, in the  NAFTA agreement, in the CETA agreement and in the TTP agreement, and it  must be a headache for the Canadian government to actually come up with the  legal rules who will fit all these all these agreements. So, with the Europeans,  they would have to protect some of the products under the CETA agreement,  and under the TTP agreement, they would have to allow these products in when exported from the United States into Canada. So it's really about squaring the  circle, and it shows that we have to overcome this kind of splendid isolation  here. My my suggestion to do this would actually be to further develop the  dispute settlement system in the WTO to become a World Trade Court. At the  moment, we can only bring claims based upon the WTO dispute WHO  agreements, but we cannot take into account other agreements and rely upon  those for bringing claims. But we could design a system where basically the 

architecture, the expertise, could be used in Geneva also to address disputes  under these preferential trade agreements. It's it's a little bit like heart surgery. If  you need heart surgery, you go to a center which has the expertise which does  heart surgery every week. You don't go to a county hospital where they do this  every five years, and it's a bit the same idea. And we could work on that. And I  think it could be one one strategy to to reinforce the central role of the WTO in  terms of international institution building, in the sense I was alluding to in that  historical in that historical reference. Of course, we would need to change the  system. We would need to renegotiate some of these agreements, and we  would also have to change the cost structures. But I think it could become a  function which would make a lot of sense in reinforcing stability in global  governance here. Now, beyond that, I think we the question is how can we  further strengthen the role of the WTO in in given the situation today here. I think one role, which is very very interesting, is the monitoring of existing agreements. Here, we have we have the so-called trade policy review mechanism. This is a  system where every country reports regularly on its trade policy, and there is a  part of the report produced by the secretariat, another part by the government,  and then these reports are being discussed. And these reports are very useful,  first of all, to oblige different departments in in the government to discuss with  each other to draw the attention to potential problems and then to discuss them  also with the trading partners here, and this function this function could be could  be further elaborated here. We could also think of giving the secretariat in the  WTO. That may be a bit of a technical point for you. A proper voice in dispute  settlement. For the moment, we operate under the premises that the WTO is a  member-driven organization. You hardly should see the secretary. But they play  a very important role, and that role should be more transparent, a little bit like  the Commission in the European Union, who is a defender essentially of  integration and the system. And then the secretariat could also become the  right, actually, to launch consultations and complaints against failing members.  That would be a further step how this could be developed here. Now, next to the institutional questions here, I think the core question is: What what should the  WTO do in the next decade, given the situation that most of the market access  issues actually move towards these preferential trade agreements, given the  geopolitical constellations of of this world here, and we have to face it that the  traditional role of the most favored nation clause has somewhat changed. The  MFN clause was the condition of Roosevelt in the Atlantic Charter to support  Great Britain in the war effort, and the MFN clause had the goal to dismantle the European colonial system, including tariff preferences for for and by Canada  here, and this program, of course, has been largely realized, and Europe has  moved on and works in very different formats than at this time here. And we  have the elephant in the room with China, where people don't want to engage in  MFN further MFN trade because China reaped a lot of the benefits of the 

Uruguay Round when they when they adhered in 2001, and many countries had hoped to gain better market access, for example, in the field of textiles, which  then went to China. So developing countries either are reluctant to do that here,  so we have to take it that the so-called market access issues, reduction of tariffs  and reduction of quantitative restrictions, etc. will will essentially stay with these  with these preferential trade trade agreements here. Now, the more difficult part  than these tariff reductions are the so-called non-tariff barriers here, and in these in these preferential trade agreements, countries today deal increasingly and in  the forefront with these non-tariff measures. It's it's about making common rules. It's about bringing about mutual recognition or equivalents of regulatory  regulatory regimes here. And to to a large extent, countries in preferential trade  agreements will do that to the effect, and to the very point that they do not  actually face too many free riders who will then benefit from these preferential  preferential arrangements here, and this is what we call the so-called spillover  effects. The the regulatory convergence between, let's say, Canada and the  European Union will also benefit third parties. They will benefit from the fact that  the rules are being harmonized and product standards are being made similar  on both sides of the Atlantic. That increases their market access, but Canada  and the EU do not get anything in return. So they, to a certain extent, will be  willing to take these free riders into account, but to to a certain extent, they will  not, and one of the most important areas where they do not actually are willing  to take these free riders into account is when we talk about disciplines on  domestic support subsidy questions. In none of these preferential trade  agreements, this very sophisticated advanced negotiation today do we talk  about domestic support, agricultural support, support for energy support, energy products, etc. Because if you would agree among the two, others would have  very extensive free riding effects, which these countries want to avoid. Here, so  the the question is, what should the WTO do? What are the unique selling  propositions? What are the topics the WTO should take on in this game where  market access essentially we preferential trade agreements here, and and and  what are the areas we should tackle on in the so-called post-Doha agenda, in a  new trade agenda, in the era of climate change mitigation and adaptation  measures? Here, now, if we look at these USPs of the WTO, the multilateral  system. I think it's really first of all the institutional framework. That's a strength  of the system here. The expertise you find in the WTO, in the Secretariat, but  also in the missions in Geneva and the group of NGOs who actively think about  these issues here and provide input, and many developing country has learned  that they're and are learning that they are better off actually working within the  multilateral system than being picked up and picked on bilaterally outside  outside of Geneva here. So I think this civil society and diplomatic community in  Geneva is is an important USP for work in in the multilateral system here, and  then we have to address the areas where we see strong spillover effects, and 

these are the ones we should tackle in the WTO. I'll take the example of  subsidies. So, agricultural subsidies. That's what we've done so far. We need to  continue to do that there because nobody else does it. But we have to develop  disciplines on subsidies also in the services area. For example, airlines of  Europe and North America are increasingly under pressure because other  airlines are heavily subsidized and distort the market. We don't have the  disciplines in place. It will be a matter to take that up in WHO negotiations in the  next decade. Here, we will see further work on the field of intellectual property  rights, which is a framework condition. Just also for the fact, because under the  TRIPS Agreement, every improvement of intellectual property you conclude  bilaterally has to be extended to everybody, and that is a big free rider effect.  You may want to avoid. We may discuss antitrust rules, competition policy in in  the WTO, investment issues in the in the next phase. We will deal with technical  regulation, food standards, which need to be the same for everybody. You can't  have food standards for one country and a different food standard for another  country. You have one standard, and it's safe or not safe. So these things have  to be done centrally, in my view. What we will see is a farewell to the classical  trade rounds, where you basically try to create the momentum through tariff  reductions. Tariffs are no longer in the WTO; they will be dealt with in the  preferential trade agreements here, and the same is true for large packages in  the field of services here. I think what we will see are so-called sectorial  negotiations and ongoing quasi legislative processes. So the WTO will become  more like a normal international organization who will have an ongoing agenda,  an ongoing ongoing negotiating processes, and that is not necessarily new. We  have seen this after the Euro-Go-round in financial services, where a deal was  negotiated. We've seen it with the telecom, so-called reference paper. We have  seen recently a revision of the government procurement agreement, and we  have seen a revision of the TRIPS agreement, allowing for facilitated access to  essential drug and export export possibilities for generic generic drugs to  developing countries. So this is not something which is entirely new, but so far  we have worked with these eight trade rounds and the ninth round. We probably will have to conclude decently, but we have to move on into these into these  new areas. These new sectorial negotiations will also no longer make these  clear distinctions between goods, services, intellectual property, or investment,  which so far has been essentially the rule, but they will be grouped around a  theme, and will will take into account all the disciplines which are necessary to  address a particular problem. For example, in the field of climate change  mitigation and climate change adaptation. Here, now the sector. where I see  potential for future WTO negotiations is in the energy field. I think we might want to think about an agreement on electricity, which entails a framework for long distance trade on sustainably produced electricity. We need to work a system  which links up the different regional grids, which allows to exchange solar and 

wind energy among larger areas, and the new technology allows for this. And  we have a number of legal problems to solve here: interconnection, a typical  network and pipeline problem. So that would be a specific, specific agreement.  We we might have an agreement on fossil fuels. This is essentially a subsidy  agreement. We still have, in this age of climate change, 400 to 600 billion US  dollars in terms of subsidies going to the fossil fuel industry here. Some of this is production, some of this is consumption, but these things need to be gradually  reduced, and that could be done within such an agreement. Here, we may also  see an agreement on extracted minerals here. This is particularly how to secure  the procurement with essential minerals for IT industries. It's essentially about  Export restrictions in this particular field. We may see a specific services  agreement. I already mentioned civil aviation, the airlines. We may finally  liberalize maritime transports, which are still operating under monopoly rights  here, and we may have to take migration beyond the current GATS disciplines,  where migration rights are limited just to leading personnel of companies. But  we may have to put this in a broader framework in in the multilateral system  here. All this is not the idea that this would be exclusively done within the WTO.  This requires cooperation with other international organizations. Many of them  are in Geneva. Some are in other other other towns and other continents. But I  think it's only with the institution, with that secretariat, that you're actually able to  develop the close working relationship with the specialized international  organizations. This is a field which really can can be further developed in the  coming in the coming decade. Here now, apart from these sectorial negotiations, which there may be others, but these are the ones I think one could identify of  being of great interest in this agenda, also for climate change mitigation and  adaptation. There are a number of horizontal issues one would need to take into account first of all trade remedies. Now trade remedies are measures against  dumping, against subsidization, and the tool we use are increased tariffs, import  tariffs. Now this doesn't work for services. We don't know the concept of tariffs  for services, so we need to have a new system. And how do you address anti dumping in in a domestic context? If a company dumps within Canada, in  Europe, that would be a question of unfair competition. So we need to develop  the rules of unfair competition, and we have the foundations for this in the  TRIPS and the Paris Convention. But it's dormant; it's not being really used so  far. And there is a mandate to develop disciplines on subsidies in services, but it  hasn't really been put to. Work so far, so there is there is quite a bit of work  conceptually, where also centers like the CG can make a very important  intellectual contribution. I think we have to come to grips with trade and  investment. I think the goal would be to integrate investment into the WTO. I  personally see a model where we operate, like in the TRIPS Agreement, that  you set up and set out a number of minimal standards. CETA, the Canada EU  agreement, is a very good example of actually developing such minimal 

standards, and and basically invest. disputes would be adjudicated by domestic  courts. But if they don't comply with these minimal standards, you could bring a  complaint before the WTO. This would be a way to go around this current  dispute we have on private state investor Arbitration, which is very controversial  among industrialized countries, but which is also controversial, increasingly  controversial among developing countries who think they're coming of age and  they no longer need to depend on this private state arbitration system here. We  may move into antitrust rules. It's a bit odd when you have a system in with very  very strong intellectual property rights in the WTO, but you have no anti dots,  which you normally have at home, which is the abuse of a dominant position.  You can break the abuse of a dominant position by referring to competition  policy. We have made a lot of progress in countries. Countries are more  advanced. We have now about 65 countries having competition acts, and so  maybe the time comes to start negotiation on the things here, and then I think  there are institutional issues, as I said, the role of the secretariat, a more  proactive role, more accountable, more defending, assist the system with its  own voice here. The idea of creating a world trade court by extending jurisdiction to the regional trade agreements and the elaboration of cooperation with  international organizations. We still operate in silos when it comes to different  international organizations, even though they may be next door. So the the  World Meteorological Organization is about 100 meters away from the WTO, but there's no interaction between, and the WTO is very badly prepared to take up  climate change issues at this stage. They never talked about these things, or I'm currently involved in the World Health Organization, advising on the the  consequences which you draw from SARS and other epidemics, possibly the  one which is going on now, but there is very little discussion among these  different organizations. So we need to get this act together, and we need to  come to structures so that these these agencies start working with each other in  addressing these complex issues, the WTO will always play an important role,  even though we may deal with energy, or the environment, or health, because  when governments use trade tools, restrictions of trade, regulating products, etc. They fall into the domain of the WTO, and we will end up in the dispute  settlement there. So it's nothing wrong with this here, but it requires that we  work together. It's also true for labor standards. It's true for human rights. This  cooperation has to has to be reinforced. So there's a lot lot of work which could  be done next to all these preferential trade agreements which we which we see.  In order to make this work, ladies and gentlemen, we have to rethink the modus  of consensus diplomacy. While the GATT and the WTO rules on paper work with majority rules, in practice, there's only consensus. So something is agreed if  nobody actually openly disagrees. That doesn't necessarily mean that they  agree, but they do not disagree, and so the deal is done here. But it gives every  country formally the right to raise the finger and says, "No, I don't agree. I don't 

want this here. And a lot of countries think that is the most democratic thing. I  can object if I don't want. And many developing. Countries have actually used  this power and stopped progress, and that is one of the reasons why little little  progress was made in the Doha round. But they they also learned, of course,  that some are more equal than others, and it's difficult to sustain Objections in  

the long run-that that only large powers large powers can do. And in fact, many  of the problems we face today are rather due to large powers than smaller  powers here. So the large powers have to also rethink their attitudes to  consensus. Now there are different models. One can formalize a weighted  voting system. There are models that every country would have a certain  number of base votes and additional votes, and you take into account trade  dependency and others, and that could work. But that's probably too early to  discuss, what we may see is just a new mode that before somebody actually  raises an objection to consensus, that they would have to justify that it should  only be for vital interests, and that it would need confirmation upon a cooling  period here. This is the small steps one perhaps can can make. This is more a  way of changing the modes of diplomacy than actually changing the rules. But  we need a new a new attitude in in the game here, and I think the experience  many countries make with negotiating preferential trade agreements, where it's  much more difficult to actually defend your interests vis-à-vis the large powers,  may bring them back into into a system where flexible coalitions are possible  and where you may be able to defend your interest on average better than on  the bilateral on the bilateral avenue here. So this brings me to to the end here.  What I wanted to say today is that we we should not believe that the WTO law at the WHO has lost its role because current negotiations are in difficulties. It plays  a very very pivotal role as the center of all these principles and rules, and as the  center of dispute settlement in the multilateral trading system here, and  institutions like CG help to actually forge what I call here the common law of  international trade, of integrating the WTO rules with those of the preferential  trade agreements, and to forge a more coherent system, which may overcome  also this institutional splendid isolation of the preferential trade agreements in  which we currently find ourselves here. I think there is a need to strengthen  central institutions. I think if we want to have stability, predictability, if we want to  have the rule of law in a highly interdependent world, in this process of  globalization, we need to harness globalization, and we can only do this by law  and with with strong institutions. And I think the WTO is the place where we  should invest and not disinvest to achieve these these goals here. I think we  should shift our minds to sectorial negotiations. We should have a process also  in Canada. Which are the priorities where the Canadian government should  invest? What are the areas where they should develop initiatives? Where do we  need to to move forward and to prepare these these negotiations, and we need  a more flexible attitude to agreement. We need some sort of a qualified 

consensus in a multipolar world where you have six to seven major powers. We  can no longer afford that a single one can simply block. It's as simple as that.  However, we do that. That's that's a question of detail. But we we need we need  a different attitude here and a different perception. So this is what I wanted to to  briefly convey to you. Perhaps for for some of you, it was too too technical, but I  think the main message of the need for strong institutions, if you believe in the  rule of law, is something which I hope you will take home tonight. Thank you. So  I'm I'm happy to to take your questions if you if you have any on on these  matters. 

e time period of 2020 to 2030. The the elephant in the room here is China. China  is operating or is being dealt with at the moment under a doctrine of encircling.  The American president would say that we need TTP in order to be abl e to make the rules. Otherwise, others will make the rule. It's a question of time when China will have to come in to be the full partner in this, and I expect this w ill be the case when we start multilateralizing these results here. Ano ther interesting dimension is looking back into history and to reflect a littl e bit, what does it take to build a solid system? What does it take to build gov ernance in this global field? Governance, which we know on local levels, on  provincial level, on national levels, with our governments here. And my message her e is that Governance and institution, governance and the law depend on stro ng institutions. We can we can take the example of Roman law and the way the glos satores in the 11th century started to work on it, to systematize it, to cod ify it, which prepared the ground for the civil codes on the European contin ent. Here, we can we can look at the formation of the common law in England, w hich was essentially dependent on a very strong central role of the King's Bench. H ere, without the King's Bench, the common law could not have been created here. W e can we can think of modern federalism, the building of modern states like Canada , the United States, Switzerland, Germany. They all they all depend on on st rong central institutions, and to the extent the central institutions fail or lack , the governance is not really really assured here. It's not only about institution s in the government sense; it's also about scholarship. So, for example, the  the process of modern codification civil law in Europe was essentially  a process which was driven by scholars, by researchers at the time, and then  got into into the lawmaking process. And you also need strong civil society supp ort. So I was looking at the ad for this talk this evening, which really comes  from the period where a lot of people were resenting the WTO, were considerin g the WTO as a threat. Here, I think we have moved on from this stage. People  rather perceive preferential trade agreements as this kind of threat, an d consider the WTO as a foundation which is perhaps a little bit more even than  some of these some of these agreements here, but it is obvious without the support of civ l society, these institutions cannot work, cannot flourish, and so w 

e need to we need to work on that here. Now, when we look at the institutions  of these preferential trade agreements, which are now flourishing, which are  coming up like the TTP, with the exception of the European Union, they have no  institutions. The TTP, which will be discussed in this country, has no secret ariat. It has no central body. It has no permanent dispute settlement staff w ho could acquire expertise. It's really it's really built upon the tradition of 19 h century ad hoc arbitration, and we will see that this probably is going to  be quite weak. We can also compare with NAFTA. It's not an accident that  the disputes between Canada and the United States are mainly carried to Geneva, a d they're not dealt with in NAFTA because in Geneva you have the strong in

stitutions who have the expertise to deal with these with these disputes here . So when we look at the relationship between the WTO today and these preferen tial trade agreements like the TTP, we can we can say that this is a situation  f splendid isolation. They they they relate to each other. The preferential t ade agreements are built upon the WTO, but in terms of institution, they d o not they do not interconnect here. So, for example, when you have a disput e which you bring in Geneva under the WTO, a WTO panel is not allowed to lo ok into any aspect of these preferential trade agreements, and vice versa.  If you bring a dispute under a preferential trade agreement. That panel would no t be allowed to look into the WTO rules, in particular claims beyond simply taking it into account, and the so-called so-called Vienna Convention. On treati es rules on interpretation here, that basically the two fields are are quite isolat ed, and that that may cause quite interesting problems. And I'd like to to g ive you the example of protecting geographical indications in Canada.  This is a a concept which came in from Europe. It's a particular form of intelle ctual property protection where you grant protection to special products, mainly f oodstuffs, who originate in a particular region and who own their quality to t hat particular region here, so I think maple syrup could be if you have a region w here a special maple syrup comes from, then that could be a typical GI of this co untry. Now the rules on GIs are different in the TRIPS Agreement, in the NAF TA agreement, in the CETA agreement and in the TTP agreement, and it must be a he adache for the Canadian government to actually come up with the legal  rules who will fit all these all these agreements. So, with the Europeans, th ey would have to protect some of the products under the CETA agreement, and u nder the TTP agreement, they would have to allow these products in when exporte d from the United States into Canada. So it's really about squaring t he circle, and it shows that we have to overcome this kind of splend id isolation here. My my suggestion to do this would actually be to further deve lop the dispute settlement system in the WTO to become a World Trade Court. A t the moment, we can only bring claims based upon the WTO dispute WHO agreemen ts, but we cannot take into account other agreements and rely upon those for bri nging claims. But we could design a system where basically the architecture, the ex pertise, could be used in Geneva also to address disputes under these preferentia l trade agreements. It's it's a little bit like heart surgery. If you need heart  surgery, you go to a center which has the expertise which does heart surgery every week. You don't go to a county hospital where they do this every five years, and it's  a bit the same idea. And we could work on that. And I think it could be one  one strategy to to reinforce the central role of the WTO in terms of  international institution building, in the sense I was alluding to in that histori cal in that historical reference. Of course, we would need to change the system.  We would need to renegotiate some of these agreements, and we would also ha ve to change the cost structures. But I think it could become a function whic

h would make a lot of sense in reinforcing stability in global governance here. N ow, beyond that, I think we the question is how can we further strengthen  the role of the WTO in in given the situation today here. I think one role, w ich is very very interesting, is the monitoring of existing agreements. H ere, we have we have the so-called trade policy review mechanism. This  is a system where every country reports regularly on its trade policy, and th ere is a part of the report produced by the secretariat, another part by th e government, and then these reports are being discussed. And these reports are  very useful, first of all, to oblige different departments in in the governm ent to discuss with each other to draw the attention to potential problems and t en to discuss them also with the trading partners here, and this function this  function could be could be further elaborated here. We could also think of givi ng the secretariat in the WTO. That may be a bit of a technical point for you.   proper voice in dispute settlement. For the moment, we operate under the premi ses that the WTO is a member-driven organization. You hardly should see the secret ary. But they play a very important role, and that role should be more transpare nt, a little bit like the Commission in the European Union, who is a defen der essentially of integration and the system. And then the secretariat could also  become the right, actually, to launch consultations and complaints against faili ng members. That would be a further step how this could be developed here.  Now, next to the institutional questions here, I think the core question is:  What what should the WTO do in the next decade, given the situation that most o f the market access issues actually move towards these preferential trade agree ments, given the geopolitical constellations of of this world here, and we ha ve to face it that the traditional role of the most favored nation clause has s omewhat changed. The MFN clause was the condition of Roosevelt in the Atlantic C harter to support Great Britain in the war effort, and the MFN clause ha d the goal to dismantle the European colonial system, including tariff prefe rences for for and by Canada here, and this program, of course, has been largely  realized, and Europe has moved on and works in very different formats than a t this time here. And we have the elephant in the room with China, where p eople don't want to engage in MFN further MFN trade because China reaped a lot o f the benefits of the Uruguay Round when they when they adhered in 2001, and many  countries had hoped to gain better market access, for example, in the field of textiles, which then went to China. So developing countries either are relucta nt to do that here, so we have to take it that the so-called market access issues , reduction of tariffs and reduction of quantitative restrictions, etc. wil l will essentially stay with these with these preferential trade trade ag reements here. Now, the more difficult part than these tariff reductions  are the so-called non-tariff barriers here, and in these in these preferential  trade agreements, countries today deal increasingly and in the forefront with thes e non-tariff measures. It's it's about making common rules. It's about bringi

ng about mutual recognition or equivalents of regulatory regulatory regimes here. And to to a large extent, countries in preferential trade agreements will do that to th e effect, and to the very point that they do not actually face too many free r ders who will then benefit from these preferential preferential arrangements her e, and this is what we call the so-called spillover effects. The the regulatory  convergence between, let's say, Canada and the European Union will also benefit thi rd parties. They will benefit from the fact that the rules are being harmonized  and product standards are being made similar on both sides of the Atlantic. Th at increases their market access, but Canada and the EU do not get anything in re turn. So they, to a certain extent, will be willing to take these free rid ers into account, but to to a certain extent, they will not, and one of the most imp ortant areas where they do not actually are willing to take these free riders in to account is when we talk about disciplines on domestic support subsidy ques tions. In none of these preferential trade agreements, this very sophisticated adva nced negotiation today do we talk about domestic support, agricultural support, su port for energy support, energy products, etc. Because if you would agree a mong the two, others would have very extensive free riding effects, which these cou ntries want to avoid. Here, so the the question is, what should the WTO do ? What are the unique selling propositions? What are the topics the WTO should take  on in this game where market access essentially we preferential trade agreements he re, and and and what are the areas we should tackle on in the so-called post Doha agenda, in a new trade agenda, in the era of climate change mitigation and  adaptation measures? Here, now, if we look at these USPs of the WTO, the multilat ral system. I think it's really first of all the institutional framework 

. That's a strength of the system here. The expertise you find in the WTO, in the Secr tariat, but also in the missions in Geneva and the group of NGOs who actively think  about these issues here and provide input, and many developing country has learned t at they're and are learning that they are better off actually working wit hin the multilateral system than being picked up and picked on bilaterally out side outside of Geneva here. So I think this civil society and diplomatic co mmunity in Geneva is is an important USP for work in in the multilateral syste  here, and then we have to address the areas where we see strong spillover effec ts, and these are the ones we should tackle in the WTO. I'll take the example  of subsidies. So, agricultural subsidies. That's what we've done so far. We need t o continue to do that there because nobody else does it. But we have to d evelop disciplines on subsidies also in the services area. For example, airlines  of Europe and North America are increasingly under pressure because other airlines  are heavily subsidized and distort the market. We don't have the disciplines i n place. It will be a matter to take that up in WHO negotiations in the next decad . Here, we will see further work on the field of intellectual property rights, w hich is a framework condition. Just also for the fact, because under the TRIPS A greement, every improvement of intellectual property you conclude bilaterally has to

be extended to everybody, and that is a big free rider effect. You may want to  avoid. We may discuss antitrust rules, competition policy in in the WTO, inve stment issues in the in the next phase. We will deal with technical regulatio n, food standards, which need to be the same for everybody. You can't have foo d standards for one country and a different food standard for another count y. You have one standard, and it's safe or not safe. So these things have  to be done centrally, in my view. What we will see is a farewell to the class ical trade rounds, where you basically try to create the momentum through tariff  reductions. Tariffs are no longer in the WTO; they will be dealt with in th e preferential trade agreements here, and the same is true for large pack ages in the field of services here. I think what we will see are so-called sectorial  negotiations and ongoing quasi legislative processes. So the WTO will bec ome more like a normal international organization who will have an ongoing ag enda, an ongoing ongoing negotiating processes, and that is not necessarily new. We  have seen this after the Euro-Go-round in financial services, where a deal was  negotiated. We've seen it with the telecom, so-called reference paper. We have se en recently a revision of the government procurement agreement, and we have seen a resion of the TRIPS agreement, allowing for facilitated access to essential d rug and export export possibilities for generic generic drugs to developing countries  So this is not something which is entirely new, but so far we have worked with thes e eight trade rounds and the ninth round. We probably will have to conclude decen tly, but we have to move on into these into these new areas. These new sectorial neg tiations will also no longer make these clear distinctions between goods, s ervices, intellectual property, or investment, which so far has been es sentially the rule, but they will be grouped around a theme, and will will  ake into account all the disciplines which are necessary to address a particular  problem. For example, in the field of climate change mitigation and climate ch nge adaptation. Here, now the sector. where I see potential for future WTO n egotiations is in the energy field. I think we might want to think about an agre ement on electricity, which entails a framework for long-distance trade on sustain ably produced electricity. We need to work a system which links up the different re gional grids, which allows to exchange solar and wind energy among larger  areas, and the new technology allows for this. And we have a number of legal  problems to solve here: interconnection, a typical network and pipeline problem.  So that would be a specific, specific agreement. We we might have an  agreement on fossil fuels. This is essentially a subsidy agreement. We still have, in this age of climate change, 400 to 600 billion US dollars in terms of subsidies  going to the fossil fuel industry here. Some of this is production, some of this is  consumption, but these things need to be gradually reduced, and that could be  done within such an agreement. Here, we may also see an agreement on  extracted minerals here. This is particularly how to secure the procurement with  essential minerals for IT industries. It's essentially about Export restrictions in 

this particular field. We may see a specific services agreement. I already  mentioned civil aviation, the airlines. We may finally liberalize maritime  transports, which are still operating under monopoly rights here, and we may  have to take migration beyond the current GATS disciplines, where migration  rights are limited just to leading personnel of companies. But we may have to  put this in a broader framework in in the multilateral system here. All this is not  the idea that this would be exclusively done within the WTO. This requires  cooperation with other international organizations. Many of them are in Geneva.  Some are in other other other towns and other continents. But I think it's only  with the institution, with that secretariat, that you're actually able to develop the  close working relationship with the specialized international organizations. This  is a field which really can can be further developed in the coming in the coming  decade. Here now, apart from these sectorial negotiations, which there may be  others, but these are the ones I think one could identify of being of great interest in this agenda, also for climate change mitigation and adaptation. There are a  number of horizontal issues one would need to take into account first of all trade remedies. Now trade remedies are measures against dumping, against  subsidization, and the tool we use are increased tariffs, import tariffs. Now this  doesn't work for services. We don't know the concept of tariffs for services, so  we need to have a new system. And how do you address anti-dumping in in a  domestic context? If a company dumps within Canada, in Europe, that would be  a question of unfair competition. So we need to develop the rules of unfair  competition, and we have the foundations for this in the TRIPS and the Paris  Convention. But it's dormant; it's not being really used so far. And there is a  mandate to develop disciplines on subsidies in services, but it hasn't really been  put to. Work so far, so there is there is quite a bit of work conceptually, where  also centers like the CG can make a very important intellectual contribution. I  think we have to come to grips with trade and investment. I think the goal would  be to integrate investment into the WTO. I personally see a model where we  operate, like in the TRIPS Agreement, that you set up and set out a number of  minimal standards. CETA, the Canada EU agreement, is a very good example  of actually developing such minimal standards, and and basically invest.  disputes would be adjudicated by domestic courts. But if they don't comply with  these minimal standards, you could bring a complaint before the WTO. This  would be a way to go around this current dispute we have on private state  investor Arbitration, which is very controversial among industrialized countries,  but which is also controversial, increasingly controversial among developing  countries who think they're coming of age and they no longer need to depend on this private state arbitration system here. We may move into antitrust rules. It's a bit odd when you have a system in with very very strong intellectual property  rights in the WTO, but you have no anti dots, which you normally have at home,  which is the abuse of a dominant position. You can break the abuse of a 

dominant position by referring to competition policy. We have made a lot of  progress in countries. Countries are more advanced. We have now about 65  countries having competition acts, and so maybe the time comes to start  negotiation on the things here, and then I think there are institutional issues, as I said, the role of the secretariat, a more proactive role, more accountable, more  defending, assist the system with its own voice here. The idea of creating a  world trade court by extending jurisdiction to the regional trade agreements and  the elaboration of cooperation with international organizations. We still operate  in silos when it comes to different international organizations, even though they  may be next door. So the the World Meteorological Organization is about 100  meters away from the WTO, but there's no interaction between, and the WTO is  very badly prepared to take up climate change issues at this stage. They never  talked about these things, or I'm currently involved in the World Health  Organization, advising on the the consequences which you draw from SARS  and other epidemics, possibly the one which is going on now, but there is very  little discussion among these different organizations. So we need to get this act  together, and we need to come to structures so that these these agencies start  working with each other in addressing these complex issues, the WTO will  always play an important role, even though we may deal with energy, or the  environment, or health, because when governments use trade tools, restrictions  of trade, regulating products, etc. They fall into the domain of the WTO, and we  will end up in the dispute settlement there. So it's nothing wrong with this here,  but it requires that we work together. It's also true for labor standards. It's true  for human rights. This cooperation has to has to be reinforced. So there's a lot  lot of work which could be done next to all these preferential trade agreements  which we which we see. In order to make this work, ladies and gentlemen, we  have to rethink the modus of consensus diplomacy. While the GATT and the  WTO rules on paper work with majority rules, in practice, there's only  consensus. So something is agreed if nobody actually openly disagrees. That  doesn't necessarily mean that they agree, but they do not disagree, and so the  deal is done here. But it gives every country formally the right to raise the finger  and says, "No, I don't agree. I don't want this here. And a lot of countries think  that is the most democratic thing. I can object if I don't want. And many  developing. Countries have actually used this power and stopped progress, and  that is one of the reasons why little little progress was made in the Doha round.  But they they also learned, of course, that some are more equal than others,  and it's difficult to sustain Objections in the long run-that that only large powers  large powers can do. And in fact, many of the problems we face today are rather due to large powers than smaller powers here. So the large powers have to also rethink their attitudes to consensus. Now there are different models. One can  formalize a weighted voting system. There are models that every country would  have a certain number of base votes and additional votes, and you take into 

account trade dependency and others, and that could work. But that's probably  too early to discuss, what we may see is just a new mode that before somebody actually raises an objection to consensus, that they would have to justify that it  should only be for vital interests, and that it would need confirmation upon a  cooling period here. This is the small steps one perhaps can can make. This is  more a way of changing the modes of diplomacy than actually changing the  rules. But we need a new a new attitude in in the game here, and I think the  experience many countries make with negotiating preferential trade agreements, where it's much more difficult to actually defend your interests vis-à-vis the large powers, may bring them back into into a system where flexible coalitions are  possible and where you may be able to defend your interest on average better  than on the bilateral on the bilateral avenue here. So this brings me to to the end here. What I wanted to say today is that we we should not believe that the WTO  law at the WHO has lost its role because current negotiations are in difficulties. It plays a very very pivotal role as the center of all these principles and rules, and  as the center of dispute settlement in the multilateral trading system here, and  institutions like CG help to actually forge what I call here the common law of  international trade, of integrating the WTO rules with those of the preferential  trade agreements, and to forge a more coherent system, which may overcome  also this institutional splendid isolation of the preferential trade agreements in  which we currently find ourselves here. I think there is a need to strengthen  central institutions. I think if we want to have stability, predictability, if we want to  have the rule of law in a highly interdependent world, in this process of  globalization, we need to harness globalization, and we can only do this by law  and with with strong institutions. And I think the WTO is the place where we  should invest and not disinvest to achieve these these goals here. I think we  should shift our minds to sectorial negotiations. We should have a process also  in Canada. Which are the priorities where the Canadian government should  invest? What are the areas where they should develop initiatives? Where do we  need to to move forward and to prepare these these negotiations, and we need  a more flexible attitude to agreement. We need some sort of a qualified  consensus in a multipolar world where you have six to seven major powers. We  can no longer afford that a single one can simply block. It's as simple as that.  However, we do that. That's that's a question of detail. But we we need we need  a different attitude here and a different perception. So this is what I wanted to to  briefly convey to you. Perhaps for for some of you, it was too too technical, but I  think the main message of the need for strong institutions, if you believe in the  rule of law, is something which I hope you will take home tonight. Thank you. So  I'm I'm happy to to take your questions if you if you have any on on these  matters. 

Speaker 1- Thank you very much. That was an excellent overview of the WTO  currently, and I really appreciated some of the suggestions about moving  forward. The one issue which wasn't on your quite comprehensive agenda was  the exchange rate issue, and so this has come up in the TPP context. So one of  your messages is you could sometimes take things from the TPP or TTIP and  put them back into the WTO at a future moment. So the TPP now has a side  agreement on exchange rates, and it does seem like an issue that the IMF has  really not been able to tackle with any effectiveness. And it relates to your issue  about developing country discontent about China's reaping the benefits of the  Uruguay Round. So I wondered why you left that off the agenda. Is it something  that you think is just too difficult for the WTO to to address?  

Dr. Cottier - Well, thank you. This is a this is a very interesting point. I basically  think that the work on the exchange rate policy should be located and done  within the International Monetary Fund. That the reason why we discuss these  issues in the trade field is simply because within the IMF we have no dispute  resolution mechanism whatsoever. If one country says, "I don't want this  exchange rate issue on the agenda, it's not on. And the the only progress in the  IMF, which was possible, was to actually have an official exchange rate  statistics, which is now being put out. But it doesn't go beyond that. So that's  why, if if people fear about appreciation and devaluation, they bring it into the  trade field because you may slap on import tariffs on these products here. This  is what has been done in the states in the 70s, and that's the reason why we  essentially discuss it in the trade field. But when you take it further, and then it  affects services, the tariff angle doesn't really work. So the remedy doesn't really work. So I think the G20 should rather focus on how to improve the mechanisms within the International Monetary Fund to address exchange rates than to try to  locate this in in in a trade field it's also doubtful whether exchange rates can  actually be qualified as a subsidy in the legal sense, because a subsidy has to  be specific to the benefit of a specific industry or companies, and exchange  rates they have an advantage for the export industry, like a low Canadian dollar  has is an advantage for the Canadian export industry, a disadvantage for the  importers and all of you who need to buy fruits. But it's not specific in the legal  sense, so I'm not sure whether that is really going to work. I haven't studied the I haven't studied the side agreement, and I will do that. But I wonder to what  extent it's hard law, to what extent it's just a consultation mechanism. Oh, there,  there's a question on the screen here. Okay, the WTO held its first ministerial  conflict in Africa. How does should the WTO address disparities between  developing and developed countries? Well, this is a this is a very good question. I didn't I didn't address that specifically here. We are operating currently under  the so-called special and differential treatment. So, developing countries have  sometimes lesser obligations, or they have temporary relief from some 

obligations, and that is expressed in these so-called special differential  treatment rules. The downside of this is that special differential treatment also  Prolongs the process of integration. If you don't have international obligations,  you don't adjust, and so you have a decolage that between developed and  developing countries due to that. So, basically, there is agreement that this  special differential treatment does not really work very very well here, and other  other options are being tested. I personally think we should move into a system  of graduation where basically within an agreement a country assumes certain  responsibilities once it's actually actively playing on the world stage in in the  world market, and but before that, maybe exempt from from certain obligations.  But once it's as I said develops, then I think the the rules should should kick in,  and this is how we we might be might be able in the rules to to address  disparities between these countries. There's also a lot of work to be done in sort  of training, I think the WTO does a lot of training work, institution building, and  that, of course, should should go on. Also, in trade promotion, there's a recent  trade facilitation agreement which was concluded, and and that should help  countries to to Improve their trade. The true problem, however, for most of many developing countries still remains that they lack products which are tradable on  the global level, and so product development would be an essential function. But that is beyond that is beyond the the scope of of the WTO at this stage here. I  don't know whether that responded to the question. Thank you. Yes, please.  

Amy Ryer - Hi, good evening. It's Amy Ryer with Miller Thompson in Waterloo. I  have several questions for you this evening. First, let me just thank you for being here. We really appreciate you being in this jurisdiction. I think I'll limit my  questions just to perhaps two general ones. I was curious to know how the  World Trade Organization might address or integrate the Ruggie principles,  human rights, environmental issues, in particular dealing with dispute resolution, dispute settlement. And my second question is with respect to the applicability of the common law of international trade in domestic courts, and/or perhaps the  vice versa of domestic courts deferring to the World Trade Organization. Clearly, jurisdiction is something that needs to be addressed. But how willing will nations be, and how long do you think that will happen? And so, thank you.  

Dr. Cottier - Thank you very much for for two questions, which I think could be  another another presentation, but are very very very pertinent. The the Ruggie  principles are these commitments by companies Essentially, to comply with  certain human rights-related, labor standard-related principle in terms of a self commitment, and these principles are essentially considered to be soft law.  Some people would consider them simply marketing tools, but I think we we we  need to look how, as you said, how the WTO could could deal with these kind of  commitments. And in my view, the the foundation here could be to use the 

principles of unfair competition, which we have in the TRIPS Agreement in  Article 10 base of the Paris Convention, and to use those to enforce these  commitments. So once a company makes such a pledge and they do not live up to it, they should be liable under unfair Competition rules. Here, this is a way  which was taken in the United States with the With the shoe case, and it could  be could be used as well in in in in on the international level. Generally  speaking, on on trade and environment, I think we made a lot of progress in the  case law. If you look at the 1990s and you compare to the situation today. I think we, I would argue, we have a very balanced system between trade interests and environmental interests, which are which are weighed in in the dispute  settlement system. So, the break, the leading case was this Srimturtle decision,  but also if you look at the recent case EC Seals, which of course was to the  detriment of Canada, but which I think in terms of promoting these non-trade  concerns is quite a big a big step. As to the the role of law of the WTO law in  domestic courts-that's a very, very good question. Those countries operating  under the Westminster system, like Canada, do not allow their courts basically  to directly refer to WTO rules. They operate under a dualist system. Other  countries like Holland or Switzerland, the courts are allowed to use the WTO  laws, the law of the land, and they have done so. That would also be the case in the United States, but the U.S. Congress has explicitly barred direct effect of  trade agreements, and U.S. courts are not. Allowed to to do that. So what what  under these circumstances can be done is you can use the doctrine of  consistent interpretation. So as an attorney pleading before a Canadian court,  you can use trade agreements and say, Judge, would you please interpret the  rules in the way so that they're compatible with these agreements, and this is  the way how you can import this. But it takes the people who know the subject,  and a lot of lawyers have no clue. So it it's a matter of education. And in Europe, and I think also in Canada, we're a bit behind in law schools and coping with  globalization, we're still very much focusing on the nation-state, and so we need  to push this envelope. But I think there are ways to get into this. But as long as  you have this dualist system, there are certain limits. That did I answer the  questions like this. Okay, thank you. There's another question to remain relevant apart from PTA Green. Does the WTO need to broaden its agenda to include  issues like intellectual property, climate, and health? I think the answer is yes. I  mean, we already broadened this to intellectual property. That that was done in  New York by round, where this was introduced with the TRIPS Agreement. I  think we we deal with health issues to the extent that medication and equipment  is is is concerned, and I think the climate question will open up a host of new  issues. I mentioned the energy sector, but the most important part here on  climate change and mitigation will be to make progress on technology transfer.  What we see is a is a mega trend, ladies and gentlemen, that we compare  products increasingly on the basis of how they are produced, not how they are. 

Traditionally, we would consider physical property as the main criterion, but  today increasingly we ask whether a product is being made in a sustainable  manner or not, and we start distinguishing these products on that basis, and we  call this the so-called PPMs, the production process methods, and if you go  down this road, you privilege clean technologies, and the clean technologies are mainly developed in industrialized countries. So, the cleavage with developing  countries increases, while while most of the production is in these developing  countries today. So we have a genuine interest to make the technology available to these countries, and then operate with these PPM distinctions. But we don't  have the tools at hand for this transfer of technology, because the technology is  in the hand of the private companies. They depend on the intellectual property.  They can't just give that away, and unless we find new funding mechanisms  through tax breaks or public-private partnerships, this this this will not happen.  And I see this is the climate from your question. The climate area is really an  area where we need to redesign the mandate, and and that will open quite a  number of issues which are not yet on the list. Please, yes.  

Speaker 2 - Thank you very much, Professor Cottier, for this conference. I have  two sub-questions relating to the unique position of Canada currently. Canada is one of the only country who is part of was concluded negotiations with two mega 

regional agreements, the TPP and CETA. So, first question I would ask  regarding the role, well, the the expectation of extending the jurisdiction of WTO  to include this regional trade agreement. I was wondering if you were expecting  any specific role from Canada in this regard, and also the second sub question  would be if we were expecting any change in the strategy of Canada when it  was going well in future trade dispute. Eventually, considering its participation in  these mega trade regional trade agreements and WTO as well. Thanks.  

Dr. Cottier - Thank you. Well, these are only reflections from from a systemic  point of view without an agenda. What a particular country like Canada should  and could do. I think it's very early on this, and one has to take up the work. But  I could imagine that Canada would be actually better off in disputes if a panel  would be allowed to take all these agreements into account in a particular  setting and try to find a solution which accommodates them to the utmost extent. Certainly, Canada is better off to bring disputes in the WTO. They have done so  consistently, not using our NAFTA panels. And I think the same the same  equation could work with the European Union. I think that the institutional  capacity in the WTO to address these issues, the neutrality, etc. is is better than  in these ad hoc arbitrations, which which are now on in on the design here. So  we will have to see how how they will use will be used. But I think in in in terms  of working towards the type of a world court, I think it would certainly be  interesting if Canada would study the question and see whether whether such a 

step could be supported in in the next decade, given its multiple agreements,  which partly are contradictory and which are difficult to bring under one hat.  Okay. Can you expand more upon potential electricity sector negotiations at the  WTO you raised earlier? Yes. I think the the bottom line is that if we want to if we want to shift towards renewable energy, wind and solar, this has to be partly  produced at least where the comparative advantage for these electricity  generators is so south for the solar energy, the north with the wind, and then you need to bring the electricity over long distances into the centers where they are  used. Physicists tell us that it's only a combination of local production and long distance trade, and distant production will allow us to create the necessary base load without being dependent upon coal or potentially atomic energy here. So I  think the negotiations on electricity would would deal with the interconnection,  the pipeline, the the grid, the network industry, the network industry elements.  We we have some experience in the European Union how difficult this may be.  Also, the trading of electricity and the use of the grids, all these things need to  be assessed internationally. I personally, I spoke to this two years ago in  Canada, that I think there could be a vision of a global grid that we build up the  grids, that we interconnect the grids, that we also use these seabed cables, and  that we help to stabilize also the electricity situation. Many developing countries  who still suffer from a lot of shortages here, but we need to build the framework  to do this. The other issue is about the subsidy question. I think you cannot work towards sustainable electricity if we do not tackle the fossil fuel subsidies, and  that could also be part of an agreement on electricity, but or parallel to it, as I  mentioned in another in another format. There's another question, but I only get  the second part of it, so I don't know whether it can be scroll up. Oh, okay. Two  reasons why TTP is dreaded by Canadians: it eliminates domestic content  requirements for others, putting jobs at risk, and it undermines farmers by  opening dairy to imports without new export markets. How do we respond to  these concerns? I think the I don't know the domestic content requirements for  automobiles is already illegal under the WTO rules. So I don't know whether the  TTP actually adds obligation to this effect here, and it undermines farmers by  opening dairy to import without new export markets. It may, may. I think the  answer to this, if you open agricultural products, this is the same problem in my  own country, Switzerland. Which is highly protectionist in agriculture. If you want  to, if you if you remove these trade batteries, I think one has to actively think:  What are the special products Canada could offer to the world in terms of  exports in the sector? So, is there a potential to go into special products, cheese products, other products, which could be sold on the world market. This is what  other countries are doing with this geographical indication strategy. Basically,  developing specialities here, which you then go on to the market here, and and  that is essentially an active response one can give interest in if you open up  formally protected markets. Thank you. Any any final question? Okay. Well, 

thank you very much for these interesting questions, and I'm happy to give the  floor back to Una. Thank you very much.  

Una Fitzgerald - Thank you very much, Thomas Cartier. That was an amazing  tour de force to present so many ideas and with such authority. What's so  amazing about Thomas is that you have both this deep knowledge, and it's a  practical knowledge, and it's also a theoretical knowledge, and that hasn't made  him hide bound and limited in his view, he's not simply an apologist for the WTO. He actually has this vast imagination and can see how to how the WTO can be  moved forward to to basically create a better world. So I'm totally inspired, and I  and I'm sure many of you in this room are too, and I'm particularly happy  because we're having a discussion tomorrow, just a small group to talk about  our research agenda, and I kind of feel like he set it out for us already tonight.  So tomorrow should be a breeze. So anyway, with that, I just want to say thank  you very much to Thomas. And before you all leave, I just have a few little notes  to tell you. There'll be an edited video of this event, the live webcast, that will be  put up on the CG website in the next few days, and you're welcome to share  that with friends or family, of course, through social media. And I also want to tell you that if this is the first time you've come to a CG event, please do sign up for  our newsletter. You can do that in the foyer, and then you'll get updates on any  events that we're doing. And finally, I just want to remind you that there are a few events coming up just next week. We have on February 9th, CG senior fellow  Bessma Mamani will discuss her new book *Arab Youth and the Demographic  Divide* Excuse me. And then on February the 29th, CG Cinema Series presents a screening of the Kandahar journals. You saw a video out of that, with remarks  by Louis Palou, who's the photojournalist and documentarian, and in March we'll welcome Bruce Riedel, who was with the CIA for 30 years and is now a Middle  East policy advisor at the Brookings Institute in Washington, and he'll discuss  Saudi-U.S. relations. So, as I said, be sure to register online for the CG Events  newsletter, or you can register in the foyer. And thank you once again for joining  us, both online and in person. Good evening.