Arguably, Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974 have been abused over the last few years. It would be nice to rein these statutes in, and people have made various proposals in this regard: giving Congress a greater role, adding constraints on the executive, and providing for more effective judicial review. I'm going to focus on the last one, with a specific proposal to amend these statutes in order to expand the role of judicial review.

My proposal is that a provision be added to both Section 232 and Section 301 to the effect that they have to be carried out consistently with WTO rules and other trade agreements, and that U.S. courts be given the power to review whether actions under the two statutes are consistent with these international obligations. The language could look something like this:

"Any action taken pursuant to this Section must be in compliance with the international obligations of the United States, including trade agreements implemented into domestic law by Congress. In determining whether actions are in compliance with international obligations, U.S. courts shall apply the treaty interpretation rules of the Vienna Convention on the Law of Treaties."

What this would mean in practice is that U.S. courts would examine whether the tariffs that have been imposed pursuant to these statutes violate (1) the tariff commitments made in a trade agreement, (2) the MFN obligation in the case of the WTO, or (3) any other relevant obligations. They would also look at whether the U.S. government is able to prove that the tariffs are justified under any exceptions it cites.

With respect to the last part, how would U.S. courts interpret and apply exceptions provisions such as GATT Articles XX and XXI? It's hard to say. They could follow the approach taken by WTO panels and the Appellate Body, or they could go off in an entirely new direction.

In an ideal world, the U.S. government attitude towards international trade dispute settlement would shift, and complaints about these sorts of tariffs could be adjudicated at the WTO and under FTAs. Such complaints are not possible at the moment because (1) the WTO is suffering from the U.S. blockage of appointments to the Appellate Body, and (2) if I could speculate a bit, FTA complaints are not being brought because U.S. trading partners fear retaliation or they know the U.S. wouldn't comply with an adverse ruling so it is not worth the effort. We'll see how the next administration approaches these issues, but in the meantime, as an alternative that cannot be so easily disabled, allowing U.S. courts to carry out this type of review could be a compromise and a useful backup in terms of making sure Section 232 and Section 301 are used as they were intended.

At this point, some readers are probably chomping (or is it champing?) at the bit, eager to talk about the following provision of the Uruguay Round Agreements Act:

SEC. 102. RELATIONSHIP OF THE AGREEMENTS TO UNITED STATES LAW AND STATE LAW.

...

(c) EFFECT OF AGREEMENT WITH RESPECT TO PRIVATE REMEDIES.—

(1) LIMITATIONS.—No person other than the United States—

(A) shall have any cause of action or defense under any of the Uruguay Round Agreements or by virtue of congressional approval of such an agreement, or

(B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with such agreement.

As law prof John Barceló puts it, this provision means that "no private or other person, other than the United States, has standing within a U.S. court to invoke a provision of a WTO agreement to challenge actions of the federal government or its agencies." I can see an argument that with regard to the claims of GATT violations that my new judicial review provision would enable U.S. courts to hear, there could be some uncertainty about the relationship of Section 102(c)(1) and the new provision. To address this concern, it might be useful to make clear, as part of the new judicial review provision, that Section 102(c)(1) does not apply to lawsuits brought under this provision.

“Transnational” subsidies have been at the forefront of the ongoing debate about how best to deal with industrial subsidies, as governments increasingly try to police them (each in their own way). Our new paper, recently published in the Journal of International Economic Law, offers the first detailed analysis of how the U.S. adapted its countervailing duty (CVD) framework to target transnational subsidies. We argue that the U.S. practice represents an unorthodox and systemic departure from the current WTO rules.

In March 2024, the U.S. Department of Commerce (DOC) repealed the old territorial limits in 19 CFR § 351.527 that used to prevent the agency from investigating subsidies funded outside a product's country of export, calling the limits “overly restrictive” and “inconsistent with the very purpose of the CVD law.” Soon after, in trade remedy investigations concerning solar products from four countries in Southeast Asia, the DOC targeted Chinese financial backing and inputs (like polysilicon and glass) embedded in solar exports from Cambodia, Malaysia, Thailand, and Vietnam.

Notably, the DOC’s approach is creative and represents a different route than that taken by the EU. In 2025, the EU’s “state-to-state attribution” approach was found inconsistent with WTO rules in the EU–CVD/AD on SSCRFP (Indonesia) WTO dispute. The U.S. was able to avoid the obstacles faced by the EU that guided its approach, partly due to the existing ambiguities in the U.S. statute and the convenience of revising its regulation. Moreover, rather than focusing on the state-to-state attribution method, the DOC seems to have relied on the textual ambiguity of Article 1.1(a)(1) of the SCM Agreement as to whether it requires the recipient of a cross-border subsidy to be located within the territory of the subsidizing WTO Member. 

The DOC’s approach has yet to be tested before the WTO. But it raises at least three major issues under the SCM Agreement: the definition of “subsidy” under Article 1.1(a)(1), the determination of “specificity” under Article 2.1, and the scope of "public body.”

Regarding the definition and scope of “subsidy” under Article 1.1(a)(1), for instance, we argue that ambiguity in Article 1.1(a)(1) requires closer attention to context, object, purpose, and negotiating history.

As observed by the WTO Secretariat in the context of a trade financing discussion back in 2004:

The ASCM [Agreement on Subsidies and Countervailing Measures] is in general drafted to address situations where a WTO Member is subsidizing the production or sale of its own goods, and it is not entirely clear whether or not the Agreement applies where the subsidizing entity is not within the territory of the Member whose goods are allegedly being subsidized.

With this ambiguity in mind, Article 2 serves as a textual gatekeeper for covered subsidies under the SCM Agreement. Article 1.2 stipulates that a subsidy is only subject to the key substantive obligations of the SCM Agreement if it meets the specificity requirement set forth in Article 2,  which restricts covered subsidies to those "specific to an enterprise or industry or group of enterprises or industries … within the jurisdiction of the granting authority." This structural link completes the interpretative puzzle of Article 1.1(a)(1): the SCM Agreement was designed to discipline subsidies granted by a government or public body within a Member’s own territory, and the territorial mandate of Article 2 effectively precludes the expansion of the Agreement to cross-border subsidies. In other words, the “specificity” requirement in Article 2 of the SCM Agreement should be construed as an explicit requirement that the subsidy recipients reside within the territory of the granting authority, reinforcing the conclusion that the SCM Agreement was never designed to encompass transnational subsidies. The negotiating history of the SCM Agreement also supports this interpretation, showing that the phrase “within the territory” was inserted in response to U.S. concerns about its overseas development aid programmes. The text reflects a deliberate decision to exclude subsidies provided beyond a Member’s territory from the scope of the SCM Agreement.

We acknowledge that addressing the distortions of cross-border subsidies is a valid policy goal in an era of intense industrial competition. However, the continued rise of unilateral measures against subsidized goods would only raise trade barriers and uncertainties and further undermine the rules-based multilateral trading system. In the paper, we argued that the WTO remains the best venue for a holistic and systemic reassessment of both cross-border and domestic subsidy disciplines. One option is for WTO Members to initiate dispute settlement proceedings directly against the subsidizing state. In particular, an “adverse effects” claim under Article 5 of the SCM Agreement provides a viable mechanism to address transnational subsidies at the source.  Alternatively, a non-violation complaint based on GATT Article XXIII:1(b) and Article 26.1 of the Dispute Settlement Understanding remains another option. Like “adverse effects” claims, a non-violation complaint can also be brought directly against the subsidizing Member, leaving third countries outside the crossfire.

Negotiations remain the only long-term solution. It is imperative for WTO Members to reach a compromise on how best to deal with cross-border subsidies through opening plurilateral negotiations under Article II:3 of the Marrakesh Agreement or clarifying existing rules. Given the difficulties in concluding multilateral negotiations, plurilateral negotiations offer the most viable institutional path forward. Procedure-wise, the plurilateral framework could incorporate a two-prong notification architecture designed to incentivize compliance. Under-reporting of subsidies has been a longstanding issue and has driven proposals for “sticks” such as penalties or rebuttable presumptions against members that fail to comply with notification obligations. “Carrots” in the form of positive incentives for compliance may also be useful. A “notification-for-safe-harbour” mechanism would grant fully and promptly notified transnational subsidies a legal presumption of non-distortion or non-countervailability in countervailing investigations. Such a linkage provides a concrete incentive for compliance, and the reported data then would form a foundation for further analysis and negotiations. On the other hand, a failure to notify a transnational subsidy would trigger a rebuttable presumption of adverse effects on another Member, therefore shifting the burden of proof to the subsidizing Member to demonstrate that the measure does not induce market distortion or structural overcapacity.

The WTO Secretariat is seeking to fill a six-month internship position in the Legal Affairs Division (start date in 2027).

Under the supervision of a designated legal officer, the intern will support the work of the Legal Affairs Division of the WTO across a range of substantive legal, research, analytical, and administrative activities. 

The intern will work collaboratively with colleagues throughout the Division, contributing to different projects and assignments relating to WTO law, dispute settlement, and general public international law. The internship will provide exposure to the legal and institutional work of the WTO, including the provision of legal advice, the functioning of WTO dispute settlement mechanisms, and the preparation of legal research, publications, and training materials.

The application deadline is November 9, 2026. More details here.

To obtain injunctive relief a party must demonstrate: “(1) likelihood of success on the merits, (2) irreparable harm absent immediate relief, (3) the balance of interests weighing in favor of relief, and (4) that the injunction serves the public interest.”

Focusing here on the "success on the merits" prong, the motion elaborates a bit on the substantive arguments set out in the complaint, as follows.

Implicit repeal due to enactment of other statutes culminating in Section 301 (pp. 21-32)

The Supreme Court has long recognized “two well-settled categories of repeals by implication—(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.” Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936); accord Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662–63 (2007). Although repeals by implication are disfavored, they are not unknown, and both categories apply here.

Congress need not use express words to displace an earlier law; its intention can be shown by the structure and history of a statutory scheme. ...

...

Since 1930, Congress has replaced Section 338’s model with a comprehensive scheme that culminates in Section 301.

...

The history set out above shows that Congress has occupied the entire field Section 338 once covered, and has done so repeatedly, each time with a new and more comprehensive statute.

...

Congress did not spend 50 years building and rebuilding Section 301 only to leave in place a 1930 statute that allows the President to bypass all of it. ...

My thoughts on this argument are: (1) it's stronger than I thought it would be when I first heard it discussed; (2) I'm still not fully persuaded; and (3) I'd like to hear from people more familiar with this area of law.

Discrimination (pp. 32-38)

1. Canada has not discriminated against the commerce of the United States.

...

a. Discrimination means singling out the United States. ... The statute’s object is discrimination against the United States: measures that target American commerce for worse treatment than the commerce of the world at large.
...

b. Responses to American tariffs are not discrimination under Section 338. The alcohol and motor vehicle proclamations target Canadian responses to American tariffs. ... Section 338 does not authorize an escalating cycle in which the President imposes (unlawful) tariffs, treats the foreign response as “discrimination,” imposes Section 338 duties, treats the next response as “maintain[ing] or increas[ing]” the discrimination, and imposes import bans under Section 338(b). Yet that is what happened. ...

...

c. The Congress that enacted Section 338 did not treat every reciprocal preference as “discrimination.” Section 317 was enacted in 1922, when the United States still adhered to the conditional form of most-favored-nation treatment, under which a nation that granted a concession to one country in exchange for a reciprocal concession was not obliged to extend it gratuitously to others. ...

...

d. Canada treats American cheese better than it treats the cheese of most of the world. The government’s theory is that Canada discriminates because it gives the European Union one feature of TRQ access, retailer eligibility, that the USMCA cheese TRQ does not include. Proclamation No. 11047 ¶¶ 4–6. But the USMCA TRQ is itself a preference for the United States: it gives American cheese duty-free access, within the quota, that Canada does not give to countries outside its trade agreements.

...

e. The government’s reading would make nearly every country a discriminator, including the United States. Every country that is party to a free-trade agreement gives its partners something it does not give the United States. ...

f. Canada’s preference is not “unreasonable.” Paragraph (a)(1) applies only to a charge, exaction, regulation, or limitation that is “unreasonable.” 19 U.S.C. § 1338(a)(1). Proclamation 11047 declares Canada’s rule unreasonable, Proclamation No. 11047 ¶ 6, but gives no reason. There is nothing unreasonable about a country entering into a trade agreement and agreeing to give its partner lower duties or more favorable quota terms on certain goods; the United States does so routinely. ...

I think this issue is going to require some fleshing out of what exactly "discrimination" means, both in general terms and in the context of this statute.

Offset (pp. 38-40)

Section 338 does not authorize the President to impose whatever duty he likes, up to 50 percent. It authorizes only “such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage.” 19 U.S.C. § 1338(d). The 50 percent figure is a ceiling, not a default. To “offset” is “[t]o set off; to place over against; to balance.” Offset, Webster’s Revised Unabridged Dictionary (1913). 9 The President may choose which products to tax, but the duty must balance the burden the discrimination places on American commerce. Congress’s later enactments confirm that it understood retaliation for foreign discrimination to require calibration: Section 301 requires mandatory action to be “equivalent in value to the burden or restriction being imposed by that country on United States commerce.” 19 U.S.C. § 2411(a)(3).

None of the original three proclamations ties the duty to the burden. ...

This argument seems like a strong one.

Major questions (pp. 40-43)

Courts should not lightly presume that Congress implicitly delegated decisions of major economic or political significance to the executive. Brown & Williamson, 529 U.S. at 160; Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (“When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.”) ...

This case fits squarely within that framework, for three reasons.

First, the power claimed is unheralded and long-extant. Section 338 has been on the books for 96 years, and in all that time no President has used it to impose a tariff. ...

Second, the power claimed is vast, measured by the authority asserted and not merely the tariffs imposed so far. ...

Third, the power claimed lies at the core of Congress’s constitutional authority and conflicts with the scheme Congress enacted. ...

Section 338 contains no clear authorization for the power the government claims. Nothing in the statute says that a preference given to a third country under a reciprocal agreement is “discrimination,” or that the President may impose the statutory maximum without tying the duty to any measured burden, or that he may bypass Section 301. The government’s reading “strains credulity.” Ala. Ass’n of Realtors, 594 U.S. at 765. The Court should decline to adopt it.

...

For this argument and the non-delegation one below, the CIT may be reluctant to put too much emphasis on them, but perhaps they will play a bigger role if this gets appealed to the CAFC.

Non-Delegation (pp. 43-46)

If Section 338 conferred the sweeping and unreviewable authority the government claims, it would be an unconstitutional delegation of legislative power. The Constitution vests “[a]ll legislative Powers herein granted” in Congress, U.S. Const. art. I, § 1, and “[t]he executive Power” in the President, id. art. II, § 1, cl. 1. In a case involving Section 338’s own ancestor, the Supreme Court declared “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark, 143 U.S. 649, 692 (1892); see also J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

Congress must therefore supply an “intelligible principle” to guide the exercise of delegated discretion. J.W. Hampton, 276 U.S. at 409. A delegation fails where there is “an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.” Yakus v. United States, 321 U.S. 414, 426 (1944). ...

...

The government’s reading of Section 338 contains no such standard. Section 338 has two potential limits: the President may act only against “discrimination,” and he may impose only duties that “offset” the resulting burden. On the government’s reading, neither limits anything. “Discrimination” is present whenever a foreign country gives any preference to any third country, which describes virtually every country. And the “offset” requirement is satisfied whenever the President says it is. ...

...

Duty collection on plaintiff’s cheese before October 8, 2026

Even if Section 338 authorized the duties, Defendants began collecting them on Plaintiff’s cheese before the statute allowed. Section 338(d) provides that “thirty days after the date of such proclamation there shall be levied, collected, and paid upon the articles enumerated in such proclamation” the new or additional duties. 19 U.S.C. § 1338(d). The President followed that rule in the original proclamations: he issued them on July 20, 2026, and made them effective on August 19, 2026, 30 days later. 91 Fed. Reg. 46,639, 46,653, 46,663. But Plaintiff’s cheese was not “enumerated” in any of those proclamations. See Proclamation No. 11046, Annex; Proclamation No. 11047, Annex II; Proclamation No. 11048, Annex. It first became subject to Section 338 duties through Proclamations 11064 and 11065, which the President issued on September 8, 2026, and made effective on September 15, 2026, only seven days later. ...

This argument seems strong, but it might be easy for the Trump administration to remedy things.

As to the other preliminary injunction elements, the motion argues:

• "Plaintiff will suffer irreparable harm if the Section 338 tariffs are not enjoined." (pp. 48-50)
• "The balance of interests weighs in favor of enjoining the Section 338 tariffs, and an injunction serves the public interest." (pp. 50-52)

After decades of development, China has made tremendous progress, but there are still bottlenecks and difficult problems to overcome. In particular, the current situation of strong supply and weak demand is another reason for Chinese companies to consider going global.

Why do I say “strong supply and weak demand” rather than “overcapacity”? Because what this situation really reflects is weak demand and insufficient consumption, alongside substantial production and supply capabilities.

If it is simply described as overcapacity, it creates the impression that China’s excess production alone is responsible for international trade surpluses and deficits. That is not something China accepts.

Supply and demand are extremely difficult to balance across the entire world economy, let alone calculate precisely. The real question is how to increase consumer demand around the world. And that requires investment.

Many Chinese companies have already been through years of intense competition at home, and now they are entering foreign markets. This is a very important development.

So, to put it simply, Chinese companies have good reasons to go global: China’s responsibilities as a major country, the success it has achieved through reform and opening up, and the current imbalance between strong supply and weak domestic demand.

The second issue I would like to discuss is what the government should do to support companies going global. In other words, what are the government’s functions and responsibilities?

Earlier this morning, Vice Minister Chen Jian, who was responsible for outbound investment at the Ministry of Commerce for many years, gave us an excellent presentation. He discussed the State Council’s regulations, as well as specific rules issued by the Ministry of Commerce and other government departments.

There is one point I would particularly like to emphasise: China still needs to sign more specific bilateral investment agreements with key countries and regions. This is something I’ve come to appreciate through my own experience.

China had long sought to negotiate a bilateral investment treaty with the United States. During the Obama administration, negotiations on the treaty text had essentially been completed, with the provisions agreed upon by both sides. The two countries were approaching the final stage of reconciling their respective negative lists when Donald Trump took office as the 45th president of the United States.

His administration then brought the entire negotiation process to an end, and the talks have not resumed to this day.

Now that Trump is back in office as the 47th president and is calling for businesses to return to the United States, I wonder how different things might have been if China and the United States had concluded an investment treaty with a clearly defined American negative list.

I have a couple reactions here.

First, he says "[t]he real question is how to increase consumer demand around the world." I can see how it would be helpful to producers if consumer demand went up, both around the world and within China, but I don't think that's an easy thing for governments to control or guide. Yes, there are things they can do in the short-term, but there are limits here, especially when you look at how things play out over the long-term. Many times your short-term boost to demand will lead to reduced demand down the road, so you are really just shifting demand forward and not getting an overall increase.

As a result, when you are dealing with concerns about production capacity matching demand, I think it might be better to focus on the producer side. In this regard, state support of various kinds can lead to companies producing more than the market can handle. Some companies even keep operating when their lack of profitability suggests they should go bankrupt. Reining this situation in is a good way to get to production that matches consumer demand.

With regard to Chinese consumer demand in particular, I know there are a lot of people focused on this demand as a way to "rebalance" trade, but I remain skeptical that this is going to budge much. I would put the emphasis instead on trying to get Chinese production to shift towards more market-based decision-making. WTO complaints are a good avenue to take here, but for reasons I've never found very convincing, people haven't wanted to use this approach in recent years.

Second, on investment treaties, in general terms the evidence of investment treaties leading to more foreign investment is inconclusive. So, I'm not sure signing on to these treaties makes much difference, except to the livelihoods of international investment lawyers.

As to the China-U.S. investment treaty, I am very skeptical that such a treaty would have been approved by the U.S. Senate. In my view, the idea of Chinese companies, either private or state-owned, suing the U.S. government before an international tribunal would have been unacceptable to many Senators.

But even if the treaty had been ratified, I don't think it would have had much impact on the level of Chinese investment in the U.S., because, as noted, investment treaties don't have this effect. Is Chinese investment in the U.S. a special situation, in which a treaty would reassure Chinese investors that their investments would be protected, and suddenly this investment would boom? I doubt it, because U.S. courts offer plenty of opportunities to sue the government already. On the other hand, we would likely have had some controversial ISDS lawsuits, which would have been generated lots of billable hours, scholarly articles, and blog posts!

The plaintiff is Gellert Global Group Corp., a company specializing in imported food products. According to the complaint, "Gellert imports Canadian cheese covered by the Section 338 Tariffs, ... specifically more than 15 product lines of cheeses, including sheep’s milk cheese, mascarpone, borgonzola, chèvre-style goat’s milk cheese, brie, and camembert." In 2025, Gellert imported "roughly $71 million worth of Canadian cheese."

In terms of the big picture here, the complaint argues that "[t]he Section 338 Tariffs are the Administration’s latest attempt to exercise, through a statute never designed for the purpose, the tariff power that the Constitution assigns to Congress." Section 338, it says, is "a relic of the retaliation-based tariff policy that Congress abandoned four years after Smoot-Hawley became law."

As to the specific legal claims, I'll give a quick rundown and offer a few comments below.

Count I: Section 338 has been impliedly repealed or, at a minimum, is controlled by Section 301 of the Trade Act of 1974.

85. Where provisions in two acts are in irreconcilable conflict, the later act, to the extent of the conflict, constitutes an implied repeal of the earlier one; and where a later act covers the whole subject of an earlier one and is clearly intended as a substitute, it operates similarly as a repeal. Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936). And a specific policy embodied in a later federal statute controls the construction of an earlier one even absent express amendment. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000).

...

88. Each Canadian practice the Section 338 Proclamations target falls within Section 301. The Dairy Proclamation finds that Canada “denies to the United States the favorable treatment that Canada provides to the EU,” that the practice is “unreasonable,” and that it burdens U.S. commerce. Proclamation 11047 ¶¶ 5–6. And a USMCA panel has found the Canadian rule it targets “not inconsistent with” the USMCA. See supra ¶ 54. The Alcohol and Motor Vehicles Proclamations target measures that allegedly burden or restrict United States commerce. 19 U.S.C. § 2411(b)(1).

89. Section 338 has therefore been impliedly repealed. At a minimum, Section 301 controls where, as here, the President seeks to respond to foreign practices within Section 301’s scope, and the President may not impose duties in response to such practices while disregarding the procedures and limits Section 301 imposes. Because the President did not proceed under Section 301, the Section 338 Tariffs are unlawful whether or not Section 338 survives.

...

When I first heard this kind of claim talked about as a possibility, I was skeptical, but maybe there's something more here than I realized.

Count II: The Section 338 Action exceeds the authority granted by Section 338 of the Tariff Act of 1930.

...

95. None of the Canadian measures identified in the Section 338 Proclamations constitutes discrimination within the meaning of Section 338. Canada’s motor vehicle surtax and its provinces’ alcohol purchasing decisions are responses to tariffs that the United States imposed on Canada, not discrimination by Canada against the United States. And Canada’s dairy TRQ administration treats U.S. cheese better than the cheese of most of the world; that Canada grants the European Union a different preference under a different reciprocal agreement, while giving the United States the TRQ terms the United States itself negotiated and Congress approved, is not discrimination against the United States. Nor is it “unreasonable”: preferences granted under reciprocal trade agreements are a routine feature of trade law, including that of the United States, and a USMCA panel found Canada’s rule “not inconsistent with” the USMCA.

One concern I have with this claim is that while it's true that the Canadian provinces’ alcohol purchasing decisions "are responses to tariffs that the United States imposed," does that necessarily mean they do not constitute discrimination? There's going to have to be a big discussion of what "discrimination" means.

Similarly, yes, the Canadian preferences to EU cheese are part of a reciprocal agreement, but does that mean it's not "discrimination" for the purposes of Section 338? The complaint says: "When Congress enacted Section 338, a preference granted under a reciprocal agreement was not 'discrimination.' The same Act expressly preserved the United States’ own exclusive preference for Cuba." I have no doubt it's true that Congress believed it could still discriminate through tariff preferences, but I'm not sure that meant it was OK with other governments giving such preferences (see the discussion of reciprocity treaties here).

The complaint also raises the issue of whether the Section 338 tariffs properly "offset" the discrimination:

96. Even where its predicates are satisfied, Section 338 authorizes only duties that the President “determine[s] will offset” the burden or disadvantage caused by the foreign country’s discrimination. 19 U.S.C. § 1338(d). Whatever products the President chooses to tax, the duty must balance the burden the discrimination places on United States commerce.

97. The Section 338 Tariffs do not. Each proclamation imposes the statutory maximum rate of 50 percent without tying it to any measured burden: the Alcohol and Motor Vehicles Proclamations recite very different export declines, the Dairy Proclamation quantifies none, and all three impose the same rate. Each states that the duties will “expand opportunities for U.S. producers” and “may spur Canada to remove” the challenged measure, which describes protection and leverage, not an offset. See supra ¶ 56. Proclamations 11064 and 11065 then substituted substantially different product lists while declaring that the duties “would still offset the burden or disadvantage,” and taxed Canadian cheese to “offset” Canadian liquor policies and a Canadian surtax on automobiles. Proclamation 11064 ¶ 5; Proclamation 11065 ¶ 5. They are not offsets; they are general import taxes on selected Canadian goods.

This part of the claim seems pretty strong to me.

The major questions doctrine also comes up here:

98. Defendants’ interpretation of Section 338 also presents a question of vast economic and political significance. Under Defendants’ construction, the President may impose tariffs of up to 50 percent on any products of any country that extends better treatment to any other country in any respect—including through any of the hundreds of preferential trade agreements to which the United States is not a party—or that responds to tariffs the United States has imposed on it. Section 338 contains no clear statement authorizing that power. The major questions doctrine and the canon of constitutional avoidance require Section 338 to be construed not to authorize the sweeping power Defendants claim. See West Virginia v. EPA, 597 U.S. 697, 716 (2022); Learning Res., 607 U.S. at 251.

99. The Section 338 Proclamations therefore rest on a clear misconstruction of the governing statute and constitute action outside delegated authority.

I don't have any great insights into "major questions" issues, or the "nondelegation doctrine" one below. Maybe as the briefs flesh these out I'll come up with stronger views.

Count III: If Section 338 authorizes the challenged tariffs, it violates the nondelegation doctrine.

102. The nondelegation doctrine requires Congress to supply an intelligible principle that meaningfully guides and constrains the exercise of delegated authority. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928); Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472–76 (2001); FCC v. Consumers’ Rsch., 606 U.S. 656, 673 (2025).

...

103. Section 338 authorizes action only upon a factual finding of discrimination against United States commerce relative to the commerce of other foreign countries and only through duties calibrated to “offset” the resulting burden or disadvantage. 19 U.S.C. § 1338(a), (d).

104. Defendants’ asserted construction of Section 338 eliminates those potential limiting principles. Under that construction, the President may select any products of a foreign country, and tax them at any rate up to 50 percent, without any calculation of the burden to be offset—and may then exclude those products from the United States entirely. And he may do so based on measures that the foreign country adopted in response to tariffs the President himself imposed

Count IV: The collection of Section 338 Tariffs on articles first enumerated in Proclamations 11064 and 11065 violated Section 338’s 30-day waiting period.

110. Section 338 provides that “thirty days after the date of such proclamation there shall be levied, collected, and paid upon the articles enumerated in such proclamation” the new or additional duties. 19 U.S.C. § 1338(d). Section 338 does not authorize the collection of a duty on any article before 30 days have passed from the date of the proclamation that enumerates it.

111. The President observed that requirement in the original Section 338 Proclamations, which issued on July 20, 2026, and were scheduled to take effect on August 19, 2026.

112. Proclamations 11064 and 11065, issued on September 8, 2026, enumerated articles not previously subject to the Section 338 Tariffs, including Canadian cheeses Gellert imports, and directed that duties on those articles be collected beginning September 15, 2026—only seven days later. CBP collected Section 338 Tariffs on those articles, including from Gellert, on entries made on or after September 15, 2026, and before October 8, 2026. Gellert paid more than $381,000 in Section 338 Tariffs on such entries, and it paid no Section 338 Tariffs on its Canadian cheeses before September 15, 2026.

This claim seems like a strong one, but the remedy would likely be just to impose the tariffs in question again after the required waiting period.

Following months of escalating trade tensions, the EU and China reached an agreement on several points of contention during their second meeting on bilateral trade and investment on 8-9 October. One of the key issues at stake concerns imports from China of hybrid vehicles. China’s rise as a global leader in electric vehicle (EV) production and exportation has imposed unprecedented pressure on traditional auto powerhouses including the EU, provoking the adoption of temporary protective measures (e.g. tariffs) and longer-term industrial policy in the pursuit of a systemic overhaul and upgrade of local auto sectors (e.g. EU’s Industrial Action Plan for the European automotive sector). The EU’s countervailing duties, imposed on Chinese EVs in 2024, has led to a phenomenal growth of imports of hybrid vehicles from China while Chinese EV imports flattened. As European car makers announced job cuts in response, this has fueled fears of deindustrialization in the EU and brought up the issue to the top of the EU’s trade agenda since the beginning of this year.

As reported in specialized media, the two sides agreed to limit imports of hybrid vehicles from China into the EU at around 350,000 vehicles per year over the next four years. They indicated that this would be implemented, not through export restraints as initially suggested by the EU, but through safeguard measures. Given that voluntary export restraints are generally prohibited under Article 11 of the WTO Agreement on Safeguards, they claimed that such an approach would ensure WTO-consistency.

Safeguard measures are one of the WTO-permitted trade restrictive instruments for governments to shield domestic industries from import competition temporarily. They are meant to address situations where trade is fair but an increase in imports resulting from unforeseen developments causes or threatens to cause serious injury to a given domestic industry. Where these conditions are fulfilled, a WTO Member can impose a safeguard measure, by way of tariffs, quotas or other forms, to restrict imports irrespective of their sources (in other words, erga omnes). In contrast with anti-dumping and countervailing measures which have strict rules on how to design the measure and its level, safeguard measures can be applied to the extent necessary to prevent or remedy the injury concerned and to facilitate structural adjustment of injured industries, thereby leaving more discretion to the imposing WTO Member. The rules of the WTO Agreement on Safeguards are incorporated in the EU’s Basic Safeguard Regulation.

Since the bilateral meeting, the EU has publicized widely that it will launch a safeguard investigation on imports of hybrid vehicles to impose (provisional) safeguard measures by December this year. EU officials have advertised that the measures would take the form of a quota based on the level of imports into the EU in 2025 plus a mark up of a few percentage points to account for growth in demand. This quota will apply to imports from all countries but the largest exporters to the EU (China, Japan, UK, Korea, US and Türkiye) will get country-specific quotas. Other exporters will share a residual quota.

The EU’s safeguard measure, as proposed, raises several issues. From a legal point of view, it is difficult to see how a safeguard measure, pre-determined through an agreement between the EU and China, can be legal under the WTO Agreement on Safeguards and the EU Basic Safeguard Regulation. Such an ex ante agreement means that the perceived measure will be put in place regardless of whether the legal conditions are met. Given the pre-determined outcome, it is likely that the investigation will be performative only paying lip service to these requirements and the due process required for interested parties. From a diplomatic point of view, the EU’s trading partners, particularly traditional car exporters, were left out of the negotiations and will have little influence on the safeguard investigation. New developments from the investigation that benefit other trading partners may change the dynamics of the EU-China relations and necessitate an adjustment of the negotiated outcomes.

EU officials have claimed that this course of action will benefit trading partners by protecting their market share in the EU. However, since 2025, imports of hybrid vehicles from China have already soared. This is why China agreed to this deal to receive the highest quota and maintain a larger market share than its major competitors. The base rule in Article 5 of the WTO Agreement on Safeguards is that a safeguard measure taking the form of a quota should be established based on the average of imports in the last three years before the investigation. As there were little imports from China in 2023 and 2024 and more imports from other trading partners, this would have not suited China but could have been more agreeable to other car exporting countries (except Türkyie and not however that taking 2026 into account instead of 2023 in a three year average would have further benefitted China):

Furthermore, from a practical point of view, a quota on imports of hybrid vehicles is likely to limit imports at level below that of the quota. This is so because once the relevant quota is exhausted, no more imports can take place. Since the sea voyage can take months, there is no guarantee that sufficient quota quantity would still be available when the vessel arrives at the EU. Given the high cost of car-carrying vessel, car manufacturers will likely act on the side of caution and not start the journey if importation cannot be guaranteed.

Having avoided a full confrontation with China, the EU may nonetheless face one with its other trading partners by purporting to comply with WTO rules in form but not in substance and spirit. The EU already followed a similar path with regard to steel some months ago, leading to tensions. If such transactional methods become the EU’s standard playbook in response to intensified geoeconomic competition, it will set a bad template further undermining the already chaotic global trade order.

Yet, this does not have to be so. The EU could limit imports from China at 350,000 vehicles as agreed with China without affecting its other trading partners.

In the purported safeguard investigation, the EU Commission can apply the principle of parallelism embedded in Article 2.2 of the WTO Agreement on Safeguards (Appellate Body Report, US – Line Pipe, paras. 179-181). This principle provides that a WTO Member can exclude certain WTO Members from the scope of a safeguard measure as long as imports from such WTO Members are not taken into account when assessing whether the criteria to impose the measure are met. The EU has relied on this principle in the past, for example, to exclude the members of the European Economic Area as well as, temporarily, certain countries which had a free trade agreement with the EU mandating exclusion from its safeguard measures on steel in 2018. In the present case, the EU could similarly exclude its free trade agreement and customs union partners from the scope of the analysis and subsequently of the relevant measures. This would allow the EU to keep China in but exclude the UK, Japan, Korea and Türkiye.

One typical challenge here arises from the fact that Chinese car manufacturers have established production bases in third countries such as Türkiye, Morocco and Vietnam. Consequently, targeting solely China and excluding trading partners from the scope of a safeguard measure may render the measure less effective as Chinese car manufacturers can switch from exporting from China to exporting from a third country. Indeed, the EU has many free trade agreements including with the countries just mentioned.  A parallel issue is European car makers themselves having delocalized production outside of the EU. Morocco and Serbia are prime examples of this where French and Italian car makers have invested. Excluding such countries with which the EU has trade agreements may thus simply incentivize European car makers to continue in that direction rather than maintaining production in the EU.

One way to address this issue would be for the EU to draw a line between trading partners which are excluded from the scope and others. This could be done based on the type of trade agreements the EU has with third countries (free trade agreement, association agreement, economic partnership agreement, etc.) or other objective criteria, although this may lead to claims of discrimination.

In any event, the solution proposed above would limit the fall out with trading partners which are not the cause of the issue and were not invited to the negotiating table. It would raise the same issue in terms of paper compliance with the WTO Agreement on Safeguards but would at least limit the number of partners affected.

Another option could be for the EU to adopt a specific regulation to do so through the ordinary legislative procedure (involving the Parliament and the Council) on the basis of the EU’s competence in trade (Article 207 of the Treaty on the Functioning of the European Union) as it did when it raised duties on certain products from Russia and Belarus in the midst of the war against Ukraine. This approach would likely be WTO-inconsistent except if an exception is available, but perhaps now is the time to drop the façade of WTO compliance when such compliance is not achievable in order to maintain the integrity of the system where it can still be preserved.

On 18 September 2026, the European Commission issued Commission Implementing Regulation (EU) 2026/2088 “imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain alkyl phosphonic acids and their sodium salts originating in the People’s Republic of China”. The anti-dumping duties range from 156.7% to 192.2% ad valorem.

The product concerned (“PBTC”) is produced in only three countries in the world: China, Germany, and India. During the investigation period, PBTC was manufactured by one single producer in Germany (Lanxess), which also acted as the complainant in the investigation (Provisional Regulation, para. 190). Imports from India accounted for only 0.1% of the Union consumption during the investigation period (Provisional Regulation, para. 251). As regards Chinese imports, the Commission found that their volume and total market share increased during the investigation period, while import prices decreased (Provisional Regulation, paras. 197 - 203).

Total Union production of PBTC during the investigation period – that is, the total production of Lanxess – was established at around 7,200 – 9,600 tonnes (Provisional Regulation, para. 190). During the same period, Union consumption was estimated at around 11,300 – 15,000 tonnes, a level therefore much higher than domestic production. Nevertheless, contrary to the arguments advanced by users, the Commission found that the complainant had sufficient spare capacity to absorb a contraction in imports (Provisional Regulation, para. 283). It is also worth mentioning that, during the injury period, not only did the Union industry lose market shares to foreign competitors in the European market, but it also experienced a sharp contraction in its exports to third markets (Provisional Regulation, paras. 252 – 254), showing signs of declining competitiveness.

When examining whether (high) anti-dumping duties were in the Union interest, the Commission dismissed all the arguments advanced by interested parties. Specifically, the Commission concluded that PBTC price increases for European users would not be a problem, as they would “merely be a manifestation of the fair-trade restoration” (Definitive Regulation, para. 80). In addition, the Commission held that, in the absence of measures, the very existence of a manufacturer of the product concerned in the European Union would be endangered (Definitive Regulation, para. 80).

The Commission concluded its analysis with the following enigmatic passage: “[T]he current geopolitical tensions only underscore the importance of local supply sources” (Definitive Regulation, para. 80). This last assertion is not backed by any analysis, nor is it followed by an explanation. Neither the Provisional Regulation nor the Definitive Regulation clarifies whether arguments in this respect were raised by any of the interested parties.

This investigation is illustrative of the Commission’s attitude towards politicizing trade remedy investigations and their outcomes. In an investigation concluded earlier this year, the Commission found that, whereas anti-dumping duties could force users of the product concerned to shut down production facilities or relocate outside of the European Union, anti-dumping measures were still in the interest of the Union, as supporting domestic producers would contribute to preserving the “strategic autonomy” of the European Union. We examined that determination elsewhere, pointing to contradictions and flaws in the Commission’s analysis. Recently, references to “strategic autonomy” were also included in the Provisional Safeguards Regulation on GOES (para. 73), showing that the Commission is willing to rely on these considerations in trade-remedy investigations on imports from all third countries, not just China. In the present case, the Commission merely made an unsubstantiated remark concerning “geopolitical tensions”. As such, we do not know how the Commission considers the product concerned (mainly used in water treatment processes and industrial and institutional cleaning) to be linked to geopolitical interests and, ultimately, to the security interests of the European Union.

In the specific circumstances of this case, the reference to “geopolitical tensions” was an unnecessary additional element in an analysis that already saw the Commission conclude in favour of imposing anti-dumping duties. Nevertheless, the increasingly assertive attitude of the Commission deserves close scrutiny, as geopolitical or strategic autonomy considerations, if not substantiated by a robust, fact-based analysis, may lead the Commission to conclude in favour of remedies even where other elements of the Union interest analysis would suggest otherwise.

Geopolitical tensions are real and will not dissipate any time soon. In view of their importance, they should be handled with care. If the Commission considers that geopolitical considerations should inform its trade remedy decisions, it should spell out the parameters of this analysis ex ante and in clear terms, so as to ensure due process and promote transparency in its decision-making processes. When geopolitical considerations are not necessary, either because there is already enough evidence on record or because there are no elements to suggest that the product under investigation is strategic, the Commission should exercise restraint and limit itself to the core features of trade remedy investigations.

*International Trade Lawyer (ccantore@pm.me).

Recently, this has come up a lot in the context of tech regulation, with accusations of protectionism and responses indicating that there is a legitimate public policy being pursued. Here's a recent example from Australia that is a good illustration of how the issue arises in the real world, as Australia is considering some online safety legislation and the Trump administration is raising objections.

The proposed Australian online safety legislation and the Trump administration's response

The draft legislation in question is Online Safety Amendment (Digital Duty of Care) Bill 2026, which the Australians are in the midst of debating. The explanation of the bill by the Australian Prime Minister's office notes the following elements related to algorithmic feeds and harmful features or content:

• Users will be able to "choose to opt in to having their default feed include personalised content recommended by the algorithm"; "[a]lternatively, users can opt out of personally recommended content in their default feed and see the friends and creators they choose to follow."
• "digital services like online games, apps and AI chatbots will be required to protect under 18s from design features that have negative behavioural impacts, like addictive features or those that can have an effect on a young person’s self-esteem."
• These same services will also be required "to protect under 18s from harmful content like": "content that promotes, encourages or accelerates eating disorders"; "content that promotes hostile ideas about women and gender equality"; "pornography"; "content that glorifies crime or life endangering stunts"; and "content that causes serious mental health distress, including abuse and bullying."

The Australian government asked for feedback on the draft law, with the legislation to be introduced in Parliament this year.

The Trump administration submitted a response that puts forward a wide range of concerns. Here are some of the key arguments it made:

• "We are particularly concerned by potential mandates that would allow regulators to impose rigid, one-size-fits-all platform design requirements – such as forced chronological feeds or opt-in recommendation systems."
• "A framework that empowers governments to enforce vague definitions of 'harm' risks becoming a mechanism for viewpoint-based censorship, as platforms will be incentivized to over-moderate speech that should be protected to avoid regulatory penalties."
• "If Australia compels platforms to aggressively filter content in algorithmic feeds to satisfy a government mandate, and such filtering draws in protected speech, the effect on a disfavored speaker or media source’s reach would not be meaningfully different than outright removal.  The U.S. government would likely consider such a measure as facilitating censorship."
• "Mandated platform design features, especially when applied to algorithms, may affect what users see, say, and hear not just in or from Australia, but globally.  Platforms generally build and deploy product features at a global scale rather than market-by-market; forced platform design changes to mitigate Australia-specific risks could result in systemic changes that affect how users everywhere, including Americans, experience these platforms and reach audiences."
• "The U.S. government has made clear its opposition to foreign measures that result in extraterritorial censorship of protected speech by Americans online."
• "Regulations that impose disproportionate compliance burdens on American companies relative to competitors, or that apply unevenly across similar services, will invariably raise concerns."

I have some concerns with what each side is doing here. I'll start with the Australian legislation and then turn to the U.S. response.

How to improve social media feeds: Regulation of existing companies vs. encouraging new platforms with different business models

Starting with the merits of the draft Australian legislation, I'll focus first on the "potential mandates" for "forced chronological feeds or opt-in recommendation systems." I agree that chronological feeds and an opt-in for recommendation systems are good features for social media, and I'm happy that Australia is trying to promote them. I've never liked having someone else decide what I see on my social media feed, especially when this is done in a non-transparent way, as is generally the case. (I soured on Facebook pretty early when I realized they weren't showing me every post from people I followed, but rather using an algorithm to decide what I saw.) As a I result, I agree with the motivation behind the Australian draft as it relates to this issue.

However, I'm skeptical that government regulation is the right approach to addressing the problem. My concern is that regulation along the lines of what Australia is proposing will leave us with the same companies offering pretty much the same problematic services, with minor tweaks that don't get at the issue of the standard social media business model that is at the heart of the problem: Maximize usage of the platform, gather data on users, and sell that data to advertisers.

In my view, a better model for social media companies would be to offer chronological feeds, either as the exclusive option or as one of multiple options, and look for alternative sources of revenue besides the collection and sale of data. For me, the most useful thing the Australian government and other governments could do to move things in this direction would be the following:

• Use the bully pulpit to encourage companies to offer chronological feeds or feeds that people can customize in a transparent way.
• Use the bully pulpit to encourage their citizens to use chronological feeds or customized feeds.
• In their own social media activities, use services that take this approach rather than services that rely on non-transparent company-provided algorithms. And if they find the existing range of social media services inadequate, encourage companies to build new ones around a different model.

The goal here is to shift the market in the direction of new business models. A model based on toxic engagement and selling user data is one way to make money in this market, but it is certainly not the only one, and it would be nice if we had more options.

I'll go even further here and say that legislation of the sort Australia is proposing could distract from what is needed. When politicians make claims that regulation will address a problem, it causes people to think the problem is being solved for them, and steers them away from doing what needs to be done themselves: Building and using alternative platforms, ideally ones that are interoperable with each other (i.e. decentralized social media) rather than the "walled garden" platforms many people use today.

Finally, as to governments trying to influence what shows up in algorithmic feeds, which is also part of the Australian draft legislation, I think that while it is well-intended, it may not work out as well as people hope. Each change in government could mean a shift in what exactly government officials are worried about people seeing in their feeds, with these feeds turning into an endless back and forth between right-wing and left-wing agendas. In my view, regulating the content of company-provided algorithms is unlikely to go well, and I think this supports my earlier point that we should all try to avoid this type of feed.

Pushing back on U.S. government pushback against foreign tech regulation

While I'm not thrilled about aspects of the Australian legislation – because I see what they are going for but I question whether it is the right approach to getting there – I'm even less enthusiastic about the Trump administration's response. As far as I can tell, none of what Australia is doing is intended to discriminate against American products companies. As a result, I'm not convinced the U.S. government should be pushing the issue with the Australian government in the way it is doing here.

In my view, governments should tread carefully when offering criticism of foreign regulations. All regulations can affect the interests of exporters from the contesting government's country, but the impact of these regulations varies considerably, ranging from an equal impact on all companies, a disparate impact on foreign companies, and a disguised attempt to protect domestic producers from foreign competition. Here, there is nothing to suggest that the Australian legislation should be thought of as disguised protectionism, and I think that is an important consideration.

A key part of my thinking here is a concern with whether international trade principles intrude too much into domestic policy-making. If we rely on a principle of international trade under which "disproportionate compliance burdens" are sufficient to constitute an actionable trade barrier, it could lead to trade conflicts that cannot easily be resolved. When a government is regulating in a way that it genuinely sees as in the public interest, objections by other governments come across as an intrusion into sovereignty or policy space. As we've seen over the years, that often goes badly.

Obviously, the affected companies themselves can express their views to the Australian government, and they should probably do so here. If you are operating in the Australian market, you have an interest in these matters, and can offer your perspective. But other governments doing the pushing in the form of complaints about "market access" and "trade treatment" is something very different, and has broader implications for the overall functioning of the trading system (the administration's response says "the proposed digital duty of care regime, depending on how it is implemented, potentially raises significant concerns regarding fair competition, market access, and trade treatment for American companies, independent media, and content creators").

Turning to the "censorship" issue, I raised some concerns above with the Australian approach (although I'm not sure I have a good sense of what this approach would mean in practice), but I have even stronger concerns with the Trump administration's reaction.

One issue is that there's plenty of censorship going on in the U.S. right now, so making allegations about Australia's censorship feels odd.

Another issue is that speech policies are always going to vary by country, based largely on the views of the people of that country as to what speech should be allowed. Americans may prefer a certain approach at the moment (or maybe they don't even like the current approach, as the policies are set by the Supreme Court to a great extent), but that's not an argument for telling other countries how they should do things on speech policy, and I think the U.S. government should be very careful about telling others what to do.

That's not to say it should do nothing about concerns related to free speech in other countries though. What I think would be useful here is if there were an international body that served as a forum for governments to talk about comparative speech policies and the extraterritorial effect of domestic speech policies. Everyone would probably learn a lot from that exercise.

In terms of the impact of the draft legislation on U.S. companies, I can understand how this sort of regulation is a big pain for companies who operate in different markets, and who will have to tailor their services for local statutes and regulations. But that's just how things work, and they will have to figure out how to deal with it. If a particular company wants to follow only American laws, it can do so: Just offer the service only in the U.S. The U.S. is a big market, so there's still plenty of money to be made if they don't want to adapt to foreign regulations. On this point, the Trump administration says:

Platforms generally build and deploy product features at a global scale rather than market-by-market; forced platform design changes to mitigate Australia-specific risks could result in systemic changes that affect how users everywhere, including Americans, experience these platforms and reach audiences.

That may be true where you have walled garden platforms operating globally, but that's not a great system and this approach is in need of disruption. What would be better is if we had decentralized social media, in which all of the platforms could connect, and you had U.S. companies following U.S. law, Australian companies following Australian law, etc., with users in each place still being able to connect with each other.

Finally, the Trump administration is also concerned about Australia forcing companies to do filtering of algorithmic feeds. To me, this is just more evidence that algorithmic feeds have some fundamental flaws, and people should consider alternatives to company-provided feeds (and companies themselves should deemphasize them). I know there are some people who prefer algorithmic feeds to chronological ones, although despite many conversations I've had on this issue, it's still not clear to me why they prefer this. Regardless, I do recognize that there is some demand for these feeds, and what I would suggest here is that if companies are going to offer them, they should give users the ability to configure them so that people have a better sense of what they are getting.

Conclusion

Summing all this up, what I would like to see here is Australia take its concern about the impact of social media feeds and online content, which I think is a legitimate worry, and channel it into something a bit more productive. As the same time, I wish the U.S. would focus on rooting out disguised protectionism in foreign tech regulations rather than complaining about any and all regulations that have an impact on U.S. companies or reflect different values than those of the administration in power at that moment.

UPDATE:

This issue came up in a recent interview with Australian Trade Minister Don Farrell:

Host: Digital duty of care laws are going to be introduced this week. Back In September, the U.S. embassy, you'll know this, made a rare intervention into our political debate, calling the laws extraterritorial censorship of protected speech. Have you spoken about those laws or have they been raised with you, with your counterpart?

Minister: Yes, they've been raised with me every time I've met with the Americans. We obviously have a difference of opinion. We certainly don't believe if anything we are doing is contrary to our Free Trade Agreement. But it's the job of the Australian Government to protect Australian citizens. There's a lot of terrible stuff out there in social media. I've tried to explain to the Americans that our objective is to protect our citizens, particularly young people, and so far there hasn't been a direct response.

Host: Has there not been a threat of a consequence for these laws?

Minister: No, no, they have never raised.

Host: They've raised it with you. Is this Jamieson Greer?

Minister: Yes, Jamieson Greer.

Host: And he's actually raised the digital duty of care directly with you.

Minister: He's raised those issues, a range of issues in this social space. And each time I explain why we're doing this, and he certainly hasn't raised any issue. In a few minutes, I'm meeting the new American ambassador.

Host: You suspect it will be raised again?

Minister: Oh, he may or he may not, I don't know. But if he does, I will explain to him. As I've explained to Jamieson Greer, our job as an Australian Government is to protect our citizens. And this is one of the ways we're doing it.

Congrats to Canada on winning this unofficial competition for fairest trading partner! Canada also scored the highest on the question "Please describe the United States’ relationship with the following countries," with 72% saying it was a "friend and ally." Thus, despite what's going on at the highest political levels, most Americans still appreciate Canada.

(For comparison purposes on the fair trade question, I would be curious to hear the responses in a poll of Americans to the question "Would you say the United States is a fair or unfair trading partner?" Maybe the folks at CFR can add that one in next time.)

Another interesting question was "What do you think the next president should do about Trump's tariffs on the following trade partners?" Here are the results:

This is a complex issue, and I'm not sure how to phrase it to get a good sense of public opinion on where to go with U.S. trade policy under a new administration. Asking only about removal of the tariffs leaves some uncertainty about what else would go along with that. Rather than a country-specific question focusing on tariff removal, I might try something along the lines of the following instead: "Should the next U.S. president remove all of Trump's tariffs and then develop a new overall tariff and trade policy?"

But it's tough to capture everything that is going on with U.S. trade policy at the moment in a poll question. Among other things, you have the tariffs themselves, the various trade deals negotiated by the Trump administration, the choice of countries being targeted, the choice of sectors being protected of affected, and the specific accusations and concerns about unfair trade practices. All of it could be reconsidered by a future administration. I'm not sure polling can get at every aspect, though, and I think that to a great extent a future administration is going to have use their instincts as to the details of what Americans want to see here.

Announcing a program on Friday Oct 9, the annual Fall Trade Update program hosted and organized by Case Western Reserve University School of Law (with partners CITBA, American Society of International Law and Greater Cleveland International Lawyers Group): "Eleventh Trade Law Fall Update: 'Trade and Customs Law & Enforcement in the Remarkable Year 2026'" (virtual program only), Free - Registration link for Zoom here; all times ET
https://case.edu/law/about/events-lectures/eleventh-trade-law-fall-update-trade-and-customs-law-enforcement-remarkable-year-2026-virtual-program-only

8:20-8:30: Introduction: Juscelino Colares, Johan Verheij Memorial Professor of Law and Professor of Political Science, CWRU School of Law

8:30-9:30: Current Compliance Challenges for Global Supply Chains: forced labor tariffs; customs enforcement developments; origin rulings & non-MFN tariffs; and the often-surprising concepts of scope and circumvention in trade law - with Lawrence Friedman, John Foote, Cynthia Galvez, Luke Mathers

9:40–10:40: What's Happening on Tariff Litigation and Where Are My Refunds? State of play on IEEPA tariff refunds & challenges to tariffs under Sec. 122, 301 - with Amy Magnus, Michael Roll, Valerie Sorensen-Clark, Amy Porges

10:50-11:35: Breaking news + hot topics: with Zack Walker, Elizabeth Drake, Katherine Dobscha

11:40-12:15: Keynote roundtable on USMCA & N American auto jobs, production & growth - with Kristin Dziczek and Leila Aridi Afas

12:15-12:20: Closing remarks, The Hon. Leo Gordon, Judge, US Court of International Trade

Now Australia seems to be joining the cause, putting forward the following argument in its own WTO reform communication:

2.5. State-owned enterprises (SOEs) have come to play an increasingly prominent role in global markets compared to when the Uruguay Round was concluded. This has increased the importance of ensuring competitive neutrality between SOEs and other enterprises.

2.6. GATT Article XVII on state trading enterprises only disciplines activities related to their purchases and sales involving either imports and exports. Similarly, the SCM Agreement has limited application, including due to the Appellate Body's legal interpretation of the term "public body", and only disciplines the provision of subsidies. Existing disciplines do not adequately capture the ways governments can use ownership, control and direction to undermine competitive neutrality principles, tipping the playing field in their favour.

2.7. Actions which Members could consider include:

a. developing a definition of an SOE under WTO rules, including a definition of ownership and control that addresses indirect control;

b. strengthening SOE transparency requirements through agreed notification processes, including information on ownership, activities, control, governance, state support and noncommercial assistance;

c. ensuring the disciplines of the SCM Agreement extend to SOEs, including where government ownership, control or direction enables trade-distorting support;

d. ensuring administrative tribunals, regulators and other public authorities do not favour SOEs over private enterprises, and that SOEs do not perform regulatory functions in sectors in which they compete with the private sector;

e. strengthening cooperation and sharing of best practices on SOEs;

f. requiring SOEs to engage in activities in accordance with commercial considerations, except where delivering a clearly defined public service objective;

g. committing to competitive neutrality between SOEs and private enterprises, to ensure SOEs compete with private enterprises on merit without receiving unfair advantages from the governments that own or control them; and

h. ensuring procurement rules and practices do not favour SOEs or state-linked suppliers over other suppliers, including through discriminatory access or abnormally low tenders.

Everything Australia says here seems sensible to me. As I said in the earlier post, I've always thought it was odd that there are general GATT obligations that apply to state-trading enterprises, but nothing similar for state-owned or state-invested enterprises. In my view, this gap in the rules should be closed. (It's worth noting that the EU mentioned both state-owned and state-invested enterprises, while Australia referred only to state-owned. I'm not sure if Australia's narrower terminology was intended to limit the scope of the exercise, or if Australia would include both under the broader category of state-owned.)

Australia and the EU are on board, but I have questions about the reaction this will generate from other WTO Members. Will China, which is already subject to similar disciplines through its accession commitments, join the cause because it would like others to be covered as well? In China's own WTO reform paper, it did not explicitly address the issue of state-owned/state-invested enterprises, but it did say: "WTO accession commitments are highly Member-specific and should not be mechanically extrapolated to the wider Membership." To me, that came across as pushing back against the suggestion in the EU reform paper to extend the accession commitments on state-owned/state-invested enterprises to the broader membership, but perhaps I'm reading too much into it.

Also, how about India and Brazil, or Canada and the UK, or the least developed countries? What do others think about these issues?

And, of course, there is the U.S. What will the Trump administration think of all this now that the federal government is actively taking equity stakes in a wide range of private companies? I can imagine that under para. 2.7(a) above, the Trump administration would push for a definition that excludes its equity stakes from coverage. And then what will a post-Trump U.S. trade policy look like, and how will those folks approach the WTO in general and SOE discussions in particular? For some on the left, Trump's use of equity stakes is an opening to do more of this in support of their favored policies, whereas others may be more skeptical.

With all of the various viewpoints out there, it's likely to be difficult to make much progress on this issue at the WTO, as it is with most things these days. At the least, though, the exercise will be useful in order to map out where everyone stands, and that will give us a sense of what is possible here.

Domestic regulation should come first

For governments to be in a position to negotiate an AI treaty, domestic policy and regulation needs to be sorted out first, and I don't think we are close to that at the moment in the U.S.

As most of this blog's readers probably know by now, I worry about regulation being ineffective or counterproductive, although my views vary depending on the specific issue. With social media, for example, I am a skeptic of regulation. Many of the proposed regulations I've come across seem either pointless or harmful, and the problems can be more effectively addressed through private sector development of alternative social media apps/websites. Regulation isn't going to make the existing walled garden platforms much better, and in my view the best approach is for everyone to shift away from those to the emerging alternatives.

On AI, though, I think extensive regulation is needed, as there are a wide range of potential harms from AI products. As much fun as it can be to assign a somewhat arbitrary % figure to the chances of humanity being destroyed by AI, I'm less worried about that than I am about more basic things such as hacking or the psychological impact of AI chatbots. There are also many uncertain legal issues related to AI that would be nice to get some clarity on, and regulation could provide that.

Unfortunately, it seems to me that we are unlikely to get significant federal regulation on these issues while Trump is in office. My sense from the things Trump has said is that he does not want regulation in this area, and from what I can tell most people in the Trump administration seem to agree, or at least will go along with his view. As a result, any actions they take are likely to remain limited in scope and non-transparent, which is where things stand now. I doubt they can be swayed on this, and barring some major AI-related catastrophe that forces a response, I don't see anything happening here. Even the biggest blue wave I can imagine in the midterm elections won't give the Democrats a veto-proof majority in Congress, and thus I will be surprised if there is any federal AI regulation other than ad hoc White House guidance for the foreseeable future.

In the meantime, people can and should prepare for future legislative and regulatory action. Members of Congress can discuss the issues and make proposals, and various states will do some regulating. In this way, the next couple years can be used to map out what kind of regulation would be useful, so as to have something ready when the political situation allows it to be enacted at the federal level.

AI treaty talk

In the midst of all this non-action on federal regulation, and with President Trump meeting with President Xi last week, some people were calling for the negotiation of an AI treaty. Here are a few examples:

• Senator Bernie Sanders said: "With the future of humanity at stake, Trump must negotiate a comprehensive treaty with President Xi of China to establish a pause on advanced AI development and a ban on super intelligence."
• Dario Amodei of Anthropic said: "we should also aim for a worldwide pacing of the frontier ... Global pacing will require cooperation with China, the autocratic country with by far the most advanced AI capabilities."
• A group of Democratic Senators wrote a letter to Trump calling on him "to negotiate a formal agreement between the U.S. and China on guardrails and global standards for the development, testing, and use of frontier Artificial Intelligence (AI) models with Chinese President Xi Jinping."

During the U.S.-China talks, AI was, in fact, one of the issues on the agenda. Not surprisingly, though, very little was achieved. A White House fact sheet – which uses Trump's term for AI – says:

The two countries established the U.S.-China Super Intelligence (SI) Dialogue to exchange views on risks and benefits related to SI. The next exchange will occur by November 2026. The United States and China also agreed to establish a bilateral communication channel for SI incidents.

My sense is that a U.S.-China Dialogue, along with a channel for notifying AI-related incidents, will have a very limited impact on the regulatory issues here, and I am skeptical that any of this will lead to a significantly broader AI agreement in the near future.

This is unfortunate, because an AI treaty would be a good idea. Every government will be dealing with various problems related to AI, and coordinating these efforts would be useful.

But in the absence of a robust federal regulatory framework in the U.S., I can't see progress on an AI treaty happening anytime soon. In a situation where there is limited federal regulation, and the Trump administration doesn't want to pursue anything other than its own limited oversight of these issues, I don't know what a treaty would say other than "governments can do pretty much whatever they want." That's not particularly helpful when governments are trying to figure out what needs to be done and how to do it in a cooperative way. As far as I can tell, then, while an AI treaty with the U.S. and China as the key actors could be useful, it's going to have to wait for a new administration.

To be clear, even with a federal regulatory framework in place, such a treaty will be a challenge to negotiate, as the specific concerns of China and the U.S. – and of other countries as well – vary quite a bit. Nonetheless, once the U.S. has worked out its own views on AI regulation in a post-Trump world, I think it's worth sitting down with other governments and trying to reach common ground on international rules that could help guide everyone's domestic regulation.

• H.R.10175, Banning Antiquated Duties and Delivering Equitable American Levies (BAD DEAL) Act, press release (Senate version: S.5397, press release); and
• S.5390, The End Trump's Tariff Tax Act, press release

These bills are not likely to go anywhere in the near term though. In the meantime, there is an opportunity to talk about ways to mitigate potential problems through the Commission's implementation of Section 338. In response to the request for comments, I submitted the following:

Re: Docket Number MISC-053: Request for Comments Regarding Implementation of 19 U.S.C. 1338(g)

Dear Ms. Barton,

In the Request for Comments Regarding Implementation of 19 U.S.C. 1338(g), the Commission raises the following topic:

Section 338 (19 U.S.C. 1338) addresses "unreasonable" and "discriminatory" conduct by foreign governments. What makes conduct "unreasonable" or "discriminatory" in the context of international commerce? How should the Commission understand those terms for the purposes of Section 338?

This comment focuses on the appropriate understanding of the term "discriminatory" for the purposes of Section 338.

In thinking about the meaning of "discriminatory," helpful guidance can be found in the views of the Office of the U.S. Trade Representative (USTR) on similar issues in the context of dispute settlement at the World Trade Organization. As part of its criticism of the Appellate Body, one of USTR's complaints relates to how the Appellate Body had interpreted the WTO's non-discrimination obligations. As USTR put it in its 2020 Report on the Appellate Body of the World Trade Organization,[1] while a key principle of the WTO agreements is "the requirement that Members not discriminate against trade from other Members," this "fundamental principle, reflected in the national treatment and most-favored nation obligations, was not intended to prevent Members from pursuing their legitimate policy objectives." According to USTR, however, the Appellate Body "has found a measure to be discriminatory (and therefore not consistent with WTO rules) based solely on evidence that the measure may impact imports from one Member more than those of another, even though converting a nondiscrimination inquiry into a detrimental impact test renders almost any origin-neutral measure vulnerable to challenge in WTO dispute settlement." The result of this approach, USTR said, is that "[i]t is much more difficult to pursue legitimate public policy measures under the legal standard the Appellate Body has invented than under the standards to which Members actually agreed," and "the Appellate Body’s approach would have WTO adjudicators second-guess Members’ legislatures and serve as the ultimate arbiters of a range of important legislative questions, which is not a role that WTO Members assigned to them under the WTO agreements."

These concerns expressed by USTR are directed at WTO adjudicators, but the same logic applies when it is the U.S. government that is deciding whether a law or regulation is discriminatory. If disparate impact is sufficient to find that discrimination exists pursuant to a Section 338 investigation, with tariffs imposed in response, the pursuit of legitimate public policy objectives by governments could be undermined. An interpretation of Section 338 that leads to this outcome should be avoided, as the U.S. government should not interfere with the legitimate public policies of other countries. Doing so could harm relations with U.S. trading partners, lead to worse policies in those countries, and trigger similar complaints about U.S. laws and regulations.

It is true that governments should not use laws and regulations as a means of disguised protectionism, and both domestic and international trade law have long recognized this principle. However, for the reasons noted above, the legal standard for "discriminatory" should not target laws and regulations that merely have a disparate impact on foreign goods and services. Instead, an investigation by the Commission under Section 338 as to whether measures are "discriminatory" should consider whether these measures are designed to protect domestic industries.

The same logic applies to the Section 338 reference to an "unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country," which is a specific articulation of the non-discrimination principle.

Former U.S. Trade Representative Katherine Tai has talked about these issues in the context of tech regulation on multiple occasions. In October 2023, she offered this brief comment: "I think that as [the trade conversation about discrimination] then crosses over into regulatory efforts that impact these big technology companies, we have to really be cognizant that measures that may look like they have a discriminatory effect may or may not be advanced with a discriminatory intent."[2] Then in January 2025, she went into more detail on these issues:

One of the challenges that we have had in recent years is the growth of some U.S.-based companies to become so powerful and so dominant, not just here in the United States, but in the global marketplace, that efforts to regulate those companies or those sectors start to run into this dynamic where if they are foreign [countries] attempting to regulate, that they could appear to be discriminatory because these companies are almost all exclusively U.S. ­based.

And so, that’s been actually quite a large part of the conversation here over the course of the last couple of years, especially in light of, for example, the tech sector, where European attempts to regulate, they might have discriminatory overtones, or they might not. But attempts to regulate at all, because the affected companies tend to be only U.S. companies, we here at USTR have had to build in additional levels of examination, analysis from a governmental perspective to try to engage with our trading partners and to really try to suss out, are the governmental measures that our companies are complaining about, are they actually discriminatory and therefore something we need to really push back on from a trade discipline perspective? Or are they instead legitimate attempts to regulate that we need to make room to have conversations about and we can’t just assume are discriminatory because the affected companies happen to all be U.S.-based?

So, this has been one of the most interesting aspects of the way we’ve been evolving the perspective here at USTR, which has really put us in conversation with our competition authorities to create that space to say that not every foreign government regulatory measure is necessarily discriminatory when you look at the dynamic in the domestic and the international marketplace, where you have a set of dominant players that happen to be U.S.­ based.[3]

Applying Tai's thinking here, an important issue in Section 338 investigations that seek to identify "discriminations against the commerce of the United States" is how the Commission should analyze whether the foreign regulations are "actually discriminatory" or whether, instead, they are "legitimate attempts to regulate." USTR has weighed in on these issues in the context of WTO obligations, and it would be useful for the Commission to consider USTR's views as it thinks about how the principle of non-discrimination should be interpreted and applied in the context of Section 338.

As a final point, let me note that in the real world example of Section 338 tariffs on Canadian imports that we are currently dealing with, the considerations I focused on in my comments to the Commission do not arise, and I wasn't trying to address the Canadian situation. Rather, I was trying to head off a particular set of issues that seem likely to come up in a world where Section 338 is used regularly: Is disparate impact sufficient to find that discrimination exists, or must there be an examination of intent, purpose, etc. as well? However, the problems related to identifying discrimination are much broader than this, and I hope the Commission gets submissions addressing other aspects of the issue as well.

In the week prior, WTO Chief Economist Bob Staiger asked all of us speaking to prepare a quick answer in the final minutes of the session: if we had the keys to the house, what is one procedural and one substantive change we would make? I will save the substantive for another day and focus on my answer for procedure: I propose that a “blocking minority” be required, rather than the current approach, which allows individual Members to prevent a majority from moving forward.

Article X:9 of the WTO Agreement requires consensus of the Ministerial Conference to add a plurilateral agreement to Annex 4. Rather than rehashing the debate about the function and relevance of consensus, Members should consider how to better manage situations of non-consensus and the risk of a single point of failure or a monopoly on opposition. 

The WTO rules do, as I explain below, allow for voting, as does the Vienna Convention on the Law of Treaties, for adopting text and amendments (see articles 9(2) or 40). Yet the WTO has become locked into a position in which Members cannot even contemplate voting. Though 131 Members may support the investment facilitation agreement, India maintains a very strong opposition. Expert scrutiny continues to debate whether there has been a recent softening of that position. Regardless, recent events expose a problem in multilateral governance, as Members appear to be in an infinite loop without an exit condition.

From a historical perspective, the ITO/GATT anticipated decision-making would require voting. The initial plan for an International Trade Organisation (ITO) would have included a co-legislator of sorts, with an executive board comprised of the larger economies. Article 75 of the Havana Conference draft ITO Charter empowered Members to vote and provided an opportunity to take a second vote in the event the first vote was less than half the membership, which would become ‘final whether or not the total of the vote cast comprises more than half the number of the Members.’ For amendments that did not alter Member obligations, the Conference would just vote, requiring a two-thirds majority (see article 100).

That said, the commitment to one-country, one-vote presumed ‘common consent,’ though not in all circumstances. As Clair Wilcox, head of the U.S. delegation negotiating the ITO Charter, would later explain, ‘There is no single sharp division of interest that will appear in every case. The line-up of votes will be constantly shifting, from issue to issue and from time to time.’ An ITO Member would make decisions based on its priorities and lobby partners to succeed in a vote. To paraphrase Wilcox, every country would win some and lose some. The United States had significant power in this story and, of course, had a kill-switch — withdrawal from ITO membership was the ultimate decision when any Member lost faith in the decision-making process.

Without the ITO, the GATT lacked extensive decision-making institutions. However, Mary Footer observed that the commitment to joint action in GATT Article XXV supported an approach that prioritised collective decisions and created an exception for voting. Understood together, voting could help build toward consensus, in the same way an interim agreement could lead to a comprehensive trade agreement.

Although the practice evolved to consensus-based decision-making, the GATT rules concerning voting were retained within the WTO framework. Currently, Article IX:1 confirms that the WTO “shall continue the practice of decision-making by consensus followed under GATT 1947.” Article IX further explains that, absent other guidance, the failure to reach consensus creates the opportunity for voting on a one-country, one-vote basis. Article IX:2 states that the Ministerial Conference may adopt interpretations by a three-fourths majority vote. Likewise, in “exceptional circumstances,” the Ministerial Conference may waive obligations if approved by three-fourths of the Members. By this account, a three-fourths majority can change the multilateral trading system. Yet, as many academics have studied and opined, Members have been unwilling to crack that egg, knowing that it would be impossible to put consensus back together again.

Without seeking to rehash the extensive literature on consensus and voting in the WTO, what I propose is that Members consider a qualified minority rule. In addition to requiring a qualified majority to move forward, with three-fourths of the Members making a decision, a qualified minority demands that a Member wishing to veto form a minority consensus to block a decision.  

The decision-making rule would mean a requirement that three-fourths must be for YES and also that NO must be X amount (could be less than one quarter). A blocking minority places more accountability on the vetoing Members to convince a sufficient number of partners to join their opposition. It reflects the fact that the procedure must respect both poles of decision-making, those in agreement and those opposed. Incorporating this blocking minority accountability could facilitate more consensus-building, although only time would prove that hypothesis.

Old: Consensus and, failing that, 75% YES and silence on NO means the item can move forward.

New: Consensus and, failing that, 75% YES and [less than X percentage] NO means the item can move forward.

Within the European Council rules, a blocking minority is a close analogue. Article 16(4) of the TEU confirms qualified majority voting, of at least 55% of the Council members, comprising at least fifteen Member States or 65% of the Union population and a ‘blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.’ Further research could explore the rationale and design for the Union to understand why this system introduced the counterbalance of the minority blocking, and how a similar process could benefit the WTO.

The minority block cannot be too small a number, as it would be too easy to game. One quarter of the membership would be about 40 Members. Even one-eighth of Members opposed may be sufficient to form a blocking minority. But somewhere between 20 and 40 Members could enable both the majority and minority to wrangle votes from allied partners, though there would be hope for more give and take and for blocks to form around issues. Members may acknowledge that the decisions taken need not guarantee their positions in bilateral or regional forums, but could reflect their position, though still subject to change, in the multilateral framework.

A blocking minority resolves the single point of failure but does not address other challenges with majority voting. As Ehlermann and Ehring point out, consensus decision-making may be ‘the least bad’ option compared with majority voting, as Members can passively abstain without formally objecting. Yet the value of consensus decision-making as a process may lose its salience if the trade-offs normally expected from finding a compromise solution among peers do not occur, especially when the matter at issue does not require Members to relinquish rights or to diminish their obligations.

Of course, implementing this new procedure would require Members’ consensus. Otherwise, Members are again looking at plurilateral options. In the plenary discussion, I spoke about plurilateralism and urged governments to recognise how the multilateral trading system respects the plurality of its membership, accommodating their varied approaches, while also committing to justified, transparent approaches and due regard when regulating trade. A veneer of legal universalism fails to show the dynamic, flexible system underpinned by diplomacy and context. Modernisation is not a single recipe, right? 

More than ever, in the height of geopolitical rivalry and technology-driven growth, governments must find points of compromise and cooperation. Disagreements should rest on context, objectivity, and as much data as possible, rather than on preconceived positions. Members could use a blocking minority procedure as part of the guardrails for a future world of federated decisions, in which coalitions are formed, and cooperation and standards may develop in more varied contexts. A successful blocking minority could become the foundation for a minority plurilateral agreement, with a process for transition between the two put in place (or not, depending on the topic). Further, any agreement on this new decision-making process could (for now) focus on qualifying rights without diminishing existing WTO obligations. In other words, Members may agree that open plurilaterals benefit from this process, while reserving consensus for closed plurilaterals. 

This brings me back to another point I made in the plenary. Any claims concerning the outdatedness of the multilateral trading system must be reconciled with a messy, complex history. Contrary to more conventional narratives, the system does not emerge from a context of post-war peace, any more than the ITO/GATT attempted to anchor that peace with rules committing all members to surrender discriminatory trade practices.  The origin story begins in wartime, with the United States taking a formal lead during World War II. Better appreciation of that context illuminates the emphasis on experimentation and transition between wartime and peacetime economics. The ITO/GATT project was part utopian and part pragmatic. I have never come across a demand that it be a strict code of conduct. If anything, the system often felt the opposite: uniquely pliable as governments recognised extraordinary challenges with building a globalised economy in the wake of shifting rivalries and economic reconstruction. It helps explain why historians from Irwin to Zeiler to Heilleiner have remarked on the self-restraint of the United States, and as I have tried to show in my own work, how alliance-building factored significantly in the final network of rules and exceptions.

Finally, in the plenary, I made a physics joke about perfectly spherical cows – to make the point that Members do not benefit from solutions based on unrealistic assumptions. The world must find a solution for real life, where cows are not perfectly spherical. There will never be a perfect time to reform the system. 

Though I did find a (nearly) perfectly spherical cow in the Geneva airport on my travels home.