<DOC> [109 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:23160.wais] S. Hrg. 109-474 SECURING AMERICAN SOVEREIGNTY: A REVIEW OF THE UNITED STATES' RELATIONSHIP WITH THE WTO ======================================================================= HEARING before the FEDERAL FINANCIAL MANAGEMENT, GOVERNMENT INFORMATION, AND INTERNATIONAL SECURITY SUBCOMMITTEE of the COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION __________ JULY 15, 2005 __________ Printed for the use of the Committee on Homeland Security and Governmental Affairs U.S. GOVERNMENT PRINTING OFFICE 23-160 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS SUSAN M. COLLINS, Maine, Chairman TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas JOHN W. WARNER, Virginia Michael D. Bopp, Staff Director and Chief Counsel Joyce A. Rechtschaffen, Minority Staff Director and Chief Counsel Trina D. Tyrer, Chief Clerk FEDERAL FINANCIAL MANAGEMENT, GOVERNMENT INFORMATION, AND INTERNATIONAL SECURITY SUBCOMMITTEE TOM COBURN, Oklahoma, Chairman TED STEVENS, Alaska THOMAS CARPER, Delaware GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan LINCOLN D. CHAFEE, Rhode Island DANIEL K. AKAKA, Hawaii ROBERT F. BENNETT, Utah MARK DAYTON, Minnesota PETE V. DOMENICI, New Mexico FRANK LAUTENBERG, New Jersey JOHN W. WARNER, Virginia MARK PRYOR, Arkansas Katy French, Staff Director Sheila Murphy, Minority Staff Director John Kilvington, Minority Deputy Staff Director Liz Scranton, Chief Clerk C O N T E N T S ------ Opening statements: Page Senator Coburn............................................... 1 Senator Levin................................................ 15 Prepared statement: Senator Carper............................................... 41 WITNESSES Friday, July 15, 2005 James E. Mendenhall, Acting General Counsel, Office of the United States Trade Representative.................................... 3 Claude Barfield, Ph.D., Resident Scholar, and Director, Science and Technology Policy Studies, American Enterprise Institute... 23 Robert Stumberg, Professor of Law, Harrison Institute for Public Law, Georgetown University Law School.......................... 26 Robert Vastine, President, Coalition of Service Industries....... 28 Alphabetical List of Witnesses Barfield, Claude, Ph.D.: Testimony.................................................... 23 Prepared statement........................................... 54 Mendenhall, James E.: Testimony.................................................... 3 Prepared statement with attachments.......................... 42 Stumberg, Robert: Testimony.................................................... 26 Prepared statement........................................... 59 Vastine, Robert: Testimony.................................................... 28 Prepared statement with attachments.......................... 63 APPENDIX Questions and responses for the Record from: Mr. Mendenhall............................................... 52 SECURING AMERICAN SOVEREIGNTY: A REVIEW OF THE UNITED STATES' RELATIONSHIP WITH THE WTO ---------- FRIDAY, JULY 15, 2005 U.S. Senate, Subcommittee on Federal Financial Management, Government Information, and International Security, of the Committee on Homeland Security and Governmental Affairs, Washington, DC. The Subcommittee met, pursuant to notice, at 9:31 a.m., in room SD-562, Dirksen Senate Office Building, Hon. Tom Coburn, Chairman of the Subcommittee, presiding. Present: Senators Coburn and Levin. OPENING STATEMENT OF SENATOR COBURN Senator Coburn. Good morning. Thank you all for being here today. Today's hearing will focus on the direction of the World Trade Organization and examine the relationship between WTO rulings and American sovereignty. Unlike other international institutions in which the United States participates, the WTO links its adjudication process to an enforcement mechanism. Using this mechanism, international diplomats determine if U.S. laws and regulations are acceptable or unacceptable, according to the political trade standards of the international community. That is probably as it should be. If nations don't change laws that WTO rules against, WTO can and does impose punitive damages on that nation's taxpayers, and trade sanctions. Since WTO inception 10 years ago, the United States has lost half the cases brought against it by other WTO members--25 out of at least 50 cases. Already, Congress has repealed two laws by WTO dictate. These include the foreign sales corporation provisions that were provided a tax benefit for U.S. exporters--the modification to that law is presently being challenged as well; and the Anti-dumping Act of 1916. Both laws were created to protect U.S. financial interests and were modified to accommodate the interests of foreign countries and their trade positions. I would say that I believe in free trade. I believe in fair free trade. Americans run and work for the most innovative, efficient, and competitive businesses in the world. On balance, free and fair trade with every nation benefits every American. It is an onerous process to negotiate bilateral trade agreements with every other Nation in the world. This process could result in confusing and conflicting standards or create burdensome consequences on American industry. That is why we are in the WTO, and that is why there is marked value to our participation. When the United States has brought complaints against other countries through the WTO, the United States has, for the most part, prevailed. But when other countries have brought complaints against us, we do far less well. So we need to be careful. With adverse rulings from the WTO on the rise, Congress must exercise its appropriate oversight authority and make sure that the WTO does not cross the line into threatening U.S. national interests. We need to ensure that the WTO does not misinterpret U.S. membership as a license to dictate to democratically elected Federal and State legislatures how to govern the affairs of the American people. Americans rely on our trade representatives, who serve as watchdogs of the WTO, to ensure that the WTO's adjudication process does not overstep its mission and impose unwelcome and un-voted-on changes in our national affairs. Unfortunately, as with other international organizations, some of the WTO leadership seem to have higher ambitions for this trade body beyond its purpose as a forum for resolving trade disputes. WTO leaders pay a lot of lip service to the notion of consensus, but we have seen how elusive global consensus can be on fundamental matters of right and wrong. Let me give you an idea of what I mean. This is a portion of a statement given by a former WTO director general in his farewell speech entitled ``Beyond the Multilateral Trading System.'' The former WTO director general stated: ``Not too long ago, the idea of a global system of governance would have seemed utopia, no less utopia than the fall of the Berlin Wall without a war, the creation of a single European currency. Cold War rivalries, ideologic conflicts, North-South differences all created an international system that was defined by its divisions, not by its shared interests. ``The trend in today's international system is very different. All around us and across many issues, we feel more and more the need for global cooperation, multilateral agreements, and the international rule of law. The WTO's emergence as a leading rulemaker in the global economy is a powerful example of this trend, but is not alone. From human rights to climate change to capital flows, our globalizing world demands global solutions, and these solutions must be increasingly by shared agreements and rules.'' What he means here is that the idea of a perfect world consists of a WTO paving the way for an order that is involved in everything from human rights, climate change, to capital flows. This is the type of agenda that I see as a problem. It suggests that WTO sees itself more than just trade dispute- resolution body, but an ideologic instrument, where it swings an economic hammer to impose a U.N.-driven, consensus-based ideology. Tying the economic well-being of the United States to its submission to international notions of right and wrong is the worst type of blackmail. We all remember when Libya was elected the chair of the U.N. Human Rights Commission only a couple of years after the United States had been kicked off the Human Rights Commission. Currently, Sudan, Zimbabwe, Cuba, and China--a literal Who's Who in human rights violators--are on that same commission. Is that the kind of consensus we want? I think not. WTO tentacles reach not only to Congress here in Washington, but to many State legislatures forced to change their laws in response to an adverse ruling. When an organization in Geneva requires a struggling entrepreneur in the middle of America to change how he does business or imposes new standards on entire industries, Congress cannot be derelict in exercising oversight. The balance between costs and benefits of U.S. participation in WTO must be constantly monitored. We need to tread carefully, because the WTO does carry a very big stick. Let me thank each of our witnesses for being here. Senator Carper was unable to attend. He will offer a statement for the record. We have before us today two panels. The first is James Mendenhall, Acting General Counsel for the Office of the United States Trade Representative. And we will have a second panel consisting of Claude Barfield, resident scholar, American Enterprise Institute; Dr. Robert Stumberg, professor of law, Harrison Institute for Public Law, Georgetown Law School; and Robert Vastine, president, Coalition of Service Industries. Mr. Mendenhall, first of all, thank you for being here. I want to say something and I want you to take it in the proper perspective. It is very difficult for me to prepare for this hearing when I get your testimony at 8 o'clock last night. That is when it was delivered to my office. And I know that is not necessarily your fault. But at every hearing, I want the message to go back through the OMB that we have to have more timely availability of testimonies with which to be prepared to conduct the hearing. So if you would do that. I thank you for your testimony. Your written testimony will be considered a part of the record, and I recognize you now. Thank you so much. TESTIMONY OF JAMES E. MENDENHALL,\1\ ACTING GENERAL COUNSEL, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE Mr. Mendenhall. Thank you, Chairman Coburn. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Mendenhall with attachments appears in the Appendix on page 42. --------------------------------------------------------------------------- I appreciate the opportunity to speak to you today about the relationship between the United States and the WTO. It is obviously a critical issue for all of the reasons that you highlighted in your own statement. The specific title of today's hearing is ``Securing American Sovereignty.'' I would suggest an equally appropriate topic would be ``Securing American Economic Strength,'' for those two complementary objectives together form our guiding principles in negotiating and implementing the WTO agreements. U.S. participation in the WTO and the world trading system is absolutely critical to our continued economic growth. At the same time, the safeguards that are built into the system, which I will describe in my testimony, fully preserve our sovereign right to regulate as we--the U.S. Government, State and local governments, and the people of America to whom we answer--see fit. Since 1994, when the WTO agreements were completed, the United States has experienced an extraordinary period of economic growth. USTR's Annual Report, issued in May of this year, details those benefits at great length. Highlights also appear in my written testimony, and I won't go into the details of them here. But in summarize, they demonstrate dramatic increases over the past 10 years in production, productivity, incomes, and jobs throughout the United States. In short, the benefits of U.S. participation in the WTO are large, tangible, and widespread, as recognized by the House of Representatives last month when it voted overwhelmingly--338 to 86--to defeat a resolution calling for U.S. withdrawal from the WTO. During the WTO negotiations--the Uruguay Round negotiations--and in the current round, U.S. trade negotiators have been ever mindful of the need to protect U.S. sovereignty. It is absolutely critical that at the same time we work to integrate the global economy and maximize opportunities for U.S. workers, farmers, and businesses, we fully preserve our sovereign prerogatives. To better explain how we have sought to achieve those objectives, I will break my testimony into three parts: First, a discussion of the substantive rules; second, a discussion of the administrative structure of the WTO; and third, a discussion of the landmark dispute settlement mechanism negotiated during the Uruguay Round, including a summary of how we have fared under that system. The predecessor to the WTO, the GATT, or General Agreement on Tariffs and Trade, lasted for about 50 years and covered only trade in goods. Since the negotiation of that agreement, though, the global economy has evolved and it now looks much different than it did 50 or 60 years ago. The services sector now accounts for 60 to 80 percent of the U.S. economy. It is the one area where the United States actually has a trade surplus. Protection of intellectual property has come to play a central role in U.S. economic growth. The value of innovation, creativity, and branding, covering everything from movies and music to software to pharmaceuticals to basic trademarks, is a key driver of U.S. competitiveness. As a result, we negotiated new rules in the Uruguay Round to cover services and intellectual property and break down trade barriers. We also modernized and elaborated on the old GATT disciplines, so that they now cover in greater detail issues such as standards, sanitary and phytosanitary measures, and trade remedies. Yet, all these rules share the same hallmarks as the previous GATT system. They set general parameters to eliminate protectionist measures and liberalize trade, while at the same time they allow ample flexibility to regulate in the public interest. Outside general guidelines prohibiting discrimination on the basis of nationality, promoting transparency and the like, the GATT and the GATS--the services agreement--impose few constraints on a country's ability to regulate as it sees fit. In the context of the GATS, a country may agree to open, for example, its markets to foreign firms seeking to provide legal and architectural services, but governments will retain their right to regulate admission, licensing, and disciplinary standards and the like. As another example, WTO rules require that governments base their food safety standards on science. At the same time, though, governments are free to adopt as high a standard of protection as they want, provided those standards are in fact science-based. The GATT and GATS also contain explicit exceptions for measures taken to protect health and safety, national security, and the like. When it comes to intellectual property, the rules we negotiated in the Uruguay Round codified, elaborated on, and made consistent 100 years of international practice and rulemaking, and at the end of the day, the agreement that we negotiated, the TRIPS agreement, effectively obligated other countries to meet standards that the United States by and large already met. But perhaps the most important safeguard with respect to the substantive rules is the way the United States, in accordance with our constitutional procedures, has chosen to implement them. The rules negotiated in the WTO, in and of themselves, have absolutely no domestic legal effect. Instead, the United States implemented the WTO agreements by statute, through the Uruguay Round Agreements Act. Any and all changes to U.S. law necessary to implement the WTO agreements are contained in that act and in subsequent amendments to U.S. law that the Congress may choose to adopt. If the Congress chooses not to amend a law that conflicts with a WTO rule, the domestic law prevails. Other protections are built into the statute as well. For example, there is no private cause of action that may be brought in U.S. Federal courts on the basis that a particular measure--State, local, Federal--is inconsistent with the WTO agreements. And State laws are given similar protection. The WTO agreements don't automatically preempt State laws, and the statute contains provisions establishing procedures for consultation between the Federal and State governments regarding implementation of the WTO rules, including when it comes to dispute settlement. Turning to the administration of the WTO, it is important to recognize that the WTO is a member-driven organization. There is a secretariat that administers the organization, which is based in Geneva, but it has virtually no independent decisionmaking ability. Decisions are generally taken by consensus, that is, by unanimous consent, which means that any member may, in theory, exercise a veto, including, of course, the United States. Now, countries with stronger economic and political clout--which of course includes the United States-- can effectively use this threat to motivate other members to reach compromises that are acceptable to all. Special rules are spelled out in the WTO Agreement for taking particularly important decisions, such as amendments or binding interpretations. For example, core provisions on most favored nation treatment, the amendment process, the decisionmaking process--those rules may only be amended by consensus. No substantive amendment to the WTO agreements can apply to any member that doesn't agree to its application. Turning to dispute settlement: The dispute settlement system that existed under the GATT was overhauled during the Uruguay Round, and the new rules for dispute settlement are set forth in the Dispute Settlement Understanding, or DSU. The DSU is in turn administered by something called the Dispute Settlement Body, which is a subsidiary body to the WTO General Counsel. The Dispute Settlement Understanding, and the process that is set forth therein, provides a forum for resolving disputes over a member's compliance with the rules. But dispute settlement is only available to governments, not to private parties. Private parties can't go to the WTO and bring a claim against any other member, including the United States. The dispute settlement process begins with consultations, and if that fails to produce a resolution, the complaining member may submit the dispute to a formal panel for resolution. The panel is composed of three members chosen by the disputing parties, so there is party control over the process. And if no agreement is reached, the WTO director general will choose the members of the panel. The panel will then issue findings as to whether the responding member has acted inconsistently with its obligations. If such a finding is rendered, the panel may recommend that the member bring its measure into compliance. Either member may appeal the panel's decision to the appellate body, which is a standing body of seven members, one of which is from the United States. The appellate body will then issue its findings and correct errors in the report. The DSB will then automatically adopt the panel or appellate body report, unless it agrees by consensus not to do so--which effectively means that all reports are adopted. It is important, in fact critical, to recognize, however, that regardless of any decision that may be rendered by a panel or the appellate body, the WTO has absolutely no authority to require any member to change a law, regulation, or practice. If a member fails to bring its measure into compliance, there are other options available. It can offer compensation to the complaining member, which may mean, for example, that it lowers tariffs on imports from the complaining member. It doesn't have to do that. If it chooses not to offer compensation, or if no agreement on compensation is reached, the complaining member can retaliate, which means it can impose higher tariffs, for example, on imports from the member found to be acting inconsistently with the rules. But again, the WTO cannot force any member to change a law or regulation or practice. And if a country refuses to comply with a finding, it can't be forced to do so. In a sense, this is no different than what would happen if the WTO never existed in the first place. In such a world, any country could impose sanctions for whatever reason it deemed appropriate. There are, of course, significant differences, which are important. The complaining member, if it goes through the process and sanctions are its only alternative at the end of the day, it receives a stamp of approval from the WTO, and that is important from the perspective of the international community. And the international community may bring pressure to bear on the country that was found to be acting inconsistently with the WTO rules and try to persuade, on that basis, the member to bring its measures into compliance. But diplomatic pressure is vastly different from a system that could compel a government to comply. And again, the WTO cannot compel the United States or any other member to comply with a ruling. The United States has fared fairly well under this system. Since the start of the WTO, we have initiated 75 cases, of which we have settled 24, we have won 24, we lost four, and the remainder are in litigation or being monitored for progress or otherwise inactive. We have been challenged 84 times. As you noted, 52 of those cases have been completed, and of those we have settled 15 and won 12. The number of cases filed by the United States and all WTO members combined has declined over time, as countries in the beginning of the system, back when the WTO first began, essentially picked the low-hanging fruit and there was a pent- up demand that was exhausted during the first few years of the WTO. That, combined with the fact that the WTO dispute settlement system works to deter new breaches, has resulted in a gradual decline in cases over time, but there still is a steady stream of them, as there has been over the past few years. The system isn't perfect, and we recognize that, and part of the negotiations that are going on now are to improve the system. The United States has played a critical role, central role in that process. We have advocated, for example, increased transparency in the dispute settlement process by opening proceedings to the public, opening up the hearings, facilitating public access to documents, and urging members to consider establishing guidelines for accepting, for example, amicus curiae submissions so that members of civil society and others who wish to voice an opinion on the interpretation of the agreements may do so. We have also suggested that WTO members provide additional guidance to panels and the appellate body to help ensure that the process better serves its primary function of facilitating settlement of disputes rather than merely rendering legal decisions. And we have recommended the development of new mechanisms to improve flexibility and member control over the process. In conclusion, I return to where I began, that participation in the WTO has benefitted the United States tremendously. We recognize, however, that efforts to strengthen integration and open foreign markets for U.S. farmers, workers, and businesses must at all times be balanced with appropriate safeguards to protect our sovereignty. As in the past, we will continue to ensure that we preserve this balance as we continue with the current round of negotiations. Thank you. Senator Coburn. Thank you very much for your testimony. Let me ask a few questions of you, if I might. The people who actually make the decisions is from a list of what I understand is experts in the area. Is that right? Mr. Mendenhall. You are talking about dispute settlement panels? Senator Coburn. Yes. Mr. Mendenhall. That is right. Senator Coburn. Who are they? Where is the list? Who makes the list? Mr. Mendenhall. Right. Senator Coburn. Where do they come from? Where is the transparency to know who is making the decisions? Do we know who is--when the dispute settlement body is undergoing a decision, and there is this list of experts that they choose from, who makes the choice of who the experts are that see that; and does the general public, are they aware of who made the decisions? Mr. Mendenhall. Right. The particular panelists in a given case are chosen by agreement of the disputing parties--so the complaining member and the responding party. If they can't agree, then the WTO director general chooses the panelists in close consultation with the parties and others that have---- Senator Coburn. Does that happen, in fact, often that they can't agree? Mr. Mendenhall. It does happen quite frequently that---- Senator Coburn. Let's go behind that. Why is that? Because certain experts will rule one way and certain experts will be deemed to--thought to rule another way? Or we don't believe that they are experts? Mr. Mendenhall. Well, there may be concerns about a particular member having conflicts. There may be concerns about a particular panelist, or proposed panelist, who has rendered decisions that one of the disputing parties may not approve of; it doesn't agree with the approach that has been taken, and so on. So they have the ability to take that into account in deciding whether or not they would agree to a particular panelist. Senator Coburn. Is this all transparent? In other words, anybody anywhere in the world could find out who the list of experts are and who is the experts on each panel? Mr. Mendenhall. There is a roster that is maintained, which is included in our annual report. And that is available. It is available on our Web site--we publish it in hard copy as well. So, yes, the roster itself is publicly available. The particular panelists in a given case are, of course, known, as the ones who are presiding over the dispute are of course known as well. Senator Coburn. You say that WTO rules have no domestic legal effect. That is your testimony. Isn't it true to say that if the United States chose not to comply with these rulings, there will be serious implications about our trade relations? Mr. Mendenhall. I think it is fair to say that if any country doesn't comply, they will face pressure to comply. I think that is true. Now, at the same time, though, that doesn't mean that every country complies in every case. If there is a particular issue that is particularly sensitive for a member, that member may not comply. That has happened. The United States has not complied with several rulings that---- Senator Coburn. Can you give me some examples of those? Mr. Mendenhall. We haven't complied yet with the Byrd Amendment, the finding against the Byrd Amendment. We haven't complied with the ruling against us on a particular intellectual property matter dealing with Irish music. By and large, we have complied, and we have sought to do so. But it is recognized that the Congress, if a law needs to be changed, has the final say on whether or not that law is changed, at the end of the day. Senator Coburn. I am sorry, I didn't hear the last thing you said. Mr. Mendenhall. There are times when the United States, as with other countries, has not complied with a given ruling. And it is recognized in the United States, as with all members, that the final say, if legislation needs to be changed, the final say on whether to do that lies with the legislature. So it lies with the Senate and the House of Representatives whether to implement or not, if a law needs to be changed. Senator Coburn. So the WTO allows countries to impose punitive damages and sanctions if a country does not come into compliance with a WTO ruling. Mr. Mendenhall. Right. They are not punitive. They are capped at the level of economic harm that the inconsistent measure has caused to the complaining member. Senator Coburn. Well, let's talk about France and beef, then. How did we get to the dollar amount that we got on hormone beef going into France? Mr. Mendenhall. We calculated--I don't know if we did France specifically, but we calculated the value of what our trade would have been absent the EC measure that was found to be inconsistent, and that was the level of retaliation that we were allowed to impose. Senator Coburn. OK. And so we collect that? Mr. Mendenhall. Yes. Senator Coburn. We collect a payment from them because they don't allow us---- Mr. Mendenhall. We collect a payment by virtue of increasing our tariffs on certain imports from the European Community. Senator Coburn. Do you happen to know specifically what we responded to in terms of--we had a favorable ruling with the WTO on beef, and where did we increase tariffs? Mr. Mendenhall. That is a public list. I would be happy to provide it to you. I don't have the list in my head. Senator Coburn. Have we complied--other than the two you mentioned, all the other WTO rulings we have complied with? Mr. Mendenhall. We have complied with the vast majority. I would be happy to get you more information on the specifics of that. But we have complied with the vast majority. Senator Coburn. In your testimony you state WTO decisions are taken by consensus, which means that any member may, in theory, exercise a veto. Later in your record, you go on to state that any interpretation of the rules--that is, a type of WTO decision that involves binding trade rule interpretation-- requires the agreement by three-quarters of all members. Mr. Mendenhall. Right. Senator Coburn. Can you explain the difference to me there? In other words, we can exercise a veto, but it can still be binding. How can it be binding? Mr. Mendenhall. Right. Interpretations, that is right. The interpretation rules are slightly different from the general rule. There is a general rule in the WTO that consensus is needed for decisionmaking. That is made explicit or reinforced elsewhere in the WTO agreements when it comes to particularly important procedures, such as the amendment procedure, such as particularly important substantive rules like nondiscrimination, MFN treatment, and the like. The interpretation procedures are a bit different. You are right, they require three-quarters, which I believe, although I would have to double-check it, was increased from--I believe it was increased from a majority in the GATT, although I would have to double-check that. So that is not consensus. Now, I can tell you as a matter of practice that there has never been a vote in the WTO. Members try extremely hard to only take decisions by consensus, regardless of what the rule written on paper may be. If we ever did go to a vote, it would be a landmark event, and we have never done that. In fact, on the interpretation procedure that you cite specifically, I don't believe it has ever been invoked since the beginning of the WTO. I don't think it has ever been invoked even in the GATT, although, again, I would have to double-check that history. So it is theoretically possibly to have a three-quarter vote on an interpretation--but practice is consensus. Interpretation, though, is vastly different than amendment. And the rules make clear that an interpretation cannot go beyond, cannot amend the rules and should not be used as such. And I think members are cognizant of that cautionary rule. Senator Coburn. Is it not a fact that rulings are not supposed to be precedent-setting, but in fact many times precedents are used to justify new rulings? Mr. Mendenhall. They are--you are correct that they are not formally precedent-setting. There is no formal rule of stare decisis in the WTO as there would be in a common law system, like the United States. At the same time, you are also right, and as I said, I think, in my written testimony, that panels and appellate bodies do look to previous decisions for guidance. Senator Coburn. Has that been harmful or helpful for the United States? Mr. Mendenhall. I think it is helpful--by and large, it is helpful for the United States and the system as a whole. It improves the stability, predictability of the system and helps ensure that people understand, countries understand how the rules will be interpreted and applied. So it has been helpful. Which isn't to say that every decision has been in our favor, or that we have agreed with every single finding that any panel and appellate body decision has rendered. But by and large, it has been helpful. Senator Coburn. I understand that the United States has proposed to the WTO body at least two resolutions that would modify the WTO's judicial system and allow for greater transparency and flexibility for disputing parties to work things out through bilateral negotiations. Can you tell me what the outcome of these resolutions are and if these were resisted or accepted by the WTO, and what are in the impact of these outcomes? Mr. Mendenhall. There is no outcome as of yet. Those negotiations are continuing. I think people are taking the proposals seriously. There is an interest by, certainly, a large number of countries in improving transparency and control. But those discussions are ongoing, so I can't tell you what the outcome will be. Senator Coburn. Can you educate me as to why somebody would be resistant to transparency at the WTO? Mr. Mendenhall. Sure. I don't think they should be, of course, but there are a lot of countries in the world--some countries in the world, anyway, that don't have domestic legal systems that operate in the same way as the United States system does, which is highly transparent. It is a concept that they aren't necessarily familiar with. They need to get used to the idea of opening up the court proceedings and opening up the submissions and so on. So in many cases, it is simply an education process more than anything else, that it is new and different, and there are some who may feel that, on top of that, that international proceedings of this sort should be between governments and not open. Now, the United States obviously disagrees strongly with that, and so we have pushed for greater transparency. Senator Coburn. One of the problems CAFTA is facing is the difficulty in Congress being informed prior to decisions being made and, to quote the chairman of the Agriculture Committee, is ``it is not going to happen again in terms of the lack of input. The complications over sugar could have been handled had the Congress been involved.'' The other thing I spoke with Representative Portman about was enforcement of intellectual property rights. And it is my opinion--it may not be a correct opinion--that we lose all the time, even though people are ``in compliance,'' as China supposedly is in compliance. But then they don't carry out the effect of their own internal laws. How is the WTO helping us on the intellectual property? Because that is the only thing that we really have an advantage on today. And where are we going with that in terms of them enforcing? In fact China agrees with WTO rulings on intellectual property rights and yet they don't enforce the law in their own country, what are our options? Mr. Mendenhall. Right. Yes, I think we have an advantage in a lot of areas in addition to intellectual property--services, and certainly a lot of our manufacturing sector, and others. Agriculture is highly competitive. But obviously intellectual property is critical. It is a growing part of our economy. It is an area where we do have a very marked comparative advantage. And so we do need to do all we can to protect the value of our innovation and create incentives to continue innovation in the future. To determine what the benefit of the--let me break your question into two parts. One is the progress we have made so far, and then next steps, where we go from here. On the first part about where we are now and how we got there, I think it is important to look back where we were 10 years ago, when the WTO was first put in place. At that point, a large number of countries in the world didn't have very developed laws on intellectual property, even apart from enforcement. We were in a sense in Phase I of the IP rulemaking world, where we just needed to put the rules into place so at least they had them on the books. We did that through the TRIPS agreement. There has been a dramatic improvement in the rules in the books around the world, including in China, but also in other countries as well. And we are continuing to ensure that happens when countries accede to the WTO, including Russia, for example. We are seeking to do that. The rules in the TRIPS agreement are by and large designed to improve the rules on the books. Enforcement is much harder. I call this Phase II, which is the challenge that is now facing us: How to develop enforcement rules that work. Because as you implied, you can have all the rules on the books that you want, but if you don't enforce them, they are not worth the paper they are written on. So we do need to focus now on enforcement. There are rules in the WTO on enforcement. Unfortunately, they aren't as precise as they could be. They say the enforcement procedures have to be deterrent, sufficiently severe to be deterrent. That standard, we all know, in some degrees is not met in countries like China, and we know that. What we are now in the process of doing on China is working closely with our industry to gather all the information that we can, and evidence that we can, and working closely with our trading partners and with their industries as well to gather all the information we can to demonstrate that we have tried the system, it has been tested, and it hasn't worked, and here is why it hasn't worked, and as a result we have 90 plus percent piracy rates in the country. We could then move forward and demonstrate that in fact there is an inconsistency. The WTO dispute settlement process--which a lot of folks are asking us to use and which we are willing to use if we are confident we can move forward successfully--it is a judicial process, or it is a quasi-judicial process, at least, and we need to prove our case. So even though we all know that it is a huge problem, we need to gather the evidence to do it. And that is a complicated process and that is a time-consuming process, but that is what we are doing. And we are working very closely with our industry to do it. And once we have gone down that road, if we have not seen a significant improvement in China, we have signaled quite strongly that we are willing to go forward and use all the options available to us in the WTO. In the meantime, we intend to use the procedures short of formal dispute settlement in the WTO to see what we can do to pressure China to move forward, including utilizing the transparency rules in the WTO that allow us to go to China and say give us all of your information on your cases so we can see exactly how your court system works and whether it has worked or not, whether it is effective or not. We are going to go forward with that. And we are working with our allies to see if they will join us in that effort. And then even outside the WTO process we are working through a formal bilateral dialogue with the Chinese, through the Joint Committee on Commerce and Trade, to improve IP enforcement in China, including setting benchmarks, setting standards, specific objectives that we would like them to meet. If we don't see dramatic improvement, then, as I said, all options remain on the table. Senator Coburn. I am trying to understand how the WTO helps us in intellectual property. You have the software manufacturers who are hesitant to go forward with a sanction against China, or a case, because they are being blackmailed, in essence, that if you do this, you are going to have worse problems participating in China. The very advantages that you list that we have are dependent--other than agriculture--on our intellectual properties, whether it is manufacturing techniques. We know things are reverse engineered in China, from patented items in this country, and then they are duplicated and the intellectual property is totally ignored. So how is WTO helping us at this time? Ten years from now may be too late for most of our software, most of our drugs, most of our copyrighted music and other things. Once that is gone down the road, then the advantages that we have in these other areas--manufacturing, service industries, and everything else. My question to you is why have we not filed through the WTO for an enforcement action on intellectual property in China? Are we afraid that we are not going to be able to continue the sales growth of our exports there through a blackmail process? I am having trouble understanding how the WTO is working effectively to control and protect American intellectual property. Even though we have the TRIPS agreement, if you have no enforcement, you have no law. Mr. Mendenhall. Right, I agree with everything that you said. It is absolutely critical that we act and we act quickly to address the problem of IP piracy and counterfeiting in China. I couldn't agree more. What we are doing now is trying to find the most effective way to do that. There are several tools that are available at our disposal, but they are not---- Senator Coburn. What are they? Mr. Mendenhall. Well, I went through a number of them in my last statement. We have the ability to work with them bilaterally, which we are doing through the Joint Committee on Commerce and Trade, to address--to reach agreement on specific IP benchmarks and objectives for them to obtain. Now, we did it last year, and we did it just recently--last week, I believe, in China. They haven't fully met all of those objectives. We recognize that. But we are working with them closely---- Senator Levin. May I just interrupt for one second? What is the ``it'' that you did? You said you did it recently. Mr. Mendenhall. The ``it'' is setting forth common objectives with the Chinese---- Senator Levin. Proposing. Excuse my interruption, but be real clear. The ``it'' is proposing benchmarks. Is that what you are saying? Mr. Mendenhall. Proposing specific objectives, including significant reduction in piracy and counterfeiting. Senator Levin. Not achieving them, just proposing them. Mr. Mendenhall. We have reached with China agreement on obtaining a set--or reaching a set of objectives, including significant reduction in piracy and counterfeiting. Have they met those objectives, all of them? No, they have not. They have not significantly reduced piracy and counterfeiting to the level that we would wish them to do so. It is an ongoing process. We are continuing to work with them. But getting back to the question about what the tools are that are available and how we are utilizing them, this is one but not the only tool that we are utilizing. So we are using the Joint Committee on Commerce and Trade to enter into a serious bilateral dialogue with the Chinese to try to set forth a set of common agreed objectives that the Chinese should meet with respect to reducing piracy and counterfeiting. There is a general objective of significantly reducing piracy and counterfeiting in China as well as a series of specific objectives dealing with, for example, accession and implementation of the WIPO Internet treaties to bring their IP laws--to modernize them, allow them to address digital piracy online. We are also working on software procurement issues, working on a variety of other issues. We can provide more information on the specifics, if you would like. That is one tool. It is not the only tool. And it hasn't yet produced the dramatic and necessary results that we would like to see. So that is one tool. Another tool that we have is working through the WTO, and there are a number of procedures that are available to us on that front. One is working together with our allies through the TRIPS Council in the WTO, which is an IP forum, to bring pressure on the Chinese to--international pressure to bear on the Chinese to try to get them to comply. We have done that. Again, and I am not saying we have achieved all the goals we would like to achieve, but these are the tools available to us. Third, we are using the transparency procedures in the WTO to demand that China provide us information on why they believe, if they can put their money where their mouth is and prove to the world that in fact their system is effective in enforcing intellectual property. The last option available to us is dispute settlement, and that is an option that is certainly on the table. We have said to the Chinese that is a very serious possibility, and we are working closely with our industries, all segments of our industry who are interested in having us move forward on a case, to gather all the appropriate information, test the system, have a comprehensive program to make sure the system works in China. If it doesn't work, to provide the evidence to us so that we have a very compelling dossier of evidence that we can go to the WTO and say they failed in the following ways, their court system doesn't work, we have 90 percent piracy rates, or whatever rate it is that we are able to glean from the information that we are collecting, and prove our case in court, essentially, through the dispute settlement mechanism, that in fact the enforcement procedures are not deterrent. Those are all the options that we have available to us, and we are working hard. We are working to utilize all of them to maximize their potential and to ensure that they will actually succeed at the end of the day. Senator Coburn. I am going to defer to Senator Levin here in just a minute. Can you give us a time frame? In other words, the risk to U.S. intellectual property over a period of time not being enforced creates more and more damage to us as a Nation in terms of our future economic model. Because we really don't have a tool, or we refuse to use a tool to enforce this in China. How long can we wait until we bring them into compliance? Mr. Mendenhall. How long can we wait? Well, obviously we need to get them into compliance as soon as we can. That almost goes without saying. But we do need to be able to have all the evidence before us. Now, we have been working very hard over the past several years to gather what we can to demonstrate the case. And just to give you an example of what we have done, last year we submitted, or issued, a survey to all--an open survey to anyone who wanted to respond. We sent it to every Member of Congress, we put it up on the Web site, we sent it directly to companies, every company and trade association that came to us and said they have a problem with IP in China. We sent it to all of them, asking for information on the particular problems they have, how they have sought to enforce their rights, whether it worked, whether it didn't work, and so on. And we have done that. We conducted a special out-of-cycle review under our special 301 process--which is a tool I forgot to mention--to continue that process, gather additional information. We put China in a special category this year. We indicated that they are back on the priority watch list in addition to being under what we call Section 306 monitoring, which I can explain if you want. But they are in a category of their own, indicating that this is a matter of critical importance to us. We set out a work plan in that OCR and we are continuing to work with our industries now to gather any remaining information that we can. Now, obviously we need to move as quickly as possible. But we can't move unless we have all the information that we need. And to a large degree, it is up to our industries to work with us to do that. So we are in the process of doing it. I can't give you a precise timeframe, but we are working with all due haste to try to get it all together and be prepared to move forward, if that is where we need to be at the end of the day. Senator Coburn. All right. Thank you. Senator Levin, you are next for an opening statement and questions. OPENING STATEMENT OF SENATOR LEVIN Senator Levin. Thank you, Mr. Chairman, most importantly for holding this hearing, and you are, it seems to me, performing an extraordinarily important function in terms of trying to weed out what is the wheat and what is the chaff when it comes to WTO. I must tell you, when it comes to trade enforcement, I have seen talk as a substitute for action for so many years around here that I am not surprised to hear more talk this morning. What does this mean, ``all due haste''? It sounds like ``all deliberate speed'' to me. Mr. Mendenhall. What I mean by that is we are---- Senator Levin. The Chairman asked you for a timetable. Mr. Mendenhall. Right. And I gave the best I can give. Senator Levin. ``As quickly as possible.'' That is not a timetable. Mr. Mendenhall. Would you like me to respond? Senator Levin. Yes. I would love you to respond, but with a timetable. This year? Next year? This decade? I mean, China is absolutely not only continuing to close its country to our products, violating our intellectual property agreements, violating WTO, running up a huge trade surplus, manipulating currency, and what we hear is ``we're gathering evidence.'' You have told us they have not even complied with agreements, and that is true. You know it. You have said this again here. What more will it take, and when do you contemplate we are going to get to the WTO if they do not shape up--which they are not going to do. They will enter into an agreement and break it. When are we going to the WTO? Will it be this year? Do we have a commitment that you will go this year to WTO? Mr. Mendenhall. I can't give you a commitment. I can tell you that we are working extremely closely with our industries, all industries that are interested in bringing a case. And it depends in large part on their ability to pull together all the information that we are going to need. Now, I can't speak for industry and tell you when they are going to do that. But they are working on it. And I know they are working on it, so I don't mean this as a criticism of them. But it is in large part dependent upon them. And we are working with them to try to design a program to ensure that we get the information that we need. And that is the rate-limiting step here, if you will. Senator Levin. At the rate you are going, when will we file a case? Mr. Mendenhall. I am not sure what more I can add to what I have said already. Senator Levin. You talk a little too fast for me, I am sorry. Just a little slower on that. At the rate we are going, the current rate--you know what the rate is--gathering information, when will we be in a position to file a case? Mr. Mendenhall. I can't give you an answer to that. I can't foresee everything that is going to come up over the next few months. I don't know the answer to that. I can tell you we have pulled out all the stops to try to move this. It is one of our highest priorities to try to ensure that in fact we are moving forward on this. Senator Levin. Agreements have been violated. Is that correct? Did you not just say that again this morning? We have entered into agreements; they haven't lived up to them. Mr. Mendenhall. What I said was---- Senator Levin. Is it true, they haven't lived up to our agreements that we have reached with them? Mr. Mendenhall. It is true that they have not significantly reduced piracy and counterfeiting to the levels we would like to see them to do so, that is correct. Senator Levin. Is it true that they have not lived up to agreements we have reached with them? Mr. Mendenhall. It is critical for us, if we are going to move forward in a dispute settlement case, that we be able to demonstrate it with all of the evidence as if this were a court. Now, we may all know it to be true intuitively, because we have all heard the horror stories, whether it be--largely anecdotal, but widespread anecdotal evidence that in fact there is a serious problem with IP enforcement in China. We know that. We know that it hurts small businesses, we know that it hurts large businesses. It is a top priority of this Administration to deal with this problem. However, knowing it intuitively is different from proving it in dispute settlement. I think we can--we will be able to prove it in dispute settlement, but we are in the process of gathering all the information we need to do that. Senator Levin. And when you say ``proving it,'' are you talking about proving violation of WTO or proving breach of agreements that we have already reached with China? Mr. Mendenhall. I was talking in the context of dispute settlement, but the same would be true otherwise, for any other reason. Senator Levin. You are talking about proof of both or proof of WTO violations? Is it agreements that have already been reached, or violation of WTO rules? Or both? Mr. Mendenhall. Well, I suppose it is both. But what I had in mind was WTO dispute settlement, since that was the context of our discussion. Senator Levin. OK, now, we have also entered into agreements with China. Is that not true? Mr. Mendenhall. We entered into an agreement in the mid- 1990s on intellectual property enforcement. We reached common objectives last year, not as a formal agreement, but common objectives last year in the context of the JCCT, which provided further elaboration. Senator Levin. And the agreement that was reached on intellectual property in the mid-1990s, have they complied with that agreement? Mr. Mendenhall. That agreement is now 10 years old. Hard to say which of those commitments are now applicable and which are not. When the agreement was first reached, there was a significant reduction in export of pirated materials, which was a key objective. We have seen recently an increase in that. To say that they have definitively breached it or not, if you parse through that agreement, would be difficult to say. Clearly, though, if the overall objective of that agreement, under the TRIPS Agreement, is that they reduce piracy and counterfeiting to an acceptable level, they haven't done that. That is true. Senator Levin. Is part of the agreement that we have reached with China that they will comply with the WTO standard procedural norms, respond in writing to requests for information? Mr. Mendenhall. We are going to---- Senator Levin. No, is that part of the agreement? Is that part of the WTO requirement, that they respond in writing to requests for information from other member countries? Mr. Mendenhall. They are supposed to do that, yes. Senator Levin. Have they? Mr. Mendenhall. We haven't made the request yet. We are doing that--well, let me--I don't know which specific provision you are talking about, but there are a couple of provisions that pertain to transparency. There is a process called the Transitional Review Mechanism developed under the TRIPS Council which is a review mechanism which is done periodically. IP is a prominent part of that. We have requested information, as have other countries. They have provided responses to those requests. There is a separate provision in the TRIPS agreement that allows countries to ask for specific information on specific cases. We are working with our industry on this request. They are happy with the results, with the working relationship we have, to put together that request, and we are working now with our trading partners to see if we can work jointly on that. We expect that request to go in soon. And then China will then have a period of time to respond thereafter. Senator Levin. The transitional review mechanism, is that called ``trim''? Mr. Mendenhall. T-R-M, yes. Senator Levin. It is called T-R-M. Have they abided by accepted WTO procedures relative to that transitional review mechanism? Mr. Mendenhall. Have they responded to questions? Senator Levin. Yes. Mr. Mendenhall. Yes, they have responded to questions. Senator Levin. So we don't have any cases where they have not responded to questions? Mr. Mendenhall. Not that I am aware of, although I can get back to you if there is a specific problem there. Senator Levin. And what does USTR mean when it says it is going to take more forceful action aimed at enforcing China's implementation of those WTO commitments? What do you mean when you say it? Mr. Mendenhall. I mean what I explained earlier. There are a number of procedures available in the WTO that are available to us. Senator Levin. Are there instances where China has not carried out its WTO commitments, in your judgment? Mr. Mendenhall. I think there is a very strong sense that there is a problem that they have on enforcement, that they have not lived up to the standard on enforcement in the WTO. Again, that is much different than saying we have all of the evidence that we need to gather to bring a case. Now, I think we can gather that evidence, but we are in the process of doing that now. Senator Levin. I am way over my time. Thank you, Mr. Chairman. Senator Coburn. I just have a couple more questions for you, if I might, and then we will be free. First of all, thank you for your candor. I understand you can't say something here that puts us in a limited negotiating position by what you testify here, and I understand that and I am appreciative of your position and recognize that. The National Conference of State Legislatures wrote to U.S. Trade Representative Rob Portman in March of this year and expressed concerns with the implications of WTO decisions on States rights, which are in fact major in many instances. What is the USTR doing to remedy the current problem of State lawmakers being out of the loop even though trade negotiations will affect their laws? In what stage of a trade dispute does USTR typically reach out to the States? Mr. Mendenhall. I will answer the latter question first and get back to the former. If there is a dispute that implicates State laws, we begin consultations immediately with the State, particularly the Attorney General's Office and others who have an interest in that. We did that, for example, in the gambling case, which prompted in part, I think, that letter. So we fully consult with the States who are implicated with any dispute all along the way. In fact, I think we are required to by statute, and we would do it anyway because it is absolutely critical that they be involved in the process throughout the time if any of their interests are implicated. So on dispute settlement, that is what we do. On negotiations, we have a similar process, where we have State points of contact that we work with in each individual State. We work with the Governor's Office. We of course have formal or informal dialogue with anybody, including State legislators, that individually or collectively want to ask us questions. We are happy to answer them at any time. But when we put forward negotiating positions, for example, as in the services context, that implicate State laws, we consult fully with the States on them. They have a chance to review the content of the submissions that we would make, the negotiating proposals we put down. They consent or not--in most cases they do. We work with professional associations, including State bar associations if we are talking about legal services, or whatever the appropriate association would be in a given case. So we have extensive contacts with the States at all times. And we will continue to do all we can to improve those lines of communication if a particular problem arises. Senator Coburn. Mr. Barfield is going to be on our second panel, and I read his testimony yesterday or the day before. And he seems to have some pretty good ideas or recommendations for us in terms of changing the WTO. I would consider it a personal favor if both you and Representative Portman would look at some of the recommendations in terms of--actually it is more in terms of transparency and solutions to problems that don't take us down some of these other paths. So I would consider it a great favor if you all would look at his testimony, because I found it very insightful. Do you have additional question, Mr. Levin? Senator Levin. I do. Thank you, Mr. Chairman, just a few. First, on the currency evaluation issue, Article 15 of the GATT prohibits WTO members from using currency exchange action to frustrate the intent of GATT. Has China manipulated their currency, in your judgment? Currency exchange? Mr. Mendenhall. My judgment isn't the determinative judgment. Senator Levin. I know that. But in your judgment, have they? I know it is not determinative. Mr. Mendenhall. I am going to have to defer to the Treasury Department on that. Senator Levin. Well, is it not true that the Treasury Department has said that current Chinese policies are highly distortionary and pose a risk to not just their economy but to trading partners and the global economic growth? Does that sound familiar? Mr. Mendenhall. I am assuming you are quoting a document. They could very well have said that. I would defer to them. Senator Levin. Do you accept that? Mr. Mendenhall. Again, on currency policy, I am going to have to defer to the Treasury Department. Senator Levin. Well, who challenges that policy at WTO? Mr. Mendenhall. Who challenges the policy? Senator Levin. Is that the Treasury Department, or you? Mr. Mendenhall. We would work in close consultation with the Treasury Department, as we do on all issues. We have an extensive interagency process on any matter that may implicate any agency's interest. Senator Levin. But who would actually file the document? Mr. Mendenhall. Yes, USTR would actually file it. Senator Levin. Are you considering filing such a case? Mr. Mendenhall. Well---- Senator Levin. Given their finding and you work closely with them, are you considering filing that case? Mr. Mendenhall. I don't believe they found manipulation. Senator Levin. No, they found current policies are distortionary. Mr. Mendenhall. But they didn't find manipulation. Senator Levin. OK, so you are not prepared to file a case at this time? Mr. Mendenhall. It is not currently under consideration. Senator Levin. Would you be willing to file a case if you found manipulation? Mr. Mendenhall. If we found a violation of the WTO agreements, it would be something that we would always consider. Senator Levin. And if there is an artificial undervaluation of their currency through manipulation, would you file a case? Mr. Mendenhall. I can't commit to filing a case. Senator Levin. Even under that circumstance? Mr. Mendenhall. You are asking me a hypothetical question on whether we would bring a case if particular findings were made. I can't answer that question. It is a hypothetical question. Senator Levin. I think it is a very real question, actually. It is not hypothetical at all. If you can't say you would file a case if you find a violation of WTO, I don't know why you can't answer that case. Why isn't that ``of course you would''? Mr. Mendenhall. The question is whether or not the facts are out there to support---- Senator Levin. No, I didn't. I said ``if you found''. Mr. Mendenhall. If we found it a violation of the WTO, it would be something that we would always consider. I can't speak definitively as to whether or not we would bring a case, since this is a request you are making to me in a hearing. I can't answer that. Senator Levin. OK. Just a couple of questions on auto policy. China's distribution registration system does not appear to allow for imports to be sold in China on a nondiscriminatory basis. For instance, China requires to sell cars in China you have to be a registered manufacturer in China. Is that legal under WTO? Mr. Mendenhall. If you are asking me specific questions about specific cases, we would be pleased to answer those in writing. So if you would like to ask me those questions, that would be fine. We will be happy to respond to them. The topic of the hearing was sovereignty. Senator Levin. It was--I am sorry? Mr. Mendenhall. Protecting American sovereignty. I would be happy to answer questions you may have in that regard. If you have questions on specific cases, specific potential cases, we would be happy to answer them, but I am not prepared today to talk in depth about potential cases. Senator Levin. Well, we talked about intellectual property. Was that American sovereignty? Mr. Mendenhall. I was trying to be as responsive as I could to the questions that you asked. I don't have all the facts available to answer all of the questions that you have on issues that are outside the topic. Senator Levin. I will just conclude, then, by asking you will you, for the record, review China's auto policy and report to the Subcommittee as to whether, in your judgment, there is violations of WTO involved in those policies? Mr. Mendenhall. I will certainly take that back and I will discuss it with my folks, and we would be happy to get back to you and discuss it with you. Senator Levin. As to whether you will do that, is that what you will get back to us? In other words, you are not going to commit to review the China auto policy and tell us whether in your judgment there are violations in that policy of WTO? Is that what you are--you are not committing to do that. Mr. Mendenhall. To tell you whether or not there is a violation? Senator Levin. In your judgment. What I am asking you to do, would you be willing to review China's auto policies and to report to this Subcommittee as to whether, in your judgment, those policies contain violations of WTO? Are you willing to make that commitment? Mr. Mendenhall. I am willing to look at it and see what is available, what the answer is. Senator Levin. Thank you, Mr. Chairman. Senator Coburn. Mr. Mendenhall, I am sorry we moved off of the subject. I know you did not come here prepared to answer a lot of questions on specific trade functions between us and China. So for that, thank you for being forbearing. One last question on our anti-gambling cases through the WTO, in terms of sovereignty. We won three of those, I believe, out of the four. The final outcome of the WTO ruling, there is a particular note because the first time the WTO cited a ``moral exception clause'' in its rules and said the United States had a moral right to restrict marketing access to gambling. Allowing the WTO to discern whether U.S. laws can stand on their moral basis if not their economic raises the WTO to a whole new level. Will other U.S. laws, such as child pornography bans, be subject to the same moral examination? What about Internet child pornography? And what if the WTO rules against us on that? Mr. Mendenhall. Sure. Senator Coburn. Using this moral definition. And I am going back to sovereignty, because we do have the right to do that. Mr. Mendenhall. Sure. Absolutely we do. And it is not the WTO's role to second-guess whether or not our standards of morality fit with any particular panel or appellate body or any other country's standards of morality. And they don't do that. It is up to each country to decide what its standards of morality are. The question that the WTO was trying to answer in the context of a specific exception that allows us an ``out'' to act inconsistently with the WTO for seeking to protect morality is whether or not the measures that we have adopted in fact achieve the ends that we have sought. So we set whatever standard of morality that we would like, whether it be gambling or pornography or what have you. And the WTO doesn't second- guess it. But what it looks to see is whether in fact the measures that we have sought to protect our moral values are truly designed to meet those goals or whether they are an arbitrary protectionist measure. They certainly would not second-guess child pornography and say that is something that ought to be permitted. They didn't say gambling is something that ought to be permitted. We are perfectly within our rights to say it is not. Senator Coburn. But their actual decisionmaking process makes a value judgment on whether or not we as a Nation have a right to set a certain moral standard and whether or not we were using that appropriately? Mr. Mendenhall. No. Sorry if I didn't explain myself properly. It is entirely up to the United States to decide what moral standard it seeks to achieve, and that is across the board, whether we are talking about pornography or gambling or what have you. They do not second-guess that. Senator Coburn. Well, if they are making an evaluation if we were using that properly, is that what you are saying, too? For example, let's talk about the gambling case. They obviously--three out of the four. There is some dispute whether we won all that or not. But three out of the four, if they could prove that our laws on Internet gambling were protectionist instead of we don't want Internet gambling, then its moral purpose is then presumed allowed, or not allowed? In other words, if it is their judgment that we did it from a protectionist standpoint instead of from a moral standpoint, and they rule against us, and they don't allow us to use the moral exception, then in fact they are making a judgment on our sovereign law. Is that not correct? Mr. Mendenhall. Let me respond to that in a couple of parts. The way they would analyze it is they would say--whether it is pornography or gambling of what have you, they would say the United States has authority, ability under the WTO rules to decide for itself whether or not to permit gambling, whether or not to allow child pornography, or any other moral value we would seek to vindicate. What they would then say is, is there a particular reason that you--the United States or another country is, for example, singling out foreigners and saying-- what they said in the gambling case is we singled out for a particular type of Internet services, we had different rules for domestic and foreign operators. And the question is why would you do that? It is not that you can't prohibit gambling, or permit it, whatever you want to do, but why would you differentiate between the U.S. and foreign nationals? If truly you are trying to vindicate a moral value, why would you discriminate? That would be the question that they would ask. They wouldn't be questioning the underlying moral judgment that the United States put forward. Senator Coburn. Thank you very much. I appreciate your testimony and I would hope somebody from your staff will hang around to hear our second panel. Mr. Mendenhall. Thank you. Senator Levin. Just on the gambling issue, could I follow that up? What you are saying, then, is they are saying they are not going to interfere with our moral judgment, they want to make sure that it is applied equally to domestic and to foreign services, gambling services? Is that the heart of their judgment? Mr. Mendenhall. The way the exception is established is it says you can discriminate in certain--they realize that in some cases you may have to discriminate in order to vindicate whatever it is that you are trying to vindicate. But it can't be arbitrary. There would have to be a reason why you would need to discriminate between foreign and domestic individuals-- -- Senator Levin. Does that reason have to relate to the underlying moral purpose? Mr. Mendenhall. It would have to--yes. Well, it would have to--the discrimination that you would seek to be justifying, you would have to argue that in fact the discrimination was necessary to vindicate the moral value. Senator Levin. Thank you. Senator Coburn. Mr. Mendenhall, thank you so much for being here. Mr. Mendenhall. Thank you. I appreciate it. Senator Coburn. Panel number two will please come forward. We have Claude Barfield, resident scholar at the American Enterprise Institute; Robert Stumberg, professor of law, Harrison Institute for Public Law, Georgetown Law School; and J. Robert Vastine, president, Coalition of Service Industries. Mr. Barfield will begin our testimony. Your written testimony will be made a part of the record. If you could, limit your initial comments to 5 minutes. Mr. Barfield. TESTIMONY OF CLAUDE BARFIELD, PH.D.,\1\ RESIDENT SCHOLAR, AND DIRECTOR, SCIENCE AND TECHNOLOGY POLICY STUDIES, AMERICAN ENTERPRISE INSTITUTE Mr. Barfield. Thank you very much for inviting me today. You have my written testimony, and so I am just going to hop, skip and jump around. I would like to make three preliminary points. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Barfield appears in the Appendix on page 54. --------------------------------------------------------------------------- One is that despite the criticisms that I level in my testimony about the dispute settlement system, I am a strong supporter of the World Trade Organization. Second--and we can come back to this--often, and I think sometimes this is true, the critics of the dispute settlement system, of them it is said that they are kind of sore losers, that they somehow represent interests that lost a case or some cases, for instance, of the anti-dumping case or whatever. I should say that in my own case I have this odd dysjunction. I am a very strong critic of the U.S. anti-dumping system, and yet I think the decisions that went against us are wrong. I think the FSC legislation was terrible, but I think the decision that went against us was also terrible. I think the Byrd amendment is a terrible piece of legislation, but it is in the Congress prerogative to pass bad pieces of legislation. So I do not come at this as someone who thinks just because he lost cases that we ought to change things. I am in favor of the outcome, I just did not like the way it---- And then finally, I would say that in my own case, what my position represents today is a change of my own views about the WTO and how it works, and how it works particularly with national systems, with national democracies. I would say as late as 10 years ago, 5 years ago, in my judgment, when you looked at trade negotiations, more is better, and that is, the deeper you went, the farther you went, the better you are. I also thought that the Congress really was an organization of mischief, basically often represented protectionist groups, and that the Executive really was the place one had to look for salvation, as it were, in the trade area. I no longer think that. That is, I still think that Congress can do, in my judgment, make some bad judgments, whether it is Byrd or whatever, but I think the problem we face is that the international rules--and I will come back to this because this is really the theme of what I would be saying-- really have a dramatic impact on the domestic priorities and the domestic rationale for individual nation-states, and particularly they have an impact, I think, and we have to look more and more in terms of impact on the legislative and the representative system of governments in individual nation- states I am talking about. Let me just go more specifically to the WTO, and to take you back to a history here. From the beginning of the GATT and then the WTO, there were two traditions that kind of were juxtaposed against each other. On the one hand, there were those who looked at the GATT as an inter-governmental organization that was an extension of diplomacy, and that if you had disagreements among nations, between nations, you ought to really try to handle it diplomatically, not really worry so much about legal principles or international law principles, but just do what you needed to do to settle the issue. Europeans tended at that time to have that view of the international trading system. The United States was always on the other side, and that is, given our highly legalistic society, we always pushed for strong legal rules, legal interpretations. And the old GATT, I think, was much more European, the new WTO is much more, I think, in what had been a traditional U.S. point of view. I guess in my own case I would say that in terms of the change, be careful what you wish for. And let me just go back to what happened with the move to WTO. Two things happened, and what I think was playing out are the unintended consequences--and any generation would have to go back and look at what you had done. Two things happened in the Uruguay Round. One, there was the creation of the WTO with a new, much more at least quasi-legal if not totally international legal system, international legal rules of trade. At the time you changed the way the system operated, and that is, you went from a system in which when you had a complaint under the GATT, you could not really get--you did not get a resolution in favor of the complainant unless you could get consensus from everyone. That is, a panel could rule, but the United States could overrule that. Now, the United States and other countries were quite restive with that system, and let me be very clear because of where I am coming out. It was the United States who pushed for this change, that you would go in another direction. So the system was changed actually in the WTO so that it went from where you had to have a consensus to reach a ruling, to where once a panel in the appellate body in the new WTO ruled, you had to have a consensus, in other words, unanimous virtually against that in order for that to change. At the same time we kept a system where--as you asked Mr. Mendenhall--in order to have new rules you had to have consensus, or if you had to interpret old rules, three- quarters. In other words, what we set up was a very efficient judicial system, and it continued a very inefficient rulemaking, as it were, or legislative system. In terms of the analogy in the United States, it is as if when the Supreme Court ruled--forget about, I am not talking about things about the first 10 amendments now--when it rules on an issue of commercial, or the Federal courts ruled, it was as if that ruling could only be overturned by the Congress if you had virtual unanimity in the House and Senate. Now, one other thing happened to complicate matters. In the Uruguay Round, for the first time--you had seen this before in other rounds--but really in the Uruguay Round, you had the construction and the implementation of rules that went far beyond the border and deep into the national regulatory systems, or at least in their potential of telecommunications, of financial services, of health and safety, in other words, issues would have been before counted as domestic issues, and in some ways still were domestic issues. And so you put up a fairly rigid new legal system, which would be very difficult to change, juxtaposed against a rulemaking system that you could not change, and the authority of the WTO going deep into matters that had been counted as matters of the nation-state. That I think is the problem that we face. I do not think that there is a conspiracy in the WTO or the panel---- Senator Coburn. Let me get you to sum up, if you would, please. Mr. Barfield [continuing]. To go into or second guess national governments. But I think inevitably what has happened--and we can talk about this in individual cases and we could argue individual cases--what has happened is, is an all too human trait that if somebody asks you a question, there is the temptation always to answer it, even if, as it is widely known, that in many cases the rules that are negotiated by diplomats in the WTO are unclear, they are contradictory. They sometimes are in opposition to each other. And so there is the temptation when that happens to answer the question even though you cannot. I have suggested a variety of ways of fixing this. You could have some sort of blocking mechanism, whereas you have some minority, a substantial minority does not agree with the system, you block it until you can negotiate it out, or you could have--without getting technical in international legal terms, the panels in the appellate body invoke the doctrine of ``non liquet.'' In other words, what they would be--the Latin term means ``it is not clear,'' and to send it back to the negotiators. Or you could put in what we have flirted with in the United States, a so-called political issues doctrine, in which the panel would say, look--I would put the FSC to some degree in that--this is a volatile political issue that we are not comfortable in answering, and you should negotiate this yourselves, and not put it to a dispute settlement system. I will leave it there. Senator Coburn. Thank you. Mr. Stumberg, thank you for being here. TESTIMONY OF ROBERT STUMBERG,\1\ PROFESSOR OF LAW, HARRISON INSTITUTE FOR PUBLIC LAW, GEORGETOWN UNIVERSITY LAW CENTER Mr. Stumberg. Thank you very much for inviting me. Senator Levin, good morning. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Stumberg appears in the Appendix on page 59. --------------------------------------------------------------------------- I have provided a written statement with four points. Let me just frame those points and then spend the rest of my time responding to some of the questions you raised about the gambling case, Senator Coburn. My first point is that trade agreements have a constitutional character, and if, as Members of this Subcommittee, you are familiar with domestic constitutional debates about preemption or about privatization or about takings, you will quickly recognize these debates in the international context. You will see some of the same language in the actual text of trade rules, and you will see the same issues basically argued before the WTO and other fora. Trade agreements are constitutional in the sense that they are designed to limit governing authority, even in areas where discrimination against foreign goods or services is not an issue, and they are also constitutional in the sense that the rules are very general, even vague in the way they are formulated. My second point, which I will return to, is that a good case study to see all these things at work is the WTO's decision on Internet gambling. But before I return to the gambling issues, let me also mention that there has been a developing dialogue between USTR and State and local governments on the so-called sovereignty issues. USTR has made a number of very clear statements on its web page. You can view them there. I have spoken to a number of State and local officials who feel like the responses just are not attentive to their concerns. In other words, you have two groups that are coming from very different cultures and perspectives, and the kind of consultation that is necessary to avoid problems like the gambling case presented has really not taken hold yet. There is no traction yet in terms of any meaningful, Federal-State consultation, and that is really my fourth point. Congress can play an important role by creating a forum to encourage people to come together and have a public dialogue about such issues as you raised about the gambling case. So let me just spend the rest of my time making a few points that I think are responsive. Even when the United States wins a case, there is a lot you can learn from it. This is one of the very few cases on the services agreement, the General Agreement on Trade in Service (GATS). Mr. Vastine's coalition has worked very hard to GATS put in place in order to promote American exports of services abroad.economy. What the gambling case says to me is that making a commitment in a sector like gambling services is like hugging a porcupine; it can be done, but you have to do it very carefully if you do not want to get hurt. Among the lessons we have learned from that case are, first of all, as the WTO appellate body recognized, the U.S.'s commitment on gambling services, which was made back in 1993 and 1994, was essentially a mistake. It was a mistake that could have been avoided had there been effective consultation between U.S. trade negotiators and the legions of State-level officials who regulate this industry on a day-to-day basis. Second, the GATS rule that the island Nation of Antigua used to challenge the United States was interpreted very expansively by the WTO appellate body. It is a rule called ``market access.'' What is interesting about that rule is that it has nothing to do with discrimination against foreign firms. It is a rule that has to do with whether or not governments at any level may impose quantitative limits such as licensing monopolies or a limited number of service providers or imposing a quota. The WTO ruled that in this case, a ban on Internet gambling amounted to a zero quota. That is a very controversial decision. You might say it is a bad decision. But that is the job of the Appellate Body, to interpret language that is so vague and open-ended. They did their job, and used the role to find the United States in violation. The U.S. Trade Representative (USTR) effectively defended the United States with respect to all but one measure, the Interstate Horse-Racing Act, which permits remote betting for horse races. What is interesting about the public morals exception, as interpreted by the WTO, is if the USTR persuaded the Appellate Body that there were public morals concerns that were specific to remote gambling. In the Internet gambling context, these include accessibility to children through the Internet or the potential for money laundering or other connections to organized crime through Internet financial transactions. But those rationales do not apply to the kind of economic regulation that State and local governments have in terms of creation of monopolies, tribal casino concessions, State lotteries, and other sorts of quantitative limits that are common in the United States. Finally, one of the most interesting things about the case is to anticipate the end game. If the Congress does not move expeditiously with respect to amending the Interstate Horse- Racing Act, the WTO dispute process provides sanctions that include alternatives even for a small country like Antigua, which I think has about 90,000 residents. It is a country which is obviously too small to have any meaningful options in terms of a trade sanction when it comes to imposing tariffs on imports from U.S. goods and services. We would not even notice. The academic literature suggests that Antigua will follow the lead from Brazil, which just this past week has published its blueprint for how it will apply sanctions in a cotton case which Brazil recently won against United States with respect to a number of commodity subsidies and export promotion credits for cotton exports. Even a tiny country like Antigua can decide to withdraw its trade commitments with respect to honoring U.S. intellectual property rights. And the list of property rights that Brazil used, and which Antigua can use as a model, include copyrights, trademarks, industrial designs, patents, and protection of undisclosed information. That is a significant sanction stick, and it raises important questions about how the United States should make its future GATS commitments. Senator Coburn. Thank you, Mr. Stumberg. Mr. Vastine, thank you. TESTIMONY OF ROBERT VASTINE,\1\ PRESIDENT, COALITION OF SERVICE INDUSTRIES Mr. Vastine. Thank you very much. I am Bob Vastine, President of CSI. Under another hat, I am Chairman of the Inter-Agency International Trade Committee on Services, an official advisory body of the U.S. Government, created in the 1974 Trade Act. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Vastine with attachments appears in the Appendix on page 63. --------------------------------------------------------------------------- I appreciate the opportunity to be here today. This is the first time I have had the pleasure of testifying to a committee of which I was once the staff director. Since Senator Levin has left the room, I'll confess I was a Republican staff director. I want to say that my testimony is mainly focused on U.S. commercial stake in the WTO, though I am going to try to ad lib about regulation. First of all I want to make the point that CSI's member companies include virtually every aspect of U.S. services, tradeable services. We operate in more than 100 countries. Our global sales are over 800 billion. We employ about 2.2 million people globally. These companies are absolutely committed to the WTO and to the Doha Round as the best means of obtaining global trade liberalization to expand their foreign markets and create more jobs here. U.S. services trade consists of two elements, cross-border trade and sales by U.S. foreign affiliates to foreigners. The total of this trade, cross-border and affiliate trade, is $740 billion, more than the GDP of Canada. Cross-border trade, is like financial services that are traded electronically, but it also means trade conducted by people, people who travel, who come here to buy health services, who come here to buy education services. Every time a foreign student matriculates at a U.S. university, that is an export. We are very good at this. We are also very good at sending our experts, our lawyers, our accountants, our computer consultants, abroad to other countries to provide their services personally. All of this amounts to total cross-border exports, as I said, of $338 billion, where we have a $50 billion annual surplus. We are also the most competitive country in sales from foreign affiliates, $402 billion in sales in 2002. By the way, since you are the Governmental Affairs Committee, responsible for oversight of our statistics programs, I would love to talk to somebody on this Subcommittee about needed changes in the government's programs for compiling these statistics. We are dealing with 2002 data. It is too old. As I said, we are committed to the WTO. CSI was created in 1982 because there was at that time no mechanism, no legal framework, for conducting trade in services, for creating rules for free trade in services, and CSI had a great deal to do with the writing of the General Agreement on Trade and Services (GATS). We believe that GATS is essential, because, Senator, it is the only way we can obtain legally binding commitments as to the treatment of our foreign investments and our export industries. In order to invest millions, sometimes a billion or more dollars in a foreign affiliate, a U.S. company needs legal certainty. The best way to get that legal certainty under the WTO is commitments in the GATS which are legally binding and therefore subject to dispute settlement. So in spite of the flaws, the discussion we have had today about dispute settlement, it is really an essential part of the post-Uruguay Round world, and very important for our member companies. Achieving legally binding commitments subject to dispute settlement is very important. I am going to skip a lot of my text, and I wanted to tell you how the Doha Round is in crisis, and ask your help in dealing with that, but I want to talk a little bit about regulation from my standpoint as having observed closely, the trade negotiations process really since 1965. The U.S. Trade Regulation is acutely aware of the need to preserve the right to regulate federally, State and locally. We know that USTR is very aware of these State regulation issues, for example, insurance. Insurance is regulated State by State under the McCarron Act, there is no Federal regulator for insurance. There are State commissioners. There is no common standard of State regulation insurance. It is bad for U.S. insurance companies operating nationally. It is very bad as well for foreign insurance companies that have to operate with a 50-state regulatory system. Other countries have asked in the Doha Round that we change that system. We cannot change that system. We are not going to be able to change that system. We are not going to be able to override the States. The best we can do is try to urge on these commissioners the need to consult among themselves and create harmonious, sensible regulation. But for now the whole insurance industry is held back domestically and globally by this system of State regulation, which is not going to be changed by the WTO. The Federal system creates equally complex problems for the law profession, for the engineering profession, for the construction profession. So we are very aware that in the areas where State regulation--and it is a big piece of our services trade--prevails, we have problems. Now, in my experience, in no case has the United States obligated any State to regulatory rules that a State has not voluntarily accepted. We just made a new offer in the WTO. We revised our previous offer. That offer included some changes in regulation that States had voluntarily adopted in the last 2 years. Before including those changes in our offer, the USTR went to every single one of those States and got their permission to do that. Now, that does not mean that the professor is not correct. I would say the greatest crying need right now in this era of when some State legislators are rebelling against the WTO--based often on hearsay, innuendo and frankly, wrong-headed stories about the evils of the WTO--the best thing USTR could do would be to beef up its state-wide operation. They need a former governor, a former noted head of assembly or Senate or the State legislature to come be a counselor to the USTR, to be at Portman's right hand, to be a main point of contact for the States, to call the 50 States Attorneys General, the Supreme Court Justices, etc. Senator Coburn. Let me get you to sum up, if you would. Mr. Vastine. So I think I have made my point. I think we do have an issue with State regulation. In my own experience, the USTR is extremely sensitive to the need not to tread on the States, but we need to do a lot more work with the States themselves. Thank you. Senator Coburn. Thank you. Mr. Vastine, you just said we need the legal certainty of the WTO, and let me bring a case to you: Zippo lighter. Total piracy, there is no legal certainty for them. There is no enforcement mechanism. There is no punitive action that is going to be taken against the Chinese because the Chinese did not enforce it. So tell me what the legal certainty is when you have laws that are not enforceable, or we will not through our own political benefit enforce the sanctions that are available to protect intellectual property or piracy. I do not know if you have read the article on that. The Chinese make three or four times the number of Zippo lighters than Zippo makes, and with Zippo's lifetime guarantee, they all started coming back in because they were junk. Here is an American company whose intellectual property--i.e., a quality product with its name brand on it--was pirated, and yet we have done nothing about that. So tell me what you mean by ``legal certainty.'' Mr. Vastine. I will try to do that. It is difficult not to get caught in the China problem, which is a vast problem. But let me give you some background. We worked very closely with the USTR in writing the agreement with China, the bilateral agreement between China and the United States, which laid out most of the rules that China is now supposed to be implementing. And we worked very hard for PNTR passage in Congress because we felt that agreement was a very good agreement. Now, we have a large number of industries and companies that have been having adjustment problems working with the Chinese to get them to implement their agreements. I don't know anything about Zippo, so I can talk to you only---- Senator Coburn. You know zippo about Zippo. [Laughter.] Mr. Vastine. Thank you. But I can talk to you about our service's experience. Some of these companies are software companies, and some are entertainment companies, and they are all acutely aware of the IPR problems. And we join them in bringing constant expressions of concern to bear on USTR and on the Commerce Department about these violations. Senator Coburn. Let me interrupt you for a minute. Is it not a fact that the software manufacturers chose not to push for enforcement of the very laws that the Chinese were violating in terms of intellectual property? Mr. Vastine. Well, that is what I am getting to. The decision to go to the WTO and file a case is a complex decision. It is a difficult decision for a company. We have companies in, say, express delivery who, on the one hand, are doing extremely well. Their sales in China have vastly increased. On the other hand, they have unfair competition with the local Chinese postal office, which is giving them a hard time in a number of ways. What does a company do in a situation like that? You have to put yourselves in the shoes of the company, and you can understand that they want to protect their position. They are doing well. On the other hand, they need to continue to argue for fair treatment vis-a-vis the China post or whatever entity may be in competition with them; the same thing in the insurance sector. It has taken years to get the insurance regulators in China to come around to beginning to implement their commitments in insurance services. Senator Coburn. Let me get you to answer my question. Mr. Vastine. So I am having a hard time answering your question. Senator Coburn. Is it true or not? Mr. Vastine. Is what true? Senator Coburn. That the software companies felt intimidated for their future market to not file a complaint. Mr. Vastine. I do not know that, Senator. I do not know the facts. I just do not know. Senator Coburn. Well, the problem I see with your statement, legal certainty, is there is no legal certainty when it comes to China. I am just talking about China. I am not talking about all of it because I know we have wonderful trading partners that do protect our intellectual property. But, in fact, if you have a system where the leverage is such that even if you have a legal remedy, the leverage is such by the country that is working it will not carry out the proper factors of that, you really have no legal certainty. We do not have that in terms of intellectual property. Mr. Vastine. There was a case--and maybe Mr. Barfield knows the case. Senator Coburn. Mr. Barfield---- Mr. Vastine. We brought a dispute settlement case 6 months ago to the Chinese. We took it to Geneva. They settled immediately. Senator Coburn. Which case was that? Mr. Barfield. I do not know the case. Senator Coburn. Mr. Barfield, would you like to comment? Mr. Barfield. My only point is that I do not--the answer to your question is yes. But I do not think we can limit this to China. We can take up an issue that is about to maybe got to the WTO, very much, I am sure, on Congress' mind and the Administration's mind, and that is the Boeing-Airbus. For a decade, at least, the United States did not bring that case because the Boeing Company had reservations about what it would do with its markets in Europe, a sort of open secret. So I think you are right in terms of what is happening in China, but that is part of a calculation, as Mr. Vastine was saying. When you bring this case, a company or the government has to think, well, how does it fit with--this or any other case, how does it fit with our overall trade relations and, in some cases, diplomatic relations or security relations. We ought to admit that all of these things work as a piece of that decisionmaking process. But it is not just China. It is true with our other trading partners, too. It would be true probably with--we have relations with Brazil. We are calculating what we would do there. Senator Coburn. For example, the recent negotiations with Merck where they told them that they would reproduce the drug themselves unless Merck dropped the price. Mr. Barfield. That ended up--I think the U.S. Government did not get involved in it, but---- Senator Coburn. No, we settled it. Mr. Barfield. Merck had to calculate what does this do about in this case Merck's overall international corporate strategies, and Merck decided that it would be better to fold on this. In other cases, if you take, let's say, the pharmaceutical companies in terms of Canada, for instance, and cross-border, they are holding the line. But these are--in each case---- Senator Coburn. My point is there is no legal certainty. Mr. Barfield. That is true--well, the legal system is embedded in a larger political system. Senator Coburn. Right. So it is not a legal certainty because if, in fact, I make XYZ product and I have to make a way, not on a legal basis but on an economic basis, an international relations basis, diplomacy basis. So, in fact, we are to a position---- Mr. Barfield. Well, legal---- Senator Coburn [continuing]. Where the purposes of the WTO are good and long term maybe very positive. The real fact is there are a lot of other players, things that play into whether or not we get enforced trade law as to whether it is, and we turn a blind eye when it is not necessarily in our total national interest. Mr. Barfield. That is right. And I would hope--and I would agree with this or the Clinton Administration or whichever Administration it was that did it. The President has to look at this in terms of not just our trade policy but our total diplomatic and security---- Senator Coburn. Let me come back to you. I asked Mr. Mendenhall this. How many years can we afford to continue to lose in the international markets the very intellectual property that Mr. Vastine represents through his service industry and continue to be able to compete? Mr. Barfield. Well, I actually think we could go for a long time, because I think actually what is happening is that other countries are kind of chasing their tail and we are--the aim that we--I think, as I would have said 10 years ago about Japan or others, I would look internally as to how we are handling our own innovation system. This is not to say that I do not think at some point the United States should not bring a set of cases on intellectual property. You were hammering Mr. Mendenhall correctly, but what he is dancing around is that the Administration basically thinks that if you look at our total relations with China, if you look at the way they are at least attempting to live up to their WTO obligations, which were far beyond the obligations that any other big country has ever undertake, just for membership, they figured--and this is true with the Europeans--we do not want to inundate the system. We could hammer the Chinese with a number of cases, but their worry has been--and maybe we are coming to the end of that-- that this would really overload the system. If you really just sort of--a dozen cases against Chinese and, you could second- guess that or say that is an incorrect judgment. But I think that--he could not say this, but I would say it, that, yes, they are calculating a number of political things beyond just intellectual property and beyond trade. They are probably looking at Korea. They are looking at other things. Senator Coburn. Let me get back to sovereignty for a minute, our sovereignty as we have patent laws, we have internationally negotiated both through bilateral agreements and WTO the recognition of intellectual property and patent laws. Let's say I am Merck and I spend $1 billion a year researching HIV drugs. And then wherever I go around the world, because of our lack of trade sanction enforcement, all the companies say we are not going to allow you the return on investment to pay for the research that you had on this drug. Why is Merck in the future going to invest capital in research and the production of intellectual property if, in fact, they cannot get a return and we will not reinforce or enforce the very agreements that we have? Let me just background that for a minute. In this country, we pay 50 percent more than anybody else in the world does for pharmaceuticals. Part of the reason is because we have not enforced our intellectual property rights because we have been blackmailed to say, well, we will just allow somebody else to make it under your patent and we will not honor your patent. And they know that will be a long fight, and it will come through WTO. But, in fact, we are being blackmailed. So, consequently, the American people are paying, they are subsidizing the rest of the world's pharmaceuticals through the prices they pay. We are getting ready to have Medicare D, which is going to, again, subsidize the rest of the world's pharmaceuticals, because we do not have a cogent trade policy because we have fixed in this overall parameter of things that maybe it is better for us not to. The costs of not recognizing that are weighing a tremendous burden on this country, and it is very short-sighted for us to not look at that. So the very consequences--and this gets back to the sovereignty of our intellectual property, i.e., the sovereignty of a patent of rationalizing that it is in our best short-term interest to not enforce it, but it ignores our long-term interest. Who is going to invest the capital in our drugs in the future if, in fact, our intellectual property is not done. And there you are challenging our own sovereignty because we undermine our sovereignty because we will not enforce it. Mr. Barfield. Well, I would say that, in general, whether it was--I could be bipartisan. I think it was the Clinton Administration and it is true with the Bush Administration. We are enforcing it in the big markets, and I think we will continue to do that, and I think we will back our companies--I hope we will back our companies, for instance, in the whole--I mean, you may be on the other side of this, the whole--the way they are reacting to parallel imports from Canada, because you have got to maintain the price structure. And, indeed, I fully agree with you that the proponents of just giving away all these pharmaceutical products in terms of let's take AIDS, the market signal you are giving to the pharmaceutical companies is do not invest in AIDS drugs because they are going to hammer us, we will not be able to get our return. And that is a terrible signal, and I think the Administration and previous Administrations have been cognizant of that. I think where it gets complicated is with--I do not know anything about Brazil, but with African countries, for instance, where there is no infrastructure and indeed the price is probably not the question. But you at least have to do something about that. The key to the answer--and we are off the subject, I think, of sovereignty. The key answer here is that we have got to enforce parallel import restrictions. It is perfectly good to allow our companies and encourage our companies to send drugs at much cheaper prices to lower economic developing countries in Africa, as long as those drugs don't come back to Sweden, because that is what will really kill Merck, that it is the developed country markets, and that I think is the answer. Senator Coburn. Well, but that subsidy--that is not a real market. What you are saying is we are going to allow, through the international---- Mr. Barfield. No, we--Merck is producing at market rates. They are pricing for the world. If we undercut that--and the biggest way you would undercut that would be to have--we are not saying---- Senator Coburn. We are not---- Mr. Barfield [continuing]. To Merck you have got to send those drugs to Africa. They are not---- Senator Coburn. We are pricing---- Mr. Barfield [continuing]. Protecting Merck from---- Senator Coburn. We are pricing for the United States and subsidizing the world with pharmaceuticals. Mr. Barfield. We have a worldwide pricing---- Senator Coburn. Mr. Stumberg, do you agree with Mr. Vastine that the States are voluntarily changing laws, or are they feeling pressure to change laws? Mr. Stumberg. Probably neither, sir. Most State legislatures and State officials are not in the loop whatsoever. They are continuing to make their decisions like they used to. Some of them wake up in the morning, read the newspaper and are surprised to learn that a kind of law they have been making for years is now the subject of a trade dispute or at least it is being negotiated for the first time. I think that is perhaps a more realistic description of what is really going on. If you look at the U.S. schedule of GATS commitments, which is the progeny of the Coalition of Service Industries work in partnership with USTR over more than a decade, you will see that there are a number of specific sector commitments that represent the priorities of the United States in terms of those big markets. Within that big schedule, you will see that there are some States that are--I am using jargon here--listed as limits on U.S. commitments; in other words, some specific State laws are being carved out because USTR talked to those States. I will give you one example because Oklahoma is on the list, I believe. There are a number of States that have explicit limits on who may actually own land, including ranch land. By my count, there are 17 such States. USTR intended to carve out those States with respect to a GATS commitment on access to real estate for purposes of commercial wholesale and retail distribution services. There are only seven States listed on the U.S. schedule, which does not reflect the 17 that actually have these kind of laws, two of which are actually constitutional. I think Oklahoma and Nebraska are the ones that actually have constitutional provisions. Senator Coburn. This is corporate farming prohibitions. Mr. Stumberg. Right, exactly. I interviewed a number of lawyers who worked for Western State governors just to see whether these turn-of-the-century--the prior century--laws really were a priority of the governors, and somewhat to my surprise, the answer was ``yes.'' These are laws they want to safeguard. So I cite this just as an example that there sometimes is consultation. Even when there is an attempt at consultation, it is often incomplete because the process is so complex and so hurried. I think your point, Mr. Vastine, that USTR does not have the person power to effectively manage its relationships with States is well put. But I would go farther. I would say it is not just a matter of perhaps making a mistake with respect to reserving State authority about regulation of land use or ownership. And it is not just about making a mistake with respect to a gambling sector. It is a much deeper question of managing that complexity but at the same time appreciating that the bottom-up perspective of American federalism, which champions laboratories of democracy and local experimentation, is a very different and in some ways conflicting idea with the essential purpose of the WTO trade rules, which is to make for a more uniform set of rules by which the global economy can operate. Both are positive values---- Mr. Vastine. And I think we have been accommodating them, and I hate to hear you say that there is some sort of effort to undermine the States. Mr. Stumberg. I did not say that there was an effort to undermine the States. I am saying that the system appears not to be working very well, and I have given you an example. The example is that in the context of gambling, where there appears not to have been effective consultation in 1993, which 10 years later led to a major trade dispute. That is the time frame--you have to plan your legal moves anticipating something that might happen in 10 or 15 years. Now we are on the cusp of another decision. Should the United States withdraw its commitment to gambling or not? That is a big strategy question in terms of the current round of GATS negotiations. Are Attorneys General being consulted by USTR with respect to the strategic tradeoffs on that very important decision? And according to the Attorneys General, just a month ago, the answer is ``no.'' Senator Coburn. They are not being consulted. Mr. Stumberg. They are not. Senator Coburn. So are there specific recommendations other than the ombudsman position that Mr. Vastine--that you would make to the USTR in terms of how to make this more fluid, competent, and consistent with States so that we can negotiate reservations, if that need to be the case, for State positions? Mr. Stumberg. Well, let me start with something safe, and then venture out from there. The USTR's own advisory committee called IGPAC, the Inter-Governmental Policy Advisory Committee, which USTR appoints (these are hand-picked State and local officials), wrote a report this spring which called for much deeper and broader consultation with States. Their point was that USTR needs to be talking not to the governor's policy adviser for trade, who wears a lot of hats and is basically a political agent for the governor, but rather, the people in the State governments who actually make decisions about protecting State sovereignty: The lawyers in the Attorney General's office and people such as utility regulators, whoever is the relevant agency. That level of consultation has only occurred in rare circumstances, for example, insurance and accounting. It has not occurred across the board, and that leads to a second obvious need, which is capacity. But I would argue that while USTR is obviously understaffed to take on meaningful consultation with State and local governments, the real step forward will come when the State and local governments themselves organize in such a way that they can bring their issues to USTR, just like the Coalition of Service Industries brings its issues to USTR. You cannot make USTR big enough to handle a country as complex as the United States and its Federal system; rather, I think the movement has to come from the bottom up. But if you think about the role of Congress--and this is the final point in my testimony--Congress I think could play not only a catalytic role with hearings like the one you called today, Congress could provide a friendly forum, a neutral forum, where State officials and USTR are encouraged to come and have a public dialogue where it has not happened before. And the kind of close questioning that you showed earlier with respect to USTR and its China policy, if applied to American federalism, would open some eyes and help USTR understand that federalism is a priority in trade negotiations. Remember, the USTR's job description is set by the President of the United States and the Congress when you authorize negotiations every several years. If federalism is not spoken from either branch of government, then---- Senator Coburn. You are referring to the fast-track legislation. Mr. Stumberg. I am. Senator Coburn. Thank you. Mr. Barfield, are you concerned that WTO may become a mechanism for political international activists, that we look at this--what can potentially come out of this gambling, like the Kyoto treaty or something like that? Is there a potential for it to move to a position where the implication of other policies outside trade implicate and influence trade decisions? Mr. Barfield. Yes, there is that possibility, and this is not sort of Henny Penny, the sky is falling, but let me walk you through the way another new character of the WTO beginning in 1995 was that in legal terms, without getting heavy into legalese, the WTO much more became a part of what is called public international law. And there are certainly legal scholars who argue that precepts of public international law now cover the WTO, that is, outside of trading rules. There are articles, for instance, in legal journals and some governments have commissioned pieces about, well, could we bring the United States to heel because they have not signed the Kyoto treaty through some Article 20---- Senator Coburn. Would you be kind enough to reference those to the Subcommittee? Mr. Barfield. Sure. Senator Coburn. Thank you. Mr. Barfield. And other, the so-called morals clauses that Mr. Mendenhall talked about, the escape clauses, that is, that nations can implement particular--and then enforce them, particular policies and then try to enforce them with trade sanctions, so that there are also discussions about how human rights would come into the WTO. Now, let me be very careful here. That is something that I would hope that the Congress of the United States and other countries would be very careful to watch. The United States has to decide what it wants to do here. But to pick up on this discussion that was talking about State versus Federal, I think the same thing is true at the congressional level. The truth of the matter is I am in favor of fast track, but I have to say that I know the reasons from the trade side that is important. You are not going to get people to come to the table. That is what Mr. Vastine would say. It is what I have said. On the other hand, the truth of the matter is Congress in the Uruguay Round was presented with a mass of new rules, which, again, no conspiracy here, it was just impossible, even with much larger staffs than you had, much larger staffs than the government had, the implication which you could not particularly fathom, particularly, as I say, in services and health. This is all inside the border. The other thing is true that, again, when you look at the way negotiations are handled, USTR is being asked to make judgments about telecommunications policy or financial services policy. Now, they often depend on the other agencies, but these are issues that I think should be front and center with the Congress as it goes forward. And I say this as a supporter of the system. But these rules do have an impact on what we have counted as domestic issues. And we should be very careful--I am not suggesting that we should stick our head in the hole and say there are no international rules. But we need a better system of judging where you will give up--``you'' being the Congress--will give up authority to some international body, and you in speaking for the States will give up authority to some international body. And I think that system is increasingly, it seems to me, under challenge. As I say, it is the way of the world today that for a lot of reasons, because of globalism, there are a lot of people who are arguing for particular rules that we need across the board. Industry, by the way, just as you find in the Federal system of the United States, will at some point sometimes be tempted to say, gosh, instead of going to the States, 50 States, let's go to the national government and settle it that way. You will find that same translation, I think, sooner or later--in the international level. Why do we have to deal with the rules of the United States versus the rules of the Europeans versus the rules of the Brazilians if you are--take the name of a company, if you are a multinational. But from the point of view of the elected representatives of United States democracy or the European Union evolution or Brazil or whatever, I think that ought to be a very much more careful process than we have had so far. And in my judgment, the dispute settlement system kind of adds to that. Mr. Mendenhall was not, I think, purposely being evasive or disingenuous when he said, yes, the Congress can--correctly, yes, the Congress--nobody can overturn the congressional rule. A WTO rule, the Congress does not have to agree to it. The problem with that is the way the system works. Your only alternative would be to withdraw from the WTO, and so you get these--you get a FSC case or another case, and it is kind of individual cases, none of which add up, in my judgment, to a decision the United States should pull out of the WTO. But your alternative is to swallow the case and say, all right, well, and we will negotiate it. And then the problem there is that once you have won a case in the WTO today, it is very difficult then to get somebody to go back and--if the European Union-- they won on the FSC. Do you honestly think the European Union will go back and then negotiate a rule that allows us--it is just not in the cards for that to happen? Senator Coburn. So, in fact, there is significant impact. Mr. Barfield. Sure there is. Senator Coburn. Yes. Any other comments? Mr. Vastine. Senator, I cannot let you--well, you wanted to make the point about---- Senator Coburn. I want to make a broader point, so go ahead. Mr. Vastine. I will make my broader point, too. Senator, our companies care deeply about obtaining legal commitments to the WTO. I cannot let the hearing end with you thinking that the Chinese accession and the membership in the WTO does not have legal value. We would not be discussing the potential for a dispute settlement process if it did not. At least China's accession gives us the ability to come to the Chinese in a number of forums and try to enforce our rights. It gives us rights to enforce which we did not have previously. So China's accession to the WTO and its membership there are very valuable. We are very lucky that the Chinese did it when they did and that leadership was willing to take the extraordinary bold step of subjecting that very rigid state- owned economy to market discipline. And it is a difficult process for them. It is a difficult process for us to adjust to globalizing the Chinese economy, but at least if they are in the WTO, at least we have these avenues to approach them. As to legal certainty, I hear your point. But our companies do believe---- Senator Coburn. Those were your words, not mine. Mr. Vastine. I know. Senator Coburn. I was quoting back your words. Mr. Vastine. I accept that, and I stand by them. They do want the legal--they want it in writing. They want to see that, for example, the Saudis in the negotiation that is going on this very minute do not have the right to mandate sessions, insurance sessions to internal parties. I mean, we fight these agreements down to the last word. Senator Coburn. I recognize their value. Mr. Vastine. OK. Senator Coburn. But a right not exercised is a right not used---- Mr. Vastine. And there are---- Senator Coburn [continuing]. And a right not used is a right lost. And when we choose in the short term, on a short- term economic model--and that is the whole question. The real thing that is in front of Congress that is worrying us about the Chinese, just to be--it is not that we are not sitting up and that we are not progressing. It is will we progress to the place where they are a legal, aboveboard player in time to save our own economy. Mr. Vastine. Yes. Senator Coburn. And that is the real question in front of the Members of the Senate and the Members of the House. They are not playing by the rules now, period. Even though they are in the structure and on the team, they are like the bully that does not play by the rules. They go behind the barn and change the rules and then come out. And that is on intellectual property. That is on reverse engineering. And it is happening routinely. Now, maybe it is less. Maybe it is not. And the Congress is for them being a part of that. That is not the issue. The issue is whether or not you use the tools that they have agreed to to enforce the very outcome rather than make a short-term situation that we are better off now for our business, but we lose the business in the long term. So it is about a short-term view versus a long-term view. I just happen to think that we ought to be thinking about the long term. And it ought to cost them something now for stealing. And that is what it is. It is theft of intellectual property and future for the companies of the United States. Mr. Vastine. It is infuriating. Senator Coburn. I want to thank you each for being here. We have gone over our time. I appreciate you waiting for the long time that we had Mr. Mendenhall. And I thank you for your contribution. We will have some questions, and, Mr. Barfield, if you would give us those references, I would very much appreciate it. Thank you all very much. The hearing is adjourned. [Whereupon, at 11:33 a.m., the Subcommittee was adjourned.] A P P E N D I X ---------- PREPARED STATEMENT OF SENATOR CARPER I would like to thank our witnesses for being here today to discuss the important role that the World Trade Organization plays in arbitrating and enforcing international trade rules and agreements. This work protects American businesses' access to foreign markets and ensures that foreign producers do not engage in unfair trade practices in the United States, such as dumping, that can undermine our domestic goods and service providers. This is the very essence of free trade. We, in the Senate, recently passed the Central America Free Trade Agreement in an effort to liberalize trade with Central American countries and in doing so promote reform in these developing nations. In fact bilateral agreements, particularly with developing countries, provide us an essential tool to press for such change. But we often overlook the role that the World Trade Organization plays in laying the necessary groundwork for our bilateral trade agreements. One hundred and forty-eight countries currently belong to the World Trade Organization and close to thirty countries are seeking admission. To gain entry, these countries must negotiate bilateral agreements with other World Trade Organization members, leading to specific commitments--such as judicial reforms, government transparency, patent protections, labor and environment standards, etc. The United States is currently negotiating bilateral trade agreements with several countries seeking membership in the World Trade Organization, including Russia, Ukraine, and Saudi Arabia. In these bilateral agreements and through the World Trade Organization we hope to secure the enforcement of intellectual property rights, tax reforms, improving food health and safety standards, and more. The World Trade Organization also provides the only multilateral dispute settlement mechanism for international trade. In fact, this is an important tool that the Bush Administration has not used proactively. Whereas the Clinton Administration brought an average of 11 cases per year in World Trade Organization, the Bush Administration has filed only 12 in their first 4 years. We are not adequately using this important resource to protect our nation's businesses. I look forward to hearing from the witnesses today and discussing ways to better use the World Trade Organization and the ongoing Doha Round negotiations to encourage reforms in developing nations and to even the playing field for American goods and services both at home and abroad. 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