Column by Tatyana Edovina about how Ukraine’s application to the WTO became an independent event

Last week, Ukraine filed a claim with the WTO against Poland, Slovakia and Hungary – three countries introduced bans on the import of certain types of Ukrainian agricultural products (including grain), despite the end of restrictions introduced by the European Commission in May to protect the markets of bordering EU countries.

This decision attracted a lot of attention – previously all trade disputes involving Ukraine were directed to the east (including a lawsuit against Australia). Appeal to the WTO in this case is rather a political action, which is quite consistent with the current role of the organization – it is now impossible to formally force any party to cancel this or that restriction through a trial at the WTO, since the process of selecting judges for the appellate body has long been blocked, this a consequence of the trade conflict between the United States and China. At the same time, there are other channels for resolving disputes – there is a free trade agreement between Ukraine and the EU, which also regulates the resolution of disputes between the parties. When an FTA has already been concluded, countries, as a rule, do not use the WTO to resolve conflicts, including because of the length of the procedures – from filing a claim to a decision, it can take one and a half to two years, notes Maxim Medvedkov, adviser to the Center for Expertise on WTO Issues, not expecting that this dispute will develop – anything can happen during the consideration of the claim, and the parties are already negotiating supplies.

The Ukrainian side’s argument, presented in its appeal to the WTO, is based precisely on the fact that the organization does not welcome the introduction of trade bans – it is assumed that after joining the WTO (at which point the level of duties is fixed), the parties can correct price distortions with the help of anti-dumping duties. In practice, of course, countries often resort to actual bans – for example, China justifies restrictions on the import of pork by regular outbreaks of diseases, and since 2016, a significant part of new trade barriers have generally been adopted with reference to protecting national security.

There has already been progress in the situation with Ukrainian grain – Kyiv managed to agree with Slovakia on licensing supplies. A similar mechanism – with additional export controls instead of a ban – could be approved with the other two countries. However, according to the World Bank, the main importers of Ukrainian grain in August were Romania (31%), Spain (24%), Egypt (17%), Italy (6%) and Greece (5%). From a legal point of view, the dispute can only be interesting because of the dual role of the European Commission. On the one hand, it must achieve the lifting of the ban in Poland and Hungary, and on the other hand, if the case does come to consideration at the WTO, it must act as a defendant in the lawsuit.