In the 2026 Trade Policy Agenda report submitted by Greer to Congress last month, there is this passage on enforcement of U.S. trade agreements and U.S. trade laws:

Pursue Robust Enforcement of Agreements on Reciprocal Trade, Other Trade Agreements, and United States Trade Laws

In addition to striking new deals with our trading partners, USTR will pursue robust enforcement of all of our trade agreements and trade laws. In 2026, USTR will closely monitor implementation of existing ART commitments and those embodied in forthcoming ARTs, as well as other existing trade agreements, and enforce when necessary. ...

Here are some questions I have related to enforcement of the Agreements on Reciprocal Trade (ARTs) in particular:

• Will USTR notify the public and/or Congress when it is pursuing enforcement of specific obligations under the ARTs?
• Related to this, the ARTs have a provision on requesting consultations with the other party to the agreement. Will USTR notify the public and/or Congress when it has requested these consultations? Will these requests be made public?
• Will USTR document for the public and/or Congress the enforcement actions it has taken under the ARTs and the results thereof?

I raise these points because it will be difficult to evaluate the impact of the agreements without evidence relating to enforcement activity. Ideally, the public should know as much as possible about what has been happening here. At the least, though, I would think Congress would want to know, and this hearing is an opportunity to emphasize this.

While we are on the subject of questions for Greer, I would add the following to the list of things that members of Congress might ask:

• Could you provide updates on whether and to what extent the countries with which the Trump administration has negotiated ARTs have lowered tariffs or modified statutes, regulations, practices, or policies pursuant to the agreements?
• Have you seen an increase in exports to the ART countries relative to exports to other trading partners, and if so in which products/services?

He might not have full details on these questions off the top of his head, but they could be submitted in writing later as questions for the record.

And then finally, just for fun, here is one more question that members of Congress could ask him:

• Unlike WTO rules, the ARTs do not address anti-dumping/countervailing duties. What is the administration's strategy for dealing with AD/CVDs imposed by U.S. trading partners?

UPDATE:

The House Ways and Means Committee hearing on the 2026 Trade Policy Agenda has been scheduled for April 22; the Senate Finance Committee hearing is scheduled for April 23.

Here are a few more questions members of Congress might consider asking at these hearings:

• What is the statutory or Constitutional authority for the administration to enter into the Agreements on Reciprocal Trade or the other trade deals it is negotiating?
• In the context of the upcoming USMCA joint review, who gets to make the decision about whether the U.S. government wishes to extend the USMCA for another 16 year term (pursuant to USMCA Article 34.7.3)? Does Congress have the authority, in your view, to pass legislation that would commit the U.S. government to supporting an extension?
• Are the tariffs to be imposed pursuant to the ongoing Section 301 investigations likely to violate GATT Article I:1 (MFN) and Article II (tariff bindings)? If so, what GATT exceptions does USTR plan to invoke in order to justify the tariffs?

Last week, President Trump announced that the United States would be imposing new tariffs of 50 percent of the value of any product coming from any country that sells weapons or provides military aid to Iran.

Some commentators questioned what statutory authority the president would use as a legal basis for these tariffs since the president’s announcement was silent on that point. Kevin Hassett, Director of the National Economic Council at the White House, publicly argued that the president could impose these tariffs under the International Emergency Economic Powers Act (IEEPA) because the United States is “in a state of conflict [and] the IEEPA policy is exactly designed for that.” Even within the Trump administration that view did not appear to command a consensus, with U.S. Trade Representative Jamieson Greer noting that, while IEEPA can be used to impose embargoes, it can’t be used for tariffs after the Supreme Court’s February decision in Learning Resources.

The Supreme Court made clear that IEEPA does not authorize the president to impose tariffs or increase tariff rates. Moreover, the Court noted that IEEPA is a peacetime statute. It expressly reserved the question of whether the president might have the power, either under the Constitution and/or other statutes, to impose tariffs during a war.

Putting to one side the fact that Congress has issued no declaration of war nor authorized the use of force against Iran, what, under the Constitution, could the president do during a war? We have written about the complexities of the Constitution’s “foreign commerce power” in a forthcoming article. There, we note that, at the time of the nation’s Founding, and in the early years of the Republic, the Founders made clear that the president does not have any foreign commerce power of his own. Nothing in the Constitution or in the practice of lawmakers in the late eighteenth century suggests that the president can impose tariffs without congressional authorization, regardless of whether the nation is engaged in an armed conflict. The power to regulate commerce with foreign nations is a power held exclusively by Congress. Nothing about being at war changes that.

In the recent Learning Resources case, the government made several arguments in support of its claim that IEEPA authorizes tariffs. As relevant to war powers, the government argued that the president enjoys the constitutional power to impose tariffs during wartime. While conceding in Learning Resources that the United States was not at war, the government—borrowing from an amicus brief by Aditya Bamzai—contended that Congress had ultimately codified that authority in IEEPA as applied to peacetime emergencies.

The government’s argument did not, however, win the day. As the Chief Justice wrote:

According to the Government, those precedents acknowledge an inherent Presidential power to impose tariffs during armed conflict. And, the argument goes, Congress in TWEA [the Trading With the Enemy Act], and then in IEEPA, codified those precedents. But this argument fails at both steps. Insofar as the Government relies on our wartime cases themselves, they are facially inapposite. Regardless of what they might mean for the President’s inherent wartime authority, all agree that the President has no inherent peacetime authority to impose tariffs.

 Other justices also addressed these issues. In his concurrence, Justice Gorsuch commented in a footnote:

Whatever the full scope of the President’s Article II war powers may be (and the briefs before us reveal a healthy debate whether they include the power to impose tariffs), those powers are not implicated here.

And in his dissent, Justice Kavanaugh embraced the ideas advanced by the government. He wrote that:

U. S. history from the 1800s through IEEPA’s 1977 enactment illustrates how the statute came to incorporate the President’s long-recognized authority to impose tariffs during wartime. Long before the initial 1917 enactment of the Trading with the Enemy Act, which was IEEPA’s predecessor, the President possessed inherent wartime authority to prohibit commercial relations with enemy nations.

We disagree with Justice Kavanaugh’s claim when it comes to any “inherent wartime authority” the president might have to regulate foreign commerce. Justice Kavanaugh is right that, long before the enactment of TWEA, presidents imposed commercial restrictions on enemy nations, but they did so as authorized by Congress. A congressional declaration of war—essentially, a delegation to the president to prosecute a war—was thought also to grant the president the power to embargo commerce with the enemy.

The more difficult question arises with respect to countries with whom the United States was not at war but whose commercial policies implicate U.S. interests in war.

Here, President Trump seeks to impose tariffs not on products from Iran, which is already subject to sanctions, but on countries that engage in military trade with Iran. These so-called secondary tariffs have become a popular tool in recent months. Last year, the president sought to impose secondary tariffs on products from countries, such as India, importing Russian oil and on products from countries importing Venezuelan oil, for example. He relied on IEEPA to impose those tariffs, and after February's Supreme Court decision, he declared those additional duties to be no longer in effect. Justice Gorsuch, in his Learning Resources concurrence, spoke only of direct tariffs on enemy states, noting: “IEEPA is not a wartime statute, nor does the President claim we are at war with the countries whose goods are subject to the tariffs.” (And, to be sure, the TWEA expressly requires a congressional declaration of war before using the same language as IEEPA concerning "regulate . . . importation".)

But in the early years after the Founding, even where foreign commercial policy was critical to U.S. policy toward warring European nations, presidents did not act alone in imposing restrictions on foreign commerce with those nations. That is, presidents still regularly sought congressional authorization for embargoes of trade with countries against whom Congress had not issued a declaration of war.

For example, Washington’s 1793 Neutrality Proclamation did not itself create an embargo. As Sai Prakash and Michael Ramsey have explained, the Proclamation merely announced a policy binding only on those within the executive branch, one that could only be enforced against the general public to the extent that private actions violated existing criminal laws. It was not until Congress passed statutes in 1794 authorizing embargoes that the president enjoyed the authority to impose an embargo as such. And as we explain in our article, the presidential practice of seeking congressional authorization for embargoes continued through the Jefferson and Madison administrations, including during the War of 1812 with respect to European nations other than the United Kingdom.

As one of us explained in an amicus brief in Learning Resources, the examples marshaled by Professor Bamzai and relied on by the government and Justice Kavanaugh are not to the contrary, and in particular do not speak to the president’s ability to impose tariffs on imports from noncombatant nations into the United States. They rely on three examples of the president imposing monetary exactions during wartime. During the Mexican-American War and the Spanish-American War, the United States collected duties on imports into occupied foreign territories to offset the costs of the war and occupation. In a series of cases, the Supreme Court upheld these duties as lawful on the grounds that they were imposed on foreign, occupied territory during wartime. They were not imposed on imports into the United States proper. Indeed, in Fleming v. Page, the Supreme Court rejected the argument that paying duties to the United States in an occupied Mexican port, when such duties were collected solely pursuant to the president’s commander-in-chief power, could count as paying duties upon import into the United States. The president lacked the power to change U.S. customs laws, even if he had the power to collect duties in occupied territory. The third example involved President Lincoln’s decision to collect license fees on cotton from the Confederate states during the Civil War, pursuant to a congressional authorization to regulate commerce with the rebel states by way of licenses. How this example could support an inherent authority to impose tariffs against third countries during wartime is unclear. In short, when the president’s foreign affairs powers do overlap with Congress’s foreign commerce powers, Congress prevails.

So, while the Supreme Court in Learning Resources expressly left open the question whether the president might be able to impose tariffs pursuant to his constitutional warmaking powers, the historical record from the years immediately after the Constitution’s ratification suggests that the answer to that question is that he cannot.

Rough: The joint statement last August with the Europeans filling out the Turnberry agreement that the President struck with Commission President von der Leyen said that "the United States and the European Union commit to addressing unjustified digital trade barriers." Then came the European DMA investigation announcement into cloud computing, among other steps that led to a mid-December tweet viewed around the world from your office expressing some dissatisfaction with the EU and EU member states on "a continuing course of discriminatory and harassing lawsuits, taxes, fines and directives against U.S. service providers." Where do we stand now that we are sitting here in almost mid-April on digital trade between the U.S. and the EU?

Greer: I would say that this is a fragile issue. So in the Turnberry agreement, where it talks about, what was the wording again?

Rough: "The United States and the European Union commit to address unjustified digital trade barriers."

Greer: Unjustified digital trade barriers. So that means something different to me than it does to [the EU Ambassador] or to others in the Commission, which is a problem. This is a big issue. We have a situation where U.S. companies who are large tech companies, and that is the nature of how they have developed, who offer essentially free services, many of them to EU citizens at the retail level, and then offer a lot of productivity gains at the enterprise level to businesses in Europe. This is a huge productivity gain and welfare gain for Europe. They have introduced laws like the Digital Markets Act and other laws that don't even think about consumer welfare, they just make a prima facie decision that bigger is bad, and therefore we're going to take action. And it's a huge problem. It disproportionately affects U.S. companies.

There's a set of talking points that every European Ambassador comes in with, and they just say, "Well, this is not discriminatory, it applies to everybody equally." Yeah, but only if they make above a certain amount globally, etc, and have business models that happen to track U.S. company business models. So you know, we're not fooled by any of that. I keep telling these European officials, we're not fooled. You can give us these talking points, and we still won't be fooled. And so we're very concerned about this. We are having discussions with the European Commission, I would say, really, for the first time ever on DMA, we've always been stonewalled. ... Steve Forbes put out an op-ed today saying, Jamieson, just move forward with the Section 301. Do it now.

So there's a lot of pressure out there to take action. Obviously, our goal is to have an outcome where U.S. companies can operate without discrimination. They can operate as freely as European companies do here in the United States. And if American companies don't have that opportunity, then we will control European service providers in the United States.

I would like to hear more from Jamieson on how he sees the standard for non-discrimination. Is he saying that any disparate impact on U.S. tech companies is sufficient for a determination that regulations are discriminatory? If so, that's a very broad approach to international governance of domestic regulations, one that limits policy space/regulatory autonomy/sovereignty considerably. And if it were applied to, say, certain U.S. environmental laws and regulations it could have a significant impact on the ability to regulate.

Or is he saying that there is something in particular about the design and structure of the DMA (and other European tech regulations) that suggests the law favors European companies over their American competitors? If he would look for something more than just disparate impact in relation to the design and structure, what would he be looking for?

Or is it something else entirely? What exactly is the non-discrimination standard he has in mind?

Whatever he is saying, it is a significant departure from what we heard during the Biden administration from Katherine Tai, who emphasized the importance of understanding the intent of the foreign regulation ("we have to really be cognizant that measures that may look like they have a discriminatory effect may or may not be advanced with a discriminatory intent").

I'll have more to say on all this soon, but I'm just flagging it for now.

ADDED:

At an April 16 House budget hearing, Greer had the following exchange with Rep. Ben Cline (R-VA) on related issues:

Cline: The 2026 National Trade Estimate report identified Korea's digital trade policies, including KFTC's enforcement campaign and the Fairness Act, as significant barriers to U.S. companies. Research by the Competere Foundation estimates that Korea's policies could cost the U.S. economy 525 billion over the next decade, with American households losing nearly $4,000 each. What specific enforcement mechanisms is USTR using to hold Korea to its commitments under the Joint Fact Sheet? And as you know, the Korean government continues its transparent discrimination against U.S. digital companies. At what point does continued Korean defiance trigger formal trade actions?

Greer: As you know, we have a Joint Fact Sheet with Korea where they specifically agreed and committed not to use these types of laws or rules on a discriminatory basis. And so this is something where we're holding their feet to the fire. You know, we have tools, Section 301 is a tool that I've talked about today, and some of you have discussed. This is something we can use if we need to. Again, I've had conversations with my counterpart in Korea. I've spoken with the Prime Minister of Korea about this issue. I know there are a lot of views domestically about big tech companies and regulation and that kind of thing. What I want is a situation where Congress gets to decide how American tech companies are controlled and not foreign jurisdictions, so we are very attentive to any suggestion of discrimination by foreign countries against our companies.

Cline: We need to be leaning on them pretty hard. Their proposed fairness access sets market thresholds that Chinese platforms like Tiktok, Temu, and Alibaba fall below, effectively exempting them from the regulations entirely, while American companies are bearing the full weight of the fines and operational mandates. To put it in perspective, just a quick glimpse at the new 1260H list of Chinese military companies included some of these firms, like Alibaba. Does the administration view Korea's discriminatory treatment as a national security concern? And if so, is that concern being incorporated into how you're approaching enforcement?

Greer: So if they were to follow through with this and apply these laws in a discriminatory way, we would take action. Until now, they have been proposing to speak to us and negotiate with us, because we are concerned about this, and you know, we are prepared to take action if we need to, because it's not like there's some other company waiting to step into the wings, other than some of these Chinese companies you're talking about.

Cline: The EU is another area where we see discriminatory action being taken against U.S. companies. The Digital Markets Act, Digital Networks Act, Cloud and AI Development Act, digital services taxes, the EU Space Act, other policies, all of which disproportionately target US companies. How does your budget prioritize comprehensive action against this entire suite of discriminatory measures and what enforcement mechanisms will USTR deploy to protect American technology leadership against European regulatory overreach?

Greer: So we have an office dedicated to services and investment, and this is an office where we have been going through and inventorying all of these unfair and discriminatory laws and practices that you're talking about. If I'm to take action on these, again, I keep saying Section 301, every time I say section 301 you have to think, that's a policy person, that's one or two lawyers, that's a political person in the front office. Every time I say 301, that's more people, I'm happy to do it, but I do have to have the resources to hire those people.

But despite our best efforts, a "review and term extension" provision made its way in there as Article 34.7 of the USMCA. The way the provision works is that there is a 16 year term for the agreement, with a joint review by the three governments taking place 6 years after the July 1, 2020 entry into force. On the six year mark (July 1, 2026), the governments can make a decision on whether to extend the agreement for another 16 year term. If that extension does not happen, there will be annual reviews of the agreement, through which there will be subsequent opportunities for the three governments to decide to extend.

Now that the review and extension decision are almost upon us, we'll find out if Inu and I were right to be concerned. At this point, I will confess that I have very little idea what is going to happen. Even without everything else going on in the trade policy world, it would be a tough prediction to make, but combining the USMCA review with so much other trade policy chaos makes things particularly difficult.

Over at CSIS, Diego Marroquín Bitar and Bill Reinsch have mapped out six scenarios for what will happen with the USMCA extension decision:

I don't disagree with any of that, but I do want to highlight a bit of possible political strategizing here. It feels to me as though in both domestic politics and international affairs, everyone is waiting for the midterm elections. The thinking is that if the Democrats win one or both houses of Congress, it would significantly change the power President Trump has in U.S. politics, and perhaps make dealing with him a bit easier. With that in mind, I wonder if Canada and Mexico have an incentive not to go for the "painful extension" option. Instead, they could hold out until after the midterms, in the hopes that they would be in a better negotiating position. And if it turns out their position is not much better then, they could even try waiting until after the 2028 presidential election.

One risk with this strategy is that it could trigger a Trump withdrawal from the agreement. However, while we might see threats along those lines (which we have seen before), I'm skeptical there would be follow-through here. The stock market fall such an action would likely trigger is probably enough to prevent this.

I also want to mention that if I'm reading USMCA Article 34.7, paragraph 4 correctly, if the extension does not happen on July 1, it can be agreed to at any point thereafter:

If, as part of a six-year review, a Party does not confirm its wish to extend the term of this Agreement for another 16-year period, the Commission shall meet to conduct a joint review every year for the remainder of the term of this Agreement. If one or more Parties did not confirm their desire to extend this Agreement for another 16-year term at the conclusion of a given joint review, at any time between the conclusion of that review and expiry of this Agreement, the Parties may automatically extend the term of this Agreement for another 16 years by confirming in writing, through their respective head of government, their wish to extend this Agreement for another 16-year period.

(emphasis added)

I don't mean to make a definitive prediction that extension will take place at some random time under this part of the provision. However, I will note that if at some point a particular political leader decides a "win" would be useful, a decision to extend the USMCA could be made, even if we are outside the joint review window.

With the caveat that I have a low degree of confidence in my trade policy predictions these days, my current view is that it would be surprising if there were a decision to extend the USMCA on July 1 or soon thereafter. But given everything going on in international affairs, I can imagine some sort of package deal that comes together a few months or so later, bringing in a few non-trade issues as well. At the same time, I can also imagine we just slide into the annual review option for the next couple years. That may not be ideal, but it does leave plenty of time to make the extension decision prior to the agreement's expiration. (And if this decision is made after 2029, people could even think about using the review process to eliminate the expiration provision, and just have normal reviews instead.)

(As I was working on this post, U.S. Trade Rep. Jamieson Greer commented on the USMCA joint review as part of a think tank event yesterday:

Well, remember, the joint review, what happens on July 1? This is the question, right. On July 1, what has to happen is, the United States tells Canada and Mexico what we intend to do. Do we intend to just rubber stamp this thing and say, all right, renewed, everything's fine, let's hold hands and move on. Or do we say this is not sufficient, we have to have modifications to this agreement, we have to change it. And so we'll enter into a period, we'll be on the path to going out, which is actually a 10 year period, but we'll be in negotiations during that time and try to resolve something sooner rather than later. So my own sense is we want to resolve as much as we can. We've worked really closely with the Mexicans over the past year, they resolved a lot of issues. The Canadians, we have some issues with them that haven't been resolved yet. So I think, I don't want to get ahead of myself, because I have to tell Congress on June 1 what we're going to do. ... I think that we aren't probably going to be able to resolve all issues by July 1, but I think we are on track to resolve many of them and to move as quickly as we can.

So factor that into any predictions as well.)

As a result of these developments, the moratorium has, for the moment, expired. Does that mean we are about to see a flood of TRIPS non-violation – or the even less well-known situation – complaints? As much fun as that would be in various ways, I doubt it, and I think the following may help explain why.

At the WTO General Council meeting in December, the moratorium was discussed by various governments, including two that appear to have particularly strong views. Colombia put the issue on the meeting agenda, and made its case for continuing the moratorium:

26.4. In our daily conversations with other WTO delegations, the intellectual property moratorium seems somewhat strange and overly technical, but the fact is that it is a recurring WTO decision that has significant effects on our economies and, in particular, on the health of our populations.

26.5. Allow me to explain the matter briefly. In general, disputes in the WTO involve a country's allegations that a country has violated an agreement or broken a commitment. But in some situations, a government can go to the Dispute Settlement Body even when an agreement has not been violated.

26.6. This is called a non-violation complaint. It is allowed if one government can show that it has been deprived of an expected benefit because of another government's action, or because of any other situation that exists. Non-violation complaints are possible for goods and services, but not in the field of intellectual property. At the time of the negotiation of the Marrakesh package, Members decided not to allow these non-violation disputes under the TRIPS Agreement. Why?

26.7. In what situations could non-violation complaints based on the TRIPS Agreement pose a problem? Various scenarios are conceivable and the Secretariat made a list of them 10 years ago, but one stands out: price controls on medicines.

26.8. All our countries have policies to control medicine prices – all of them. For example, as I remarked at a previous General Council meeting, one economically advanced country used price controls to slash the monthly cost of insulin for patients with diabetes from USD 400 to USD 35. We thought this was wonderful, because it clearly improved access and many patients with diabetes surely benefited.

26.9. One could claim that, even if patent protection is observed and even if the intellectual property protection system is in order and working properly, price controls nullify or impair the expected benefits from a patent.

26.10. It is as simple as that – an enormous risk that no-one has wanted to take since 1995. This discussion is taking place in the TRIPS Council and remains unresolved. It is very important for this decision to not allow non-violation complaints to be renewed in Cameroon and to be made permanent once and for all, as the risks to our economies and budgets are the same now as they were in 1995, and as they will be in the future.

For Colombia, allowing non-violation complaints under the TRIPS Agreement risks undermining established and widely used health policies such as price controls for medicines.

In response, the U.S. argued for letting the moratorium lapse and allowing non-violation and situation complaints in the TRIPS context:

26.13. The United States' position on this issue remains unchanged. We reiterate our support for allowing the current moratorium to expire so that Members may bring non-violation and situation complaints in the future, as appropriate.

26.14. The United States has provided detailed and extensive analysis in each of our statements under this item over the past several years. We have explained the legal basis for non-violation and situation complaints in the GATT and TRIPS Agreement texts, the extensive safeguards that exist to protect Members' rights and obligations under the TRIPS Agreement, and concrete descriptions regarding how such disputes would work in practice.

26.15. As we have detailed in past interventions, non-violation and situation claims have a long lineage in the WTO and in international trade. The availability of such claims under the WTO agreements is the rule; their non-application is the exception. The TRIPS Agreement moratorium is the exception.

26.16. We continue to believe that WTO Members are being deprived of an important tool to enforce their rights under the TRIPS Agreement, which is why we support the expiration of the current moratorium so that complaints of this type might be brought under the TRIPS Agreement.

26.17. While we remain of the view that the text of the WTO agreements provide Members with sufficient guidance on the application of non-violation and situation complaints under the TRIPS Agreement, the United States remains open to considering specific proposals from Members wishing to further examine the scope and modalities for complaints of these types.

In reaction to these arguments, I have a couple questions and comments.

First, what are the chances of a complainant winning a non-violation complaint under the TRIPS Agreement? Colombia mentions price controls on medicines as a measure that might be targeted, and if we apply the conventional non-violation elements, it seems to me that a complaint against these price controls might be tough to win. As the Japan - Film panel explained in discussing one of the key elements of a GATT non-violation claim:

10.76 ... in order for expectations of a benefit to be legitimate, the challenged measures must not have been reasonably anticipated at the time the tariff concession was negotiated. If the measures were anticipated, a Member could not have had a legitimate expectation of improved market access to the extent of the impairment caused by these measures.

My sense is that price controls on medicines are widely used, and therefore they shouldn't come as a surprise to other Members. Arguably, then, any price controls should have been anticipated. Could there be a particular type of price control that could not have been reasonably anticipated? It's possible, I guess, but I'm not sure what that would be.

Second, building on the first point to some extent, what purpose do non-violation complaints serve these days, either in the TRIPS Agreement or other contexts? In the early years of trade agreements, these agreements could have been seen as "incomplete," and the non-violation remedy may have been useful for circumstances in which a particular issue was not covered by the agreement. Today, by contrast, aren't the WTO agreements in general, as well as the TRIPS Agreement in particular, fairly "complete" in terms of their scope as a contract? Arguably, these agreements establish a comprehensive regime for what is permitted and what is not, and there is no need to supplement this regime with the non-violation remedy as a gap-filling tool.

In terms of specific examples of circumstances where the governments who support the non-violation remedy would like to see it applied under TRIPS, Colombia pointed to a Secretariat note from 10 years ago. I see this note from 2012, which may be what they meant (although there could be another note that I couldn't track down on WTO docs online). But even with these examples, at this point the scope and implications of such a remedy are fairly speculative, as we just don't have any practical experience with using it. It's very hard to say how a WTO panel would apply it.

As to what's coming next, my best guess is that we will see the moratorium extended at some point, providing a bit more certainty here. But even without the extension, I doubt we are likely to see any complaints. Note that the U.S., which is one of the biggest proponent of the remedy, hasn't filed any WTO complaints at all since 2019. On the other hand, U.S. Trade Rep. Jamieson Greer recently talked up the non-violation remedy, so maybe it could actually happen? I would bet against it though.

Law prof Daniel Gervais also has a post on the failure to extend the moratorium: "The TRIPS non-violation moratorium has expired: What happened in Yaoundé, and what comes next." For those looking for more background on these issues, you can check out the discussion at recent TRIPS Council meetings: November 2025; June 2025; March 2025; November/December 2024; July 2024; April 2024; October 2023/February 2024; June 2023; and March 2023. Other resources for people who want to dive deeper are:

• 1999 Secretariat Note: Non-Violation Complaints and the TRIPS Agreement
• 2000 U.S. communication: Scope and Modalities of Non-Violation Complaints under the TRIPS Agreement
• 2002 Secretariat Note: Non-Violation and Situation Complaints (Rev. 1, Rev. 2)
• 2002 communication from Argentina, Bolivia, Brazil, Colombia, Cuba, Ecuador, Egypt, India, Kenya, Malaysia, Pakistan, Peru, Sri Lanka and Venezuela: Non-Violation and Situation Nullification or Impairment under the TRIPS Agreement (Rev. 1)
• 2014 U.S. Communication: Non-Violation Complaints under the TRIPS Agreement