Abstract The provisions on decision-making in the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) have fundamental constitutional significance for the running of the WTO. The decision-making procedures established in Articles IX, X and XII of the WTO Agreement are therefore foundational to any discussion on reform of WTO decision-making and the creation of a more pliable system that is able to respond to the new and emerging challenges in the international trade regime. This article explores the provisions on amendments in Article X of the WTO Agreement and conducts analyses of how resort to the amendments provisions can possibly be used proactively to temper the current impasse-prone state of WTO decision-making. It also discusses the adoption of the Trade Facilitation Agreement in February 2017 and explores the possible lessons on decision-making that can be learnt from this landmark Agreement. The main theme that runs through the discussions in this article is the need to temper the rigid effects of single undertaking and consensus in WTO decision-making with more flexible mechanisms without the need for law reform. I. INTRODUCTION Articles IX, X, and XII of the World Trade Organization (WTO) Agreement provide for the most important decision-making processes in the WTO. Article IX:1 establishes the normal procedure of decision-making in the WTO—i.e. decision by consensus and simple majority vote if WTO members fail to achieve consensus.1 However, decision-making by consensus2 has become the de facto procedure in the WTO as members hardly vote.3 Other decision-making procedures established under Article IX are decisions on interpretation of the WTO Agreement and the Annexed Multilateral Trade Agreements4 and decisions on waivers.5 Article X stipulates the various procedures for amending WTO law while Article XII makes provisions on decisions on accession of new members into the WTO. While the stated Articles deal directly with decision-making procedures in the WTO, the principle of single undertaking established in Article II:2 of the WTO Agreement is also of fundamental importance in WTO decision-making. Article II:2 states that: The agreements and associated legal instruments included in Annexes 1, 2 and 3 (hereinafter referred to as ‘Multilateral Trade Agreements’) are integral parts of this Agreement, binding on all Members. Per the just quoted provision, any new agreements incorporated under Annexes 1, 2, or 3 of the WTO Agreement would have a binding effect on all WTO members. In the discussion on decision-making in the WTO, the single undertaking principle may seem of little importance. This is because the stated Annexes already bind all WTO members and the contents of those Annexes have already been decided upon. The importance of the single undertaking principle in WTO decision-making, however, lies in the amendment of any of the rules in the stated Annexes or the incorporation of new Multilateral Trade Agreements into the WTO legal regime. Per the single undertaking requirement, amendments to any of the rules under Annexes 1, 2, or 3 or incorporation of new Multilateral Trade Agreements under the said Annexes will bind all WTO members. Consequently, the processes leading to amendments of existing law and adoption of new Multilateral Trade Agreements have constitutional significance with respect to the democratic legitimacy of the WTO decision-making processes.6 The provisions on amendments to the WTO Agreement and the Multilateral Trade Agreements in Annexes 1, 2, and 3 are also pivotal as they relate to the future state of WTO law. From this premise, it may be argued that the de facto use of consensus in WTO decision-making ensures the democratic legitimacy of decisions, especially those that come under the rubric of single undertaking even though only one member out of the 164 memberships of the WTO can effectively veto the adoption of decisions.7 Every WTO member effectively wields a veto power when it comes to decision-making by consensus. Using this decision-making procedure to amend WTO law or create new ones, thus require the consent of all members. While this is evidently democratic, the impasse-prone nature of this decision-making procedure is equally evident. Requiring 164 Member States to agree by consensus on issues that, per the single undertaking requirement, will bind all the members is a Herculean task.8 In the proceeding segments of this article, I discuss the possible use of selected provisions on amendments in Article X of the WTO Agreement to unclog some of the impasse-prone decision-making practices in the WTO. The main question I seek to address in the proceeding discussion is this: ‘In spite of the rigid effect of consensus and single undertaking, can there be a more flexible approach to WTO decision-making without recourse to law reform?’ Consequently, the focus of the discussion is not law reform but rather reform of practice. II. AMENDMENT PROCEDURES IN ARTICLE X:1 OF THE WTO AGREEMENT Article X:1 empowers all members of the WTO with the right to initiate proposals to amend the WTO Agreement and the Multilateral Trade Agreements in Annex 19 of the WTO Agreement. The Councils for Trade in Goods, Services and Trade Related Intellectual Property Rights (TRIPS) are also empowered under Article X:1 to submit proposals for amendments to the Ministerial Conference. Such amendment proposals, however, must relate specifically to provisions in a Multilateral Trade Agreement in Annex 1 of the WTO Agreement that a particular Council has been given oversight responsibility of.10 The proposal to amend the stated Agreements must be submitted to the Ministerial Conference, the highest decision-making body in the WTO.11 The amendment process thus starts with the initiation of the proposal for amendment. The Ministerial Conference, per Article X:1, has ninety days (or an extended duration if it so agrees) to decide by consensus whether to submit the proposed amendment to members for acceptance. If the Ministerial Conference fails to decide by consensus, it can decide to submit a proposed amendment to members for acceptance by a two-thirds majority vote for amendments under Article X:3 and three-fourths majority vote for amendments under Article X:4. Paragraph 1 of Article X thus sets out the general decision-making framework for proposing amendments to the WTO Agreement and the Multilateral Trade Agreements in Annex 1. Once WTO members decide per the rules in Article X:1 to submit an amendment proposal to members for acceptance, Paragraphs 2–6 of Article X provide for the additional procedures for acceptance of the proposed amendments. Paragraph 1 therefore works in tandem with other paragraphs in Article X to complete the process of procedures required for amending WTO law. These additional procedures detailed in various paragraphs in Article X have varying degrees of flexibility and rigidity with respect to WTO members’ acceptance of a proposed amendment. It is also noteworthy that the paragraphs in Article X that provide for a separate procedure of acceptance by WTO members denote ratification of the proposed amendment. Article X:7 provides that: Any Member accepting an amendment to this Agreement or to a Multilateral Trade Agreement in Annex 1 shall deposit an instrument of acceptance with the Director-General of the WTO within the period of acceptance specified by the Ministerial Conference. III. AMENDMENT PROCEDURES IN ARTICLE X:2 OF THE WTO AGREEMENT Article X:2 provides that amendments to Articles IX and X of the WTO Agreement, Articles I and II of the General Agreement on Tariff and Trade 1994 (GATT 1994), Article II:1 of the General Agreement on Trade in Services (GATS), and Article 4 of the TRIPS Agreement shall take effect only upon acceptance by all WTO members. This requirement of unanimity with respect to amendments of the stated Articles shows their fundamental importance in WTO law. For example, as Articles IX and X of the WTO Agreement provide for the most important decision-making procedures in the WTO, it stands to reason why these provisions have been entrenched with the requirement for unanimity regarding their amendment. Amendments to the other Articles in the GATT 1994, GATS, and TRIPS Agreement provided for in Article X:2 relate to the most favoured nation (MFN) obligation and the provisions on schedule of tariff concessions in Article II of the GATT. Again, the requirement of unanimity regarding amendments to the stated Articles is reasonable as compromising the foundational value of the MFN principle through very flexible amendment provisions could undermine the very foundations of the international trade regime. Also, considering the fact that there are provisions in the stated Multilateral Trade Agreements that derogate from the MFN obligation,12 making amendments to the substantive provisions flexible could have risked diluting the importance and efficacy of MFN. It could thus be argued that the unanimity requirement with respect to the amendment provisions in Article X:2 should necessarily be rigid, hence not requiring a reform of law or practice. Here, rigidity is necessary to ensure the entrenchment of core ‘constitutional’ provisions in WTO law and practice. The procedure outlined in paragraph 2 of Article X also shows that for an amendment to pass this final stage of acceptance, the proposal to submit the amendment to WTO members, as provided for in paragraph 1, must have been decided by consensus. Supposing the Ministerial Conference fails to submit a proposed amendment to WTO members by consensus, per the provisions in Article X:1, the Ministerial Conference can decide by two-thirds majority to submit the said amendment to members for acceptance. This provision on voting evidently envisages a more flexible approach to decision-making under Article X:1. Thus in arguing for a change in WTO decision-making practices, it may seem reasonable to make a case for WTO members to avail themselves of this less stringent procedure of voting provided for in Article X:1. However, while Article X:1 allows for a two-thirds majority vote if consensus fails, the second stage of the decision-making process outlined in Article X:2 requires unanimity for acceptance of proposals for amendment to Articles IX and X of the WTO Agreement, Articles I and II of the GATT 1994, Article II:1 of the GATS, and Article 4 of the TRIPS Agreement. It is quite improbable that after the Ministerial Conference’s failure to reach consensus on submitting an amendment proposal to members, WTO members would then unanimously accept the proposal. Consequently, should an amendment of any of the aforementioned Articles arise, it is reasonable to deduce that representatives of WTO members in the Ministerial Conference will first decide by consensus under the provisions in Article X:1 in order to stand the chance of acceptance by unanimity under the provisions in Article X:2. A case however may be made for using the voting provisions in Article X:1, if an overwhelming majority of WTO members are in favour of a proposed amendment. After satisfying this first hurdle, WTO members would then have to work very hard to persuade the objecting members to accept the amendment. Thus, while using the less rigid voting provisions in Article X:1 to submit a proposal for acceptance under Article X:2 may seem quite a long short, it is certainly not impossible. IV. AMENDMENT PROCEDURES IN ARTICLE X:3 OF THE WTO AGREEMENT Article X:3 provides for amendments to the Multilateral Trade Agreements in Annexes 1A and 1C of the WTO Agreement dealing with goods and intellectual property rights, respectively. An amendment effected under paragraph 3 of Article X is of a nature that alters rights and obligations of WTO members. For such an amendment to take effect, at least two-thirds of WTO members must accept it. However, the amendment becomes binding only on the initial two-thirds of the members that accept it.13 Other WTO members that accept the amendment at a later date are bound from the date of their acceptance. Thus, unlike the provisions in Article X:2 which requires unanimity of acceptance, Article X:3 only requires two-thirds majority acceptance for an amendment to become operative. This however comes with the proviso that only the two-thirds accepting members are bound while other members become bound when they accept later. It is therefore possible for the Ministerial Conference to decide by two-thirds majority to submit a proposed amendment to members for acceptance per the provisions in Article X:1 as it requires two-thirds of WTO members to accept the amendment for it to become operative. If resorted to, the two-thirds majority votes in both paragraphs 1 and 3 of Article X would have a tempering effect on the single undertaking principle and the current absolute reliance on consensus. For example, while the single undertaking rule stipulates that the WTO Agreement and the Multilateral Trade Agreements in Annexes 1, 2, and 3 are binding on all members,14 it is possible for only two-thirds of WTO members to be bound by an Agreement incorporated under any of the stated Annexes if it is adopted using the amendment provisions in paragraphs 1 and 3 of Article X. This however does not necessarily result in a permanent waiver of the single undertaking requirement for the one-third of WTO members that have not accepted the amendment. Article X:3 further provides that: The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference. For WTO members that refuse to accept amendments that are already operative under the Article X:3 provisions, they may do so at the risk of withdrawal from the WTO. Thus, even though the first sentence in Article X:3 seems to presuppose a tempering of the single undertaking requirement, it only envisages a temporary relaxation. New Agreements adopted under Article X:3 could be viewed as multilateralizing agreements because after they become operative due to an initial two-thirds acceptance, it is expected that the remaining members will eventually accept them in due course. There is an inbuilt process of multilateralization that begins with two-thirds acceptance by WTO members. As quoted above, the Ministerial Conference can actually decide by a three-fourths majority to set a deadline for the remaining WTO members to accept the amendment. The high majority threshold of three-fourths required for setting a deadline for acceptance shows that if this procedure is used, it would be expected that a critical mass of WTO members are in favour of the amendment in issue. It is however important to note that while members that holdout on acceptance could be made to withdraw from the WTO, the Ministerial Conference can also decide by three-fourths majority that non-accepting members can maintain their membership. Such a decision would have the effect of giving the non-accepting members an indefinite waiver with respect to the binding effect of amendments. Also, it is not mandatory for the Ministerial Conference to set a deadline for acceptance. Per the second sentence of Article X:3, the Ministerial Conference ‘may decide by a three-fourths majority’ to set a deadline for acceptance of amendments. The Ministerial Conference can therefore acquiesce to a situation of less than full acceptance in order to accommodate a few members whose positions are at variance with those of the overwhelming majority of WTO members. Clearly, single undertaking need not be absolute. In some situations single undertaking can be a goal or expectation to be attained after a critical mass of WTO members initially accept an amendment. Considering the myriad preferential trade agreements that have mushroomed globally due, in part, to dissatisfaction with the stalled Doha Round trade negotiations,15 a cogent case can be made for 109 WTO members (i.e. two-thirds of 164) moving ahead with an important agreement while holding the door open for the remaining 55 to join later. Single undertaking can thus co-exist with a different speeds approach to multilateral rules. V. AMENDMENT PROCEDURES IN ARTICLE X:4 OF THE WTO AGREEMENT Article X:4 provides that: Amendments to provisions of this Agreement or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would not alter the rights and obligations of the Members, shall take effect for all Members upon acceptance by two thirds of the Members. The above-stated provision could hold enormous potential for soft law approaches to international trade regulation. There are a number of requirements in Article X:4 that make it different from Article X:3 and thus more amenable for use in creating soft law in the WTO. First, amendments adopted under Article X:4 do not alter rights and obligations of WTO members. This is one of the key provisions that distinguish Article X:4 from Article X:3. While amendments secured under Article X:3 alter rights and obligations of members, amendments under Article X:4 do not. Secondly, Article X:4 requires that when two-thirds of members accept an amendment, it takes effect for all WTO members. This is fundamentally different from the provisions in Article X:3 which require that when two-thirds of WTO members accept an amendment, it takes effect for them and thereafter for any member that accepts it. In Article X:4, the acceptance of two-thirds of WTO members has the effect of binding all WTO members. Thus, in Article X:3, while the single undertaking objective of multilateralization can take some time to fully materialize after an initial two-thirds of WTO members accept an amendment, in Article X:4 the single undertaking effect is absolute once two-thirds of members accept an amendment. However, in spite of the more immediate effect of the single undertaking requirement in Article X:4, its tempering outcome is the fact that it would not alter rights and obligations of members. It must be noted though that in spite of these two less rigid effects of Article X:4, Article X:1 provides that if the Ministerial Conference fails to decide by consensus to submit a proposal for amendment to members under the Article X:4 procedure, it should decide by a three-fourths majority vote. This is obviously a higher threshold than the two-thirds majority vote required for submitting amendment proposals for acceptance under Article X:3. In spite of the more flexible provisions in Article X:4, the higher majority threshold required may be due to the fact that the acceptance of two-thirds of WTO members will bind the entire membership. It is therefore envisaged that even if the Ministerial Conference cannot achieve consensus, the decision to submit an amendment must have a very broad support. As amendments accepted under Article X:4 do not alter rights and obligations of members, a Multilateral Trade Agreement that does not give rise to dispute settlement proceedings can be inserted under Annexes 1A or 1C of the WTO Agreement using the Article X:4 provisions. In effect, single undertaking should not necessarily result in assuming more rights and obligations. The Trade Policy Review Mechanism (TPRM), for example, is one of the Multilateral Trade Agreements that comes under the single undertaking requirement established in Article II:2 of the WTO Agreement. However, the provisions in the TPRM do not give rise to dispute settlement proceedings under the WTO’s dispute settlement system. The TPRM is not listed as one of the covered agreements in the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding or DSU).16 The last sentence of paragraph A(i) of the TPRM states that this multilateral trade agreement is not ‘intended to serve as a basis for the enforcement of specific obligations under the Agreements or for dispute settlement procedures, or to impose new policy commitments on Members’. It cannot therefore even give rise to a non-violation complaint in WTO dispute settlement.17 Thus, new Multilateral Trade Agreements adopted under Article X:4 can have a provision similar to paragraph A(i) of the TPRM that ensures its conformity with the proviso that amendments accepted under Article X:4 would not alter rights and obligations of WTO members. Considering the very fragmented nature of international investment law due to the lack of a multilateral agreement on the substantive law,18 the Doha Round negotiations on a trade and investment agreement could have progressed under the amendment procedure in Article X:4. Developing countries’ apprehensions about adopting new regulatory burdens19 could have been assuaged if negotiations on a multilateral agreement on investment had proceeded under the provisions in Article X:4. Such an agreement incorporated under Annex 1A of the WTO Agreement would have still come under the single undertaking requirement without adding to WTO members’ rights and obligations. What then would be the benefit of an agreement that is non-justiciable? There is room for model laws in the WTO. WTO members can, on their own volition, incorporate a non-justiciable model law into their domestic legal systems. This non-encroachment on sovereignty approach can gradually warm members to regimes that they would have rejected if the incorporation of such regimes had proceeded under Article X:3. In this regard, WTO members can take a cue from how the United Nations (UN) General Assembly has exercised its non-binding competence under Article 13 of the UN Charter. Article 13 of the UN Charter empowers the General Assembly to initiate studies and make recommendations.20 The power to initiate studies and make recommendations under the Charter is aimed at promoting international co-operation in the political, economic, social, cultural, educational and health fields, and encouraging the progressive development and codification of international law.21 The Article 13 power of the General Assembly to initiate studies and make recommendations has featured prominently in the establishment of subsidiary UN bodies like the International Law Commission (ILC), the United Nations Commission on International Trade Law (UNCITRAL), the Sixth Committee, the Legal Sub-Committee of the Outer Space Committee, and the United Nations Conference on the Law of the Sea.22 These subsidiary bodies have contributed in no small way to the development and codification of international law in the post-World War II era. The codification work of the ILC includes the 1958 Geneva Conventions on the Law of the Seas,23 the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on the Law of Treaties (1969), The Vienna Convention on the Succession of States in Respect of Treaties (1978), Responsibility of States for Internationally Wrongful Acts (2001), and the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004).24 The work of the ILC has focused mainly on issues within the domain of Public International Law. Unlike the ILC, UNCITRAL’s codification work has focused on private international law. The results of its work include the Convention on the Limitation Period in the International Sale of Goods (1974), the UN Convention on the Carriage of Goods by Sea (1978), the UN Convention on Contracts for the International Sale of Goods (1980), and a host of UNCITRAL Model Laws.25 It must be noted though that neither the Article 13 powers nor any of the other Charter powers given to the General Assembly, and by extension its relevant subsidiary bodies, empower them to legislate on international law.26 The conventions and treaties that have arisen out of the exercise of the General Assembly’s competence (and that of its subsidiary bodies), are not automatically binding on states. States use their sovereign power of consent to accede to these treaties and conventions.27 It can be argued however that by the use of its powers of discussion, initiation of studies, and recommendation, the General Assembly has, through its own resolutions and the work of its subsidiary bodies like the ILC and UNCITRAL, been able to affect positively the development and codification of international law through consensus building and soft law approaches.28 Consequently, while a valid argument can be made that hard law has the advantage of promoting legal certainty, the very fertile use of the UN General Assembly’s non-binding competence under Article 13 of the UN Charter can provide a credible vision for soft law approaches to international trade regulation in the WTO. This can yield a less sovereignty-threatening approach without the baggage of perceptions of democratic deficit. In his discussion on solving the problem of perceived democratic deficit in the formulation of international economic agreements, Ohiocheoya, for instance, argues for engagement with ‘non-traditional actors’ like subnational governments and civil society groups in order to enhance the social legitimacy of such agreements.29 Under Article X:4 of the WTO Agreement, a soft law approach where autonomy of adoption lies with the national governments can help achieve the process of social legitimization of international trade law. Where local civil society groups are involved in the consultations leading to the adoption of a model/soft law, idiosyncratic issues that are relevant to specific localities can be incorporated in the final outcome. The top-down effect of international trade rules could thus be positively truncated with a bottom-up effect due to domestic participation of civil society groups. This can obviate the problem of civil society groups from different WTO member countries having conflicting positions on subjects like trade and the environment and trade and core labour standards. If engagement with non-traditional actors, as envisaged by Ohiocheoya, occur only in the process of formulation of multilateral rules, the incidence of conflicting positions due to domestic idiosyncrasies are bound to occur and possibly aggravate the already impasse-prone nature of WTO decision-making. Such domestic idiosyncrasies can however have their full vent if rules can be adopted and adapted to domestic situations as soft law approaches for regulating international trade. The Article X:4 provisions on amendments that do not alter the rights and obligations of WTO members could hold the key to this vision. VI. AMENDMENT PROCEDURES IN PARAGRAPHS 6 AND 8 OF ARTICLE X The discussion so far on the amendment provisions in Article X of the WTO Agreement has focussed on the two-staged procedure. First, per the provisions in Article X:1, the Ministerial Conference decides by consensus, two-thirds or three-fourths majority vote to submit an amendment proposal to members for acceptance. Secondly, WTO members express their acceptance by ratifying the amendment. The ratification procedure is stipulated in Article X:7 of the WTO Agreement. As discussed above, various paragraphs in Article X provide for different procedures of acceptance, some being rigid and others relatively flexible. The provisions under paragraphs 6 and 8 of Article X fall under a specie of amendment procedures that do not require WTO members to accept an amendment after the Ministerial Conference decides on it. First, Article X:6 deals with amendments to the TRIPS Agreement occurring as a result of the need to adjust ‘to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO’.30 Such amendments are initiated by the Council for TRIPS by submitting a proposal to the Ministerial Conference. The decision to submit the proposal is made by consensus and the Ministerial Conference then decides whether to approve the amendment. Article X:6 does not stipulate the decision-making procedure to be used by the Ministerial Conference to approve the amendment proposal. It is therefore reasonable to deduce that the general decision-making procedure established in Article IX:1 of the WTO Agreement would apply—i.e. decision by consensus or simple majority vote if consensus fails. The provisions in Article X:8 relate to amendments to the Multilateral Trade Agreements in Annexes 2 and 3 of the WTO Agreement—i.e. the DSU and the TPRM, respectively. Just as in the provisions in paragraph 6, the Ministerial Conference has the mandate of approving amendment proposals to the said Agreements. This decision is taken by consensus and once consensus is reached, the amendment becomes binding on all WTO members. Without a change in law, the main flexible aspect of decision-making under paragraphs 6 and 8 of Article X lie in the fact that it only requires the decision of the Ministerial Conference to effect an amendment. Ratification is not required. Thus, while the requirement of consensus is evidently impasse prone, it is a one-stage process unlike paragraphs 2, 3, and 4 that require a two-stage process for amendments to take effect. A case can thus be made for the Ministerial Conference exercising its competence to amend the DSU without waiting for the conclusion of the stalled Doha Round.31 In fact, the special single undertaking requirement established for the Doha Round negotiations (i.e. nothing is agreed until everything is agreed) did not apply to negotiations on reforming WTO dispute settlement. The Doha Ministerial Declaration stated that: We agree to negotiations on improvements and clarifications of the Dispute Settlement Understanding. The negotiations should be based on the work done thus far as well as any additional proposals by Members, and aim to agree on improvements and clarifications not later than May 2003, at which time we will take steps to ensure that the results enter into force as soon as possible thereafter.32 The mandate to negotiate on ‘improvements and clarifications’ of the DSU was thus not connected to the conclusion of the Doha Round negotiations as a single package because steps were supposed to be taken to ensure that the results of the negotiations enter into force as soon as possible. VII. AMENDMENT PROCEDURES IN ARTICLE X:9 OF THE WTO AGREEMENT Article X:9 of the WTO Agreement states that: The Ministerial Conference, upon the request of the Members parties to a trade agreement, may decide exclusively by consensus to add that agreement to Annex 4. The Ministerial Conference, upon the request of the Members parties to a Plurilateral Trade Agreement, may decide to delete that Agreement from Annex 4. Like the amendment procedures under paragraphs 6 and 8 of Article X, paragraph 9 only requires a consensus decision of the Ministerial Conference to insert a plurilateral agreement under Annex 4 of the WTO Agreement. There is no second-tier decision-making process requiring the members to the plurilateral agreement to accept the agreement. However, since the request for addition of the plurilateral agreement comes from members that are parties to such an agreement, it is envisaged that they would have already agreed on the content through negotiations before requesting addition to Annex 4. Per the provisions in Article II:3 of the WTO Agreement, Plurilateral Trade Agreements are only binding on the WTO members that have acceded to them. Such Agreements therefore do not come under the single undertaking principle established under Article II:2 of the WTO Agreement. Thus trade agreements brought under the auspices of the WTO need not be multilateral and by extension they need not come under the single undertaking principle. Consequently, even if, per the more flexible amendment provisions in Article X:4, incorporation of new multilateral trade agreements under Annexes 1A or 1C would be impossible to achieve or fraught with too many hurdles, incorporating such agreements under Annex 4 per the provisions in Article X:9 is still a viable prospect. The Agreement on Government Procurement is a typical example of a Plurilateral Trade Agreement that has maintained this status from the Tokyo Round through the Uruguay Round to the ongoing Doha Round.33 Also, the history of plurilaterals in the trade regime from the GATT 1947 era shows that they can metamorphose into multilaterals in the future. For example, the following Tokyo Round Codes that proceeded on a plurilateral basis in 1979 became multilateral agreements at the conclusion of the Uruguay Round in 1994—Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade (i.e. Subsidies), Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (i.e. Antidumping) Decision on Safeguard Action for Development Purposes, and Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade (i.e. Customs Valuation). In fact, of the 15 Tokyo Round Codes, only 4 remained plurilateral agreements at the end of the Uruguay Round trade negotiations.34 WTO members need to revisit their own history in order to make proactive use of existing provisions that can make the Organization more relevant to new emerging issues in international trade, especially if a critical mass or a significant number of members are willing to proceed with new agreements on a plurilateral instead of multilateral basis. Wasted political capital that can occur if negotiations proceed solely on a multilateral basis can be obviated if plurilateral options are on the table. Some of the ‘spaghetti bowl’ effect of assorted free trade agreements and customs unions35 can be stemmed if WTO members willing to proceed with trade liberalization at a faster speed can still do so under the auspices of a WTO plurilateral regime. Particularly for developing countries, using their numerical strength to pursue plurilateral agreements on issues of common interest can break the perceived hegemony of the USA and the EU on the WTO decision-making system.36 VIII. LESSONS FROM THE ADOPTION OF THE TRADE FACILITATION AGREEMENT Various more flexible options of decision-making under Article X of the WTO Agreement have been explored in the preceding discussions. Of the various propositions made in the above discussions on tempering rigidity in WTO decision-making, the coming into effect of the Trade Facilitation Agreement (TFA) through the combined effect of paragraphs 1 and 3 of Article X provides the only example of the adoption of a new multilateral trade agreement in the history of the WTO, post-Uruguay Round. Can the success achieved with the adoption of the TFA serve as a model and spur a more proactive use of some of the other more flexible provisions on amendments in Article X of the WTO Agreement? The coming into effect of the TFA on 22 February 201737 provides evidence of a flexible and nuanced different speeds approach to single undertaking. On 7 December 2013, the Ministerial Conference decided by consensus to draw up a Protocol of Amendment to insert the TFA into Annex 1A of the WTO Agreement.38 This is the first instance of a multilateral trade agreement being adopted since the inception of the WTO in 1995. Having satisfied the provisions in Article X:3 of the WTO Agreement, the General Council, on 27 November 2014 adopted the Protocol Amending the Marrakesh Agreement Establishing the WTO.39 This General Council decision resulted in the insertion of the TFA into Annex 1A of the WTO Agreement. Thus on 22 February 2017, 109 WTO members had accepted the TFA. On 11 February 2018, Namibia became the 131st member to accept the TFA.40 Supposing some WTO members do not ratify the TFA, per the provisions in Article X:3 of the WTO Agreement, should the Ministerial Conference require them to do so by a set date failing which they may be asked to withdraw from the WTO or maintain their membership with the consent of the Ministerial Conference? The current 131 members of the WTO that have accepted the TFA constitute 80 per cent (i.e. four-fifths) of the entire membership of the WTO. This is 5% more than the 75% (i.e. three-fourths) majority threshold required for the Ministerial Conference to set a deadline for acceptance of an amendment secured under Article X:3 of the WTO Agreement. Evidently, using the Article X:3 competence to set a deadline for acceptance of the TFA is unnecessary because if the current trend of 22 ratifications per year41 continues, in less than two years all WTO members would have ratified the TFA. Even if this realistically optimistic projection of 22 ratifications per year does not happen, the trend of ratifications shows a very high number of acceptance. While it would be desirable for a 100% ratification of the TFA, the WTO should reasonably be able to live with less than 100%. Consequently, single undertaking need not result in unanimity of obligations. From the above discussion, the adoption of the TFA provides evidence that some flexibilities can be injected into the practice of WTO decision-making without the need for law reform. It is worthy of note though that for an agreement to endear itself to a more flexible approach of adoption, it must contain provisions that can inspire general support. Considering the fact that the TFA was only one of the four so-called Singapore issues42 to successfully make it through the Doha Round negotiations, it shows that all WTO members, especially developing countries, saw the importance of a multilateral agreement on trade facilitation.43 In fact, special and differential treatment provisions for developing countries were a core precondition for the negotiations on the TFA. Annex D of the July 2004 Framework Agreement44 expressly stipulated the modalities for negotiations on trade facilitation. With respect to the special and differential treatment of developing countries, Paragraph 2 of Annex D stated that: The results of the negotiations shall take fully into account the principle of special and differential treatment for developing and least-developed countries. Members recognize that this principle should extend beyond the granting of traditional transition periods for implementing commitments. In particular, the extent and the timing of entering into commitments shall be related to the implementation capacities of developing and least-developed Members. It is further agreed that those Members would not be obliged to undertake investments in infrastructure projects beyond their means. The 2005 Hong Kong Ministerial Declaration further emphasized that: The Negotiating Group also recommends that it deepen and intensify its negotiations on the issue of S&DT,45 with a view to arriving at S&DT provisions that are precise, effective and operational and that allow for necessary flexibility in implementing the results of the negotiations.46 These preconditions that secured vital concerns of developing countries have been reflected in the final text of the TFA resulting in a form of different speeds and different weights of commitments provided for under Categories A,47 B,48 and C49 of Articles 15 and 16. The special and differential treatment provisions in the stated categories are self-selected commitments that each developing and least developed country has undertaken to implement at various, largely, non-specific stages after the coming into force of the TFA. This ‘different speeds’ approach of having self-selected commitments under the umbrella of a multilateral agreement has, ostensibly, been inspired, to some extent, by the schedule of commitments regime under Article XVI of the GATS. Thus apart from the fact that, per the provisions in Article X:3 of the WTO Agreement, a Multilateral Trade Agreement like the TFA can become operational upon ratification by two-thirds of members, the actual provisions in the TFA contain an inbuilt different speeds approach that temper the possibly stringent effect of single undertaking. IX. CONCLUSION This article has sought to answer the question whether in spite of the rigid effect of consensus and single undertaking, there can be a more flexible approach to WTO decision-making without recourse to law reform. As discussed in the preceding segments, various paragraphs under Article X of the WTO Agreement offer possibilities for a more flexible approach to decision-making in the WTO. The coming into effect of the TFA through the provisions of paragraphs 1 and 3 of Article X shows that WTO members can rise to the occasion of setting aside self-imposed stringent obligations like the single undertaking requirement in the Doha Round trade negotiations. As John H. Jackson astutely admonishes, there are ‘certain circumstances where it might be wise to experiment with an approach that would not be part of a single package’.50 Recourse, inter alia, to a gradual multilateralization process under paragraph 3, soft law approaches under paragraph 4 and plurilateral agreements under paragraph 9 of the WTO Agreement can yield positive results in the bid to make the WTO more relevant as a regulator and promoter of international trade in a fast-paced twenty-first century. The various options available for regulating international trade without the encumbrance of single undertaking and consensus can help establish a different speeds regime that does not compel horses and tortoises to run at the same speed. It is hoped that the coming into force of the TFA on 22 February 2017 can serve as a catalyst for a new approach to decision-making in the WTO that is more amenable to using existing, more flexible, procedures to unclog the current impasse-prone decision-making system in the WTO. Footnotes 1 Article IX:1 provides in relevant part that: ‘The WTO shall continue the practice of decision-making by consensus followed under GATT 1947.1 Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. […] Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in the relevant Multilateral Trade Agreement.’ 2 Regarding decision-making by consensus, footnote 1 of the WTO Agreement states that: ‘The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.’ 3 Joost Pauwelyn, ‘The WTO in Crisis: Five Fundamentals Reconsidered’, https://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art9.htm (visited 15 February 2018). Pauwelyn, however, argues that consensus could be interpreted as unanimity, unanimity minus one or two, qualified or simple majority. He thus advocates for a more imaginative resort to consensus decision-making in the WTO that reflects the various possible definitions of consensus. 4 Article IX:2 provides for decision-making on interpretations to be adopted by a three-fourths majority vote. 5 Article IX:3-4. Per the provisions in Article IX:3, the general procedure for adopting decisions on waivers is by a three-fourths majority vote. 6 See Alex Ansong, ‘Democracy in the World Trade Organization: Are Some Members More Equal Than Others?’, 14 International Organizations Law Review (2017), 154–95. 7 See Robert Wolfe, ‘The Single Undertaking as Negotiating Technique and Constitutive Metaphor’, 12(4) Journal of International Economic Law (2009), 835–58. 8 John H. Jackson, ‘The WTO “Constitution” and Proposed Reforms: Seven “Mantras” Revisited’, 4(1) Journal of International Economic Law (2001), 67–78. While Jackson acknowledges the importance of the single undertaking principle, he argues that there are situations that elicit departure from this principle. 9 The Annex 1 multilateral trade agreements contain the provisions on the substantive trade rules that fall within the remit of the WTO. Annex 1A contains all the agreements that regulate trade in goods—i.e. General Agreement on Tariffs and Trade 1994; Agreement on Agriculture; Agreement on the Application of Sanitary and Phytosanitary Measures; Agreement on Technical Barriers to Trade; Agreement on Trade-Related Investment Measures; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994; Agreement on Preshipment Inspection; Agreement on Rules of Origin; Agreement on Import Licensing Procedures; Agreement on Subsidies and Countervailing Measures; and Agreement on Safeguards Agreement on Trade Facilitation. Annex 1B and 1C contain the General Agreement on Trade in Services and the Agreement on Trade Related Aspects of Intellectual Property Rights respectively. The Understanding on Rules and Procedures Governing the Settlement of Disputes, and Trade Policy Review Mechanism come under Annexes 2 and 3 respectively. 10 Article IV:5 of the WTO Agreement states in relevant part that: ‘There shall be a Council for Trade in Goods, a Council for Trade in Services and a Council for Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the “Council for TRIPS”), which shall operate under the general guidance of the General Council. The Council for Trade in Goods shall oversee the functioning of the Multilateral Trade Agreements in Annex 1A. The Council for Trade in Services shall oversee the functioning of the General Agreement on Trade in Services (hereinafter referred to as “GATS”). The Council for TRIPS shall oversee the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the “Agreement on TRIPS”).’ 11 It is worthy of note though that while Article XI:1 names the Ministerial Conference as the legitimate organ to receive amendment proposals, Article IV:5 of the WTO Agreement mandates the General Council to carry out the functions of the Ministerial Conference in the (normally) two-year intervals between meetings of the later organ. The logical inference from this provision is that the General Council would have the capacity to receive proposals dealing with amendments if the Ministerial Conference is not in session. 12 For example, Article XX of the GATT 1994 provides for general exceptions to binding obligations and this extends to the MFN rules as well. Also, Article XXIV of the GATT and Article V of the GATS allow derogations from the MFN rule to enable WTO members to enter into customs unions and free trade agreements that provide better preferences than the general MFN treatment. 13 Article X:5 of the WTO Agreement makes a similar provision with respect to the adoption of amendments to Parts I, II, and III of the GATS. However, Article X:5 is silent on the issue of whether the amendment can alter rights and obligations of members. Absence of a clear prohibition against such amendments being able to alter rights and obligations of members means that they can. The last sentence of Article X:5 provides a more flexible amendment procedure for Parts IV, V, and VI of the GATS. Amendments to the just stated Parts take effect for all members upon acceptance by two-thirds of member. 14 Article II:2 of the WTO Agreement. 15 See analysis on this by Florin Bonciua and Marcel Moldoveanu, ‘The Proliferation of Free Trade Agreements in the Post-Doha Round Period: the Position of the European Union’, 8 Procedia Economics and Finance (2014 ), 100–5. 16 See Appendix 1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. 17 Article XXIII:1(b) of the GATT 1994 and Article 26 of the Dispute Settlement Understanding provide for the non-violation cause of action in WTO dispute settlement. Article XXIII:1(b) of the GATT 1994 states that: If any Member should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of […] the application by another Member of any measure, whether or not it conflicts with the provisions of this Agreement, […] the Member may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any Member thus approached shall give sympathetic consideration to the representations or proposals made to it. 18 See Rudolf Dolzer and Christopher Schreuer, Principles of International Investment Law, 2nd ed. (Oxford: Oxford University Press, 2012). See also Susan D. Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, 73(4) Fordham Law Review (2005), 1521, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4062&context=flr (visited 22 February 2018). 19 See Statement by the Honourable N. M. Shamuyarira, Zimbabwean Minister of Industry and Commerce delivered on 10 December 1996, at the Singapore Ministerial Conference, 9–13 December 1996, http://www.wto.org/english/thewto_e/minist_e/min96_e/st45.htm (visited 15 February 2018). 20 Article 13:1 of the UN Charter. 21 Article 13:1 of the UN Charter. 22 See Carl-August Fleischhauer, ‘Article 13’, in Brunno Simma et al. (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994), 265–79. 23 Convention on the High Seas, Convention on the Continental Shelf, Convention on the Territorial Sea and the Contiguous Zone, and the Convention on Fishing and Conservation of the Living Resources of the High Seas. 24 For a more exhaustive account of the work of the ILC see The Work of the International Law Commission (New York: United Nations Office of Legal Affairs, 2007). 25 See http://www.uncitral.org/uncitral/en/uncitral_texts.html (visited 6 February 2018). 26 See Anthony D’Amato, ‘On Consensus’, 105 Canadian Year Book of International Law (1970), 104–22. 27 Paul Szasz, ‘General Law-Making Process’, in Oscar Schachter and Christopher C. Joyner (eds), United Nations Legal Order: Volume 1 (Cambridge: Cambridge University Press, 1995), 35–108. 28 See Arnold N. Pronto, ‘Some Thoughts on the Making of International Law’, 19(3) European Journal of International Law (2008). 29 Ohiocheoya Omiunu, ‘The Role of Non-Traditional Actors in the Design of International Economic Agreements’, MC11 Think Track Conference on “Thinking about a Global Trade Governance for the 21st Century: Challenges and Opportunities on the Eve of the WTO's 11th Ministerial Conference” Buenos Aires, 13 December 2017. 30 Article 71:2 of the TRIPS Agreement. 31 See Peter Van den Bossche, ‘The Doha Development Round Negotiations on the Dispute Settlement Understanding’, Conference Paper, WTO Conference: New Agendas in the 21st Century, Taipei, 28 – 29 November 2003, http://www.worldtradelaw.net/articles/vandenbosschedohadsu.pdf.download (visited 20 February 2018). 32 Ministerial Declaration, WT/MIN(01)/DEC/1, dated 20 November 2001, para 30. 33 WTO Secretariat, ‘Agreement on Government Procurement’, https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm (visited 25 February 2018). 34 That is Bovine Meat Agreement, International Dairy Arrangement, Agreement on Government Procurement and Agreement on Civil Aircraft. See WTO Secretariat, ‘Pre-WTO Legal Texts’, https://www.wto.org/english/docs_e/legal_e/prewto_legal_e.htm (visited 25 February 2018). 35 Peter D. Sutherland et al., The Future of the WTO: Addressing Institutional Challenges in the New Millennium, Report by the Consultative Board to the Director-General Supachai Panitchpakdi (Geneva: World Trade Organisation, 2004). 36 See Ansong, above n 6. 37 WTO Secretariat, ‘WTO’s Trade Facilitation Agreement Enters into Force’, https://www.wto.org/english/news_e/news17_e/fac_31jan17_e.htm (visited 10 February 2018). 38 Ministerial Conference Decision of 11 December 2013, WT/MIN(13)/36, WT/L/911. 39 General Council Decision of 27 November 2014, WT/L/940. 40 Trade Facilitation Agreement Facility, ‘Ratifications List’, http://www.tfafacility.org/ratifications (visited 20 February 2018). 41 That is since the TFA came into effect on 22 February 2017. 42 The other three are trade and investment, trade and competition policy and transparency in government procurement. 43 For analysis of negotiating history of the Trade Facilitation Agreement see Nora Neufeld, ‘The Long and Winding Road: How WTO Members Finally Reached a Trade Facilitation Agreement’, World Trade Organization, Economic Research and Statistics Division, Staff Working Paper ERSD-2014-06, 7 April 2014. 44 Decision Adopted by the General Council on 1 August 2004, WT/L/579. 45 That is special and differential treatment. 46 Para 7 of Annex E of the 2005 Hong Kong Ministerial Declaration, WT/MIN(05)/DEC. 47 Article 15 of the Trade Facilitation Agreement. 48 Article 16 of the Trade Facilitation Agreement. 49 Ibid. 50 See Jackson, above n 8, at 72. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of International Economic Law – Oxford University Press
Published: May 23, 2018
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