<nettime> (fwd) WTO rules for decision making

[t byfield <tbyfield@panix.com>]

----- Forwarded 

Date: Tue, 16 Nov 1999 23:49:23 -0500
From: James Love <love@cptech.org>
To: Multiple recipients of list RANDOM-BITS <random-bits@essential.org>
Subject: WTO rules for decision making 

With the WTO meetring coming up soon in Seattle, with Microsoft playing an
important role in e-commerce discussions, I'll share some background info
on how the WTO makes decisions, or at least what the formal rules are.  

Jamie

-------------------
     How are decisions made at the WTO?  

Here are Articles IX and X of the agreement that set up the WTO. 
The general rule is that the WTO seeks consensus, but if
consensus cannot be reached, "the matter at issue shall be
decided by voting," with a one country one vote rule. 
Interestingly, when the European Union votes, has the number of
votes equal to the number of countries in the EU.  There are
special supermajority rules for some issues.  For example, some
cases, a two thirds or three quarter majority is needed, and in
some cases, consensus must be reached.  In Article X.6, there are
special streamlined procedures for raising levels of protections
in the TRIPS, that would not apply to reductions in levels of
protections.

Given the large majorities of developing countries, it is a bit
surprising that there has not yet been any significant efforts to
force votes on WTO issues.  One important benefit from voting
would be far greater transparency in decision making, making it
easier for NGOs to monitor national positions taken in this new
form of world government.  

  Jamie Love <love@cptech.org>


Page 9
AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION

Page 13

                       Article IX
                    Decision-Making

1. The WTO shall continue the practice of decision-making by
consensus followed under GATT 1947. [fn 1] Except as otherwise
provided, where a decision cannot be arrived at by consensus, the
matter at issue shall be decided by voting. At meetings of the
Ministerial Conference and the General Council, each Member of
the WTO shall have one vote. Where the European Communities
exercise their right to vote, they shall have a number of votes
equal to the number of their member States [fn 2] which are
Members of the WTO. 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.[fn 3]

2. The Ministerial Conference and the General Council shall have
the exclusive authority to adopt interpretations of this
Agreement and of the Multilateral Trade Agreements. In the case
of an interpretation of a Multilateral Trade Agreement in Annex
1, they shall exercise their authority on the basis of a
recommendation by the Council overseeing the functioning of that
Agreement. The decision to adopt an interpretation shall be taken
by a three-fourths majority of the Members. This paragraph
shall not be used in a manner that would undermine the amendment
provisions in Article X. 

3. In exceptional circumstances, the Ministerial Conference may
decide to waive an obligation imposed on a Member by this
Agreement or any of the Multilateral Trade Agreements, provided
that 


Page 14

any such decision shall be taken by three fourths [fn 4] of the
Members unless otherwise provided for in this paragraph.

     (a) A request for a waiver concerning this Agreement
     shall be submitted to the Ministerial Conference for
     consideration pursuant to the practice of
     decision-making by consensus. The Ministerial
     Conference shall establish a time-period, which shall
     not exceed 90 days, to consider the request. If
     consensus is not reached during the time-period, any
     decision to grant a waiver shall be taken by three
     fourths [fn 4] of the Members..

     (b) A request for a waiver concerning the Multilateral
     Trade Agreements in Annexes 1A or 1B or 1C and their
     annexes shall be submitted initially to the Council for
     Trade in Goods, the Council for Trade in Services or
     the Council for TRIPS, respectively, for consideration
     during a time-period which shall not exceed 90 days. At
     the end of the time-period, the relevant Council shall
     submit a report to the Ministerial Conference.

4. A decision by the Ministerial Conference granting a waiver
shall state the exceptional circumstances justifying the
decision, the terms and conditions governing the application of
the waiver, and the date on which the waiver shall terminate. Any
waiver granted for a period of more than one year shall be
reviewed by the Ministerial Conference not later than one year
after it is granted, and thereafter annually until the waiver
terminates. In each review, the Ministerial Conference shall
examine whether the exceptional circumstances justifying the
waiver still exist and whether the terms and conditions attached
to the waiver have been met. The Ministerial Conference, on the
basis of the annual review, may extend, modify or terminate the
waiver.

5. Decisions under a Plurilateral Trade Agreement, including any
decisions on interpretations and waivers, shall be governed by
the provisions of that Agreement. 

                      Article X
                     Amendments

1. Any Member of the WTO may initiate a proposal to amend the
provisions of this Agreement or the Multilateral Trade Agreements
in Annex 1 by submitting such proposal to the Ministerial
Conference. The Councils listed in paragraph 5 of Article IV may
also submit to the Ministerial Conference proposals to amend the
provisions of the corresponding Multilateral Trade Agreements
in Annex 1 the functioning of which they oversee. Unless the
Ministerial Conference decides on a longer period, for a period
of 90 days after the proposal has been tabled formally at the
Ministerial Conference any decision by the Ministerial Conference
to submit the proposed amendment to the Members for acceptance
shall be taken by consensus. Unless the provisions of paragraphs
2, 5 or 6 apply, that decision shall specify whether the
provisions of paragraphs 3 or 4 shall apply. If consensus is
reached, the Ministerial Conference shall forthwith submit the
proposed amendment to the Members for acceptance. If consensus is
not reached at a meeting of the Ministerial Conference within the
established period, the Ministerial Conference shall decide by a
two-thirds majority of the Members whether to submit the proposed
amendment to the Members for acceptance. Except as provided in
paragraphs 2, 5 and 6, the provisions of paragraph 3 shall apply
to the proposed amendment, unless the Ministerial Conference
decides by a three-fourths majority of the Members that the
provisions of paragraph 4 shall apply.

2. Amendments to the provisions of this Article and to the
provisions of the following Articles shall take effect only upon
acceptance by all Members:

                                                       
Page 15

Article IX of this Agreement;
Articles I and II of GATT 1994;
Article II:1 of GATS;
Article 4 of the Agreement on TRIPS.

3. 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 alter
the rights and obligations of the Members, shall take effect for
the Members that have accepted them upon acceptance by two thirds
of the Members and thereafter for each other Member upon
acceptance by it. 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.

4. 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.

5. Except as provided in paragraph 2 above, amendments to Parts
I, II and III of GATS and the respective annexes shall take
effect for the Members that have accepted them upon acceptance by
two thirds of the Members and thereafter for each Member upon
acceptance by it. The Ministerial Conference may decide by a
three-fourths majority of the Members that any amendment made
effective under the preceding provision 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. Amendments to Parts IV, V and
VI of GATS and the respective annexes shall take effect for all
Members upon acceptance by two thirds of the Members.

6. Notwithstanding the other provisions of this Article,
amendments to the Agreement on TRIPS meeting the requirements of
paragraph 2 of Article 71 thereof may be adopted by the
Ministerial Conference without further formal acceptance process.

7. 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.

8. Any Member of the WTO may initiate a proposal to amend the
provisions of the Multilateral Trade Agreements in Annexes 2 and
3 by submitting such proposal to the Ministerial Conference.
The decision to approve amendments to the Multilateral Trade
Agreement in Annex 2 shall be made by consensus and these
amendments shall take effect for all Members upon approval by the
Ministerial Conference. Decisions to approve amendments to the
Multilateral Trade Agreement in Annex 3 shall take effect for all
Members upon approval by the Ministerial Conference.

9. 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.

10. Amendments to a Plurilateral Trade Agreement shall be
governed by the provisions of that Agreement.




<----------------------foot notes---------------------->

[1] 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.

[2] The number of votes of the European Communities and their
member States shall in no case exceed the number of the
member States of the European Communities.

[3] Decisions by the General Council when convened as the Dispute
Settlement Body shall be taken only in accordance with the
provisions of paragraph 4 of Article 2 of the Dispute Settlement
Understanding.

[4] A decision to grant a waiver in respect of any obligation
subject to a transition period or a period for staged
implementation that the requesting Member has not performed by
the end of the relevant period shall be taken only by consensus.

<----------------end foot notes---------------------->

-------------------------------
James Love 
Center for Study of Responsive Law | Consumer Project on Technology 
P.O. Box 19367, Washington, DC 20036 | http://www.cptech.org
Voice 202/387-8030 | Fax 202/234-5176 | love@cptech.org

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