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WTO ANALYTICAL INDEX: MARRAKESH AGREEMENT Marrakesh Agreement Establishing the World Trade Organization |
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> Preamble |
Article V: Relations with Other Organizations 1. The General Council shall make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO.
2. The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO. 246. Under Article XXVI of GATS a specific power to conclude arrangements with organizations in the area of services has also been allocated to the General Council, whereas under Article 68, in fine, of the TRIPS Agreement, the TRIPS Council is charged with establishing appropriate arrangements for cooperation with WIPO bodies. Insofar as there is a conflict between this last-mentioned power and the power of the General Council under Article V:1 of the WTO Agreement, the latter prevails, pursuant to Article XVI:3 of the WTO Agreement. Thus far the WTO has concluded agreements pursuant to Article V:1 with the following intergovernmental organizations: (a) United Nations;
(b) World Intellectual Property Organization;
(c) World Bank;
(d) International Monetary Fund;
(e) Office International des Epizooties; and
(f) International Telecommunications Union.(352) 247. A note prepared by the Secretariat lists the inter-governmental organizations mentioned in the Uruguay Round Final Act texts "together with the provisions therein that provided parameters for cooperation with these organizations, as well as of other inter-governmental organizations whose work might be relevant to the WTO".(353) 248. The General Council confirmed to the Secretariat the request of Members that it work out an arrangement with the United Nations based on the same working relationship that existed in the past between GATT and the United Nations.(354) This agreement with the United Nations was concluded on 29 September 1995, via an exchange of letters.(355) (c) The World Intellectual Property Organization (WIPO) 249. At its meeting of 13 and 15 December 1995, the General Council approved the text of the proposed Agreement(356) between the World Trade Organization and the World Intellectual Property Organization.(357) (d) The International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (World Bank) 250. With respect to the cooperation agreements with the IMF and the World Bank, see paragraphs95-97 above. With respect to the cooperation among those organizations required under Article III:5 of the WTO Agreement, see paragraphs 99-101 above. (e) Office International des Epizooties (OIE) 251. At its meeting of 22 October 1997, the General Council approved the Agreement(358) on cooperation between the World Trade Organization and the Office International des Epizooties.(359) (f) International Telecommunications Union (ITU) 252. At its meeting of 10 October 2000, the General Council approved the Agreement(360) between the World Trade Organization and the International Telecommunications Union.(361) 253. Upon invitation, the General Council has allowed some intergovernmental organizations to observe its meetings.(362) In 1995 and 1996, the General Council accorded ad hoc observer status to seven international intergovernmental organizations, including: the United Nations, UNCTAD, IMF, the World Bank, FAO, WIPO, and the OECD.(363) Subsequently, the IMF and the World Bank were granted permanent observer status in General Council meetings by the terms of their respective cooperation agreements.(364) In its meetings of 7 February 1997, the General Council granted permanent observer status to the United Nations, UNCTAD, FAO, WIPO, and the OECD.(365) In the General Council meeting of 10 December 1997, the ITC, as a joint subsidiary of the WTO and UNCTAD, was "invited, as appropriate, to attend meetings of those WTO bodies it wished to attend without having to submit a request for observer status".(366) To date, no intergovernmental organizations have been granted permanent observer status in General Council meetings pursuant to the guidelines for "Observer Status for International Intergovernmental Organizations in the WTO" set out in Annex 3 to the "Rules of Procedure for Sessions of the Ministerial Council and Meetings of the General Council."(367) However, consultations have been held concerning the pending requests of intergovernmental organizations for observer status in the General Council.(368) (a) Guidelines for Arrangements on Relations with Non-Governmental Organizations 254. At its meeting of 18 July 1996, and pursuant to Article V:2, the General Council adopted the "Guidelines for Arrangements on Relations with Non-Governmental Organizations".(369) 255. Since the adoption of the Guidelines, the General Council has addressed the issue of external transparency in its meetings.(370) (b) Procedure to provide observer capacity 256. At its meeting of 18 July 1996, the General Council agreed to the procedure to allow non-governmental organizations to attend the Ministerial Conference in an observer capacity by invitation of the General Council.(371)
VII. Article VI back to top Article VI: The Secretariat 1. There shall be a Secretariat of the WTO (hereinafter referred to as "the Secretariat") headed by a Director-General.
2. The Ministerial Conference shall appoint the Director-General and adopt regulations setting out the powers, duties, conditions of service and term of office of the Director-General.
3. The Director-General shall appoint the members of the staff of the Secretariat and determine their duties and conditions of service in accordance with regulations adopted by the Ministerial Conference.
4. The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character. In the discharge of their duties, the Director-General and the staff of the Secretariat shall not seek or accept instructions from any government or any other authority external to the WTO. They shall refrain from any action which might adversely reflect on their position as international officials. The Members of the WTO shall respect the international character of the responsibilities of the Director-General and of the staff of the Secretariat and shall not seek to influence them in the discharge of their duties. No jurisprudence or decision of a competent WTO body. (a) Appointment of the Director-General 257. To date the General Council has appointed the following persons as the Director-General: (a) Mr Peter Sutherland - from 1 January 1995 to 30 April 1995(372);
(b) Mr Renato Ruggiero - from 1 May 1995 to 30 April 1999](373);
(c) Mr Mike Moore - 1 September 1999 to 31 August 2002(374); and
(d) Dr Supachai Panitchpakdi - from 1 September 2002 to 31 August 2005.(375) (b) "regulations setting out the powers, duties, conditions of service and term of office of the Director-General" 258. At its meeting of 22 July 1999, the General Council resolved that, "in order to improve and strengthen the current rules and procedures [for the appointment of the Director-General], a comprehensive set of rules and procedures for such appointments shall be elaborated and adopted by the end of September 2000."(376) Pursuant to this resolution, the General Council discussed this issue at its meetings on 17 and 19 July 2000(377) and 7, 8, 11 and 15 December 2000.(378) (a) Duties and conditions of service of the WTO Secretariat 259. On 15 April 1994, the Ministerial Conference adopted a declaration entitled "Organizational and Financial Consequences Flowing from the Implementation of the Agreement Establishing the World Trade Organization"(379), thereby agreeing that "the Preparatory Committee shall consider the organizational changes, resource requirements and staff conditions of service proposed in connection with the establishment of the WTO and the implementation of the Uruguay Round agreements and prepare recommendations and take decisions, to the extent necessary, on the adjustments required."(380) 260. At its meetings of 30 October 1995, 7, 8 and 13 November 1996, 7 February 1997, 30 June-1 July 1997, and 24 April 1998, the General Council adopted decisions regarding the terms of service applicable to the WTO staff.(381) At its meeting of 7 February 1997, the General Council agreed to establish the Working Group on Conditions of Service Applicable to the Staff of the WTO Secretariat.(382) 261. At its meeting of 14, 16 and 23 October 1998, taking into consideration the report of the Working Group, the General Council decided "to endorse the compensation philosophy and to adopt the Staff Regulations and Staff Rules and the Regulations and Administrative Rules of the WTO Pension Plan, as contained in Annex 2 of the present Decision ...".(383) 262. See the Staff Regulations and Staff Rules, e.g. Regulation 1.4 of the Staff Regulations and point 4 of the Standards of Conduct in the World Trade Organization.(384)
VIII. Article VII back to top Article VII: Budget and Contributions 1. The Director-General shall present to the Committee on Budget, Finance and Administration the annual budget estimate and financial statement of the WTO. The Committee on Budget, Finance and Administration shall review the annual budget estimate and the financial statement presented by the Director-General and make recommendations thereon to the General Council. The annual budget estimate shall be subject to approval by the General Council.
2. The Committee on Budget, Finance and Administration shall propose to the General Council financial regulations which shall include provisions setting out:
(a) the scale of contributions apportioning the expenses of the WTO among its Members; and
(b) the measures to be taken in respect of Members in arrears.
The financial regulations shall be based, as far as practicable, on the regulations and practices of GATT 1947.
3. The General Council shall adopt the financial regulations and the annual budget estimate by a two-thirds majority comprising more than half of the Members of the WTO.
4. Each Member shall promptly contribute to the WTO its share in the expenses of the WTO in accordance with the financial regulations adopted by the General Council. 263. Pursuant to Article VII:1, the Director-General annually submits budget estimates to the BFA Committee. 264. Pursuant to Article VII:1, the Director-General annually submits budgetary and financial reports to the BFA Committee.(385) (c) "recommendations" by the BFA Committee 265. In accordance with Article VII:1, the BFA Committee regularly makes recommendations to the General Council regarding the Director-General's annual budget estimates and the financial statement.(386) These recommendations, which embody a compromise among the members of the BFA Committee, are presented to the General Council for adoption.(387) (a) BFA Committee's proposal on financial regulations 266. At its meeting of 15 November 1995, based upon the recommendation of the Joint WTO/GATT Committee on Budget, Finance and Administration(388), the General Council adopted the WTO Financial Regulations and Financial Rules.(389) The BFA Committee regularly reviews the scale of contributions assessed to the Members and has made a decision on so-called "inactive Members".(390) (b) "the scale of contributions" 267. At its meeting of 29 June 1995, the Joint WTO/GATT Committee on Budget, Finance and Administration recommended to the General Council a new methodology(391) for the calculation of the assessment of Members' contributions to the WTO budget.(392) At its meeting of 15 November 1995, the General Council approved the recommendations.(393) On 9 August 2000, the BFA Committee submitted draft recommendations modifying the original calculation methodology.(394) (c) Doha Development Agenda Global Trust Fund 268. Following the guidelines set by the Ministerial Conference in Doha,(395) the BFA Committee developed a plan to ensure long-term funding for WTO technical assistance at an overall level no lower than that of the year 2001. A draft recommendation was presented on 3 December 2003(396) (a) Adoption of financial regulations 269. At its meeting of 15 November 1995, and pursuant to its mandate in Article VII:3, the General Council adopted the BFA Committee's proposed financial regulations.(397) 270. On 15 December 2000, the General Council approved guidelines(398) with respect to "Voluntary Contributions, Gifts, or Donations from Non-Governmental Donors(399). These guidelines are to be reviewed by January 2003.(400) (a) Budget contributions of Members 271. See paragraph 267 above.
IX. Article VIII back to top Article VIII: Status of the WTO 1. The WTO shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.
2. The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions.
3. The officials of the WTO and the representatives of the Members shall similarly be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO.
4. The privileges and immunities to be accorded by a Member to the WTO, its officials, and the representatives of its Members shall be similar to the privileges and immunities stipulated in the Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947.
5. The WTO may conclude a headquarters agreement. 272. Paragraphs 1-3 establish certain principles regarding the legal personality, the privileges and immunities enjoyed by the Organization, its officials and the representatives of its Members, and in particular the so-called functional character of these notions, expressed in the words "necessary for the (independent) exercise of its/their functions." Privileges and immunities are given to the staff of the Organization with a view to facilitating the independent exercise of their functions and are closely linked with the Members' obligation under Article VI:4 to respect the international character of the responsibilities of the Director-General and of the staff and not to seek to influence them in the discharge of their duties. Officials of the Secretariat are, in turn, held to have to observe the laws of the host State and to perform their private obligations accordingly. The Director-General may decide, whether, in respect of these obligations, and in the interest of the WTO, an immunity shall be waived.(401) 273. Under this provision, Members are bound by the obligation to grant "similar" privileges and immunities to the WTO as those laid down in the Convention on the Privileges and Immunities of the Specialized Agencies 1947(402), whether or not the Member in question is a party to that Convention. The WTO itself is not a party to the Convention, the Convention not being open to international organizations. It is unclear whether the WTO is under the obligation to "specify the categories of officials to which the provisions on privileges and immunities and the 'laissez-passer' apply"(403) , as its Members are also not bound as to its precise terms. 274. The Headquarters Agreement(404) and the Infrastructure Agreement(405) between the World Trade Organization and the Swiss Confederation was approved by the General Council on 31 May 1995.(406) 275. Pursuant to the decision adopted at its meeting of 8 December 1994 by the Preparatory Committee for the World Trade Organization(407), the Preparatory Committee, the CONTRACTING PARTIES to GATT 1947 and the Executive Committee of ICITO entered into the Agreement on the Transfer of Assets, Liabilities, Records, Staff and Functions from the Interim Commission of the International Trade Organization and the GATT to the World Trade Organization.(408)
X. Article IX back to top Article IX: Decision-Making 1. 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. 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(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.(3)
(footnote original) 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.
(footnote original) 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.
(footnote original) 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.
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 any such decision shall be taken by three fourths(4) of the Members unless otherwise provided for in this paragraph.(409)
(footnote original) 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 re questing Member has not performed by the end of the relevant period shall be taken only by consensus.
(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 fourths4 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. 276. With respect to the "Decision-Making Procedures Under Articles IX and XII of the WTO Agreement" see paragraph 281 below.(410) (a) Exclusive authority to adopt interpretations 277. In Japan - Alcoholic Beverages II, the Appellate Body disagreed with the Panel's finding that panel reports adopted by the DSB constitute "subsequent practice" within the meaning of Article 31 of the Vienna Convention on the Laws of Treaties.(411) In support of this conclusion, the Appellate Body referred to the exclusive authority of the Ministerial Conference and General Council to adopt interpretations of the WTO Agreement under Article IX:2.(412) 278. In US - Wool Shirts and Blouses, the Appellate Body, in support of the Panel's exercise of judicial economy in that it did not decide on legal issues which were not necessary to solve the particular matter, referred to the exclusive authority of Ministerial Conference and the General Council to adopt interpretations of the WTO Agreement.(413) (b) Requests for authoritative interpretations 279. The first request for an authoritative interpretation of the Multilateral Trade Agreements was made on 21 January 1999.(414). It was related to Articles 3.7, 21.5, 22.2, 22.6, 22.7 and 23 of the DSU. Although the General Council was requested to hold a meeting to deal with these interpretation issues(415), no such meeting was ever held.(416) 280. The TRIPS Agreement has been interpreted in regard to its specific relationship with the public health sector by the Ministerial Conference in Doha. The Declaration on the TRIPS Agreement and Public Health(417), adopted on 14 November 2001, states that the TRIPS Agreement "does not and should not prevent Members from taking measures to protect public health ..., in particular, to promote access to medicines for all." For such purpose, the TRIPS Agreement provides flexibility in its interpretation.(418) (a) Decision-making procedures 281. At its meeting of 15 November 1995, the General Council adopted the decision on "Decision-Making Procedures Under Articles IX and XII of the WTO Agreement" concerning the decision-making procedures to deal with matters related to requests for waivers or accessions to the WTO under Articles IX or XII of the WTO Agreement.(419) The Decision states: "On occasions when the General Council deals with matters related to requests for waivers or accessions to the WTO under Articles IX or XII of the WTO Agreement respectively, the General Council will seek a decision in accordance with Article IX:1. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting under the relevant provisions of Articles IX or XII."(420) 282. See paragraph 288 below which list waivers granted and renewed under the WTO Agreement to date. In this regard, as of 31 January 1995, and pursuant to footnote 1 of GATT 1994, the General Council established a revised list of waivers granted under Article XXV of GATT 1947 and still in force on the date of entry into force of the WTO Agreement.(421) Article 1(b)(iii) of GATT 1994 applies to the listed waivers. 283. At its meeting of 14 November 2001, the Doha Ministerial Conference adopted a decision on European Communities - The ACP-EC Partnership Agreement concerning the request for a waiver from the obligations of the European Communities under Article I:1 of the GATT 1994 with respect to the granting of preferential tariff treatment for products originating in ACP States. The Decision states: "Subject to the terms and conditions set out hereunder, Article I, paragraph 1 of the General Agreement shall be waived, until 31 December 2007, to the extent necessary to permit the European Communities to provide preferential tariff treatment for products originating in ACP States as required by Article 36.3, Annex V and its Protocols of the ACP-EC Partnership Agreement,(422) without being required to extend the same preferential treatment to like products of any other member."(423) 284. In EC - Bananas III, the European Communities argued that a certain waiver on its import regime for bananas should be interpreted so as to justify a deviation from GATT Article XIII although it waived only compliance with GATT Article I in its terms. The Panel accepted this argument to the extent that "the scope of Article XIII is identical with that of Article I,"(424) but the Appellate Body rejected this finding, stating: "The wording of the Lomé Waiver is clear and unambiguous. By its precise terms, it waives only 'the provisions of paragraph 1 of Article I of the General Agreement ... to the extent necessary' to do what is 'required' by the relevant provisions of the Lomé Convention. The Lomé Waiver does not refer to, or mention in any way, any other provision of the GATT 1994 or of any other covered agreement. Neither the circumstances surrounding the negotiation of the Lomé Waiver, nor the need to interpret it so as to permit it to achieve its objectives, allow us to disregard the clear and plain wording of the Lomé Waiver by extending its scope to include a waiver from the obligations under Article XIII. Moreover, although Articles I and XIII of the GATT 1994 are both non-discrimination provisions, their relationship is not such that a waiver from the obligations under Article I implies a waiver from the obligations under Article XIII."(425) 285. In support of this proposition, the Appellate Body in EC - Bananas III made the following observations: "The Panel's interpretation of the Lomé Waiver as including a waiver from the GATT 1994 obligations relating to the allocation of tariff quotas is difficult to reconcile with the limited GATT practice in the interpretation of waivers, the strict disciplines to which waivers are subjected under the WTO Agreement, the history of the negotiations of this particular waiver and the limited GATT practice relating to granting waivers from the obligations of Article XIII.
There is little previous GATT practice on the interpretation of waivers. In the panel report in United States - Sugar Waiver, the panel stated:
'The Panel took into account in its examination that waivers are granted according to Article XXV:5 only in 'exceptional circumstances', that they waive obligations under the basic rules of the General Agreement and that their terms and conditions consequently have to be interpreted narrowly.'(426)
Although the WTO Agreement does not provide any specific rules on the interpretation of waivers, Article IX of the WTO Agreement and the Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994, which provide requirements for granting and renewing waivers, stress the exceptional nature of waivers and subject waivers to strict disciplines. Thus, waivers should be interpreted with great care."
With regard to the history of the negotiations of the Lomé Waiver, we have already noted that the CONTRACTING PARTIES limited the scope of the waiver by replacing 'preferential treatment foreseen by the Lomé Convention' with 'preferential treatment required by the Lomé Convention' (emphasis added). This change clearly suggests that the CONTRACTING PARTIES wanted to restrict the scope of the Lomé Waiver.
Finally, we note that between 1948 and 1994, the CONTRACTING PARTIES granted only one waiver of Article XIII of the GATT 1947.(427) In view of the truly exceptional nature of waivers from the non-discrimination obligations under Article XIII, it is all the more difficult to accept the proposition that a waiver that does not explicitly refer to Article XIII would nevertheless waive the obligations of that Article. If the CONTRACTING PARTIES had intended to waive the obligations of the European Communities under Article XIII in the Lomé Waiver, they would have said so explicitly."(428) 286. With respect to the GATT practice concerning waivers under GATT Article XXV:5, see GATT Analytical Index, Article XXV, pages 882-888. 287. For waivers granted pursuant to paragraph 4, see table below. 5. Table of waivers granted under Article IX 288. Waivers, including any extensions thereof, listed in this table were still in force as of 31 December 2002 unless otherwise indicated. This table includes waivers granted under Article XXV of GATT 1947 and still in force on 1 January 1995, as listed in WT/L/3, which were carried over to GATT 1994 pursuant to paragraph 1(b)(iii) and footnote 1 of GATT 1994. The table is divided into three sections: (a) Waivers concerning the Harmonized System; (b) Waivers concerning Regional Trade Agreements; and (c) Other Waivers. (a) Waivers concerning the Harmonized System
(b) Waivers concerning Regional Trade Agreements
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