Analysis, statistics, publications, downloads, links, etc

WTO ANALYTICAL INDEX: MARRAKESH AGREEMENT

Marrakesh Agreement Establishing the World Trade Organization

150pxls.gif (76 bytes)
The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

> Preamble
> Article I
> Article II
> Article III
> Article IV
> Article V
> Article VI
> Article VII
> Article VIII
> Article IX
> Article X
> Article XI
> Article XII
> Article XIII
> Article XIV
> Article XV
> Article XVI
> Explanatory Notes
> Ministerial Decisions and Declarations Regarding the WTO as an International Organization
> Tables

 

> Analytical Index main page


VI. Article V     back to top

A. Text of Article V

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 nongovernmental organizations concerned with matters related to those of the WTO.


B. Interpretation and Application of Article V

1. Article V:1

(a) “Shall make appropriate arrangements for effective cooperation with other intergovernmental organizations”

162.     As of 30 September 2011, the WTO had concluded agreements or memoranda of understanding with a number of intergovernmental organizations, including but not limited to the International Monetary Fund(269), International Telecommunication Union(270), World Organization on Animal Health (OIE)(271), World Bank(272), and the World Intellectual Property Organization.(273)

(b) Observer status

163.     The General Council has allowed some intergovernmental organizations to observe its meetings.(274) 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.(275) Subsequently, the IMF and the World Bank were granted permanent observer status in General Council meetings by the terms of their respective cooperation agreements.(276) In its meetings of 7 February 1997, the General Council granted permanent observer status to the United Nations, UNCTAD, FAO, WIPO, and the OECD.(277) In the General Council meeting of 10 December 1997, the ITC, as a joint technical cooperation agency between 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”.(278)

164.     To date, no other 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.”(279) However, consultations have been held concerning the pending requests of intergovernmental organizations for observer status in the General Council.(280) Intergovernmental organizations have been accorded observer status at various Ministerial Conferences.(281)

165.     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.

2. Article V:2

(a) “may make appropriate arrangements … with non-governmental organizations”

(i) Guidelines for Arrangements on Relations with Non-Governmental Organizations

166.     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”.(282) Since the adoption of the Guidelines, the General Council has addressed the issue of external transparency in its meetings.(283)

(ii) Procedure to provide observer capacity

167.     At its meeting of 18 July 1996, the General Council agreed to allow non-governmental organizations to attend as observers at the Singapore Ministerial Conference.(284) The General Council later agreed to allow non-governmental organizations to attend as observers at subsequent Ministerial Conferences (Geneva, Seattle, Doha, Cancún, Hong Kong, Geneva).(285)

 

VII. Article VI     back to top

A. Text of Article VI

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.


B. Interpretation and Application of Article VI

1. Article VI:1

(a) WTO Secretariat

168.     The WTO Secretariat is based in Geneva, Switzerland and is headed by a Director-General.

169.     Because the GATT 1947 did not enter into force, but was applied provisionally(286), the secretariat services for the GATT 1947 were provided by the Secretariat of the Interim Commission for the International Trade Organization (ICITO).(287) 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 provided that “the staff of the ICITO shall perform the duties of the Secretariat of the WTO until the appointment of the staff of the Secretariat of the WTO” and that the ICITO would be dissolved as of the date on which the members of the Secretariat were appointed.(288) Until an independent pension plan could be established for the WTO Secretariat, the ICITO remained in existence so that the ICITO staff could continue to participate in the United Nations Joint Staff Pension Fund; see paragraph 175 below.

170.     On 16 October 1998, the General Council adopted a Decision on Conditions of Service Applicable to the Staff of the WTO Secretariat, including Staff Regulations and Rules and the Regulations and Rules of the WTO Pension Plan; this Decision provided inter alia that “the WTO Secretariat shall be established on 1 January 1999.”(289)

2. Article VI:2

(a) “the Ministerial Conference shall appoint the Director-General”

171.     The General Council has appointed the following Directors-General to date:

Mr Peter Sutherland — from 1 January 1995 to 30 April 1995,(290)

 

Mr Renato Ruggiero — from 1 May 1995 to 30 April 1999,(291)

 

Mr Mike Moore — from 1 September 1999 to 31 August 2002,(292)

 

Dr Supachai Panitchpakdi — from 1 September 2002 to 31 August 2005,(293) and

 

Mr Pascal Lamy — from 1 September 2005 to 31 August 2009, and reappointed for a second four year term starting 1 September 2009.(294)

(b) “regulations setting out the powers, duties, conditions of service and term of office of the Director-General”

172.     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.”(295) The General Council approved a comprehensive set of procedures for the appointment of the Director-General at its meeting on 10–12 and 20 December 2002.(296) These procedures have been applied in subsequent selection and appointment processes for the Director-General.(297)

3. Article VI:3

(a) “duties and conditions of service” of the WTO Secretariat

(i) Staff Regulations and Rules

173.     The General Council adopted decisions regarding the terms of service applicable to the WTO staff 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.(298) The General Council further established a Working Group on Conditions of Service Applicable to the Staff of the WTO Secretariat(299) on 7 February 1997.

174.     On 16 October 1998, taking into consideration the report of the Working Group, the General Council adopted the proposed Staff Regulations and Staff Rules.(300) The General Council agreed to amend the Staff Rules at its meetings of 8 and 9 February 2001(301), 25, 26 and 30 August 2003(302), 17–18 May 2004(303), and 28 July 2009.(304)

(ii) WTO Pension Plan

175.     The ICITO staff participated in the United Nations Joint Staff Pension Fund (UNJSPF).(305) On 16 October 1998, consequent to agreement on the conditions of service applicable to the staff and on establishment of an independent WTO Pension Plan (WTOPP), the Executive Committee of ICITO and the General Council decided to terminate the membership of ICITO in the UNJSPF on 31 December 1998. The General Council also decided to adopt the WTOPP Regulations and Administrative Rules.(306)

176.     The WTO General Council agreed to amend the WTOPP Regulations and Administrative Rules at its meetings of 1, 2 and 6 December 2005, and 28 July 2009.(307)

177.     The General Council has approved agreements on the transfer of pension rights between the WTOPP and the UNFJSPF(308), the WTOPP and the pension scheme of the OECD(309), the WTOPP and the pension schemes of the Coordinated Organizations(310) and the WTOPP and the European Communities Pension Scheme.(311)

178.     The WTO Pension Plan Management Board reports annually to the General Council.(312)

4. Article VI:4: responsibilities and conduct of Director-General and Secretariat staff

179.     See the Staff Regulations and Staff Rules of the World Trade Organization.(313)

 

VIII. Article VII     back to top

A. Text of Article VII

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.


B. Interpretation and Application of Article VII

1. Article VII:1

(a) “the Director-General shall present to the Committee on Budget, Finance and Administration the annual budget estimate and financial statement of the WTO”

180.     The Director-General submits budgetary and financial reports to the BFA Committee annually.(314)

(b) “the Committee on Budget, Finance & Administration shall … make recommendations”

181.     The BFA Committee makes regular recommendations to the General Council on the Director-General’s annual budget estimates and the financial statement.(315) These recommendations embody a compromise among the members of the BFA Committee and are presented to the General Council for adoption.(316)

2. Article VII:2

(a) “Committee on Budget, Finance and Administration shall propose … financial regulations”

182.     At its meeting of 15 November 1995, the General Council adopted the WTO Financial Regulations and Financial Rules(317) on the basis of the recommendation of the Joint WTO/GATT Committee on Budget, Finance and Administration.(318) The WTO Financial Rules and Regulations were most recently revised at the meeting of the BFA Committee on 28 March 2007 and were approved by the General Council on 9 May 2007; see paragraph 189 below.

(b) “provisions setting out the scale of contributions”

183.     Under the GATT 1947, the contributions of the contracting parties to the GATT budget for each year to come were assessed on the basis of the estimated volume of foreign trade in goods for that year. As of 1994, each share was estimated on the basis of the contracting party’s share in the total trade in goods of all contracting parties and associated governments, computed on the basis of trade figures for the last three available years, with a minimum percentage contribution of 0.03 per cent for countries with a share of under 0.03 per cent of the total.(319) In 1994, the Sub-Committee on Budget, Finance and Administration of the WTO Preparatory Committee agreed that the assessment of contributions to the WTO budget should reflect shares in international trade in goods, services and intellectual property.(320)

184.     On 15 November 1995, the General Council approved(321) the following recommendation of the Joint WTO/GATT Committee on Budget, Finance and Administration for a methodology to apply this principle to the calculation of the assessment of Members’ contributions to the WTO budget, starting with the calculation of contributions to the 1996 budget:

“(a)     The share to be contributed by each Contracting Party/Member to the annual operating budget of the GATT/WTO shall be established on the basis of that country’s (or separate customs territory’s) international trade (imports plus exports) in relation to the total international trade of all GATT Contracting Parties/WTO Members;

 

(b)     The figures used shall be those for the last three years for which data are available;

 

(c)     The statistics used shall relate to trade in goods, services and intellectual property rights as reported in balance-of-payments statistics from the International Monetary Fund (IMF); with regard to services, the statistics shall relate to the definition of commercial services as applied in the WTO;

 

(d)     Where IMF data deviate from IMF guidelines and include transactions not related to goods, services or intellectual property rights, adjustments provided to the WTO by the Central Bank or the National Statistical Office of a Contracting Party/Member shall be taken into account by the Secretariat when adequately documented and justified;

 

(e)     If IMF data are not available, the WTO Secretariat will use estimates based on the best other available sources;

 

(f)     A minimum contribution of 0.03 per cent will be applied to those contracting parties/members whose share in the total international trade of all GATT Contracting Parties/WTO Members is less than 0.03 per cent.”(322)

185.     On 17 December 1999, the General Council approved a recommendation by the Committee that the minimum percentage contribution be changed to 0.015 per cent, starting with the 2000 budget. The contribution of observers was held at 0.015 per cent.(323)

186.     At its meeting of 10 October 2000, the General Council approved an amendment of paragraph (b) of the calculation methodology as follows, to ensure greater homogeneity in years for which data are used and minimize variability of contribution percentages from one year to the next:

“(b.1) Calculations of assessed contributions for the years 2001, 2002 and 2003 (which are prepared in the course of the respective previous year) shall be based on international trade statistics for the years 1996–1998, 1997 — 1999 and 1998–2000, respectively; or, if these statistics are not available, for the last three years for which statistics are available.

 

(b.2) Calculations of assessed contributions for at least the following ten years, i.e. 2004, 2005, 2006 to 2013, (which are prepared in the course of the respective previous year) shall be based on international trade statistics: for the years 1997–2001, 1998–2002, 1999–2003, etc. respectively; or, if these statistics are not available, for the last five years for which statistics are available.”(324)

(c) “measures to be taken in respect of Members in arrears”

187.     The BFA Committee regularly reviews the status of contributions assessed to the Members and adopted Administrative Measures in respect of Members in arrears.(325) At its meeting of 15 May 2006 the General Council approved revised Administrative Measures responding to the continued problem of accumulation of arrears, which had implications for all Members in the annual final accounts of the organization.(326) The Administrative Measures apply to Members in Categories I–IV, depending on how many years’ assessed contributions remain outstanding. Members in Category IV are designated as Inactive Members. Administrative Measures are suspended for Inactive Members which agree to, and abide by, a defined schedule of instalment payments aimed at liquidating all arrears.(327)

(d) Doha Development Agenda Global Trust Fund

188.     Following the guidelines set by the Doha Ministerial Conference(328), 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. The General Council approved the plan at its meeting of 15–16 December 2003.(329)

3. Article VII:3

(a) “The General Council shall adopt the financial regulations and the annual budget estimate”

189.     The General Council adopted the BFA Committee’s proposed Financial Rules and Regulations on 15 November 1995, approved amendments to the Financial Regulations on 26 August 2003 and 8 May 2007, and approved amendments to the Financial Rules on 8 May 2007.(330)

190.     On 15 December 2000, the General Council approved guidelines on Voluntary Contributions, Gifts, or Donations from Non-Governmental Donors.(331) On 27 July 2004, the General Council approved revised Guidelines.(332)

 

IX. Article VIII     back to top

A. Text of Article VIII

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.


B. Interpretation and Application of Article VIII

1. Article VIII:1, VIII:2 and VIII:3

(a) General

191.     Paragraphs 13 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 functional character of these notions. Privileges and immunities are extended to the staff of the Organization with a view to facilitating the independent exercise of their functions. Officials of the Secretariat are, in turn, required 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.(333)

2. Article VIII:4

192.     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(334), whether or not the Member in question is a party to that Convention.

3. Article VIII:5

(a) Headquarters Agreement

193.     The Agreement between the WTO and the Swiss Confederation to determine the legal status of the Organization in Switzerland(335) was approved by the General Council on 31 May 1995(336), together with the Infrastructure Contract between the WTO and the Swiss Confederation, the Republic and Canton of Geneva and the Fondation des Immeubles pour les Organisations Internationales (FIPOI) at Geneva.(337)

194.     On 31 July 2008, the General Council approved conclusion of a memorandum of understanding between the Swiss Confederation and the WTO on the Long-Term Housing Needs of the WTO, concerning renovation and adaptation of the building housing the WTO, and other facilities for the WTO.(338)

(b) Transfer of assets

195.     Pursuant to a decision adopted by the Preparatory Committee for the World Trade Organization on 8 December 1994, 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.(339)

 

X. Article IX     back to top

A. Text of Article IX

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.

 

(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 requesting 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 fourths(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.


B. Interpretation and Application of Article IX

1. Article IX:1

(a) “The WTO shall continue the practice of decision-making by consensus”

196.     The General Council adopted the decision on “Decision-Making Procedures Under Articles IX and XII of the WTO Agreement” on 15 November 1995.(340) See also paragraph 203 below.

2. Article IX:2

(a) “The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements”

197.     In Japan — Alcoholic Beverages II, the Appellate Body rejected the Panel’s finding that panel reports adopted by the GATT 1947 CONTRACTING PARTIES and the DSB constitute “subsequent practice” within the meaning of Article 31 of the Vienna Convention on the Law of Treaties, by virtue of the decision to adopt them.(341) 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:

“We do not believe that the CONTRACTING PARTIES, in deciding to adopt a panel report, intended that their decision would constitute a definitive interpretation of the relevant provisions of GATT 1947. Nor do we believe that this is contemplated under GATT 1994. There is specific cause for this conclusion in the WTO Agreement. Article IX:2 of the WTO Agreement provides: ‘The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements’. Article IX:2 provides further that such decisions ’shall be taken by a three-fourths majority of the Members’. The fact that such an ‘exclusive authority’ in interpreting the treaty has been established so specifically in the WTO Agreement is reason enough to conclude that such authority does not exist by implication or by inadvertence elsewhere.

 

Historically, the decisions to adopt panel reports under Article XXIII of the GATT 1947 were different from joint action by the CONTRACTING PARTIES under Article XXV of the GATT 1947. Today, their nature continues to differ from interpretations of the GATT 1994 and the other Multilateral Trade Agreements under the WTO Agreement by the WTO Ministerial Conference or the General Council. This is clear from a reading of Article 3.9 of the DSU, which states:

 

The provisions of this Understanding are without prejudice to the rights of Members to seek authoritative interpretation of provisions of a covered agreement through decision-making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.”(342)

198.     In US — Wool Shirts and Blouses, the Appellate Body, in support of the Panel’s exercise of judicial economy referred to the exclusive authority of the Ministerial Conference and the General Council to adopt interpretations of the WTO Agreement:

“As India emphasizes, Article 3.2 of the DSU states that the Members of the WTO ‘recognize’ that the dispute settlement system ’serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law’ (emphasis added). Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to ‘make law’ by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute. A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.(343)

 

We note, furthermore, that Article IX of the WTO Agreement provides that the Ministerial Conference and the General Council have the ‘exclusive authority’ to adopt interpretations of the WTO Agreement and the Multilateral Trade Agreements.(344)”(345)

199.     The first formal request for an authoritative interpretation of the Multilateral Trade Agreements was made on 21 January 1999(346) in relation to Articles 3.7, 21.5, 22.2, 22.6, 22.7 and 23 of the DSU. The General Council discussed the request at its meeting of 15 and 16 February 1999. The Chairman’s summing up noted that some delegations had considered that these matters could appropriately be the subject of interpretation, but many others clearly did not, most had registered their concern about voting, and there was broad support for reaching a negotiated solution in the discussions on review of the DSU; he urged the DSB to consider the issues in the request on an urgent basis and seek agreement.(347)

200.     In US — FSC, the Appellate Body noted the difference between an authoritative interpretation and an interpretation in dispute settlement:

“Under the WTO Agreement, an authoritative interpretation by the Members of the WTO, under Article IX:2 of that Agreement, is to be distinguished from the rulings and recommendations of the DSB, made on the basis of panel and Appellate Body Reports. In terms of Article 3.2 of the DSU, the rulings and recommendations of the DSB serve only ‘to clarify the existing provisions of those agreements’ and ‘cannot add to or diminish the rights and obligations provided in the covered agreements.’”(348)

201.     In Chile — Price Band System, the Panel rejected an argument that Chile’s position was supported by a letter from the GATT Secretariat, and stated that

“The WTO Agreement gives the Ministerial Conference and the General Council the exclusive right to adopt interpretations of the WTO Agreement. While the Secretariat has in the past, and will in the future be requested to provide advice to Members of the WTO, we believe the general rule of reserving the legal right to adopt interpretations to the Members to be the appropriate standard in this context, while, of course, recognizing that the WTO rules were not in force at the time in question.”(349)

202.     In compliance proceedings in the EC — Bananas — III dispute, the Appellate Body discussed methods that Members may use to interpret or modify WTO law provided for in the WTO Agreement, and considered that a multilateral interpretation under Article IX:2 can be likened to a “subsequent agreement” in the sense of Article 31(3)(a) of the Vienna Convention (addressed in the Chapter on the DSU):

Article IX:2 of the WTO Agreement sets out specific requirements for decisions that may be taken by the Ministerial Conference or the General Council to adopt interpretations of provisions of the Multilateral Trade Agreements. Such multilateral interpretations are meant to clarify the meaning of existing obligations, not to modify their content. Article IX:2 emphasizes that such interpretations ‘shall not be used in a manner that would undermine the amendment provisions in Article X’. A multilateral interpretation should also be distinguished from a waiver, which allows a Member to depart from an existing WTO obligation for a limited period of time. We consider that a multilateral interpretation pursuant to Article IX:2 of the WTO Agreement can be likened to a subsequent agreement regarding the interpretation of the treaty or the application of its provisions pursuant to Article 31(3)(a) of the Vienna Convention, as far as the interpretation of the WTO agreements is concerned.”(350)

3. Article IX:3 and IX:4: Waivers

(a) Decision-making procedures for granting a waiver in the WTO

203.     On 15 November 1995, the General Council adopted a decision on “Decision-Making Procedures Under Articles IX and XII of the WTO Agreement(351)

“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.”(352)

(b) Waivers of obligations under the WTO Agreements

204.     As of 30 September 2011, there have been 31 waiver decisions(353), including 14 waivers of Articles I and/or Article XIII of the GATT 1994 in connection with trade preferences, 14 waivers delaying application of WTO obligations, one waiver of Article XV:6 of the GATT 1994, the waiver decision on implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, and the waiver decision implementing the Kimberley Process Certification Scheme for Rough Diamonds.

205.     Tables at the end of this Chapter list (a) waivers of other WTO provisions; and (b) the GATT 1947 waivers referred to in paragraph 206 below. Each table lists the waiver decision with the Members whose measures are covered by the waiver, the date of the decision, the date of expiry of the waiver, and the document reference.

(c) Waivers originally granted under the GATT 1947

206.     The GATT 1994 incorporation text defines the “GATT 1994” as incorporating, inter alia, “decisions on waivers granted under Article XXV of GATT 1947 and still in force on the date of entry into force of the WTO Agreement”. Footnote 6 to that text specified the waivers initially covered (certain waivers(354) that were in force as of the date of the Uruguay Round Final Act), and mandated the Ministerial Conference to establish a revised list adjusted to allow for approval of new GATT 1947 waivers or expiry of existing such waivers, up to the WTO’s date of entry into force. The revised list was issued in 1995.(355)

207.     The Understanding in Respect of Waivers of Obligations under the GATT 1994 provides:

“Any waiver in effect on the date of entry into force of the WTO Agreement shall terminate, unless extended in accordance with the procedures [in the Understanding] and those of Article IX of the WTO Agreement, on the date of its expiry or two years from the date of entry into force of the WTO Agreement, whichever is earlier.”

208.     Accordingly, all GATT 1947 waivers have terminated, unless they were extended by a WTO decision. Regarding GATT practice concerning waivers, see under Article XXV:5 in the GATT Analytical Index.

(d) Interpretation of waivers

(i) Exceptional nature of waivers

209.     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 Article XIII of the GATT 1994 although it waived only compliance with Article I of the GATT 1994 in its terms. The Panel accepted this argument to the extent that “the scope of Article XIII is identical with that of Article I(356), 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.(357)

 

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.’(358)

 

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.(359) 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.”(360)

(ii) Waivers cannot modify or add to obligations

210.     In compliance proceedings in the EC — Bananas III dispute, the Appellate Body reviewed a finding of a panel under Article 21.5 that an EC tariff concession had expired on 31 December 2002 but that in adopting a waiver decision in respect of EC measures on bananas, the WTO Members had agreed to extend the duration of that tariff concession. The Appellate Body referred to the requirements for requests for new waivers in the Understanding in Respect of Waivers of Obligations under the GATT 1994, as demonstrating the exceptional nature of waivers:

“‘The need to state the exceptional circumstances, to specify the terms and conditions governing the application of the waiver, and to describe the specific policy objectives that a Member seeks to pursue, make clear that a waiver is a specific and exceptional instrument subject to strict disciplines.’ These elements do not suggest that a waiver should be construed as an agreement on issues not explicitly reflected in its terms and conditions, justifying circumstances, and stated policy objectives. …

 

In our view, the function of a waiver is to relieve a Member, for a specified period of time, from a particular obligation provided for in the covered agreements, subject to the terms, conditions, justifying exceptional circumstances or policy objectives described in the waiver decision. Its purpose is not to modify existing provisions in the agreements, let alone create new law or add to or amend the obligations under a covered agreement or Schedule. Therefore, waivers are exceptional in nature, subject to strict disciplines and should be interpreted with great care.”(361)

211.     The Appellate Body also reversed a finding by the Panel in the same compliance proceeding, that the waiver in question qualified as a “subsequent agreement” (in the sense of Article 31(3)(a) of the Vienna Convention on the Law of Treaties) regarding interpretation or application of the EC Schedule. The Appellate Body found that waivers were not “akin to” subsequent agreements in this sense.(362) The Appellate Body also found that the waiver at issue “does not constitute an amendment of the European Communities’ Schedule … Extending an obligation with a temporal limitation is a modification that ‘alter[s] the rights and obligations of the Members’. Therefore, if implemented by means of an amendment” the procedural provisions of Article X would apply; the waiver at issue “is a decision taken by the Ministerial Conference, which did not require formal acceptance by the Membership as foreseen under Article X:7.”(363)

(iii) Limited duration of waivers

212.     In compliance proceedings in the EC — Bananas III dispute, the Appellate Body noted that under the WTO Agreement, waivers are inherently limited in duration:

Article IX:4 requires that the decision granting the waiver state the date on which the waiver shall terminate, thus ensuring that waivers are granted for limited periods of time.”(364)

 

XI. Article X     back to top

A. Text of Article X

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:

 

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.


B. Interpretation and Application of Article X

1. Article X:1

(a) “Amendments to this Agreement or the Multilateral Trade Agreements in Annex 1”

213.     At its meeting of 6 December 2005, the Council for TRIPS approved a proposal, pursuant to Article X:1, for a decision on an amendment to the TRIPS Agreement for forwarding to the General Council.(365) The Council also approved the forwarding, along with the draft decision, of the text of two statements to be made by the Chairman of the General Council prior to the adoption by the General Council of the proposal.(366)

214.     On 6 December, the General Council then adopted by consensus the proposed Decision on amending the TRIPS Agreement; as agreed, prior to adoption the Chairman read out for the record the two agreed statements.(367) The Decision provides as follows:

“Amendment of the TRIPS Agreement

 

Decision of 6 December 2005

 

The General Council;

 

Having regard to paragraph 1 of Article X of the Marrakesh Agreement Establishing the World Trade Organization (‘the WTO Agreement’); …

 

Having considered the proposal to amend the TRIPS Agreement submitted by the Council for TRIPS (IP/C/41);

 

Noting the consensus to submit this proposed amendment to the Members for acceptance;

 

Decides as follows:

 

1.     The Protocol amending the TRIPS Agreement attached to this Decision is hereby adopted and submitted to the Members for acceptance.

 

2.     The Protocol shall be open for acceptance by Members until 1 December 2007 or such later date as may be decided by the Ministerial Conference.

 

3.     The Protocol shall take effect in accordance with the provisions of paragraph 3 of Article X of the WTO Agreement.

 

PROTOCOL AMENDING THE TRIPS AGREEMENT

 

Members of the World Trade Organization;

 

Having regard to the Decision of the General Council in document WT/L/641, adopted pursuant to paragraph 1 of Article X of the Marrakesh Agreement Establishing the World Trade Organization (‘the WTO Agreement’);

 

Hereby agree as follows:

 

1.     The Agreement on Trade-Related Aspects of Intellectual Property Rights (the ‘TRIPS Agreement’) shall, upon the entry into force of the Protocol pursuant to paragraph 4, be amended as set out in the Annex to this Protocol, by inserting Article 31bis after Article 31 and by inserting the Annex to the TRIPS Agreement after Article 73.

 

2.     Reservations may not be entered in respect of any of the provisions of this Protocol without the consent of the other Members.

 

3.     This Protocol shall be open for acceptance by Members until 1 December 2007 or such later date as may be decided by the Ministerial Conference.

 

4.     This Protocol shall enter into force in accordance with paragraph 3 of Article X of the WTO Agreement.

 

5.     This Protocol shall be deposited with the Director-General of the World Trade Organization who shall promptly furnish to each Member a certified copy thereof and a notification of each acceptance thereof pursuant to paragraph 3.

 

6.     This Protocol shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.

 

Done at Geneva this sixth day of December two thousand and five, in a single copy in the English, French and Spanish languages, each text being authentic.”

2. Article X:3

215.     The General Council extended the period for acceptance of the Protocol Amending the TRIPS Amendment, most recently until 31 December 2011.(368)

216.     As of 30 September 2011, 34 Members, including the European Community on behalf of its Member States, had notified their acceptance of the Protocol Amending the TRIPS Agreement.(369) Consequently the Protocol had not entered into force.

3. Article X:9

(a) Additions to Plurilateral Trade Agreements

217.     As of 30 September 2011, no Plurilateral Trade Agreements had been added to Annex 4.

(b) Deletions of Plurilateral Trade Agreements

218.     On 30 September 1997, the International Dairy Council decided to terminate the International Dairy Agreement and the International Meat Council decided to terminate the International Bovine Meat Agreement. Each decision requested that the Ministerial Conference delete the respective Agreement from Annex 4, pursuant to Article X:9.(370) On 10 December 1997, the General Council adopted decisions deleting the International Dairy Agreement and the International Bovine Meat Agreement from Annex 4.(371)

4. Article X:10

(a) “Amendments to a Plurilateral Agreement shall be governed by the provisions of that Agreement”

219.     The following provisions govern amendments to the respective Plurilateral Agreements:

Agreement on Trade in Civil Aircraft  —  Article 9.5;

 

Agreement on Government Procurement  —  Article XXIV:9.

220.     The former International Dairy Agreement had amendment provisions in Article VIII:4 and the International Bovine Meat Agreement had amendment provisions in Article VI:4.

221.     The Agreement on Government Procurement, originally concluded in 1979, was amended in 1988 and was replaced in 1994. Article XXIV:7(b) and (c) of the 1994 Agreement provide for negotiations to improve and update its text, extend its coverage and eliminate remaining discriminatory measures. In December 2006, negotiators reached an understanding on revision of the 1994 Agreement, and reached agreement on a process to conclude negotiations on expansion of coverage, based on the revised text. The revised text, checked for legal and linguistic consistency, was made available in December 2010, on the understanding that its adoption is subject to a mutually satisfactory outcome to the related negotiations on the coverage of the Agreement.(372)

222.     The Agreement on Trade in Civil Aircraft has been amended twice, in 1986(373) and in 2001.(374) See the Chapter on this Agreement.

 

XII. Article XI     back to top

A. Text of Article XI

Article XI: Original Membership

1.     The contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO.

 

2.     The least-developed countries recognized as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capabilities.


B. Interpretation and Application of Article XI

1. General

(a) Members

223.     On 30 September 2011, the WTO membership stood at 153 Members, including 123 original Members, 25 Members that negotiated accession under Article XII, and five Members that acceded through simplified procedures under Article XII in 1995–96. See under Article XI:1 and XII below. A table of Members appears at the end of this Chapter.

(b) Observers

224.     The Rules of Procedure for the Ministerial Conference and the General Council provide that representatives of States or separate customs territories may attend meetings as observers on the invitation of the Ministerial Conference or the General Council, in accordance with paragraphs 9 to 11 of Guidelines in Annex 2 to the Rules.(375)

225.     The provisions in Annex 2 on observer status differ for the Ministerial Conference and for the General Council. Governments accorded observer status at Ministerial Conference sessions do not automatically have that status in the General Council or its subsidiary bodies, but governments accorded observer status in the General Council and its subsidiary bodies are invited to attend sessions of the Ministerial Conference as observers.

226.     The Guidelines state that “[t]he purpose of observer status in the General Council and its subsidiary bodies is to allow a government to better acquaint itself with the WTO and its activities, and to prepare and initiate negotiations for accession to the WTO Agreement.”(376) Governments wishing to request observer status in the General Council are required to address to that body a communication expressing the intent to initiate negotiations for accession to the WTO Agreement within five years, and provide a description of their current economic and trade policies and any intended future reforms.(377) However, the General Council agreed to observer status for the Holy See, which could not accede to the WTO.(378)

227.     As of 30 September 2011, there were 31 WTO observer governments. A table of observers appears at the end of this Chapter.

228.     Also see paragraph 163 above on intergovernmental organizations; paragraph 167 above on nongovernmental organizations; and paragraph 250 below on observer status for applicants for accession.

2. Article XI:1

(a) “The contracting parties to GATT 1947 … shall become original Members of the WTO”

229.     Under Article XI:1, in general a government or the European Communities could become an original member of the WTO if it was a participant in the Uruguay Round of multilateral trade negotiations, it had schedules under GATT and GATS annexed to the Uruguay Round Final Act, and it was a contracting party to GATT 1947 as of 1 January 1995.

230.     Article XIV:1 set the deadline for acceptance of the WTO Agreement by original Members at 1 January 1997, unless determined otherwise. All contracting parties to GATT 1947 that were eligible to become original Members of the WTO before 1 January 1997 became original Members.(379)

231.     Of the 153 Members, 123 are original Members while 30 acceded to the WTO Agreement.

232.     The WTO Agreement entered into force for the following 76 original Members on 1 January 1995: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain, Bangladesh, Barbados, Belgium, Belize, Brazil, Brunei Darussalam, Canada, Chile, Costa Rica, Côte d’Ivoire, Czech Republic, Denmark, Dominica, European Communities(380), Finland, France, Gabon, Germany, Ghana, Greece, Guyana, Honduras, Hong Kong(381), Hungary, Iceland, India, Indonesia, Ireland, Italy, Japan, Kenya, Korea, Kuwait, Luxembourg, Macao (China)(382), Malaysia, Malta, Mauritius, Mexico, Morocco, Myanmar, Namibia, Netherlands (for the Kingdom in Europe and for the Netherlands Antilles), New Zealand, Nigeria, Norway, Pakistan, Paraguay, Peru, Philippines, Portugal, Romania, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Singapore, Slovak Republic, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Tanzania, Thailand, Uganda, United Kingdom, United States, Uruguay, Venezuela and Zambia.

233.     The remaining 47 original Members accepted the WTO Agreement after 1 January 1995: Trinidad and Tobago, Zimbabwe, Dominican Republic, Jamaica, Turkey, Tunisia, Cuba, Israel, Colombia, El Salvador, Burkina Faso, Egypt, Botswana, Central African Republic, Djibouti, Guinea Bissau, Lesotho, Malawi, Mali, Maldives, Mauritania, Togo, Poland, Switzerland, Guatemala, Burundi, Sierra Leone, Cyprus, Slovenia, Mozambique, Liechtenstein, Nicaragua, Bolivia, Guinea (Republic of), Madagascar, Cameroon, Fiji, Haiti, Benin, Rwanda, Solomon Islands, Chad, Gambia, Angola, Niger, Democratic Republic of the Congo, Congo.

(b) Special cases regarding acceptance and accession in 1994–96

234.     A number of governments which were not contracting parties to the GATT participated in the Uruguay Round negotiations, and could not have become original Members of the WTO under the general rule in Article XI:1, because paragraph 5 of the Uruguay Round Final Act provided that “the schedules of participants which are not contracting parties to GATT 1947 as of the date of the Final Act are not definitive and shall be subsequently completed for the purpose of their accession to GATT 1947 and their accession to the WTO Agreement.” In addition, some Uruguay Round participants became GATT 1947 contracting parties by succession under GATT Article XXVI:5(c) without any tariff concessions, and were unable to finalize GATT and GATS schedules by 15 April 1994. The Decision on Measures in Favour of Least Developed Countries, adopted by Ministers at Marrakesh, also provided in paragraph 1 that “[t]he least-developed countries shall be given additional time of one year from 15 April 1995 to submit their schedules as required in Article XI”.(383)

235.     To facilitate WTO membership by these governments, the Ministers adopted at Marrakesh the Decision on the Acceptance of and Accession to the Agreement Establishing the WTO.(384) This Decision provided that any Final Act signatory in these categories (Paragraph 5 of the Final Act, GATT Article XXVI:5(c), or LDC) could submit its GATT and GATS schedules for finalization to the WTO’s Preparatory Committee in late 1995. Any State or separate customs territory that became a GATT contracting party after 15 April 1994 but before the WTO Agreement entered into force could also submit GATT and GATS schedules to the Preparatory Committee for finalization. Those that finalized their schedules on time could accept as original Members. The Decision further provided:

“The WTO Agreement shall be open for acceptance in accordance with Article XIV of that Agreement by contracting parties to GATT 1947 the schedules of which have been so submitted and approved before the entry into force of the WTO Agreement.

 

The provisions of subparagraphs (a) and (b) of this paragraph shall be without prejudice to the right of the least developed countries to submit their schedules within one year from 15 April 1994.”(385)

236.     Thus, if a Uruguay Round participant could submit and gain approval for its GATT and GATS schedules before 1 January 1995, it could accept the WTO Agreement under Article XIV:1 as an original Member. If the participant was an LDC, it could submit its schedules by April 15, 1995.

237.     Pursuant to the Ministerial Decision on Measures in Favour of Least-Developed Countries, the General Council approved schedules on goods and services of 20 least-developed country Members(386) at its meeting of 31 May 1995. The General Council approved on exceptional basis the schedules of the Solomon Islands at its meeting of 13 and 15 December 1995.(387)

238.     The General Council also adopted a decision on 31 January 1995 on Finalization of Negotiations on Schedules on Goods and Services for an additional group of GATT contracting parties (Grenada, Papua New Guinea, St. Kitts and Nevis, Qatar and the United Arab Emirates). For each of these, there was no accession working party and the General Council’s approval of their schedules was deemed to be the Members’ approval of the terms of accession under Article XII. The WTO Agreement entered into force for each 30 days after its acceptance of a simplified Protocol of Accession.

“Contracting parties to the GATT 1947, which became contracting parties in the course of 1994, and which submitted their draft Schedules to the GATT 1994 and to the GATS before the date of entry into force of the WTO Agreement but were unable to complete the negotiations on them before that date, may submit the negotiated Schedules to the GATT 1994 and the GATS to the General Council until 31 March 1995. The approval by the General Council of such schedules shall be deemed to be the approval of the terms of accession by the Members of the WTO under Article XII, paragraph 2 of the WTO Agreement.”(388)

 

XIII. Article XII     back to top

A. Text of Article XII

Article XII: Accession

1.     Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.

 

2.     Decisions on accession shall be taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two-thirds majority of the Members of the WTO.

 

3.     Accession to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.


B. Interpretation and Application of Article XII

1. Article XII:1

(a) “Any State or separate customs territory … may accede to this Agreement”

239.     As of 30 September 2011, 25 Members had negotiated terms of accession to the WTO Agreement, including an accession decision, an accession protocol and an accession working party report. See the table of accessions at the end of this Chapter.

240.     In addition, Grenada, Papua New Guinea, St. Kitts and Nevis, Qatar and the United Arab Emirates completed accession in 1995–96 through the simplified Marrakesh Agreement Establishing the World Trade Organization 53 procedures under Article XII described in paragraph 238 above.

(b) Working parties on accession

(i) Establishment, terms of reference and customary procedures

241.     The General Council establishes a working party on accession in response to a formal request by a State or separate customs territory seeking accession. The General Council sets the following terms of reference for a working party on accession: “to examine the application for accession to the WTO under Article XII and to submit to the General Council/Ministerial Conference recommendations which may include a draft Protocol of Accession”.(389)

242.     A series of Technical Notes by the Secretariat provide comprehensive information on WTO practice on accession procedures, and an analysis of past accession provisions.(390)

(ii) Continuation of GATT 1947 accession working parties

243.     The General Council agreed at its first meeting of 31 January 1995, that “as and when requests for the WTO accession under Article XII were made by states and separate customs territories for whom a GATT 1947 working party already existed, the existing working parties should continue their work as WTO accession working parties, with standard terms of reference and their respective current chairpersons”.(391)

(iii) Completed accession processes

244.     The General Council has established working parties on accession on behalf of the Ministerial Conference.(392) In the period since 1 January 1995 up to 30 September 2011, the General Council has established 6 accession Working Parties that have completed their work, for the Kyrgyz Republic, Georgia, Oman, Viet Nam, Tonga and Cape Verde.(393)

245.     Of the working parties on accession carried over from GATT 1947, 19 accessions have been completed as at 30 September 2011, including: Albania, Armenia, Bulgaria, Cambodia, People’s Republic of China, Chinese Taipei, Croatia, Ecuador, Estonia, Former Yugoslav Republic of Macedonia, Jordan, Latvia, Lithuania, Moldova, Mongolia, Nepal, Panama, Saudi Arabia and Ukraine.(394)

(iv) Ongoing accession processes

246.     The General Council has established the following accession working parties, still ongoing as of 30 September 2011, for: Afghanistan(395), Andorra(396), Azerbaijan(397), Bahamas(398), Bhutan(399), Bosnia and Herzegovina(400), Comoros(401), Equatorial Guinea(402), Ethiopia(403), Iran(404), Iraq(405), Kazakhstan(406), Lao PDR(407), Lebanese Republic(408), Liberia(409), Libya(410), Montenegro(411), Samoa(412), Sao Tome and Principe(413), Serbia(414), Seychelles(415), Syrian Arab Republic(416), Tajikistan(417), Vanuatu(418) and Yemen.(419)

247.     Five working parties on accession carried over from the GATT 1947 were still active as of 30 September 2011, including: Algeria, Belarus, the Russian Federation, Sudan and Uzbekistan.

(c) Accession decisions adopted by the WTO

248.     The General Council, acting on behalf of the Ministerial Conference, has adopted 25 accession decisions with accession protocols, and thus the WTO Agreement has entered into force for: Ecuador, Qatar, Grenada, Saint Kitts and Nevis, Papua New Guinea, United Arab Emirates, Mongolia, Republic of Panama, Bulgaria, Latvia, Kyrgyz Republic, Estonia, Georgia, Jordan, Albania, Croatia, Oman, Lithuania, Moldova, China, Chinese Taipei, former Yugoslav Republic of Macedonia, Armenia, Nepal. See the table of accessions at the end of this Chapter.

249.     Qatar, Saint Kitts and Nevis, Grenada, Papua New Guinea and the United Arab Emirates were GATT contracting parties, but finalized their schedules in 1995, and thus acceded to the WTO instead of becoming original Members.

(d) Observer status for applicants for accession

250.     At its first meeting on 31 January 1995, the General Council decided to grant observer status to governments whose accession process had already begun(420), as was the practice under GATT (also see paragraph 228 above).(421) Governments observers to WTO bodies as of 30 September 2011 are listed in a table at the end of this Chapter.

(e) Accession by least-developed countries

251.     At the High-Level Meeting on Integrated Initiatives for Least-Developed Countries’ Trade Development, of 27–28 October 1997 (see paragraph 109), Members recommended that the WTO take steps to assist LDCs in the process of accession.(422) Pursuant to paragraph 42 of the Doha Ministerial Declaration, in 2002 the Sub-Committee on Least-Developed Countries established a work programme (see the material at paragraph 111 and following) including a mandate from ministers to “facilitate and accelerate negotiations with acceding Least-Developed Countries.”(423)

252.     On 10 December 2002, the General Council adopted a decision on guidelines for the Accession of Least-Developed Countries(424), to facilitate and accelerate negotiations for the accession of LDCs through simplified and streamlined procedures. The Decision set out guidelines in the following broad areas: Market Access, WTO Rules, Process, and Trade-Related Technical Assistance and Capacity Building. The Hong Kong Ministerial Declaration noted in this connection: “We stress the importance of facilitating and accelerating the accession negotiations of least developed countries, taking due account of the guidelines on LDC accession adopted by the General Council in December 2002.”(425)

(f) Nature of commitments in accession protocols

253.     In China — Raw Materials, in a finding not appealed by any party to the dispute, the Panel explained that the terms of accession protocols are integral parts of the WTO Agreement and are enforceable in dispute settlement:

“Accession to the WTO is achieved through negotiation with other WTO Members. Pursuant to Article XII of the Marrakesh Agreement, accessions take place ‘on terms to be agreed’ between the acceding Member and the WTO membership. Most accession processes take several years to complete and lead to detailed negotiated provisions. The terms of each WTO Member’s accession are set out in its Accession Protocol and accompanying Working Party Report. The negotiated agreement between the WTO membership and the acceding Member results in a delicate balance of rights and obligations, which are reflected in the specific wording of each commitment set out in these documents. Ultimately, the acceding Member and the WTO membership recognize that the intensively negotiated content of an accession package is the ‘entry fee’ to the WTO system.

 

WTO Members’ accession protocols are considered to form integral parts of the WTO Agreement. For example, Paragraph 1.2 of Part I of China’s Accession Protocol provides:

 

‘The WTO Agreement to which China accedes shall be the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as may have entered into force before the date of accession. This Protocol, which shall include the commitments referred to in paragraph 342 of the Working Party Report, shall be an integral part of the WTO Agreement.’ (italics added)

Government Date of acceptance Decision Entry into force Reference
Armenia 16-Aug-2011 GPA/105 15-Sep-2011 WT/Let/821, GPA/109
Hong Kong, China 20-May-1997 GPA/9 19-Jun-1997 WT/Let/141, GPA/14
Iceland 29-Mar-2001 GPA/43 28-Apr-2001 WT/Let/388, GPA/48
Liechtenstein 19-Aug-1997 GPA/3 18-Sep-1997 WT/Let/166, GPA/17
Netherlands for Aruba 25-Sep-1996 GPA/2 25-Oct-1996 WT/Let/111, GPA/7
Singapore 20-Sep-1997 GPA/6 20-Oct-1997 WT/Let/179, GPA/18
Chinese Taipei 15-Jun-2009 GPA/96 15-Jul-2009 WT/Let/647 + Corr.1, GPA/100

In this dispute, as with previous disputes concerned with China’s Accession Protocol, all parties agree that China’s Accession Protocol forms an integral part of the WTO Agreement. Moreover, all parties agree that WTO Members can initiate WTO dispute settlement proceedings on the basis of a claim of violation of China’s Accession Protocol.(426) Finally, all parties agree that commitments included in the related Working Party Report, and incorporated into the Accession Protocol by cross-reference, are binding and enforceable through WTO dispute settlement proceedings.

 

Accordingly, the Panel will interpret the provisions of China’s Accession Protocol — like those of the WTO covered agreements — in accordance with the customary rules of interpretation of public international law, including those codified in Articles 31, 32 and 33 of the Vienna Convention.”(427)

2. Article XII:2

(a) Decision-making procedures on accession

254.     Regarding decision-making procedures applicable to requests for accessions to the WTO, see paragraph 203 above.

3. Article XII:3: Acceptance of or accession to a Plurilateral Trade Agreement

(a) Agreement on Government Procurement

255.     Article XXIV of the Agreement on Government Procurement provides for accession “on terms to be agreed between that government and the Parties”.

256.     As at 30 September 2011, there have been six accessions to the Agreement on Government Procurement as provided in the above table.

(b) Other Plurilateral Trade Agreements

257.     The International Bovine Meat Agreement and the International Dairy Agreement were terminated, and were deleted from the WTO Agreement; see paragraph 218 above.

258.     Article 9.1 of the Agreement on Civil Aircraft provides for acceptance and accession. As of 30 September 2011, there had been no accessions to this Agreement; see under Article XIV:4 regarding acceptances.

 

Footnotes:

269. WT/L/195. back to text
270. S/C/11. back to text
271. WT/L/272. back to text
272. WT/L/195. back to text
273. IP/C/6. back to text
274. See The Rules of Procedure of the General Council, Chapter IV, Rule 11. Rule 11 of the Rules of Procedure for the General Council provides: “Representatives of international intergovernmental organizations may attend the meetings as observers on the invitation of the General Council in accordance with the guidelines in Annex 3 to these Rules.” back to text
275. WT/GC/M/3, 4, 5, 6, 8, 13, 17. The General Council, upon the recommendation of the Preparatory Committee, extended ad hoc observer status to the UN, UNCTAD, IMF and the World Bank for the first General Council meeting. WT/GC/M/1. In subsequent meetings, WIPO, FAO, and the OECD were extended the same invitation. WT/GC/M/3, 4, 5, 6, 8, 13, 17. back to text
276. With respect to the Agreement with the IMF, see WT/L/195, Annex I, para. 6. Also, with respect to the Agreement with the World Bank, see WT/L/195, Annex II, para. 5. back to text
277. WT/GC/M/18. back to text
278.  WT/GC/M/25. Note that this was a grant of permanent observer status. back to text
279. WT/L/161. back to text
280. WT/GC/M/18, 25, 26, 35, 40/Add.3, 45, 48, 55, 57, 61, 66, 69, 71, 78, 80, 81 and 82. A list of these organizations is provided in Section II of WT/GC/W/51/Rev.10. back to text
281. See, e.g., WT/MIN(05)/INF/7/Rev.3 (final participant list for Hong Kong Ministerial Conference) and /INF/ documents for other Ministerial Conferences. back to text
282. WT/GC/M/13, section 9(c). The text of the adopted guidelines can be found in WT/L/162. back to text
283. WT/GC/M/29, 35, 45, 57, 58, 66. back to text
284. WT/GC/M/13, section 11(b). See WT/L/162 for the text of the guidelines. back to text
285. WT/GC/M/65, 66, 68, 78, 95; see, e.g., list of NGOs accredited to attend the 2009 Seventh Session of the Ministerial Conference at Geneva (WT/MIN(09)/INF/10). back to text
286. See GATT Analytical Index. back to text
287. GATT Analytical Index, pp. 1122–1123. back to text
288. PC/9, L/7580; signed and executed agreement issued as ICITO/1/39; approved in WT/GC/M/1, L/36. back to text
289. WT/L/282. back to text
290. Mr Sutherland, as the former Director-General to the GATT 1947, served as the first Director-General pursuant to Article XVI:2 of the WTO Agreement. back to text
291. Appointed at the General Council meeting of 24 March 1995 (see WT/GC/M/2, p. 1). back to text
292. Appointed at the General Council meeting of 22 July 1999 (see WT/GC/M/46, p. 18; text of decision, WT/L/308). back to text
293. Also appointed at the meeting of 22 July 1999, to succeed to Mr Moore (see WT/GC/M/46, p. 18; text of decision, WT/L/308). back to text
294. Appointed at the meeting of 26 May 2005 (WT/GC/M/95, item 9); reappointed at the meeting of 29–30 April 2009 (WT/GC/M/119). back to text
295. WT/L/308, last paragraph. back to text
296. WT/GC/M/77; WT/L/509. In addition, the General Council approved modified Conditions of Service for the Director-General, issued as WT/GC/67. back to text
297. See WT/GC/M/95, item 9 and WT/GC/M/119 (appointment and reappointment of Director-General Lamy). back to text
298. WT/GC/M/7, item 1, decision in WT/L/91; WT/GC/M/16, item 6, decision in WT/L/197; WT/GC/M/18, item 3, decision in WT/L/205; WT/GC/M/20, item 1, decision in WT/L/223; and WT/GC/M/28, item 1, decision in WT/L/269. back to text
299. WT/L/205. back to text
300. WT/GC/M/31, item 10(a); decision in WT/L/282; Annex 2 of WT/282 includes the Staff Regulations, Staff Rules and the Regulations and Administrative Rules of the WTO Pension Plan as adopted. back to text
301. WT/GC/M/63 item 3, amendments in WT/BFA/W/48/Rev.1 (performance award programme). back to text
302. WT/GC/N/82 item 2, amendments in WT/BFA/W/102. back to text
303. WT/GC/M/86, amendments in WT/BFA/W/112. back to text
304. WT/GC/M/121 item 9, amendments in WT/BFA/W/185. back to text
305. GATT Analytical Index, p. 1123. back to text
306. WT/GC/M/31, item 10(a); Decision including text of WTOPP Regulations and Administrative Rules, WT/L/282. See also WT/BFA/12, WT/BFA/W/2, WT/GC/M/28 and WT/GC/M/29. back to text
307. WT/GC/W/552 and WT/GC/M/100; WT/GC/W/606 and  WT/GC/M/121; WT/GC/W/637. back to text
308. WT/L/383; revised agreement in WT/L/588. back to text
309. WT/L/446. back to text
310. WT/L/513; the Coordinated Organizations include the Council of Europe, the European Centre for Medium-Range Weather Forecasts (ECMWF), the European Space Agency (ESA), the North Atlantic Treaty Organization (NATO) and the Western European Union (WEU). back to text
311. WT/GC/W/561. back to text
312. Annual Reports: WT/GC/W/426, WT/GC/W/463, WT/L/497, WT/L/546, WT/L/583, WT/L/628, WT/L/663, WT/L/706, WT/L/736, WT/L/771, WT/L/802, WT/BFA/W/240. back to text
313. Annex 2 to WT/L/282 and Annex B to Annex 2, e.g. Regulation 1.4 of the Staff Regulations and point 4 of the Standards of Conduct. back to text
314. Annual reports by the Director-General: WT/BFA/23, WT/BFA/25 (1995); WT/BFA/W/15, WT/BFA/W/19 (1996); WT/BFA/W/25, WT/BFA/W/26 (1997); WT/BFA/W/33, WT/BFA/W/34 (1998); WT/BFA/W/42 (1999); WT/BFA/W/57 (2000); WT/BFA/W/97 (2002);  WT/BFA/W/114 (2003); WT/BFA/W/128 (2004); WT/BFA/W/142 ( 2005); WT/BFA/W/157 (2006); WT/BFA/W/168 (2007); WT/BFA/W/181 (2008). back to text
315. Recommendations: see WT/BFA/2, 3, 4, 5 (including Add.1), 6, 7, 8, 13, 15, 16, 18, 20, 21, 22, 24, 26, 28, 30, 31, 32, 33 (including Add.1 and Corr.1), 35, 36, 38, 39, 40, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 58, 59, 60, 62, 63, 64, 67, 70, 71 2, 73, 75, 77, 78, 80, 82, 84, 86, 87, 89, 90, 93, 93/Add.1., 95, 97, 101, 102, 103, 104, 105, 106, 107, 111, 112, 113 and Add.1, 114 and Add.1, 115, 118, 119, 120, 121, 124. back to text
316. WT/BFA/2 adopted 3 April 1995, WT/GC/M/3; WT/BFA/3 and 4 adopted 31 May 1995, WT/GC/M/4; WT/BFA/5 adopted 11 July 1995, WT/GC/M/5; WT/BFA/6, 7 and 8 adopted 15 November 1995, WT/GC/M/8; WT/BFA/13 and 15 adopted on 13 and 15 December 1995, WT/GC/M/9; WT/BFA/16 and 18 adopted on 6 February 1996, WT/GC/M/10; WT/BFA/20, 21 and 22 adopted on 16 April 1996, WT/GC/M/11; WT/BFA/24 adopted on 26 June 1996, WT/GC/M/12; WT/BFA/26 adopted on 18 July 1996, WT/GC/M/13; WT/BFA/28 adopted on 26 November 1996, WT/GC/M/17; WT/BFA/30 adopted on 24 April 1997, WT/GC/M/19; WT/BFA/31 adopted on 16 July 1997, WT/GC/M/21; WT/BFA/32 adopted on 22 October 1997, WT/GC/M/23; WT/BFA/33 adopted on 10 December 1997,  WT/GC/M/25; WT/BFA/35 adopted on 24 April 1998, WT/GC/M/28; WT/BFA/36 adopted on 15, 16 and 22 July 1998, WT/GC/M/29; WT/BFA/38 adopted on 9–11 and 18 December 1998, WT/GC/M/32; WT/BFA/39 and 40 adopted on 15 July 1999, WT/GC/M/45; WT/BFA/44 adopted on 17 December 1999, WT/GC/M/52 and Corr.1; WT/BFA/45 adopted on 7 and 8 February 2000, WT/GC/M/53; WT/BFA/46 adopted on 3 and 8 May 2000, WT/GC/M/55; WT/BFA/47 and 48 adopted on 17 and 19 July 2000, WT/GC/M/57; WT/BFA/49 adopted on 10 October 2000, WT/GC/M/58; WT/BFA/51 adopted 7 February 2001, WT/GC/M/61; WT/BFA/52 adopted 2 March 2001, WT/GC/M/63; WT/BFA/53 adopted 10 August 2001, WT/GC/M/66; WT/BFA/54 adopted 26 October WT/GC/ M/69; WT/BFA/55 adopted 13 December 2001, WT/GC/M/71; WT/BFA/56 adopted 6 February 2002, WT/GC/M/72; WT/BFA/5859 adopted 27 September 2002, WT/GC/M/75; WT/BFA/60 adopted 5 November 2002, WT/GC/M/76; WT/BFA/62, adopted 13 February 2003, WT/GC/M/77; WT/BFA/63 adopted 18 July 2003, WT/GC/M/80; WT/BFA/64 adopted 28 August 2003, WT/GC/M/81; WT/BFA/67 adopted 13 November 2003, WT/GC/M/82; WT/BFA/70 adopted on 16 December 2003, WT/GC/M/84; WT/BFA/712 adopted on 18 May 2004, WT/GC/M/86; WT/BFA/73 adopted on 1 August 2004, WT/GC/M/87; WT/BFA/75 adopted on 13 December 2004, WT/GC/M/90; WT/BFA/77 adopted on 27 May 2005, WT/GC/M/95; WT/BFA/78 adopted on 27 and 29 July 2005, WT/GC/M/97; WT/BFA/80 adopted on 1, 2 and 6 December 2005, WT/GC/M/100; WT/BFA/82 adopted on 1, 2 and 6 December 2005, WT/GC/M/100; WT/BFA/84 adopted on 8 February 2006, WT/GC/M/101; WT/BFA/86 adopted on 15 May 2006, WT/GC/M/102; WT/BFA/87 adopted on 27 and 28 July 2006, WT/GC/M/103; WT/BFA/89 adopted on 10 October 2006,  WT/GC/M/104; WT/BFA/90 adopted on 10 October 2006, WT/GC/M/104; WT/BFA/93 adopted on 14 and 15 December 2006, WT/GC/M/106; WT/BFA/93/Add.1 adopted on 14 and 15 December 2006, WT/GC/M/106; WT/BFA/95 adopted on 9 May 2007, WT/GC/M/108; WT/BFA/97 adopted on 27 July 2007, WT/GC/M/109; WT/BFA/101 adopted on 18 December 2007, WT/GC/M/112; WT/BFA/102 adopted on 7–8 May 2008, WT/GC/M/114; WT/BFA/103 adopted on 31 July 2008, WT/GC/M/115; WT/BFA/104 adopted on 31 July 2008, WT/GC/M/115; WT/BFA/105 adopted on 18–19 December 2008, WT/GC/M/117; WT/BFA/106 adopted on 18–19 December 2008, WT/GC/M/117; WT/BFA/107 adopted on 18–19 December 2008, WT/GC/M/117; WT/BFA/109 and 110 adopted on 26–27 May 2009, WT/GC/M/120; WT/BFA/111 adopted on 28 July 2009,  WT/GC/M/121; WT/BFA/114 and Add.1, adopted on 17 December 2009, WT/GC/M/124; WT/BFA/115, adopted on 4 May 2010, WT/GC/M/126; WT/BFA/116 and 117, adopted on 29 July 2010, WT/GC/M/127; WT/BFA/118, adopted on 21 October 2010, WT/GC/M/128; WT/BFA/119, 120 and 121, adopted on 14 December 2010, WT/GC/M/129; WT/ BFA/123, adopted on 3 May 2011, WT/GC/M/131; WT/BFA/124. back to text
317. WT/GC/M/8, section 7(c); text of Financial Regulations in WT/L/156, text of Financial Rules in WT/L/157. back to text
318. WT/BFA/13, L/7649, Section VII. back to text
319. GATT Analytical Index, pp. 1126–1127. back to text
320. PC/BFA/M/1, Annex II. back to text
321. WT/GC/M/8, item 7(a). back to text
322. WT/BFA/6. back to text
323. WT/BFA/44, approved in WT/GC/M/52. back to text
324. Recommendation in WT/BFA/49, approved in WT/GC/M/58. back to text
325. PC/7, “Measures To Deal With Members in Category IV of the Administrative Arrangements on Arrears”. back to text
326. WT/GC/M/102, item 7. back to text
327. WT/BFA/86 paragraphs 14–16; see also WT/BFA/W/141. back to text
328. WT/MIN(01)/DEC/1, para. 40. back to text
329. WT/GC/M/84; WT/BFA/70; see also WT/BFA/W/107. back to text
330. WT/GC/M/8, section 7(c). WT/L/156 and Rev.1 and Rev.2. Text of Financial Rules: WT/L/157 and Rev.1. 2003 amendments: WT/BFA/W/105/Rev.1, WT/BFA/67, WT/GC/M/82. 2007 amendments: WT/BFA/W/155, WT/BFA/95, WT/GC/M/108. back to text
331. WT/GC/M/61, WT/L/386; see also WT/BFA/41 and Adds. 1–6. back to text
332. WT/GC/M/87; WT/L/386/Rev.1. back to text
333. Staff Regulation 1.6; see also WT/GC/W/103. back to text
334. See G.A. Res. 179(III) of 21 November 1947, United Nations Treaty Series; 33 UNTS, p. 261. back to text
335. WT/GC/1. back to text
336. WT/GC/M/4, WT/L/69. back to text
337. WT/GC/2. back to text
338. WT/GC/M/115; WT/BFA/W/170; WT/BFA/103. back to text
339. PC/9, L/7580; signed and executed agreement issued as ICITO/1/39; approved in WT/GC/M/1, L/36. back to text
340. WT/L/93. See also below under Article XII. back to text
341. Appellate Body Report, Japan — Alcoholic Beverages II, pp. 12–15. back to text
342. Appellate Body Report, Japan — Alcoholic Beverages II, p. 13. back to text
343. (footnote original) The “matter in issue” is the “matter referred to the DSB” pursuant to Article 7 of the DSU. back to text
344. (footnote original) Japan — Taxes on Alcoholic Beverages, AB-1996-2, adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p. 13. back to text
345. Appellate Body Report, US — Wool Shirts and Blouses, pp. 19–20. back to text
346. WT/GC/W/133; see also WT/GC/143 (request for special meeting of the General Council) and response in WT/GC/W/144. back to text
347. WT/GC/M/35, items 5 and 6. back to text
348. Appellate Body Report, US — FSC, fn. 127. back to text
349. Panel Report, Chile — Price Band System, para. 7.94. back to text
350. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II)/ECBananas III (Article 21.5US), para. 393. back to text
351. WT/GC/M/8, section 3, WT/L/93. back to text
352. WT/L/93, first paragraph. back to text
353. Excluding waivers of Article II of the GATT 1994 agreed in connection with transposition of tariff schedules to the Harmonized System (HS) nomenclature, or the implementation of periodic HS nomenclature amendments. back to text
354. The list in MTN/W/FA referred to in footnote 6 omitted the 1955 waiver granted to the United States in connection with import restrictions imposed under Section 22 of the US Agricultural Adjustment Act (BISD 3S/32); the restrictions provided for in this waiver were tariffied in the Uruguay Round and in any event, this waiver was terminated by operation of the Understanding in Respect of Waivers of Obligations under the GATT 1994. back to text
355. WT/L/3 and Corr.1. back to text
356. Panel Report, EC — Bananas III, para. 7.107. back to text
357. Appellate Body Report, EC — Bananas III, para. 183. back to text
358. (footnote original) Panel Report on US — Sugar Waiver, para. 5.9. back to text
359. (footnote original) Waiver Granted in Connection with the European Coal and Steel Community, Decision of 10 November 1952, BISD 1S/17, para. 3. back to text
360. Appellate Body Report, EC — Bananas III, paras. 184–187. back to text
361. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II)/EC— Bananas III (Article 21.5 — US), paras. 381–382. back to text
362. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II)/EC— Bananas III (Article 21.5 — US), para. 390. back to text
363. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II)/EC— Bananas III (Article 21.5 — US), para. 394. back to text
364. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II)/EC— Bananas III (Article 21.5 — US), para. 380. back to text
365. Proposal for General Council decision: IP/C/41. Decision by Council for TRIPS: IP/C/M/49, paras. 214–215. back to text
366. JOB(05)/319 and Corr.1; JOB(05)/320. back to text
367. Decision: WT/L/641. Adoption: WT/GC/M/100, paras. 24–34. Agreed statements: WT/GC/M/100, paras. 28–29. back to text
368. Extension decisions: WT/L/711, WT/L/785. back to text
369. Acceptances: United States, Switzerland, El Salvador, Republic of Korea, Norway, India, Philippines, Israel, Japan, Australia, Singapore, Hong Kong China, People’s Republic of China, European Communities, Mauritius, Egypt, Mexico, Jordan, Brazil, Morocco, Albania, Macao (China), Canada, Bahrain, Colombia, Zambia, Nicaragua, Pakistan, former Yugoslav Republic of Macedonia, Uganda, Mongolia (IP/C/W/490/Rev.7); Croatia (WT/Let/747), Senegal (WT/Let/753), Bangladesh (WT/Let/758). back to text
370. IDA/8, IMA/8. back to text
371. WT/L/251, WT/L/252. back to text
372. GPA/W/297 (2006 text); GPA/89, paras. 20–21 (conditions governing adoption of text); GPA/W/313 and Corr.1 (text as at 13 December 2010). back to text
373. AIR/65. back to text
374. TCA/4. back to text
375. WT/L/161. The provisions on observership follow those adopted by the GATT Council on 21 July 1993 (see L/7286, C/M/265). See also GATT Analytical Index, pp. 1102–1104. back to text
376. WT/L/161, Annex 2, para. 3. back to text
377. WT/L/161, Annex 2, para. 4. Paragraph 8 provides that if at the end of five years, an observer government has not yet initiated accession negotiations, it may request an extension of its observer status; see, e.g., WT/L/445, WT/GC/M/74 (extension of observer status for Ethiopia in 2002). back to text
378. WT/L/221, WT/GC/M/21. back to text
379. A Decision adopted by the General Council on 24 April 1997 ( WT/L/208) extended the 1 January 1997 deadline for the Republic of the Congo retroactively to 25 February 1997, the date when the Director-General received notice of its ratification of the WTOAgreement. WT/L/208 notes that the Republic of the Congo was the only remaining contracting party to the GATT 1947 that was eligible for original Membership and had not yet become a Member. back to text
380. Note that the text of the Agreement identifies the original Member as the European Communities. back to text
381. Since 1 July 1997, when sovereignty over Hong Kong reverted to China, this separate customs territory has been known as “Hong Kong, China”. back to text
382. Since 20 December 1999, when sovereignty over Macao reverted to China, this separate customs territory has been known as “Macao, China”. back to text
383. Decision text in section XIX.A.4 below. The agreed modalities for agriculture in the Uruguay Round (reflected in MTN.GNG/MA/W/24 and MTN.GNG/MA/W/25) required participants to establish schedules including tariff bindings for all agricultural products, as well as commitments on domestic support and export subsidies. back to text
384. MTN.TNC/40; text in section XIX.A.4 below. back to text
385. Decision text in section XIX.A.4 below; para. 1(b) and (c). back to text
386. WT/GC/M/4, section 2; Decision in WT/L/70 (covering Angola, Botswana, Burundi, Central African Republic, Chad, Djibouti, the Gambia, Guinea, Guinea Bissau, Haiti, Lesotho, Malawi, Maldives, Mali, Mauritania, Mozambique, Rwanda, Sierra Leone, Togo and Zaire). back to text
387. WT/GC/M/9, section 1(i). back to text
388. WT/GC/M/1, section 4.I(f); decision in WT/L/30; proposed by Preparatory Committee in PC/17. On 3 April 1995, the General Council extended the deadline in WT/L/30 for the submission of negotiated schedules for goods and services until 24 April 1995 (WT/GC/M/3). back to text
389. WT/ACC/1, para. 5. back to text
390. WT/ACC/10/Rev.4, 11 January 2010, and WT/ACC/10/Rev.4/Add.1, 25 May 2010. back to text
391. WT/GC/M/1, section 4.I(g). At the same meeting, the General Council applied this treatment to Belarus. WT/GC/M/1, section 4.I(g). back to text
392. WT/ACC/1, para. 5. back to text
393. Document references: Kyrgyz Republic (WT/GC/M/31, Working Party established April 1996, accession protocol accepted 14, 16 and 23 October 1998, decision WT/ACC/KGZ/28); Georgia ( WT/GC/M/48, Working Party established July 1996, accession protocol accepted 6October 1999, decision WT/ACC/GEO/32),Oman (WT/GC/M/58,Working Party established June 1996, accession protocol accepted 10 October 2000, decision WT/ACC/OMN/27); Viet Nam (WT/GC/M/1, section 3, Working Party established, accession protocol accepted, decision WT/L/662); Tonga (WT/GC/M/8, decision WT/L/644); and Cape Verde (decision WT/L/715). back to text
394. Document references: Albania (Working Party established 10 December 1992, accession protocol accepted 17 and 19 July 2000, decision WT/ACC/ALB/52); Armenia (Working Party established 17 December 1993, accession protocol accepted 5 February 2004, decision WT/L/506); Bulgaria (Working Party established November 1986 and February 1990; accession protocol accepted 2 October 1996; accession decision WT/ACC/BGR/6); Cambodia (Working Party established 21 December 1994, accession protocol accepted 11 September 2003, decision WT/MIN(03)/18); People’s Republic of China (Working Party established March 1987, accession protocol accepted 11 November 2001, decision WT/L/432); Chinese Taipei (Working Party established 1 October 1992, accession protocol accepted 11 November 2001, decision WT/L/43); Croatia (Working Party established 27 October 1993, accession protocol accepted 17 and 19 July 2000, decision WT/ACC/HRV/60); Ecuador (Working Party established October 1992, accession protocol accepted 31 July 1995, accession decision WT/ACC/ECU/5); Estonia (Working Party established 23 March 1994, accession protocol accepted 21May 1999, decision WT/ACC/EST/29); former Yugoslav Republic of Macedonia (Working Party established 21 December 1994, accession protocol accepted 15 October 2002, decision WT/L/494); Jordan (Working Party established 25 January 1994, accession protocol accepted 17 December 1999, decision WT/ACC/JOR/34); Latvia (Working Party established December 1993, accession protocol accepted 14, 16 and 23 October 1998, decision WT/ACC/LVA/34); Lithuania (Working Party established February 1994, accession protocol accepted 7, 8, 11 and 15 December 2000, decision WT/ACC/LTU/53); Moldova (Working Party established 17 December 1993, accession protocol accepted 8May 2001, decision WT/ACC/MOL/40); Mongolia (Working Party established October 1991, accession protocol accepted 18 July 1996, decision WT/ACC/MNG/10); Nepal (Working Party established 21–22 June 1989, accession protocol accepted 11 September 2003, decision WT/MIN(03)19); Panama (Working Party established October 1991, accession protocol accepted 18 July 1996, decision a WT/ACC/MNG/10); Saudi Arabia (Working Party established July 1993, accession protocol accepted November 2005, decision WT/L/627); and Ukraine (Working Party established December 1993, accession protocol accepted June 2007, decision WT/L/718). back to text
395. WT/GC/M/9. back to text
396. WT/GC/M/23. back to text
397. WT/GC/M/21. back to text
398. WT/GC/M/66. back to text
399. WT/GC/M/48. back to text
400. WT/GC/M/45. back to text
401. WT/GC/M/110. back to text
402. WT/GC/M/113. back to text
403. WT/GC/M/78. back to text
404. WT/GC/M/95. back to text
405. WT/GC/M/90. back to text
406. WT/GC/M/10. back to text
407. WT/GC/M/26. back to text
408. WT/GC/M/40. back to text
409. WT/GC/M/112. back to text
410. WT/GC/M/87. back to text
411. WT/GC/M/91. back to text
412. WT/GC/M/29. back to text
413. WT/GC/M/95. back to text
414. WT/GC/M/91. back to text
415. WT/GC/M/5.2(a). back to text
416. WT/GC/M/126. back to text
417. WT/GC/M/66. back to text
418. WT/GC/M/5. back to text
419. WT/GC/M/57. back to text
420. WT/GC/M/1. back to text
421. See GATT Analytical Index. back to text
422. WT/LDC/HL/23, the section dealing with Thematic Round Table A, para. II(b). With respect to the High-Level Meeting generally, see para. 112. back to text
423. See WT/COMTD/LDC/11, Section (f), para. 18(iii). back to text
424. WT/L/508. back to text
425. WT/MIIN(05)/DEC, para. 59. back to text
426. (Footnote original) This was recognized in China — Auto Parts, adopted on 15 December 2008 and in China — Publications and Audiovisual Products, adopted on 19 January 2010 when both panels and Appellate Body assessed claims based on China’s Accession Protocol. back to text
427. Panel Report, China — Raw Materials, paras. 7.112–7.115. back to text

150pxls.gif (76 bytes)
 

 

   show next page