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WTO ANALYTICAL INDEX: MARRAKESH AGREEMENT Marrakesh Agreement Establishing the World Trade Organization |
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> Preamble
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Article V: Relations with Other Organizations 1. The General Council shall make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO.
2. The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO. (a) “Shall make appropriate arrangements for effective cooperation with other intergovernmental organizations” 134. As of 31 December 2004, the WTO had concluded agreements with the following intergovernmental organizations: 135. The General Council has allowed some intergovernmental organizations to observe its meetings.(220) 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.(221) Subsequently, the IMF and the World Bank were granted permanent observer status in General Council meetings by the terms of their respective cooperation agreements.(222) In its meetings of 7 February 1997, the General Council granted permanent observer status to the United Nations, UNCTAD, FAO, WIPO, and the OECD.(223) 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”.(224) 136. To date, no intergovernmental organizations have been granted permanent observer status in General Council meetings pursuant to the guidelines for “Observer Status for International Intergovernmental Organizations in the WTO” set out in Annex 3 to the “Rules of Procedure for Sessions of the Ministerial Council and Meetings of the General Council.”(225) however, consultations have been held concerning the pending requests of intergovernmental organizations for observer status in the General Council.(226) 137. 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. (a) “may make appropriate arrangements … with non-governmental organizations” (i) Guidelines for Arrangements on Relations with Non-Governmental Organizations 138. 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”.(227) Since the adoption of the Guidelines, the General Council has addressed the issue of external transparency in its meetings.(228) (ii) Procedure to provide observer capacity 139. The General Council agreed to allow non-governmental organizations to attend the Ministerial Conference as observers at its meeting of 18 July 1996(229), and in subsequent Ministerial Conferences (Geneva, Seattle, Doha and Cancun).(230)
VII. Article VI back to top 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. 140. The WTO Secretariat is based in Geneva, Switzerland and is headed by a Director-General. As regards the Headquarters Agreement with the Swiss Confederation, see paragraph 156 below. (a) “the Ministerial Conference shall appoint the Director-General” 141. The General Council has appointed the following Director-Generals to date: (a) Mr Peter Sutherland — from 1 January 1995 to 30 April 1995(231);
(b) Mr Renato Ruggiero — from 1 May 1995 to 30 April 1999(232);
(c) Mr Mike Moore — from 1 September 1999 to 31 August 2002(233); and
(d) Dr Supachai Panitchpakdi — from 1 September 2002 to 31 August 2005.(234) (b) “regulations setting out the powers, duties, conditions of service and term of office of the Director-General” 142. 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.”(235) The General Council approved the comprehensive set of procedures(236) for the appointment of the Director-General at its meeting on 10–12 and 20 December 2002.(237) These procedures would apply in their entirety to the appointment of the next Director-General. (a) “The Director-General shall … determine the duties and conditions of service of the WTO Secretariat” 143. On 15 April 1994, the Ministerial Conference adopted a declaration on “Organizational and Financial Consequences Flowing from the Implementation of the Agreement Establishing the World Trade Organization”(238), providing that “the Preparatory Committee shall consider the organizational changes, resource requirements and staff conditions of service proposed in connection with the establishment of the WTO and the implementation of the Uruguay Round agreements and prepare recommendations and take decisions, to the extent necessary, on the adjustments required.”(239) 144. The General Council adopted decisions regarding the terms of service applicable to the WTO staff(240) at its meetings of 30 October 1995, 7, 8 and 13 November 1996, 7 February 1997, 30 June–1 July 1997, and 24 April 1998. The General Council agreed to establish the Working Group on Conditions of Service Applicable to the Staff of the WTO Secretariat(241) on 7 February 1997. 145. At its meeting of 14, 16 and 23 October 1998, taking into consideration the report of the Working Group, the General Council decided “to endorse the compensation philosophy and to adopt the Staff Regulations and Staff Rules and the Regulations and Administrative Rules of the WTO Pension Plan, as contained in Annex 2 of the present Decision …”.(242) (a) The responsibilities of the Director-General and the staff of the Secretariat 146. See the Staff Regulations and Staff Rules of the World Trade Organization.(243)
VIII. Article VII back to top Article VII: Budget and Contributions 1. The Director-General shall present to the Committee on Budget, Finance and Administration the annual budget estimate and financial statement of the WTO. The Committee on Budget, Finance and Administration shall review the annual budget estimate and the financial statement presented by the Director-General and make recommendations thereon to the General Council. The annual budget estimate shall be subject to approval by the General Council.
2. The Committee on Budget, Finance and Administration shall propose to the General Council financial regulations which shall include provisions setting out:
(a) the scale of contributions apportioning the expenses of the WTO among its Members; and
(b) the measures to be taken in respect of Members in arrears.
The financial regulations shall be based, as far as practicable, on the regulations and practices of GATT 1947.
3. The General Council shall adopt the financial regulations and the annual budget estimate by a two-thirds majority comprising more than half of the Members of the WTO.
4. Each Member shall promptly contribute to the WTO its share in the expenses of the WTO in accordance with the financial regulations adopted by the General Council. (a) “the Director-General shall present to the Committee on Budget, Finance and Administration the annual budget estimate and financial statement of the WTO” 147. The Director-General submits budgetary and financial reports to the BFA Committee annually.(244) (b) “the Committee on Budget, Finance & Administration shall … make recommendations” 148. The BFA Committee makes regular recommendations to the General Council on the Director-General’s annual budget estimates and the financial statement.(245) These recommendations embody a compromise among the members of the BFA Committee and are presented to the General Council for adoption.(246) (a) “Committee on Budget, Finance and Administration shall propose … financial regulations” 149. At its meeting of 15 November 1995, the General Council adopted the WTO Financial Regulations and Financial Rules(247) on the basis of the recommendation of the Joint WTO/GATT Committee on Budget, Finance and Administration.(248) The BFA Committee regularly reviews the scale of contributions assessed to the Members and has made a decision on “inactive Members”.(249) (b) “provisions setting out the scale of contributions” 150. At its meeting of 29 June 1995, the Joint WTO/GATT Committee on Budget, Finance and Administration recommended to the General Council a new methodology(250) for calculation of the assessment of Members’ contributions to the WTO budget.(251) The General Council approved the recommendations on 15 November 1995.(252) On 9 August 2000, the BFA Committee submitted draft recommendations modifying the original calculation methodology.(253) (c) Doha Development Agenda Global Trust Fund 151. Following the guidelines set by the Doha Ministerial Conference(254), the BFA Committee developed a plan to ensure long-term funding for WTO technical assistance at an overall level no lower than that of the year 2001. A draft recommendation was presented on 3 December 2003.(255) (a) “The General Council shall adopt the financial regulations and the annual budget estimate” 152. The General Council adopted the BFA Committee’s proposed financial regulations(256) on 15 November 1995. On 15 December 2000, the General Council approved guidelines(257) with respect to Voluntary Contributions, Gifts, or Donations from Non-Governmental Donors(258) to be reviewed by January 2003.(259) Pursuant to paragraph 9 of the Guidelines, the Committee on Budget, Finance and Administration started the review in October 2002 and continued discussions in the course of 2003. At its meeting of 1 April 2004, the Committee further discussed the item and, on the basis of comments made, decided to revert to an amended text.(260) (a) “Each Member shall … contribute to the WTO …” 153. As regards the budget contributions of Members, see paragraph 150 above.
IX. Article VIII back to top Article VIII: Status of the WTO 1. The WTO shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.
2. The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions.
3. The officials of the WTO and the representatives of the Members shall similarly be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO.
4. The privileges and immunities to be accorded by a Member to the WTO, its officials, and the representatives of its Members shall be similar to the privileges and immunities stipulated in the Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947.
5. The WTO may conclude a headquarters agreement. 1. Article VIII:1, VIII:2 and VIII:3 154. Paragraphs 1–3 establish certain principles regarding the legal personality, the privileges and immunities enjoyed by the Organization, its officials and the representatives of its Members, and in particular the 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.(261) 155. 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(262), whether or not the Member in question is a party to that Convention. 156. The Headquarters Agreement(263) and the Infrastructure Agreement(264) between the World Trade Organization and the Swiss Confederation was approved by the General Council on 31 May 1995.(265) 157. Pursuant to the decision adopted by the Preparatory Committee for the World Trade Organization on 8 December 1994(266), 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.(267)
X. Article IX back to top 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.(268)
(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 fourths4 of the Members.
(b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or 1B or 1C and their annexes shall be submitted initially to the Council for Trade in Goods, the Council for Trade in Services or the Council for TRIPS, respectively, for consideration during a time-period which shall not exceed 90 days. At the end of the time-period, the relevant Council shall submit a report to the Ministerial Conference.
4. A decision by the Ministerial Conference granting a waiver shall state the exceptional circumstances justifying the decision, the terms and conditions governing the application of the waiver, and the date on which the waiver shall terminate. Any waiver granted for a period of more than one year shall be reviewed by the Ministerial Conference not later than one year after it is granted, and thereafter annually until the waiver terminates. In each review, the Ministerial Conference shall examine whether the exceptional circumstances justifying the waiver still exist and whether the terms and conditions attached to the waiver have been met. The Ministerial Conference, on the basis of the annual review, may extend, modify or terminate the waiver.
5. Decisions under a Plurilateral Trade Agreement, including any decisions on interpretations and waivers, shall be governed by the provisions of that Agreement. (a) “The WTO shall continue the practice of decision-making by consensus” 158. The General Council adopted the decision on “Decision-Making Procedures Under Articles IX and XII of the WTO Agreement” on 15 November 1995.(269) See also paragraph 163 below. (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” (i) Statements by the Appellate Body 159. In Japan — Alcoholic Beverages II, the Appellate Body disagreed with the Panel’s finding that panel reports adopted by the DSB constitute “subsequent practice” within the meaning of Article 31 of the Vienna Convention on the Laws of Treaties.(270) 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.”(271) 160. 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.(272)
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.(273)”(274) (b) Requests for authoritative interpretations 161. The first request for an authoritative interpretation of the Multilateral Trade Agreements was made on 21 January 1999(275) in relation to Articles 3.7, 21.5, 22.2, 22.6, 22.7 and 23 of the DSU. Although the General Council was requested to hold a meeting to deal with these interpretation issues,(276) no such meeting was ever held.(277) 162. The TRIPS Agreement has been interpreted in regard to its specific relationship with the public health sector by the Ministerial Conference in Doha although without making reference to Article IX:2. The Declaration on the TRIPS Agreement and Public Health(278), adopted on 14 November 2001, states that the TRIPS Agreement “does not and should not prevent Members from taking measures to protect public health …, in particular, to promote access to medicines for all.” For such purpose, the TRIPS Agreement provides flexibility in its interpretation.(279) 3. Article IX:3 and IX:4: Waivers (a) Decision-making procedures for granting a waiver 163. The General Council adopted the decision on “Decision-Making Procedures Under Articles IX and XII of the WTO Agreement” on 15 November 1995. For procedures dealing with requests for waivers or accessions to the WTO under Articles IX or XII of the WTO Agreement,(280) the Decision provides as follows: “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.”(281) 164. 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”(282), 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.(283)
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.’(284)
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.(285) 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.”(286) 165. As regards GATT practice concerning waivers, see Article XXV of the GATT Analytical Index. 166. The table below lists the waivers currently in force: 167. The International Dairy Agreement specifically addresses waivers in Article 7.1 of the Annex on Certain Milk Products.
XI. Article X back to top 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:
Articles I and II of GATT 1994; 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. (a) “Amendments to this Agreement or the Multilateral Trade Agreements in Annex 1” 168. As of 31 December 2004, no provisions of this Agreement or the Multilateral Trade Agreements in Annex 1 had been amended. (a) Amendments to the Multilateral Trade Agreements in Annexes 2 and 3 (i) Annex 2: Dispute Settlement Understanding 169. The 1994 Marrakesh Ministerial Conference mandated WTO Members to conduct a review of the DSU within four years of the entry into force of the WTO Agreement (i.e. by 1 January 1999). The DSB started the review in late 1997, and held a series of informal discussions on the basis of proposals and issues that Members identified. The review did not lead to any modification of the DSU. 170. The Doha Declaration mandated negotiations on improvements and clarifications of the DSU with the aim of reaching an agreement by May 2003.(287) The Declaration states in paragraph 47 that the negotiations on the DSU are not part of the single undertaking (see Section XXVII.A below). 171. On 1 February 2002, the TNC established the Special Session of the DSB to conduct the negotiations. As at 31 December 2004, the Special Session of the DSB has met a number of times to carry out negotiations on improvements and clarifications to the DSU, in accordance with paragraph 30 of the Doha Declaration.(288) 172. From February 2002 to December 2004 more than 40 proposals had been put forward containing text relating to 24 out of the 27 articles of the DSU.(289) In July 2003, the General Council extended until May 2004 the time-frame for conclusion of the negotiations.(290) In May 2004, the Chairman reported to the TNC that further time would be required to complete the work of the DSB Special Session.(291) On 1 August 2004 in the context of the “July Package” the General Council agreed to an extension of the time-frame for conclusion of the negotiations.(292) To date the negotiations have focused on a broad range of issues, including: consultations, panel proceedings, appellate proceedings, issues relating to implementation and the surveillance of implementation, and proposals relating to special and differential treatment.(293) 173. As at 31 December 2004, no provisions of this Agreement had been amended. (a) Additions to Plurilateral Trade Agreements 174. As of 31 December 2004, no Plurilateral Trade Agreements had been added to Annex 4. (b) Deletions of Plurilateral Trade Agreements 175. The International Bovine Meat Agreement and the International Dairy Agreement were deleted from Annex 4 by decisions of the General Council. With respect to the deletion of these Agreements, see the Chapters on these Agreements, paragraphs 6 and 12, respectively. (a) “Amendments to a Plurilateral Agreement shall be governed by the provisions of that Agreement” 176. The following provisions govern amendments to the respective Plurilateral Agreements: (a) Agreement on Trade in Civil Aircraft — Article 9.5;
(b) Agreement on Government Procurement — Article XXIV:9;
(c) International Dairy Agreement — Article VIII:4 (See paragraph 175 above); and
(d) International Bovine Meat Agreement — Article VI:4 (See paragraph 175 above). 177. None of the Plurilateral Agreements had been amended as at 31 December 2004.
XII. Article XI back to top 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. 178. On 31 December 2004, the WTO membership stood at 148 Members. See Sections XII.B.2 below and XXV below. 179. Section XXVI below lists the observers to the WTO as at 31 December 2004. 180. Also see paragraph 135 above on intergovernmental organizations; paragraph 139 above on non-governmental organizations; and paragraph 187 below on applicants for accession. (a) “The contracting parties to GATT 1947 … shall become original Members of the WTO” 181. The General Council adopted the decision proposed by the Preparatory Committee for the World Trade Organization concerning the finalization of negotiations on schedules on goods and services of certain contracting parties to GATT 1947 eligible to be original Members of the WTO(294) on 1 January 1995. 182. Of the 148 Members, 123 are original Members while 25 acceded to the Agreement.(295) 183. The 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(296), Finland, France, Gabon, Germany, Ghana, Greece, Guyana, Honduras, Hong Kong(297), Hungary, Iceland, India, Indonesia, Ireland, Italy, Japan, Kenya, Korea, Kuwait, Luxembourg, Macau(298), 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. 184. The following remaining 47 original Members accepted the WTO Agreement after the date of the entry into force of the Agreement: 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, the Democratic Republic of Congo, the Congo (Republic of). 3. Article XI:2: Least-developed countries 185. 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(299) at its meeting of 31 May 1995. Further, the General Council approved the schedule on goods and services of the Solomon Islands at its meeting of 13 and 15 December 1995.(300) As regards the establishment and activities of the Committee on LDCs, see Section V.B.7(a) above.
XIII. Article XII back to top 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. 186. Ministers adopted the Decision on the Acceptance of Accession to the Agreement Establishing the World Trade Organization at the end of Uruguay negotiations.(301) (a) Observer status for applicants for accession 187. The General Council decided to grant observer status to governments whose accession process had already begun at its meeting of 31 January 1995(302) as was the practice under GATT.(303) Section XXVI below enumerates observers to WTO bodies as at 31 December 2004. (b) Accession working parties under GATT 1947 188. The General Council agreed at its 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 standards terms of reference and their respective current chairpersons”.(304) 189. At the High-Level Meeting on Integrated Initiatives for Least-Developed Countries’ Trade Development, of 27–28 October 1997 (see Section V.B.7(a) above), Members recommended that the WTO take steps to assist LDCs in the process of accession.(305) 190. Pursuant to paragraph 42 of the Doha Ministerial Declaration, the Sub-Committee on Least-Developed Countries established a work programme (see Section V.B.7(a) above) which included a mandate from ministers to “facilitate and accelerate negotiations with acceding Least-Developed Countries.”(306) On 10 December 2002, the General Council adopted a decision to facilitate and accelerate negotiations for the accession of LDCs through simplified and streamlined procedures. The Decision set down guidelines in the following broad areas: Market Access(307), WTO Rules(308), Process(309) and Trade-Related Technical Assistance and Capacity Building.(310) (a) “Any State or separate customs territory … may accede to this Agreement” 191. Between 1 January 1995 and 31 December 2004, 25 Members acceded to the WTO Agreement. See the table in Section XXIV below. 192. For WTO practice on accession procedures, see the Note by the Secretariat, dated 24 March 1995.(311) (a) Decision-making procedures on accession 193. As regards the decision-making procedures applicable to requests for accessions to the WTO, see paragraph 163 above. (b) Working parties on accession 194. The General Council established working parties on accession on behalf of the Ministerial Conference.(312) Since 1 January 1995, the General Council has established 23 Working Parties(313) on accession for the following applicants: Viet Nam(314), Seychelles(315), Tonga(316), Vanuatu(317), Kazakstan(318), Kyrgyz Republic(319), Oman(320), Georgia(321), Azerbaijan(322), Andorra(323), Laos(324), Samoa(325), Lebanon(326), Bosnia and Herzegovina(327), Bhutan(328), Cape Verde(329), Yemen(330) and the Federal Republic of Yugoslavia(331), Bahamas(332), Tajikistan(333), Former Yugoslav Republic of Macedonia(334), Armenia(335), and Ethiopia(336). 195. Of the working parties on accession carried over from GATT 1947, 19 accessions have been completed as at 31 December 2004, including: Ecuador(337), Bulgaria(338), Mongolia(339), Panama(340), Kyrgyz Republic(341), Latvia(342), Estonia(343), Jordan(344), Georgia(345), Albania(346), Oman(347), Croatia(348) and Lithuania,(349) Armenia,(350) Cambodia,(351) Former Yugoslav Republic of Macedonia,(352) Moldova,(353) Nepal,(354) and Chinese Taipei(355). Seven of the working parties on accession carried over from the GATT 1947 were still active as at 31 December 2004, including: Algeria, Belarus, the Russian Federation, Saudi Arabia, Sudan, Ukraine and Uzbekistan.(356) 196. 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”.(357) (c) Accession decisions adopted by the WTO 197. The General Council, acting on behalf of the Ministerial Conference, has adopted 24 accession decisions, and thus the WTO Agreement has entered into force for: Ecuador(358), Qatar(359), Grenada(360), Saint Kitts and Nevis(361), Papua New Guinea(362), United Arab Emirates(363), Mongolia(364), Republic of Panama(365), Bulgaria(366), Latvia(367), Kyrgyz Republic(368), Estonia(369), Georgia(370), Jordan(371), Albania(372), Croatia(373), Oman(374), Lithuania(375), Moldova(376), China(377), Chinese Taipei(378), Former Yugoslav Republic of Macedonia(379), Armenia(380), and Nepal(381). 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. 4. Article XII:3: Accession to a Plurilateral Trade Agreement (a) Agreement on Government Procurement 198. Article XXIV of the Agreement on Government Procurement provides for accession “on terms to be agreed between that government and the Parties”. 199. As at 31 December 2004, there were five accessions to the Agreement on Government Procurement: the Kingdom of the Netherlands for Aruba(382), Liechtenstein(383), Singapore(384), Hong Kong(385) and Iceland(386). (b) Other Plurilateral Trade Agreements 200. The International Bovine Meat Agreement, the International Dairy Agreement and the Agreement on Civil Aircraft do not contain accession provisions.
Footnotes: 220. 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 |
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