Rules on Decision-Making in the WTO

The rules on decision-making are provided for in Articles IX and X of the WTO

Agreement. The procedures and customary practices that evolved under GATT 1947 are largely continued in the WTO.⁶² Article IX (1) of the WTO Agreement provides that “[t]he WTO shall continue the practice of decision-making by consensus followed under GATT 1947”. The decision-making in the WTO is hence dominated by the practice of consensus.

A decision is arrived at when “no Member, present at the meeting when the decision is taken, formally objects to the proposed decision” [Footnote 1 of the WTO Agreement].

Members not in favor of the proposed decision must hence file a formal objection at the time of the consensus decision to withhold it.

61 See e.g. P. Van den Bossche, The Law and Policy of the World Trade Organization p. 148, and the Sutherland Report p. 63

62 Article XVI (1) of the WTO Agreement

Note that only objections from members present in the decision-making meeting can block the decision. This is one of the important distinctions to unanimity, as unanimity requires consent from all members. Unanimity is required for amendment of some core WTO provisions, see below.

Consensus is not the only way of reaching a decision, according to the WTO Agreement:

“Where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting” [Article IX (1)]. The normal procedure for decisions by voting at Ministerial Conferences and in the General Council is simple majority of the votes cast, with one vote per member [Article IX (1)]. This is unless otherwise is provided in the WTO Agreement or any specific relevant agreement.

Exceptions from the simple majority rule are provided for important decisions such as waivers, where three fourths majority is required if consensus is not reached within 90 days [Article IX (3)], and accession, where two-thirds majority of the members is required [Article XII (2)]. Procedures for decisions on matters related to requests for waivers or accessions to the WTO under Articles IX or XII of the WTO Agreement were adopted by the General Council on November 15, 1995.⁶³

Adoption of so-called “authoritative interpretations” in accordance with Article IX (2) does not require attempts to reach consensus: Such decisions are taken by a three-fourths

majority of the members. Note that for these exceptions, the majority is calculated from all members, not only the votes cast.

According to the rules on decision-making, if consensus cannot be achieved, voting is generally the secondary way of reaching a decision in the Ministerial Conference, the General Council, and subordinate WTO bodies. An exception is the procedure of the Dispute Settlement Body (DSB), where decisions shall only be reached by consensus, i.e.

not secondary voting [Article 2 (4)], except when so-called “negative” or “reverse”

63 Decision-Making Procedures under Articles IX and XII of the WTO Agreement, agreed by the General Council on November 15, 1995, WTO Document WT/L/93

consensus is provided for. Reverse consensus is provided for key decisions on such as the establishment of a panel and adoption of a panel report or Appellate Body report: A decision is taken unless the DSB decides by consensus not to establish the panel or adopt the report [Articles 6 (1), 16 (4) and 17 (4) of the Dispute Settlement Understanding⁶⁴].

Specific voting rules are set out in the Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council.⁶⁵ Subordinate bodies of the WTO such as councils and committees shall in accordance with Rule 33 of the respective Rules of Procedure⁶⁶ refer the matter to the General Council if decision cannot be reached by consensus.

Decision-making rules regarding amendment are provided for in Article X of the WTO Agreement. The general rule is; if consensus cannot be reached within 90 days after the proposal has been formally tabled at the Ministerial Conference, it shall decide whether to submit the amendment for acceptance by two-thirds majority: the two-thirds must ratify the amendment for it to become effective. In some cases, consent by all members (unanimity) is required for amendment. This applies to amendment of Articles IX and X of the WTO Agreement (decision-making and amendment), MFN treatment rules (Article I of

GATT 1994, Article II (1) of GATS and Article 4 of the TRIPs Agreement) and obligations on tariff schedules etc. in Article II of GATT 1994 [Article X (2) of the WTO Agreement].

Until now, no amendments have been made to any multilateral trade agreement in Annex 1A to the WTO Agreement, which include all WTO agreements except GATS, TRIPS, DSU, TPRB and the plurilateral agreements. The first time a core WTO Agreement will be amended, is through the December 6 Decision⁶⁷ (2005) on amendment of the TRIPs

64 Annex 2 to the WTO Agreement

65WTO: Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, July 25, 1996, WTO Document WT/L/161, hereafter “Rules of Procedure”

66 E.g. Rules of Procedure for Meetings of the Trade Policy Review Body, October 10, 2005, WTO Document WT/TPR/6/Rev.1

67 WTO Document WT/L/540: Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health - Decision of 30 August 2003.

Agreement in Annex 1C to the WTO Agreement. This decision amends Article 31 of the TRIPs Agreement to allow export of pharmaceuticals produced under a compulsory license. See more about this amendment in chapter 2.5.

According to Article X (9) of the WTO Agreement, plurilateral agreements can be added to Annex 4 of the WTO Agreement, including it in the WTO body of agreements. The

decision to adopt such an agreement can exclusively be done by consensus on the

Ministerial Conference. This rule could make plurilateral agreements difficult to adopt. The plurilateral approach implies that countries can choose to agree to new rules and

agreements on a voluntary basis. All members are hence not required to be parties to the agreement such as the system is with the multilateral approach, which implies common agreements among all members. The plurilateral practice evolved under GATT, but was largely left as a negotiation strategy in the Uruguay Round and subsequent rounds due to the Single Undertaking approach and the aim to conclude all agreements multilaterally.

No plurilateral agreements have been added under Article X (9), nor have there been any amendments to plurilateral agreements under their respective Articles of amendment. The International Bovine Meat Agreement and the International Dairy Agreement, two of the four plurilateral agreements in annex 4 of the WTO Agreement, were deleted under Article X (9).⁶⁸