Info Service on WTO and Trade Issues (Dec17/33)
teaming up with Alibaba, WEF to "enable" e-com may be illegal
New York, 15 Dec (Robert Howse*) -- While a glum consensus has formed that nothing much happened at the WTO MC11 Ministerial Conference, a hardly-noticed announcement on the sidelines of the MC11 Ministerial Conference may have constitutional even transformative implications for the WTO.
Yesterday (Tuesday), together with Alibaba's Jack Ma, and the World Economic Forum, WTO Director-General Roberto Azevedo announced an initiative on enabling e-commerce.
"I am very pleased to welcome Jack and Rick. It's great to have you with us, and to have the opportunity to launch this joint initiative together here at the WTO's
11th Ministerial Conference. The internet and new technologies are revolutionizing our lives. If you have a phone, you are now connected to a global marketplace. This means entrepreneurs everywhere can leapfrog barriers such as physical distance, or lack of information, and leverage the opportunities that trade presents. This could be the greatest force for inclusion in the global economy that the world has ever seen. But inclusion is not automatic. Without the right approach, the big players could easily dominate this market at the expense of smaller businesses. Poorer countries could be left behind. If we want it to be inclusive, we have to work at it. We know that around 4 billion people do not yet have internet access. In least developed countries over 70% of people still cannot afford basic internet connection. This digital divide means that the benefits of digital trade continue to be unevenly distributed. But even with an internet connection in place, there are still many other barriers that can stop businesses from engaging in e-commerce. To take part you need to have the appropriate ICT infrastructure and services. You need to have functioning trade logistics. You need to have the legal and regulatory frameworks in place. You need to have access to finance. The list goes on. Getting this right is a challenge for all of us. WTO members are now discussing these issues - trying to deepen their understanding of the issues and look at how we can ensure that e-commerce is a tool for inclusion and development. So this collaboration on the Enabling E-commerce initiative comes at a perfect moment. Jack and I met in Hangzhou during the G20 last year. In April we welcomed him at the WTO in Geneva. We've been exploring how we might work together on these issues. And I have the great pleasure to say that we both share this vision of an internet for all; of e-commerce as a real opportunity for smaller players, entrepreneurs and regular citizens. So when the eWTP and the World Economic Forum approached us a few months ago with the idea of joining forces on a high-level, public-private dialogue on e-commerce, I didn't think twice. It struck me as an ideal opportunity to enhance this vital debate. Our three organisations combined can provide a unique platform to achieve this. So I am looking forward to working together to ensure that we realize the potential of e-commerce to change people's lives around the world. We will start this work straight away, with a meeting at Davos in January. This will be followed up by other events, including a major one in Geneva later in the year. But this is not just about holding events. It will be a continued results-oriented dialogue, and an evolving partnership. So I'm excited to get started. Thank you."
For its part Mr. Ma's Alibaba was also enthusiastic. For the first time ever (to my knowledge - someone will surely correct me!) the WTO issued a joint press release with an NGO, outlining a common venture. The NGO here, as mentioned, is the World Economic Forum, a pay-to-play association of many of the world's leading multinationals.
A cabal between a multi-billionaire in a BRICs country, a club of global mega-firms and the WTO to rule the cyber-world - it sounds like the plot of a novel, or the paranoid conspiracy theory of some extreme anti- globalization group.
But sometimes truth is stranger than fiction...
None of the statements or press releases is too specific about the exact scope of the common "work" of the three partners - Mr. Azevedo refers to "bringing a range of stakeholders together to further explore these issues."
That will start, no surprise, with the January Davos meeting, where (assuming it still works as in the past) you either pay the World Economic Forum's stiff admission fees or you are so powerful or famous that you go for free.
"Range" of stakeholders indeed. As for Mr. Ma, his organization refers to "The World Trade Organization and the World Economic Forum have joined with the Electronic World Trade Platform (eWTP) to launch a new initiative that aims to put e-commerce practice and policy front and center among governments, businesses and other stakeholders on a global level."
That seems like an ambitious collaboration, which aims at promoting a certain policy direction, not just an open- ended stakeholder dialogue.
But is it legal?
Let's start with the constitutional charter of the WTO - the Agreement establishing the organization, often referred to as the Marrakesh Agreement.
Article V reads:
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.
So the first question is this: will Mr. Azevedo be requesting forthwith the General Council to "make appropriate arrangements" for cooperation with eWTP and the WEF?
In 1996, the General Council in a decision clarified what Members viewed as appropriate relations with NGOs.
This decision states, in relevant part:
"This interaction with NGOs should be developed through various means such as inter alia the organization on an ad hoc basis of symposia on specific WTO-related issues, informal arrangements to receive the information NGOs may wish to make available for consultation by interested delegations and the continuation of past practice of responding to requests for general information and briefings about the WTO."
Though as mentioned details are scarce so far, it seems hard, given some of the language used by Mr. Ma, his organization, and even Mr. Azevedo along with the World Economic Forum, to see their joint venture as fitting within the notion of mere ad hoc symposia or informal arrangements. Much needs to be clarified.
But the 1996 decision of the General Council also goes on to state: "there is currently a broadly held view that it would not be possible for NGOs to be directly involved in the work of the WTO...."
Thus, in 1998 when the General Council adopted the Work Programme in Electronic Commerce, Members clearly envisaged a quite circumscribed involvement of NGOs: "In undertaking their work, these [WTO] bodies should take into account the work of other intergovernmental organizations. Consideration should be given to possible ways of obtaining information from relevant non-governmental organizations."
These and other elements of the 1998 Work Programme were re-affirmed by the General Council in 2015.
Unless I am missing something, the common venture between the WTO, the World Economic Forum and the eWTP goes considerably beyond the kind of cooperation with NGOs envisaged so far by the General Council.
But of course the General Council, which has authority over relations with NGOs, can always change its mind.
I find exciting the possibility that NGOs could actually get involved in the work of the WTO in a more integrated way; the mantra that the WTO is a "member-driven" organization sounds a little tired in the 21st century.
But if we do go that route, shouldn't there be rules of the game on inclusiveness and ideological balance among organizations, disclosure of the interests represented, and the terms of membership in the organization?
Why couldn't for example a group like Open Markets be brought into this e-commerce venture, which has a perspective very different from Big Tech, and is very concerned about the anti-competitive impact of Amazon's increasing dominance?
As a matter of legitimacy, as well as legality, for now all roads lead back to the General Council.
[* Prof. Robert Howse is Lloyd C. Nelson Professor of International Law at New York University School of Law. The above piece was posted by the author at the International Economic Law and Policy (IELP) blog and is reproduced here with due acknowledgement and permission of the author and Prof. Simon Lester, the blog's host. The original post can be found at: http://worldtradelaw.typepad.com/ielpblog/2017/12/is-it-legal-for-the-wto-to-team-up-with-ali-baba-and-the-world- economic-forum-to-enable-e-commerce-p. html] +