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TWN
Info Service on WTO and Trade Issues (Nov23/12) Geneva, 21 Nov (D. Ravi Kanth) — The chair of the World Trade Organization’s General Council (GC) on 17 November announced the ground rules for the “Way Forward to MC13”, in which a seemingly top-down and prescriptive approach is being suggested for what is being branded as a “reform ministerial”, said people familiar with the development. For the past several months, the WTO’s 13th ministerial conference (MC13), to be held in Abu Dhabi in February 2024, is being showcased as a “reform ministerial” that could well decide the future of the 164-member rules-based and consensus-driven intergovernmental organization, said people familiar with the discussions. Already, fears are being raised in various quarters as to whether the WTO will remain as a multilateral, member- driven organization that will make decisions on mandated issues or whether it will surreptitiously advance the controversial plurilateral initiatives that have no prior multilateral mandate as required under WTO rules, said people familiar with the development. In this context, several members and observers cite the document (WT/GC/259, TN/C/22) in which, under the rubric of “WTO reform”, it said somewhat unambiguously that: “With reference to reforming the WTO’s negotiating function, there was a strong call by several Senior Officials for a viable path for the WTO to respond to flexible and open multilateralism with many Senior Officials referring to the significant progress made with the conclusion of the Investment Facilitation for Development and Services Domestic Regulation negotiations. “In this regard, we heard the calls to sharpen the WTO’s decision-making process by exercising responsible consensus. While some Senior Officials expressed discomfort on integrating such results into the WTO’s legal architecture, they expressed willingness to discuss the matter. In recognizing this willingness, we urge Members to work together in this spirit to find a mutually agreeable way forward that respects the right balance.” GC CHAIR SETS GROUND RULES The chair of the WTO’s General Council (GC), Ambassador Athaliah Lesiba MoloKomme of Botswana, issued a restricted document (Job/GC/371) on 17 November reporting on her recent consultations with members in different configurations. The GC chair said she met with “over 100 delegations” to discern the views of a wide spectrum of members. “In this regard, my report reflects what I believe is a broad cross-section of Members’ views, including responses to the ideas I tested during the consultations.” However, she did not elaborate on what were the ideas that she had tested in these consultations, said a member, suggesting that there is no clarity on the ideas she discussed. Ideally, all these “ideas” should have been shared in an open setting at an open meeting so that members can judge who is saying what on several key issues, particularly on the alleged fears over undermining the WTO’s consensus-based decision-making process to advance the controversial plurilateral Joint Statement Initiatives (JSIs) that were not agreed at the WTO’s 11th ministerial conference (MC11) held in Buenos Aires, Argentina, in December 2017, said several members, who preferred not to be quoted. The GC chair went on to say that “the Director-General and I have continued our reflection on the matters Members raised.” “Taking into account what I heard during the consultations, I am sharing with you an adjusted flexible work plan to guide our journey to MC13, which includes working towards a possible outcome document.” WORKING PRINCIPLES The GC chair highlighted “some working and guiding principles”, which she claimed, have been affirmed by what she heard from Members during her consultations. Seemingly, such a claim by the GC chair does not suggest that all members affirmed the working principles or that there were no questions raised on some of these principles, said members familiar with the discussions. Ambassador Molokomme laid out the following working principles in her document: “a. First, all processes leading to, and at, MC13 should be open, transparent, inclusive, and Member-driven; it should not overburden delegations, and take into account capacity constraints of delegations, especially smaller delegations. b. Second, ongoing efforts in regular bodies and negotiating groups should be allowed to progress – with a view to completing – as much of the work in Geneva ahead of MC13, to the extent possible. c. Third, all efforts in Geneva should facilitate shaping a focused and balanced agenda for MC13.” The last principle on “all efforts in Geneva should facilitate shaping a focused and balanced agenda for MC13” raises some questions as to what would constitute “a focused and balanced agenda”, as this could prove to be problematic in a multilateral trade organization with members having diverse views on what should be the focus in the run-up to MC13, said members familiar with the development. For example, Brazil has said that the agriculture negotiations should focus on shaping a “holistic” agenda based on Article 20 of the WTO’s Agreement on Agriculture, while India, Indonesia, and many other members want to squarely focus on the mandated issues like the permanent solution for public stockholding (PSH) programs for food security, said members familiar with the discussions. As previously reported in SUNS, apparently, the DG, under pressure from the Cairns Group of farm-exporting countries and the Latin American Group, seemingly shifted the focus from discussing the PSH issue at the upcoming virtual ministerial meeting next week to cover all issues in agriculture under the pretext of a “reset.” Under the multilateral framework embodying the WTO, negotiations are held on the basis of the mandates set by trade ministers and any change in the mandates would require prior consensus among the members, said members familiar with the discussions. FLEXIBLE WORK PLAN ON OUTCOME DOCUMENT In the WTO negotiations, the outcome document is one of the most vital components, as it would set the direction in which the trade body is going to follow. Clearly, it requires elaborate discussions on each item, given the many contentious issues that are in the MC12 Outcome Document, including the footnote attached to paragraph 3 in that document, said several members familiar with the discussions. According to paragraph three of the MC12 Outcome Document (WT/MIN(22)/24), ministers acknowledged “the need to take advantage of available opportunities, address the challenges that the WTO is facing, and ensure the WTO’s proper functioning. We commit to work towards necessary reform of the WTO. While reaffirming the foundational principles of the WTO, we envision reforms to improve all its functions. The work shall be Member-driven, open, transparent, inclusive, and must address the interests of all Members, including development issues. The General Council and its subsidiary bodies will conduct the work, review progress, and consider decisions, as appropriate, to be submitted to the next Ministerial Conference.” The footnote attached to paragraph three states: “For greater certainty, in this context, this does not prevent groupings of WTO Members from meeting to discuss relevant matters or making submissions for consideration by the General Council or its subsidiary bodies.” Clearly, the process requires a bottom-up approach to avoid any big surprises at MC13, said a member, who asked not to be quoted. However, commenting on the “flexible work plan on the outcome document,” the GC chair said in her document that: “With these working principles in mind, let me outline a flexible work plan to guide our efforts towards a possible outcome document. a. First, as General Council Chairperson, I will carry my expected responsibility of leading this process. As signalled in my consultations, I will reach out to “Friends” to assist in resolving specific matters – as and when they arise. b. Second, based on what I heard from Members, we should endeavor to work towards an outcome document that: i. is concise and focused – which welcomes outcomes achieved; takes stock of progress, including on follow-up from MC12 outcomes; and provides political guidance, as applicable, ii. captures the Membership’s interests – mindful of the limited time and the Ministerial nature of the document, and iii. takes into account the varying levels of maturity of discussions in areas that Members are engaged on. c. Third, given that work on possible MC13 outcomes is ongoing in various WTO bodies, negotiating groups and processes, the work that I will lead will focus mainly on matters that are not the subject of these processes. As I said in my consultations, we shall not duplicate discussions and efforts. d. Fourth, building on the ideas I shared and Members’ comments during the consultations – including a growing demand to avoid starting the drafting process from scratch, my intention is to provide a zero-draft skeleton or outline of the document, incorporating what I have heard during the consultations. This skeleton will be shared with all Members on 27 November to provide some time for Members to consult capitals before the launch of the drafting group process. e. Fifth, I will launch a core drafting group process on Wednesday, 29 November. Taking into account Members’ views, the composition will not be rigid but dynamic, will evolve organically as we advance and will depend on the matter that is being discussed. For transparency and inclusiveness, there will be a listening-in room – similar to what we had at the SOM [Senior Officials Meeting] – for interested delegations to follow the discussion. f. Sixth, in order to have clarity and allow Members to plan their schedules, I have identified specific dates for the drafting process. These will be the mornings of 29, 30 November and 5 December. I will keep the option of continuing in the afternoon of 5 December, depending on how our work and discussions advance. g. Given the very limited time we have, I request delegations to pencil in the afternoon of 8 December as a possibility to continue our work should this be necessary. As signalled in the consultations, transparency throughout the process shall be ensured through communications or short informal GC meetings. h. Seventh, my expectation is that by the December GC meeting, we should have a well-defined skeleton that we would further flesh out when we resume work in the new year.” The above approach seems to suggest some type of top-down, prescriptive approach and it remains to be seen how it plays out, said a former trade envoy familiar with the discussions. FLEXIBLE WORK PLAN FOR MC13 The GC chair also proposed a “flexible work plan in the lead up to MC13”: “a. First, having three to four drafting sessions – followed by transparency reports. b. Second, arriving at Stations 5 and 6 – the Formal TNC/Informal HODs and the December GC meeting to (i) take stock of progress in all areas, (ii) present the state of a possible emerging outcome document – ideally, with a well-developed skeleton, (iii) begin to crystallize the outcomes and matters to be put forward to Ministers at MC13. The Director-General and I are aware that various other activities are taking place during December, and that this is an exceptionally busy month for Members. However, given what we need to accomplish to ensure success at MC13, we seek your understanding and flexibility regarding the scheduling of the TNC/HoDs meetings and the end-of-year GC meeting on the 12 and 14 to 15 December, respectively. c. Third, continuing the drafting process and advancing work in all areas after the holidays – from 8 January until 13 February. As signalled, I will also continue to ensure transparency through communications, as well as meetings. The Director-General as TNC Chairperson could also have additional complementary pitstops, as necessary. d. Fourth, I intend to convene a Special Meeting of the General Council on 14 February. This would allow us to take account of all work at MC13 and transmit work to Ministers.” The GC chair also briefly touched on the MC13-related matters concerning “the MC13 invitation letter; the exact duration and structure of the Ministerial Conference; the possibility of another SOM (Senior Officials Meeting in Abu Dhabi two or three days before the official start of MC13, as suggested by the United States); and the structure of the Ministerial Conference.” In short, the GC chair’s document seems to raise questions as to whether it will lead to a top-down or bottom-up process given the concerns prevailing since the Senior Officials Meeting held last month. It remains to be seen how this unfolds in the coming month. +
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