TWN Info Service on WTO and Trade Issues (May26/19)
28 May 2026
Third World Network

The unravelling of the WTO’s institutional sanctity?
The case of the Director-General’s acceptance to serve as depositary for a non-WTO agreement

Geneva, 28 May (Kinda Mohamadieh) – The WTO Director-General (DG) accepted to serve as depositary for the non-WTO plurilateral e-commerce agreement. In doing so, the DG is committing her office and WTO human and financial resources to a non-WTO agreement, setting a problematic precedent that breaches her mandate and establishes a rupture with the practice since the establishment of the WTO.

On the margins of the WTO’s 14th Ministerial Conference (MC14), 66 States issued a declaration on interim arrangements for the non-WTO agreement on electronic commerce, announcing their intent to implement this agreement resulting from the joint statement initiative on the subject[i] after completing their required domestic procedures.[ii] Despite this agreement not being a WTO instrument, it was branded as a WTO agreement and published on the WTO website under the WTO document reference number.[iii] This, however, does not establish a legal relationship between the agreement and the WTO. What is clear is that the e-commerce plurilateral agreement has not been accepted as a plurilateral agreement under the WTO rules (i.e., as an Annex 4 agreement), and that the interim arrangements recently launched have no legal standing under WTO law.

The States issuing the interim arrangements note that, on 18 February and 16 December 2025,[iv] they had requested the WTO General Council to adopt a decision to add the agreement on electronic commerce to Annex 4 of the WTO Agreement. The General Council was unable to reach consensus on that request. In the declaration on the interim arrangements, the participating States note that they will “continue to seek a decision to add the Agreement on Electronic Commerce to Annex 4 of the WTO Agreement”. Yet, while acknowledging that the agreement is not part of the WTO institutional framework,[v]  the interim arrangements draw on the resources and institutional services of the WTO, by relying on the office of the WTO DG to serve as depositary and on the WTO Secretariat to service the agreement.[vi]

The Vienna Convention on the Law of Treaties (VCLT) codifies under Articles 76 and 77 the functions and competence of depositary of international treaties. These rules of customary international law stress the international character of the function and the obligation to perform these functions impartially. Besides, the constituent instrument of the organization to operate as depositary must allow for such functions.

In founding the WTO, members entrusted the organization’s DG to be guardian of the WTO agreements and to act as depositary for these agreements and related instruments.[vii] According to Articles XIV.3 and XIV.4 of the Marrakesh Agreement Establishing the WTO, the WTO DG acts as depositary of the WTO Agreement and its annexed Multilateral and Plurilateral Trade Agreements.[viii] Article XIV.4 of the Marrakesh Agreement speaks specifically of “Plurilateral Trade Agreements”, which according to Article II.3 of the Marrakesh Agreement are “[t]he agreements and associated legal instruments included in Annex 4” to the Marrakesh Agreement. There is no basis under the Marrakesh Agreement for the DG or the WTO Secretariat to provide any services for non-WTO agreements.

Thus, the law and established practice at the WTO make it clear that the DG can operate as depositary for WTO agreements concluded by its Members, based on the rules and procedures of the organisation, and that her mandate does not extend beyond that scope.

Given that the role of the depositary and its functions are guided by a treaty’s procedural provisions, it is expected that the depositary is consulted in the drafting of the final clauses of the text well before the adoption of the treaty.[ix] The fact that the DG is already listed in the adopted plurilateral e-commerce agreement text implies that the DG was consulted by the drafters of the text before that step was taken. Furthermore, as per Article 24(4) of the VCLT, the functions of the depositary apply from the time of the adoption of the text, rather than upon its entry into force.[x] This implies that the DG’s commitment to act as depository is already operational.[xi]

By assuming this role, the DG has already committed WTO resources (human and financial resources) to fulfilling this function. For in order to fulfil functions of a depositary, the DG requires the Legal Affairs Division (LAD) of the WTO Secretariat to assist her. The LAD prepares copies of relevant agreements and analyses practical legal issues arising in everyday depositary work in accordance with international treaty law and established depositary practice.[xii] Upon request, the LAD also guides members and acceding governments in drafting their WTO-related legal instruments.[xiii]

Given the divergence among WTO Members about bringing the plurilateral e-commerce agreement under Annex 4, and given that the law and practice of the WTO do not provide grounds for the WTO DG to have official functions in relation to non-WTO instruments, the DG’s acceptance to act as depositary in this case falls beyond her mandate as defined by the Marrakesh Agreement. Thus, this action could “adversely reflect on [her] position as international official” in contradiction with the requirements set upon her under Article VI.4 of the Marrakesh Agreement, and contrary to the “integrity, independence and impartiality which are required by [her] status” as international civil servant.[xiv] 

This is clearly a case of “inappropriate” action by the DG and the Secretariat, which could demonstrate what the US referred to in its “WTO reform” submission as Secretariat action to “…pursue its own agenda, …acting without regard to Members’ views and the impact that such activities may be having on Members’ interests, trust in the Secretariat, and budget contributions”.[xv] Thus, this action ought to be alarming to all WTO Members, especially as they actively discussed at MC14 that “the WTO Secretariat should focus on its administrative role of serving the Members and refrain from driving policy”.[xvi]

Besides the procedural, financial and legal implications that implicate the mandate of the WTO DG and Secretariat, this action also carries implications for future approaches to plurilateral agreements under the WTO framework and rules, and to the relation of unmandated plurilateral and other trade agreements (such as free trade agreements and regional agreements) with the WTO. It was noted by commentators on the WTO that such "interim arrangements" can be considered examples of “WTO reform by doing”.[xvii] As such, the choice of DG’s office as depository may be part of a strategy to change the practice at the WTO towards “flexibilising” the conduct regarding non-mandated plurilateral agreements. Could this be an attempt at normalising the administering of such agreements by the WTO despite the lack of consensus among WTO Members on the legal relation between these agreements and the Organization? This could be read as such, especially because bringing the plurilateral e-commerce agreement into force does not essentially require involving the WTO’s DG and its Secretariat. The participants could elect to identify one or more States to act as depository.[xviii]