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Info Service on WTO and Trade Issues Geneva, 12 Jun (D. Ravi Kanth) -- The Director-General of the World Trade Organization on 10 June informed members of the seemingly illegal Joint Statement Initiative (JSI) on digital trade of the “transmission of a certified true copy” of the E-Commerce Agreement (ECA) - in apparent coordination with the JSI group’s coordinators (Australia, Japan, and Singapore), who held a group meeting on 9 June, trade envoys told the SUNS. The controversial JSI group on digital trade met on 9 June, where the coordinators “updated members on the next steps to advance the implementation of the ECA [E-Commerce Agreement].” That agreement was submitted under the title “Declaration on Interim Arrangements for the Agreement on Electronic Commerce” on the margins of the WTO’s 14th ministerial conference (MC14) in Yaounde, Cameroon, on 28 March. The WTO Director-General, Ms Ngozi Okonjo-Iweala, who addressed the Yaounde meeting, encouraged members of the JSI group to submit their ratification documents to the WTO - even though it appeared to be inconsistent with the core WTO rules as set out in the Marrakesh Agreement, said trade envoys, who asked not to be quoted. On 10 June, a day after the JSI group meeting, the DG sent an email to members, a copy of which was shared with the SUNS. Under the title “Agreement on Electronic Commerce - Transmission of Certified True Copy”, and referring to the Declaration on Interim Arrangements for the Agreement on Electronic Commerce (WT/MIN(26)/42), the DG wrote: “I have the honour to furnish herewith a certified true copy of the Agreement on Electronic Commerce, done at Yaounde on 28 March of 2026 to each Party, in accordance with Article 37.2 of the Agreement.” She added: “In terms of its Article 29.2, the Agreement shall enter into force, for those Members of the WTO that have accepted it, on the 30th day following the date of deposit of the 45th instrument of acceptance, and, thereafter, for each other Member on the 30th day following the date of deposit of that Member’s instrument of acceptance.” “In line with Article 29.1 of the Agreement, any WTO Member may request a certified true copy of the Agreement, which will be promptly provided.” Both Articles 29.1 and 29.2 mentioned by the DG in her email concern “acceptance and entry into force” of the Agreement. “GROSS VIOLATION” The DG’s email regarding the Declaration on Interim Arrangements for the Agreement on Electronic Commerce appears to be in gross violation of Articles IX and X of the Marrakesh Agreement, said several trade envoys, who asked not to be quoted. Moreover, the DG’s email seems to violate her own responsibilities under Article VI.4, which unambiguously states: “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.” Despite these rules in a rules-based organization, the DG’s latest email is being seen as one sowing the seeds of disaffection among members for allegedly flouting the rules, said trade envoys familiar with the development. WTO CLARIFICATION Following her email and amid growing resentment over the DG's action, which appeared to be inconsistent with the WTO rules, the WTO Secretariat apparently issued a clarification, defending the DG's controversial action, said trade envoys, who asked not to be quoted. The WTO's clarification states: "The WTO Director-General agreed to act as depositary of the [E-Commerce Agreement] at the request of the participating members. This decision was informed by customary international law, including the Vienna Convention on the Law of the Treaties, established policies and practices within the United Nations System, and the fact that nothing in the WTO Agreement precludes the Director-General from serving as depositary for agreements other than WTO Agreements." Privately, trade envoys said the DG is seemingly legitimizing the illegal and inconsistent practices concerning the E-Commerce Agreement that would further erode the rules-based system. JSI GROUP STATEMENT The statement issued by the three coordinators of the JSI group on digital trade - posted on the WTO website on 9 June - sought to update members on the next steps to advance the implementation of the ECA. Short quotes from the three coordinators - Ambassador James Victor Baxter of Australia, Ambassador Nagai Katsuro of Japan, and Ambassador Tan Hung Seng of Singapore - are also carried on the WTO website. According to Ambassador Tan of Singapore: “Having launched the interim arrangements at MC14, members must now focus attention and energy on bringing the ECA into force.” Chile, already among the 73 co-sponsors of the ECA, furthermore said at the meeting that it will soon join the 67 members that support the interim arrangements to bring the ECA into effect. “Our priority is to bring the ECA into force by securing 45 ratifications, and our consultations with all of you have shown that mid-2027 is an ambitious but feasible target,” Ambassador Tan said. Australian trade envoy Ambassador Baxter echoed the mid-2027 target for submission of the instruments of ratification, while noting that incorporation of the ECA into the WTO legal framework remains the ultimate objective of members. He suggested that the co-convenors will soon hold an information session for all WTO members to present the ECA and the interim arrangements, and will continue to engage with members to encourage an open dialogue. Japanese trade envoy Ambassador Nagai outlined plans for technical assistance, capacity-building, and outreach to help the co-sponsors implement the ECA. He encouraged more members to join the agreement. At the meeting, the WTO’s Deputy Director-General Johanna Hill provided information on the WTO Secretariat’s complementary efforts in AI-supported needs assessments and technical assistance and capacity- building available to WTO members in relation to the broader issue of digital trade. According to the information posted on the WTO website, several members took the floor to report on progress in their domestic procedures to ratify the ECA and to provide comments and suggestions on next steps. In his closing remarks, Ambassador Tan said that the co-convenors are heartened to hear the commitment of many members to secure early ratification. US ABSENCE The United States is pursuing with more than 20 members its own initiative on e-commerce, despite its alleged violation of the WTO rules. Significantly, the US had pulled out of the Declaration on Interim Arrangements for the Agreement on Electronic Commerce due to sharp differences with the members of the JSI group on digital trade, said trade envoys who asked not to be quoted. As previously reported, sharp concerns were raised over the “Declaration on Interim Arrangements for the Agreement on Electronic Commerce,” announced by 66 countries at MC14 in Yaounde. The 66 countries include New Zealand, among others, while the US has not joined this initiative. In the absence of multilateral consensus, the “interim arrangements” remain somewhat illegal within the WTO. According to New Zealand trade law academic and analyst Jane Kelsey: “The implications of this plurilateral Declaration strike at the very core of the WTO. The agreement had no mandate for the negotiations, but was based on a Joint Statement by a number of Members in 2017 (hence the description “Joint Statement Initiative” or JSI). It failed to secure the consensus support of Members at the General Council for its adoption as an Annex 4 plurilateral agreement.” Although the adoption of the “interim arrangements” was never communicated to members either before or during the Yaounde conference, it appears somewhat inexplicable how it was included as a formal WTO document (document number WT/MIN(26)/W/26) in the Ministerial Conference series, she noted. India also reportedly stated that members were not informed that the “interim arrangements” were part of the MC14 agenda, said people familiar with the General Council proceedings. Several key concerns were raised about the JSI e-commerce as a precedent. According to Prof Kelsey, the concerns include: 1. Unmandated plurilateral negotiations, and the adoption of the resulting agreement as a WTO instrument, using a “pragmatic” approach that is not provided for in the rules, would create a precedent for more general non- compliance with WTO rules. 2. If the WTO’s instruments and the scope of its agreements can be expanded by collective action outside the rules, the institution itself will have no boundaries. 3. If the Director-General and Secretariat exceed the constitutional limits on their power by facilitating, and then servicing, these agreements, they will have no effective constraints on what they do. 4. If plurilaterals can be adopted as de facto agreements in this way, members will have no incentive to comply with the explicit requirements of Article X.9 for consensus, enabling plurilateralism to become the norm, rather than the exception, in the multilateral trading regime. 5. An open-ended plurilateral that provides for future negotiations based on the will of a sub-group of members can override in-built negotiating mandates on the subject matter and render them irrelevant. 6. All of this works in favour of the power-brokers in the WTO, whose economic and strategic influence will enable them to dictate the future direction, subjects, and activities of the WTO at the expense of developing countries and LDCs, and their needs and priorities. Prof Kelsey said that by the end of MC14, the Interim Arrangements for the JSI on e-commerce had become a precedent for the back-door adoption of existing and future unmandated plurilateral agreements. She noted that in March, before the ministerial, US Trade Representative Jamieson Greer foreshadowed the adoption of “interim plurilaterals,” which he described as “voluntary and temporary agreements among a subset of Members to move forward on specific issues without needing full consensus.” There is no such thing as an “interim plurilateral” in the WTO, Prof Kelsey argued.
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