TWN Info Service on WTO and Trade Issues (Oct26/02)
1 October 2026
Third World Network

WTO: Deflecting India's questions, DG defends role as ECA depositary
Published in SUNS #10524 dated 1 October 2026 

Geneva, 30 Sep (D. Ravi Kanth) -- The Director-General of the World Trade Organization has seemingly failed to address the key legal questions raised by India regarding the Interim Arrangements for the Agreement on Electronic Commerce (ECA).

She referred several of them to the ECA participants, including questions on the institutional basis for the arrangements, while defending her decision to act as the depositary of the ECA's instruments of acceptance, said people familiar with the development.

The DG's replies follow the responses from the three co-convenors of the ECA - Japan, Australia, and Singapore - defending the Interim Arrangements.

In a document (WT/GC/W/1006), issued on 24 September, the three co-convenors failed to identify any provision of the WTO Agreement allowing the DG and the Secretariat to perform functions for an agreement that has not been incorporated into Annex 4 of the Marrakesh Agreement, said a legal analyst who asked not to be quoted.

Responding to India's question on the institutional basis for the Interim Arrangements, given that consensus to add the ECA to Annex 4 under Article X:9 of the Marrakesh Agreement was not reached on two occasions, the co-convenors said, "there is a strong institutional basis for the ECA and its implementation at the WTO."

They argued that "as an initiative driven by WTO Members accounting for approximately 70% of global trade, the ECA is consistent with the WTO's long-established practice of supporting plurilateral initiatives and activities within its institutional framework. WTO Members have always been able to conduct such activities at the WTO, and the WTO Agreement does not require consensus to conduct such activities."

Clearly, the co-convenors failed to answer the central question of how WTO institutions can serve an agreement that the membership has not agreed to add to Annex 4, the analyst said.

The co-convenors justified the Secretariat's support for the ECA by saying that "the WTO Secretariat has an established practice of providing its services for initiatives at the request of groups of Members. For example, various Member-requested meetings, activities and initiatives are carried out at the WTO, including coordination groups for LDCs and regional groups, plurilateral initiatives on MSMEs, trade and gender and plastics pollution. Similarly, the Secretariat has supported ECA-related activities at the request of participating Members."

On the DG's role as ECA depositary, they argued that serving as depositary "is not inconsistent" with her role and responsibilities, citing the Vienna Convention on the Law of Treaties, the practice of the UN Secretary-General, regional trade agreements, and the Information Technology Agreement.

DG'S RESPONSE

Five days after the co-convenors issued their responses, the DG issued a restricted document (JOB/GC/522) on 29 September, in which she referred four of India's questions, in whole or in part, to the ECA participants.

For example, noting that Article X.9 of the Marrakesh Agreement "requires consensus to add an Agreement to Annex 4. Consensus was not reached on two occasions," India said: "In the absence of consensus, we would like to understand the institutional basis on which the Interim Arrangements (IA) are operating."

The DG's answer: "This question should be addressed to the ECA participants."

In another question, India noted that "Articles XIV.3 and XIV.4 of the WTO Agreement, i.e. the Marrakesh Agreement, explicitly provide that the WTO Director-General acts as depositary of the WTO Agreement and its annexed Multilateral and Plurilateral Trade Agreements, the latter specified under Article II.3 of the WTO Agreement to mean "[t]he agreements and associated legal instruments included in Annex 4"."

India also noted that "the WTO's depositary functions page confirms that the Director-General's depositary mandate covers WTO agreements and related instruments, and that the Legal Affairs Division's role covers WTO-related legal instruments and instruments of acceptance of protocols amending WTO agreements."

India highlighted that the ECA has not been incorporated into Annex 4. "However, the WTO DG circulated to WTO Members a copy of the ECA (ECA/DEP/1) on 10th June 2026 in accordance with Article 37.2 of the ECA."

India requested "clarification regarding the legal basis within the WTO Agreement on which the function to act as the depositary of the ECA is being performed by the WTO DG."

The DG answered: "Articles XIV:3 and 4 of the WTO Agreement mandate the WTO Director-General to be the depositary of the Marrakesh Agreement, the Multilateral Trade Agreements, and the Plurilateral Agreements under Annex 4 of the WTO Agreement. The WTO Agreement is otherwise silent on whether the Director- General can exercise discretion to be the depositary of any other treaty. If the parties to the WTO Agreement had wanted to limit the DG from acting as depositary for other treaties, they could have explicitly done so, but they did not."

The DG said, "the absence of an explicit limitation in the WTO Agreement, considered in light of customary international law as codified in Article 76 of the Vienna Convention on the Law of Treaties (VCLT), therefore supports the interpretation that the WTO Director-General is allowed to play depositary functions for other treaties."

The DG justified her action by saying that "on treaty law matters including depositary functions, it is reasonable for the WTO to follow the UN's guidance and practice."

The DG argued that "in this regard, the UN Secretary-General has discretion to accept or reject depositary functions for any treaty they deem appropriate, even in the absence of specific provisions to that effect in the UN Charter."

However, the UN policy the DG cites restricts depositary functions to treaties of global scope, "usually those adopted by the UN General Assembly (UNGA) or concluded by plenipotentiary conferences convened by UN organs," with exceptions at the Secretary-General's discretion.

The ECA was not adopted by any WTO body.

QUESTIONS UNANSWERED

A legal analyst said that there are "very few select, very clearly specified openings in the legal framework which may allow someone, some select countries - not the entire set of countries - to reach an agreement and keep the benefits within the group, [and] not to pass it onto everyone."

Further, "these openings are GATT Article XXIV, or it is a waiver, or you put it under X:9 for Annex 4, and if you're not doing these things, then there is no legal cover to allow [it], because ECA certainly has a number of elements which will have an implication for GATS commitments."

The analyst said, "if members are doing something with regard to the services area and then they are limiting the benefits to only select members and not passing those onto other members, this implies that these members are violating the MFN under the GATS."

Another legal official said the only cover is either for members to enter into a free trade agreement that would correspond to Article V of the GATS or Article XXIV of the GATT, which deals with trade in goods.

Therefore, if members are not doing any such thing, then the problem is that this type of agreement, to which the DG is becoming the depositary, questions its very legal basis, the official said.

Brazil told the General Council in July that until the ECA meets the requirement of incorporation into Annex 4 exclusively by consensus, it cannot be considered a WTO Agreement. +