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Transparency in the WTO's Decision-Making

Published online by Cambridge University Press:  24 July 2014

Abstract

In almost 20 years of existence, the World Trade Organization (WTO) has managed to be at the forefront of public discussions on international organizations (IOs). Transparency in the WTO decision-making has been on the agenda of the multilateral trading system for several years. Pressures from developing countries, non-governmental organizations (NGOs) and the civil society in particular have led to significant improvements towards more openness and participation in the WTO decision-making. This article posits the WTO within the current debates about more institutional transparency in IOs. It discusses the current features of good governance in the WTO decision-making and the consensus rule in particular, in an attempt to identify the pros and cons of this voting tradition in a modern IO. It also discusses the recent selection of the new WTO Director-General. A central insight of the paper is that input and output transparency of the WTO could be further enhanced by increased, managed participation of NGOs. As the WTO is gradually becoming a genuine IO in terms of membership and gets involved in global discussions relating to finance, climate change, or poverty eradication, public scrutiny will only increase and thus improved governance is an irreversible process. However, divergences in the views of WTO Members as to the proper scope of WTO input and output transparency will most probably lead to extended negotiations. Some thoughts about the future prospects of and possible avenues for the WTO system are also identified.

Type
INTERNATIONAL LAW AND PRACTICE
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

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24 In this case, institutional transparency can be regarded as a subsidy to those parties who are unable to obtain certain pieces of information.

25 An example would be the co-operation between the WTO and ISO or the fact that various intergovernmental bodies have an observer status at the WTO: See <http://www.wto.org/english/thewto_e/igo_obs_e.htm>.

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37 Art. V:2 WTOA.

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43 However, all official WTO documents shall be unrestricted. See WTO, ‘Procedures for the Circulation and Derestriction of WTO Documents’, WT/L/452 (16 May 2002).

44 Art. XII WTOA.

45 Art. IX WTOA and the accompanying footnote.

46 See the Preamble of the WTOA.

47 However, the rules of procedure for the MC in theory allow such QM voting. See WTO, ‘Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council’, WT/L/161 (25 July 1996), Rule 29 (MC) and Rule 33 (GC).

48 See, e.g., WTO General Council, ‘Minutes of Meeting Held on 17 and 19 July 2000’, WT/GC/M/57 (14 September 2000) [134] (‘There was also a strong commitment of the Members to reaffirm the existing practice of taking decisions by consensus’).

49 WTO Trade Negotiations Committee, ‘Statement by the Chairman of the General Council’, TN/C/1 (4 February 2002).

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51 See Steinberg, R., ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’, (2002) 56 (2)International Organization 339CrossRefGoogle Scholar at 344.

52 Art. IX:1 WTOA.

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56 See C. D. Birkbeck and M. Harbourd, ‘Developing Country Coalitions in the WTO: Strategies for Improving the Influence of the WTO's Weakest and Poorest Members’, GEG Working Paper 2011/63 (July 2011).

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60 The Warwick Commission, The Multilateral Trade Regime: Which Way Forward? (2007).

61 See Collins-Williams, T. and Wolfe, R., ‘Transparency as a Trade Policy Tool: The WTO's Cloudy Windows’, (2010) 9 (4)World Trade Review 551CrossRefGoogle Scholar, at 552. See also The Report of the Panel on Defining the Future of Trade convened by the WTO DG Pascal Lamy, ‘The Future of Trade: The Challenges of Convergence’ (24 April 2013), at 29.

62 In the context of the EU, see Case C-41/00 P, Interporc Im- und Export GmbH v. Commission of the European Communities [2003] ECR I-2125 at [39]. See also Joined Cases C-39/05 P and C-52/05, Sweden and Turco v. Council of the European Union [2008] ECR I-4723 at [59]. Strong statements with regard to the requirements of openness in the EU decision-making have been made. See, e.g., Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145 [2001] 43, recitals 2, 6 and 11. The new Art. 15 of the Treaty on the Functioning of the European Union (TFEU) provides that the Union's institutions shall be as open and transparent as possible ‘in order to promote good governance and ensure the participation of civil society’. Arts. 10 and 11 of the Treaty on the European Union (TEU) equally tell about the importance of openness, suggesting that broad consultations with the civil society will ensure policy coherence. See, more generally, Curtin, D., ‘Judging EU Secrecy’, (2012) 2 Cahiers de Droit Européen 459Google Scholar.

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83 See Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, (12 October 1988) AB-1998–4, WT/DS58/AB/R at [180–183]; and Appellate Body Report, European Communities-Selected Customs Matters, (13 November 2006) AB-2006–4, WT/DS315/AB/R at [302].

84 See also Shany, Y., ‘Toward a General Margin of Appreciation Doctrine in International Law?’, (2005) 16 (5)EJIL 907CrossRefGoogle Scholar; cf. Opinion of Advocate General Cruz Villalón in Case C-280/11 P, Council of the European Union v Access Info Europe [2013].

85 See J. Helmer and R. Wolfe, ‘Trade Policy Begins at Home: Information and Consultation in the Trade Policy Process’, 2007 available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1365111≥.

86 Compare the similar argumentation used by the EU General Court: Case T-233/09, Access Info Europe v. Council of the European Union [2011] ECR II-1073 at [56ff].

87 See also Doha Declaration, supra 66, at [10].

88 See D. Esty, Greening the GATT: Trade, Environment, and the Future (1994) at 27–8 (discussing the role of environmental NGOs in the NAFTA).

89 Webcasting of such meetings with the collection of feedback taking place in another room or electronically is also a possibility.

90 See Esty, D., ‘Linkages and Governance: NGOs at the World Trade Organization’, (1998) 19 (3)University of Pennsylvania Journal of International Economic Law 709Google Scholar, at 716.

91 See A. Kuper, Democracy Beyond Borders – Justice and Representation in Global Institutions (2004) at 164–5.

92 See Blackhurst, R., ‘The Role of the Director-General and the Secretariat’, in Narlikar, A., Daunton, M., and Stern, R. (eds.), The Oxford Handbook of the World Trade Organization (2012) 141Google Scholar, at 146.

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95 See J. Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society (1981) at 286–7.

96 See Roberts, A. and Sivakumaran, S., ‘Lawmaking by Non-state Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’, (2012) 37 (1)Yale Journal of International Law 108Google Scholar.

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98 Piewitt, M., ‘Participatory Governance in the WTO: How Inclusive Is Global Civil Society?’, (2010) 44 (2)Journal of World Trade 467Google Scholar at 485. Interestingly, Piewitt suggests that there is a persistent North–South divide in global civil society in the WTO and a dominance of the business sector.

99 See, e.g., J. Politi, A. Thomson, and J. Leahy, ‘Brazil in Tight Race with Mexico to Head WTO’, Financial Times (6 May 2013). Kenya, which nominated a candidate, also complained formally about a procedural matter relating to the confidential consultations. See ICTSD, ‘Candidate Field Narrows for WTO Director-General's Race’, (2013) 17(3) Bridges Weekly Trade News Digest.

100 Interestingly, the term ‘consensus’ is mentioned ten times in the adopted procedures: See WTO, supra note 2.

101 See WTO, supra note 2, para. 8. The candidates were: Azevêdo (Brazil); Blanco (Mexico); González (Costa Rica); Kyerematen (Ghana); Mohamed (Kenya); Pangestu (Indonesia); Hindawi (Jordan); Groser (New Zealand); and Bark (South Korea).

102 See WTO General Council, ‘Minutes of Meeting Held in the Centre William Rappard on 29–31 January 2013’, WT/GC/M/142 (16 May 2013).

103 See WTO, supra note 2 at [17–18]. Also WTO, ‘Appointment of the next Director-General – Further Progress: Informal General Council Meeting at the Level of Heads of Delegations’, Statement by the Chairman, JOB/GC/39, (19 March 2013).

104 See WTO, supra note 2 at [17].

105 See ICTSD, ‘WTO Members Choose Brazil's Azevêdo as Next Director-General’ (2013) 2(2) Bridges Africa Review.

106 See, e.g., Hoekman, B. and Mavroidis, P. (eds.), Race for the WTO Director-General job – Seven Candidates Speak (2013)Google Scholar; also Meléndez-Ortiz, R. (ed.), Global Challenges and the Future of the WTO (2013)Google Scholar.

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108 See Abbott, K. and Snidal, D., ‘Why States Act through Formal International Organizations’, (1998) 42 (1)Journal of International Conflict Resolution 3CrossRefGoogle Scholar; Also J. Alvarez, International Organizations as Law-Makers (2005) at 338 ff.

109 See Fisher, supra note 6 at 276.

110 See Hirschman, A., ‘Exit, Voice and the State’, (1978) 31 (1)World Politics 90CrossRefGoogle Scholar at 106.

111 See Hocking, B., ‘Changing the Terms of Trade Policy Making: From the “Club” to the “Multistakeholder” Model’, (2004) 3 World Trade Review 3CrossRefGoogle Scholar.

112 See, e.g., the reforms that accompanied the EU Better Regulation Initiative.

113 See Keohane, R., Macedo, S., and Moravcsik, A., ‘Democracy-Enhancing Multilateralism’, (2009) 63 International Organization 1CrossRefGoogle Scholar at 23.

114 For a more nuanced view, see Pauwelyn, J., ‘The Transformation of World Trade’, (2005) 104 Michigan Law Review 1Google Scholar, at 34.

115 Trachtman, J., ‘The Constitutions of the WTO’, (2006) 17 EJIL 623CrossRefGoogle Scholar at 638.

116 Having said this, one should refer to recent evidence suggesting that the GATT/WTO managed to spur on the trade of developing economies. See Goldstein, J., Rivers, D., and Tomz, M., ‘Institutions in International Relations: Understanding the Effects of the GATT and the WTO on World Trade’, (2007) 61 International Organization 37CrossRefGoogle Scholar at 57.

117 See J. Bacchus, ‘A Few Thoughts on Legitimacy, Democracy, and the WTO’, in Petersmann, supra note 41, 429 at 430.

118 Here I refer particularly to those countries which are at the outskirts of the developing world, with few possibilities of affecting terms of trade.