Service on WTO and Trade Issues (Jun16/11)
17 June 2016
Third World Network
DG's sleight of hand, ignoring GC 2004 decisions, for new issues
Published in SUNS #8260 dated 13 June 2016
Geneva, 10 Jun (D. Ravi Kanth) - Without consulting members and in
an apparent violation of rules of business, the World Trade Organization
(WTO) Director-General Roberto Azevedo has expanded two existing divisions
to oversee work on investment and trade and competition policy respectively,
trade negotiators familiar with the development told the SUNS.
These controversial issues - investment, trade and competition policy,
and government procurement - were shot down at the WTO's fifth ministerial
meeting in Cancun, in 2003, following massive opposition from the
developing countries, and that entire meeting collapsed.
Subsequently, in July 2004, the General Council adopted the July Framework
Agreement to put the Doha talks back on the rails, but decided to
keep the three "Singapore issues" outside any work at the
WTO during the Doha Round.
Accordingly, they modified the Doha Work Programme (adopted by the
Ministerial Declaration at Doha, in November 2001), of that July Framework,
in these terms in Para 1 (g): "Relationship between Trade and
Investment, Interaction between Trade and Competition Policy and Transparency
in Government Procurement: The Council agrees that these issues, mentioned
in the Doha Ministerial Declaration in paragraphs 20-22, 23-25 and
26 respectively, will not form part of the Work Programme set out
in that Declaration and therefore no work towards negotiations on
any of these issues will take place within the WTO during the Doha
This decision of the General Council remains in force unless specifically
decided otherwise by the General Council (acting in between Sessions
of the Ministerial Conference) or by a Ministerial Conference.
The Nairobi Ministerial Conference (2015) could reach no decision
for lack of consensus, neither to end the DWP (otherwise known as
Doha Development Round), nor on taking up any new issues.
As a result, ever since the General Council decision in July-August
2004, these three issues have hovered around the Centre William Rappard
that houses the WTO, unable to make an entry.
The developing countries, however, have not given any "explicit"
approval, either at the subsequent Ministerial or General Council
As such, for all practical purposes, the three issues remain multilaterally
"untouchable" due to lack of consensus among the WTO's 164
But, in an astonishing development, Azevedo brought back these three
issues through a sleight of hand, said a trade negotiator, who asked
not to be quoted.
In a move that raises serious systemic concerns, the WTO Director-General
took decisions without any specific mandate, from any of the WTO bodies
to rename the division on services and intellectual property respectively.
Members were "informed" this week that the division on Services
is being re-christened as "Trade in Services and Investment Division,"
while the division on intellectual property will be called "Intellectual
Property, Government Procurement and Competition Division."
The new division on the Intellectual Property, Government Procurement
and Competition "is responsible for the WTO's work in trade-related
intellectual property rights (TRIPS), government procurement and competition
policy (it should be noted that substantive work in the latter area
in the WTO has been on hold since 2004)."
So far, the division on intellectual property services also included
a section on government procurement for specifically servicing "the
Committee established under the plurilateral Agreement on Government
Procurement and dispute settlement panels that may arise" under
the previous Uruguay Round agreement.
The section on government procurement, however, was a separate plurilateral
agreement under the Marrakesh agreement and not part of the Agreement
on Trade-Related Aspects of Intellectual Property Rights.
The decision to include trade and competition policy in the IPR division
is startling as it is justified on the ground "that substantive
work in the latter area [competition policy] in the WTO has been on
hold since 2004."
The moot issue is, if trade and competition policy is on hold since
2004, did the members now decide and has the Budget Committee agreed
that the Division should monitor "developments at the international
level and would be responsible for any further work in the WTO Working
Group on the Interaction between Trade and Competition Policy, in
the event that that body should resume its work".
After the Doha MC, and the adoption of its declaration, any additional
work, and budget for it, even expansion in activities of the WTO's
information division on the DWP agenda, had to be approved by the
Budget Committee, which insisted on having official minutes of that
Conference before it in order to give its approval.
It is also legally unclear as to what is meant by saying that "trade
and competition policy is on hold since 2004", because there
was no decision to keep the work on hold. That trade and competition
policy were buried at the WTO's fifth ministerial meeting is well
known, the negotiator said.
In similar vein, the decision to include work on investment along
with other issues of trade in services is not legally justifiable
as there is no formal decision by the members to consider investment
as part of services.
Investment, for example, can form part of trade in goods, and even
intellectual property division. So, on what basis has the Director-General
decided to include investment in the work of trade and services without
a proper discussion involving all 164 members, a negotiator told the
It is common knowledge that these three areas - government procurement,
investment, and trade and competition policy - along with trade facilitation
formed part of what are called the four Singapore issues which were
first introduced at the WTO's first ministerial meeting in Singapore
In the face of combined opposition from developing countries, the
four issues were brought into the Doha work program in 2001 on the
condition that negotiations on each of the four issues will only commence
on the basis of "explicit" consensus at the WTO's third
The European Union, which was the principal demandeur for the four
issues, tried hard to start negotiations at Cancun but gave up in
the face of opposition from developing countries.
Subsequently, the four issues were dropped until the United States,
the EU, and other developed and some developing countries who were
part of the Colorado group brought the trade facilitation back into
the July 2004 framework agreement, promising the developing and the
least-developed countries that their core issues in agriculture and
other areas of the Doha work program shall be addressed on the basis
of special and differential treatment flexibilities and less-than-full-reciprocity
Effectively, the three issues - investment, competition policy, and
government procurement - were obliterated from the Doha work program.
In a matter of eleven years during 2004 and 2015, the developing countries
were forced to run in circles to secure minimal results in areas -
tackling trade distorting domestic agriculture subsidies, addressing
tariff peaks and tariff escalation, improving rules in anti-dumping,
securing credible market access in the movement of short-term services
providers in Mode 4 - of the Doha Work Program.
After pocketing a binding and comprehensive outcome in the trade facilitation
agreement at the WTO's ninth ministerial conference in Bali, Indonesia,
in 2013, a handful of developed countries - the United States, the
EU, and Japan - have succeeded in torpedoing the Doha Work Program
at the tenth ministerial conference in Nairobi, in 2015, trade negotiators
They were unable though to get a consensus for ending the DWP, but
with some assistance from the secretariat have been torpedoing any
work on other measures, post-Nairobi.
Now, the Director-General who helped these handful of developed countries
in their efforts to put the Doha work program to bed has initiated
work quietly to bring investment, competition policy, and government
procurement without a multilateral consent, said a South American
Trade observers said, following the example set by the US on the reappointment
of a member to the Appellate Body, the DG whose current term will
be ending next year may face a similar one.