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Info Service on WTO and Trade Issues (Mar24/07) Abu Dhabi, 1 Mar (D. Ravi Kanth) — The proponents of the controversial plurilateral Agreement on Investment Facilitation for Development (IFD), who suffered a major setback at the World Trade Organization’s 13th ministerial conference (MC13) in Abu Dhabi on 28 February, have floated another proposal for continuing the discussions at the WTO’s General Council after MC13, said delegates who asked not to be quoted. In their latest proposal (WT/MIN(24)/29), seen by the SUNS, Chile and Korea, the two main coordinators of the IFD initiative, proposed the following language: “The Ministerial Conference: Taking note of the conclusion of the Investment Facilitation for Development Agreement (IFD Agreement) by 123 WTO Members on 25 February 2024, Following up on the request to add the Investment Facilitation for Development Agreement to Annex 4 of the WTO Agreement (WT/MIN(24)/18), Decides as follows, The General Council will start a constructive dialogue on issues relating to the IFD Agreement, including the request to add it to Annex 4 of the WTO Agreement, at the General Council following MC13 with a view to finding a path forward.” The issue is expected to come up for discussion on 1 March and it remains to be seen whether it will secure approval from ministers, after India issued its statement opposing any discussion on the IFD Agreement, said delegates, who asked not to be quoted. The Indian statement raising fundamental objections on 28 February is as follows: “We note the communication from Chile and the Republic of Korea (WT/MIN(24)/W/5) dated 16 February 2024 which provides that “As informed to all WTO Members at the special meeting of the General Council held on 14 February 2024, 119 WTO Members co-sponsoring the Joint Ministerial Declaration will submit, for Ministers’ consideration at the 13th WTO Ministerial Conference (MC13), a request to add the IFD Agreement to Annex 4 of the Marrakesh Agreement Establishing the WTO (“WTO Agreement”) pursuant to Article X.9 of the WTO Agreement. The request for incorporation is submitted in the form of a “Draft” Ministerial decision”. An advance copy of the noted Draft Ministerial decision is annexed to the communication WT/MIN(24)/W/5. Article X.9 of the Marrakesh Agreement Establishing the WTO states that “The Ministerial Conference, upon the request of the Members Parties to a trade agreement, may decide exclusively by consensus to add that agreement to Annex 4″. We state that no exclusive consensus exists to add the proposed Agreement as an Annex 4 Agreement. We underscore that given the lack of exclusive consensus, this is not a matter for the MC13 agenda. Further discussions and consultations on this matter can take place in the General Council including on concerns, as reflected in WT/GC/W/819/Rev.1.” Meanwhile, civil society organizations severely criticized the initiative on the IFD Agreement, saying that “South Africa and India have formally opposed the adoption of the Investment Facilitation “for Development” Agreement for consideration during the 13th Ministerial Conference (MC13) of the WTO, upholding legal procedures regarding plurilaterals of the global trade body.” They stated that the “Marrakesh Agreement is unambiguous that a new plurilateral agreement can only be adopted in the WTO through “Annex 4″ rules, as proponents of the IF agreement are proposing, exclusively by explicit consensus of all WTO Members.” There is no consensus at MC13 that the IF Agreement can even be legally entered on the agenda. Previous decisions of WTO ministers are clear that negotiations on investment can only be launched by consensus, once the Doha round is over, so the IF Agreement has no legal status in the WTO. The Minister of Trade for South Korea, a co-sponsor of the IFD Agreement, acknowledged that they would need consensus to incorporate the deal, and let slip that the “WTO Secretariat is trying to persuade opponents” to drop their opposition. The Marrakesh Agreement — the WTO’s constitution — is explicit that the Director-General and Secretariat, in the discharge of their duties, “shall refrain from any action that might adversely reflect on their position as international officials.” In her speech to the opening of MC13, WTO Director-General Ms Ngozi Okonjo-Iweala appeared to muddy the waters by describing the IF agreement as a possible “deliverable” — even though it is not part of the formal agenda. This continues a growing list of examples where the DG is allegedly usurping the role of Members in this constitutionally member-driven organisation. Earlier this month, she allegedly condemned South Africa and India in the General Council for their opposition to the agreement. Emeritus Law Professor Jane Kelsey commented: “Congratulations to South Africa and India for holding firm in insisting the WTO complies with its own rules and challenging the fallacy that the Investment Facilitation Agreement is about development. The plurilateral negotiation always was, and still is, illegitimate. Any attempt by its proponents to continue pushing the adoption of the agreement at MC13 in the face of this clear and explicit formal notification that there is no consensus and that the matter cannot be deliberated on at this ministerial will show how ethically bankrupt this organization has become.” +
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