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TWN Info Service
on WTO and Trade Issues (Jul26/08) Geneva, 10 Jul (D. Ravi Kanth) -- Ahead of a crucial World Trade Organization General Council (GC) meeting on 14-15 July, India has launched a rigorous legal and institutional challenge against the proponents of the controversial "Agreement on Electronic Commerce" (ECA) and the WTO Director-General for acting as a depository for the agreement's instruments of acceptance - an apparent violation of the Marrakesh Agreement that established the WTO in 1995. In a sharply worded document (WT/GC/W/1004), titled "Questions regarding interim arrangements of the Agreement on Electronic Commerce," India has confronted the 66 proponents who announced the agreement on the margins of the WTO's 14th ministerial conference (MC14) in Yaounde, Cameroon. The WTO DG, Ms Ngozi Okonjo-Iweala, was in attendance at that event. India is demanding answers on the glaring legal inconsistencies between this move and the core provisions of the Marrakesh Agreement, insisting on written replies before the GC meeting convenes. Setting the stage for its legal challenge, India explained the context under which the agreement was announced in Yaounde: "On 28 March 2026, 66 countries issued a declaration on interim arrangements as a pathway to enter into force the Agreement on Electronic Commerce (ECA) which resulted from the Joint Statement Initiative on Electronic Commerce that was launched on the margins of the 11th Ministerial Conference in December 2017 (WT/MIN(26)/W/26)." According to several trade envoys, the DG has informed of the "transmission of a certified true copy" of the E-Commerce Agreement (ECA) to members - in apparent coordination with the Joint Statement Initiative (JSI) group's coordinators - Australia, Japan, and Singapore. The controversial JSI group on digital trade had met on 9 June, where the coordinators "updated members on the next steps to advance the implementation of the ECA." That agreement was officially submitted under the title "Declaration on Interim Arrangements for the Agreement on Electronic Commerce" on the margins of MC14 on 28 March. Trade envoys, who asked not to be quoted, noted that during the Yaounde meeting, the DG actively encouraged the JSI members to submit their ratification documents to the WTO - despite this appearing to be fundamentally inconsistent with the core rules established by the Marrakesh Agreement. 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 concern "acceptance and entry into force" of the Agreement. Facing mounting push-back from non-JSI members, the WTO Secretariat later issued a clarification. It stated: "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." INDIA'S CHALLENGE India, however, remains unpersuaded. New Delhi contends that "the above-mentioned interim arrangements rely on the office of the WTO DG to serve as depositary of the Agreement's instruments of acceptance (See Article 29.1 and 37 of the ECA in WT/MIN(26)/W/26), and on the WTO Secretariat to service the Agreement (See Article 36), including the dispute settlement mechanism attached to the Agreement." Furthermore, India points out that "the adopted enforcement mechanism refers to using the WTO's list of arbitrators unless parties to a dispute agree otherwise, and relies on the office of the WTO DG to notify the parties to the dispute and third parties about the results of selection of arbitrators. The arrangement also establishes an E-Commerce Committee which is to report annually to the GC (See Article 28)." Recalling previous debates on 18 February 2025 (WT/GC/W/963) and 16 December 2025 (WT/GC/W/963/ Rev.1), India reminded the membership that "the GC was requested to adopt a decision to add the ECA to Annex 4 of the Agreement Establishing the World Trade Organization ("WTO Agreement"), but there was no consensus." Against this backdrop, India said that it "would like to pose a few questions of systemic, legal and institutional importance arising from the current arrangements," to force greater clarity from the participants. India highlighted that "Article X:9 of the WTO Agreement i.e. the Marrakesh Agreement requires consensus to add an Agreement to Annex 4. Consensus was not reached on two occasions." According to paragraph 9 of Article X of the Marrakesh Agreement, "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. The Ministerial Conference, upon the request of the Members parties to a Plurilateral Trade Agreement, may decide to delete that Agreement from Annex 4." Clearly, the participants and the DG apparently "railroaded" the controversial move without any prior consensus at either the GC or a ministerial meeting, said a trade envoy, who asked not to be quoted. Notably, India is the only country that blocked the incorporation of the Investment Facilitation for Development Agreement (IFDA), signed by some 130 members, into the Annex 4 list of plurilateral agreements at the Yaounde meeting, citing identical procedural and systemic concerns. "In the absence of consensus," India said in its communication to the GC, "we would like to understand the institutional basis on which the Interim Arrangements (IA) are operating." Challenging the DG's role as depository, India argued that "Articles XIV:3 and XIV:4 of the WTO 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"." Under the sub-title "Acceptance, Entry into Force and Deposit," Article XIV clearly stipulates the underlying conditions under which new agreements are brought into force and deposited with the WTO. India also cited paragraph 3 of Article II of the Marrakesh Agreement: "The agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligations or rights for Members that have not accepted them." According to India, "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 further argued: "The general guidance page lists the instruments currently open for acceptance under that mandate, and the ECA does not appear among them. 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) in accordance with Article 37.2 of the ECA." Consequently, India sought clarification "regarding the legal basis within the WTO Agreement vide which the WTO DG is assigned the role to act as the depositary of the ECA." More pointedly, India asked for "information on the process followed to obtain the WTO DG's consent to act as the depositary for the instruments of acceptance of the ECA and details of any communications made to the rest of the WTO Membership regarding this." India said that "Article 36 of the ECA provides that the ECA shall be serviced by the WTO Secretariat," adding that "servicing an agreement authorized or mandated by a subset of members, not by the full WTO membership is a kind of instruction from an "external authority" that Article VI:4 prohibits." By pointing to paragraph 4 of Article VI of the Marrakesh Agreement, India appears to be directly questioning whether the DG is truly executing her responsibilities as dictated by the Marrakesh Agreement, or if she is allegedly capitulating to an "external authority". India demanded that the ECA's participants "clarify what servicing the Agreement entails and explain the basis of considering the above functions permissible under Article VI:4?" India maintained that, "as per Article IV:8 of the WTO Agreement, the bodies provided for under the Plurilateral Trade Agreements (specified under Article II:3 of the WTO Agreement to mean "[t]he agreements and associated legal instruments included in Annex 4") shall operate within the institutional framework of the WTO and keep the GC informed of their activities on a regular basis." While "Article 28.1 and 28.4 of the ECA establishes an E-Commerce Committee open to Parties and provides that the Committee shall report annually to the GC once the Agreement is in force," India questioned its legal standing. India asked the participants to "clarify whether this Committee is a WTO body within the meaning of the WTO Agreement, and the basis for it?" "If not, how does it exercise functions within the WTO institutional framework?", India said. Moreover, India challenged the participants to "explain how this arrangement is characterised, how it would operate in practice and whether it engages Article X of the WTO Agreement?" Given the "importance of these issues and their implications for the basic institutional mandate and the WTO framework," India is refusing to accept off-the-record explanations. New Delhi insisted that "written responses to the questions be submitted and circulated as an official WTO document." It also formally requested that the above "questions and the responses thereto, be placed on the agenda of the GC for substantive discussion at its next meeting", scheduled for 14-15 July. +
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