TWN Info Service on WTO and Trade Issues (Oct26/07)
8 October 2026
Third World Network

Trade: US lambasts WTO DG for acting as depository for ECA
Published in SUNS #10529 dated 8 October 2026

Geneva, 7 Oct (D. Ravi Kanth) -- The United States, while signaling that it is willing to join the consensus on the controversial plurilateral Agreement on Electronic Commerce (ECA) and the Investment Facilitation for Development Agreement (IFDA), sharply criticized the World Trade Organization's Director-General for agreeing to act as a depositary for the ECA, said people familiar with the development.

The US raised a main concern that the DG, Ms Ngozi Okonjo-Iweala, had taken on the role of being the depositary for the ECA even though members had not reached consensus on incorporating the ECA into Annex 4 of the Marrakesh Agreement, which lists the plurilateral trade agreements, said people who asked not to be quoted.

China, however, expressed appreciation to the DG "for her thoughtful consideration in accepting the request to act as depositary of the ECA, in light of the WTO Agreement and other relevant international law, including customary international law, such as VCLT [Vienna Convention on the Law of Treaties]".

"There is no change or ambiguity of the legal status of ECA," said China's trade envoy to the WTO, Ambassador Li Yongjie.

On the second day of the General Council (GC) meeting on 6 October, discussions on the ECA appeared to be combative.

India challenged the legal status of the ECA, while Australia, Japan, and Singapore offered a robust defense, said people familiar with the discussions.

At the heart of the debate was the authority of the Director-General and the WTO Secretariat to support an agreement that has not been incorporated into Annex 4 of the Marrakesh Agreement, said a trade envoy who asked not to be quoted.

While item 7 of the GC agenda was requested by Australia, Japan, and Singapore to present their responses to questions regarding the Agreement on E-Commerce Interim Arrangements (WT/GC/W/1006), item 8 was requested by Pakistan on follow-up on institutional and legal questions arising from the Interim Arrangements on the Agreement on Electronic Commerce.

Many members addressed both items together.

US: "Unauthorized and ultra vires"

Speaking on both items, US trade envoy to the WTO, Ambassador Joseph Barloon, argued that these issues go to the heart of WTO reform.

Asking for the chair's indulgence for an intervention that would last "well over 2 minutes," the US outlined its position on the ECA following the WTO's 14th Ministerial Conference (MC14) in Yaounde, Cameroon, earlier this year, before addressing the responses from the co-conveners (Australia, Japan and Singapore) and the Director-General.

Acknowledging its well-known support for plurilaterals and participation in the Joint Statement Initiative (JSI) leading to the ECA, the US trade envoy stated that the US was willing to join the consensus on both the ECA and IFDA, despite not being a participant in either initiative.

However, the US maintained that a strong interest in opening a pathway for plurilaterals "does not mean we will support any pathway that facilitates plurilaterals."

The US noted that consensus was not reached to make the JSI a WTO plurilateral.

By acting as a depositary, creating a document series, and opening up the possibility for a committee on the ECA, the US said, the DG took actions that had the effect of conveying the authority of a WTO agreement onto the ECA, which is not a WTO agreement.

"This, in our view, was wrong," the US bluntly said.

The US rejected the argument that the ECA's launch, negotiation, and conclusion at the WTO granted it special privileges, calling the line of argument unconvincing.

"Consensus is what will make or break a plurilateral," the US said, arguing that it does not matter if the text was negotiated in capitals or in Geneva.

"Ironically," the US warned, this justification "could push members to be more hostile to future attempts to initiate new plurilaterals if their lack of early dissent is used against them at the end of the process."

Regarding technical assistance, the US expressed sharp concern that the Secretariat would conduct activities despite there being no unified position by members on e-commerce.

"Whose position are they advocating? How are members to monitor this?" the US asked.

The US also questioned the weight that the DG's communication placed on the assertion that the WTO Agreement is silent on her discretion to serve as depositary.

Challenging the references to UN practices and the Vienna Convention on the Law of Treaties, the US said, "the WTO is not the UN, and members have not agreed to carry over UN positions and practices to the WTO."

The US rejected the argument in the DG's written responses that "if the parties to the WTO Agreement had wanted to limit the Director-General from acting as a depository for other treaties, they could have explicitly done so, but they did not."

The US stated that this has "far-reaching effects for each of us that extend well beyond the ECA."

The US insisted that the DG has no implied powers and only such authority as members provide.

Questioning the criteria used by the DG, including the ECA's purpose, its openness, the participants' share of global trade (70%), and the absence of a burdensome workload for the Secretariat, the US stated, "it is the members, not the DG, who should be determining the criteria for which agreements receive special treatment by the WTO."

The US said Ms Okonjo-Iweala's action "damages the member-driven nature of the organization" and warned that the actions risk eroding trust at a time when members have embarked on WTO reform.

"But even if reform discussions were not taking place, we would have serious concerns over the actions and responses," the US trade envoy said.

Substituting the DG's judgment for that of members, setting precedents for plurilaterals, and changing the nature of the organization in ways that "will outlast the tenure" were issues that gave the US concern, the trade envoy added.

In closing, the trade envoy said, "it's the position of the United States that the actions to serve as a depository for the ECA were unauthorized and ultra vires."

"We do not accept that any DG can effectuate a status change for any document or agreement that is not a WTO document or agreement, and that includes the ECA," the US trade envoy said.

India: "Only legality can justify it"

India argued that the responses from the co-conveners and the DG "confirm rather than resolve concerns."

India stated, "These responses do not identify any WTO agreement provisions that authorizes the DG and Secretariat to perform functions for this arrangement."

India rejected the proposition that "nothing prohibits it," arguing, "That test doesn't apply to an international organization which may act only within the powers conferred on it by its members."

India said that "an unfounded pathway to circumvent Article X [of the Marrakesh Agreement] cannot be created."

"Thus, the ECA interim arrangement cannot function within the WTO framework as it has no legal basis in the WTO Agreement," India emphasized.

India said the comparison with free trade agreements (FTAs) was not fair, since those FTAs are neither deposited with nor serviced by the WTO and involve no treaty committee or document series within the WTO.

Summing up, India said, "Practicality may explain an action, but only legality can justify it."

Brazil: "No substitute for consensus"

Brazil, a JSI participant but not a party to the ECA, said that it felt a duty to "defend the legal integrity of our common WTO framework."

Brazil emphasized that revisiting the legal architecture "must be addressed openly and decided by consensus, not through procedural shortcuts."

Brazil said that "participants' share of global trade is not a criterion for incorporation, [nor] a substitute for consensus among members under the Marrakesh Agreement's decision-making rules."

Noting that the ECA had twice failed to be incorporated under Article X of the Marrakesh Agreement, Brazil said, "the ECA cannot be considered a WTO agreement."

Brazil warned that accepting the depositary role for an agreement that members declined to incorporate "could amount to overriding the membership's decision of not granting such agreement the status of a WTO treaty."

Pakistan: "Reverses the logic"

Introducing item 8 of the GC agenda, Pakistan said the responses had established that the ECA is not a WTO agreement, raising the question on what basis can the organs of the WTO act as its depositary, service it and support its dispute settlement.

The answer offered, namely that nothing in the WTO Agreement prohibits it, "reverses the logic of international organizations," Pakistan said.

"States may do what is not prohibited. International organizations and their organs may do only what their members have conferred."

Pakistan also asked "how many times has the UN Secretary-General accepted a treaty for deposit on behalf of a group of members after it was twice presented to and rejected by the UN General Assembly."

Other members' views

Bangladesh said, "The central question is on what authority WTO staff offices and budgetary resources may be used for an agreement that sits outside of Annex IV," and requested that any ECA-related expenditure be reviewed by the Committee on Budget, Finance and Administration.

Turkiye questioned whether the depositary role was consistent with Article VI:4 of the Marrakesh Agreement, warning that it could "eventually result in a shortcut to bypass Article X for any future plurilateral agreements."

The Russian Federation said that reacting to such requests "may negatively affect the atmosphere in the organization to the detriment of work to be conducted in the WTO."

South Africa argued that the issue concerns "the relationship between arrangements developed by a group of members and the institutional and legal framework of the WTO as a whole."

It sought legal clarity, believing that the discussion should focus on "clarification rather than on establishing a precedent by practice."

Indonesia considered that the legal questions remain unresolved and sought clarification without prejudice to its position, stating, "The efforts to advance rule-making must preserve the integrity of the WTO legal framework and must be member-driven."

The Gambia, speaking as an ECA participant, said that it "joined this agreement as a least developed country; [and] to be a rule-shaper but not a rule-taker."

The European Union defended the arrangements as being compatible with WTO practice, framing the ECA as "a stepping stone towards incorporation" that "does not replace consensus."

The United Kingdom said "all alternatives outside the WTO are less transparent, less open, and less inclusive."

Switzerland supported the ECA's interim implementation, noting, "Since non-participants assume no obligations under the agreement, blocking its incorporation serves no such purpose."

Georgia, Hong Kong (China), Israel, Korea, Argentina, Costa Rica, Montenegro, the Philippines, Kazakhstan, Chile, Ukraine, New Zealand, Iceland, Malaysia, Lao PDR, Norway, Canada, and Mauritius supported the ECA's interim implementation or a pathway towards it, maintaining Annex 4 incorporation as an objective.

Peru supported progress but said it would examine the US intervention.

DG: "Authority is inherent"

In response, the DG stated, "under no circumstances has the DG or the Secretariat accorded the ECA the status of a WTO agreement, as was indicated in some statements."

Ms Okonjo-Iweala said the Secretariat had acted to adjust websites or other aspects that may have given that impression, and that it would continue offering existing support, while any support for committees must be discussed and agreed upon by ECA members themselves.

Addressing the US concerns about technical assistance (TA) without a specific e-commerce mandate, the DG said that TA activities are rolled out in accordance with the biennial TA plan approved by members.

The 2026-2027 plan notes the priorities identified by members, including digital trade and e-commerce.

Responding to arguments that the DG should not act unless explicitly directed, the DG said, "I respectfully disagree."

"By appointing me to the position of the organization's Director-General, members have entrusted me with a range of duties and responsibilities as well as the authority necessary to exercise those duties and responsibilities in pursuit of the organization's objectives," she said.

She argued that many duties are inherent to her position as head of the organization, such as representing the Secretariat and engaging with other international organizations.

The DG cited Article VI of the WTO Agreement, which states that members shall respect the international character of the DG's responsibilities.

"The WTO Agreement, as it currently states, does not prejudge the scope of the depository function that can be exercised by the WTO Director-General in line with international law and in pursuit of the organization's objectives," she said.

Defending her decision, she said she exercised her responsibilities as Chief Administrative Officer in line with the international character of depositary functions.

"My actions in this regard are consistent with the objectives of the organization as spelled out in the WTO Agreement," she said.

"If I need to seek permission from members at every step in carrying out my duties and responsibilities as Director-General, that would be a violation of the functional independence of the Secretariat under Article VI of the WTO Agreement," she added. "Attempting to make it a Secretariat issue, I think, is a bit missing the point."

She also said, "But I have now heard members' views, and I sincerely hope the ECA approach can lead members into a fruitful dialogue on a more consensual way to handle matters."

Responding to Pakistan during the afternoon session of the GC meeting, the DG said, "with respect to the legal grounds that Pakistan has raised, again, we beg to respectfully disagree," adding that legal interpretations "may vary. That's why, thankfully, I'm not a lawyer."

She said the issue was "a conversation between members" and that "sandwiching the Secretariat in the middle will miss the point." +