Plurilateral Initiatives and Their Interaction with WTO Rules (No. 44)

ABOUT THE BOOK

Plurilateral initiatives – which involve a limited number of World Trade Organization (WTO) Member countries – on several issues such as domestic regulation of the services sector, investment facilitation and electronic commerce were announced at the 2017 Ministerial Conference of the WTO. Key players in these talks have indicated the intention to incorporate the eventual outcomes of the negotiations into the body of WTO law.

This paper looks into whether and how this can be done, examining the less-than-straightforward relation between, on the one side, the nature and scope of the issues covered under the plurilateral initiatives and, on the other, the relevant WTO rules. It also reviews plurilateral outcomes which were added to the WTO framework in the past, and finds that these are dissimilar to the current initiatives and cannot provide precedent for dealing with the latter.

Besides questions surrounding the legality of importing their outcomes into the WTO system, the proliferation of plurilateral initiatives may undermine the multilateral character of the WTO. At risk could be the collective, consensus-based approach to negotiations aimed at striking a balance among the interests of the entire WTO membership, including the developing and least developed among them.

KINDA MOHAMADIEH is legal adviser and senior researcher with the Third World Network office in Geneva. Her work focuses on WTO processes and negotiations, international investment governance, and the role and accountability of business enterprises. Previously, she served as senior researcher for seven years with the intergovernmental organization the South Centre, based also in Geneva. She had also worked for nine years with the Arab NGO Network for Development, based in Beirut. Kinda holds an LL.M. in International Economic Law from the University of Lausanne, a master’s degree in Public Affairs from UCLA, and an undergraduate degree in economics. She is currently a PhD candidate at the international law department of the Graduate Institute in Geneva.

Contents

1.      Introduction

2.      Overview of the Plurilateral Initiatives on Services Domestic Regulation and Investment Facilitation
2.1 Brief overview of the plurilateral initiative on services domestic regulation disciplines
Issues of legality and systemic implications that ought to be unpacked
2.2 Brief overview of the plurilateral initiative on investment facilitation for development
Issues of legality and systemic implications that ought to be unpacked

3.      The WTO Rules Pertaining to Plurilateral Agreements and Initiatives
3.1 The mandate and function of the WTO: plurilaterals as an exception and not the norm
3.2 The direct route of adding a new plurilateral agreement under the WTO
Case example 1: A brief overview of relevant aspects of the Government Procurement Agreement
WTO rules on amendments
3.3 The indirect route for importing outcomes of plurilateral initiatives into the WTO
The GATT

• Case example 2: A brief overview of relevant aspects of the Information Technology Agreement

The GATS

• Articles XIX and XXI
• Article XVIII

3.4 A brief overview of relevant aspects from the experiences of the protocols on basic telecommunications and financial services,
Reference Paper on Telecommunications and Understanding on Financial Services
Case example 3: The protocols of the GATS
Case example 4: The Reference Paper on Telecommunications
Case example 5: The Understanding on Financial Services
3.5 Overview of implications for ongoing plurilateral initiatives

4.      Systemic Implications of the Plurilateral Initiatives for the WTO Concluding observations