Article III WTO Agreement - Functions of the WTO

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Commentary on Article III WTO Agreement

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28 agreement establishing the world trade organization
Article III WTO Agreement
Functions of the WTO
1. The WTO shall facilitate the implementation, administration and operation, and further
the objectives, of this Agreement and of the Multilateral Trade Agreements, and shall
also provide the framework for the implementation, administration and operation of
the Plurilateral Trade Agreements.
2. The WTO shall provide the forum for negotiations among its Members concerning their
multilateral trade relations in matters dealt with under the agreements in the Annexes
to this Agreement.The WTO may also provide a forum for further negotiations among
its Members concerning their multilateral trade relations, and a framework for the imple-
mentation of the results of such negotiations, as may be decided by the Ministerial
Conference.
3. The WTO shall administer the Understanding on Rules and Procedures Governing the
Settlement of Disputes (hereinafter referred to as the “Dispute Settlement Understanding”
or “DSU”) in Annex 2 to this Agreement.
4. The WTO shall administer the Trade Policy Review Mechanism (hereinafter referred to
as the “TPRM”) provided for in Annex 3 to this Agreement.
5. With a view to achieving greater coherence in global economic policy-making,the WTO
shall cooperate, as appropriate, with the International Monetary Fund and with the
International Bank for Reconstruction and Development and its affiliated agencies.
Bibliography
W. Benedek, Relations of the WTO With Other International Organizations and NGOs,
in: F. Weiss et al. (eds), International Economic Law With a Human Face, 1998, 479–495;
D. Vines, The WTO in Relation to the Fund and the Bank: Competencies, Agendas,
and Linkages, in: A. O. Krueger (ed.), The WTO as an International Organization, 1998,
59–82; D. Ahn, Linkages Between International Financial and Trade Institutions, IMF,
World Bank and WTO, JWT 34 (2000) 4, 1–35; A. von Bogdandy, Law and Politics in
the WTO—Strategies to Cope With a Deficient Relationship, Max Planck UNYB 5
(2001), 609–674; D. Siegel, Legal Aspects of the IMF/WTO Relationship: The Fund’s
Articles of Agreement and the WTO Agreements, AJIL 96 (2002), 561–599; R. Steinberg,
Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints,
AJIL 98 (2004), 247–275; C.-D. Ehlermann & L. Ehring, Decision-Making in the World
Trade Organization: Is the Consensus Practice of the World Trade Organization Adequate
for Making, Revising and Implementing Rules on International Trade?, JIEL 8 (2005),
51–75.
Case Law
Appellate Body Report, EC—Hormones, WT/DS26/AB/R, WT/DS48/AB/R; Appellate
Body Report, Argentina—Textiles and Apparel, WT/DS56/AB/R; Panel Report, Dominican
Republic—Import and Sale of Cigarettes, WT/DS302/R.
Documents
Ministerial Conference, Declaration on the Contribution of the World Trade Organization
to Achieving Greater Coherence in Global Economic Policymaking, LT/UR/DEC-1/1,
15 April 1994; General Council, Agreements With the Fund and the Bank, WT/L/195,
18 November 1996; General Council, The International Monetary Fund, the World
Bank and the World Trade Organization, Report of the Managing Director, President
and Director-General on Coherence, WT/GC/13, 19 October 1998.
Cross References
Art. 1 UN Charter; Art. 1 OECD Convention; Art. 2 ECT; Art. 102 NAFTA; Art. 1
MERCOSUR.
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article iii wto agreement 29
Table of Contents
A. General 1
B. Historical Development 2
C. Division of Functions Under the WTO Agreement 4
I. General Aspects 4
II. Executive Function (Art. III:1) 5
III. Legislative Function (Art. III:2) 8
IV. Adjudicative Function (Art. III:3) 12
V. Trade Policy Review Mechanism (Art. III:4) 14
VI. External Relations (Art. III:5) 15
1. General Considerations 15
2. The Coherence Issue in Dispute Settlement Proceedings 21
D. Evaluation and Outlook 27
A. General
Art. III sets out the “Functions of the WTO”. The organization has
been provided with various and different procedures and competences
through which it is to fulfil its tasks. Art. III puts these into a framework
and is thus an expression of the postulate of normative transparency.
B. Historical Development
Art. III is, by its very nature, a norm newly created in the Uruguay
Round. Since there was no overarching normative framework prior to
1995 and no formal organizational structure, there was no need to for-
mulate anything akin to the “Functions of the WTO”. Thus, there is,
strictly speaking, no predecessor rule that could be turned to when inter-
preting the content of Art. III.1
The only exception could be seen in that the relationship vis-à-vis the
International Monetary Fund (IMF) is touched upon already in the
GATT 1947, specifically in Arts II:6 lit. a, VII:4 lit. a and b, XII:2 lit.
a (i), XII:3 lit. d, XIV:1, XIV:3, XIV:5 lit. a, XV:1, XV:2, XV:4, XV:7
lit. b, XV:8 and XV:9 lit. a GATT 1947. While these provisions pro-
vided guidelines on how GATT 1947 contracting parties were to behave
in certain instances (especially concerning balance of payments and
exchange rate arrangements), there were no treaty norms that formed
an institutional structure linking the GATT 1947 and the IMF. The
same is true with respect to the relationship between the GATT 1947
1Art. 72 Havana Charter was also headed by the term “Functions”, but contained
only allusions to a functional differentiation as contained in Art. III; Havana Charter
for an International Trade Organization, 24 March 1948, CTS No. 32, 3; UN Doc.
E/CONF. 2/78 (1948).
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30 agreement establishing the world trade organization
and the International Bank for Reconstruction and Development (IBRD)
and its affiliated agencies (World Bank).
C. Division of Functions Under the WTO Agreement
I. General Aspects
The five paragraphs of Art. III are largely organized according to the
traditional conceptual distinction between the different aspects
of public authority. Under that conception, three public functions are
distinguished concerning the internal affairs of a State: legislative and
executive power as well as judicial adjudication.2The power to direct
external relations is sometimes held to be a fourth function.3In this light,
the logic underlying the organization of Art. III becomes apparent. Art.
III:1 concerns the executive function, Art. III:2 the legislative func-
tion and Art. III:3 the adjudicative function. Art. III:4, dealing with
the Trade Policy Review Mechanism (TPRM) can be characterized as
a further aspect of the executive function, employing a reporting mech-
anism which, unlike most other reporting bodies, is carried out both by
the Member under review and the WTO Secretariat. Finally, Art. III:5—
together with Art. V—concerns the external relations of the WTO.
The WTO only enjoys a substantial competence to fulfill its tasks, i.e.
to enact unilaterally binding decisions on Members, under Art. III:3.
This asymmetry between a strong “judiciary” and two other less power-
ful branches is a defining characteristic of the WTO.
II. Executive Function (Art. III:1)
The executive function means to put the law into action. With respect
to this function, Art. III:1 spells out that the WTO “shall facilitate the
implementation, administration and operation” of the WTO Agreement
and the Multilateral Trade Agreements (MTAs). The term “shall facili-
tate” makes clear that WTO bodies, different from the European
Commission or the UN Security Council, wields only very limited
power to enact decisions which can bind the Members.4The tasks under
Art. III:1 are pursued by the WTO Secretariat, but also by the
Ministerial Conference and the General Council and numerous fur-
2See Arts I, II and III of the US Constitution. See also Madison et al., 47; Jellinek,
609 et seq.
3Montevideo Convention on the Rights and Duties of States, 26 December 1933,
LNTS 165 (1934), 19.
4See Art. IX.
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ther bodies operating under their aegis. These bodies, termed councils,
committees, working parties and working groups, contribute to the admin-
istration of the various WTO Agreements.5The term implementation
can be understood as further legislative or regulatory action—on the
national or international level—which is necessary in order to give prac-
tical effect to WTO obligations. The terms administration and oper-
ation are largely overlapping and can be understood to refer to the
application of WTO norms to transnational trade.
Art. III:1 requires the WTO to “further the objectives, of this Agreement
and of the Multilateral Trade Agreements”. Thus, the objectives become
a yardstick for assessing the legality of WTO decisions. This ter-
minology makes clear that it is not only the objectives mentioned in the
Preamble that are to be taken into account. Rather, this expression also
embraces the objectives laid down in the MTAs contained in Annex 1.6
Finally, the WTO carries out an executive function, in that it is entrusted
with “providing the framework for the implementation, administration
and operation of the Plurilateral Trade Agreements”. At the outset, a
total of four such Agreements were in place (Agreement on Trade in
Civil Aircraft, Agreement on Government Procurement, International
Dairy Agreement and the International Bovine Meat Agreement). Of
these treaties, only the two former agreements were still in force at the
end of 2004; the two latter terminated in 1997.
III. Legislative Function (Art. III:2)
The legislative function can be defined as the enactment of rules of gen-
eral application. According to Art. III:2, the organization “shall provide
the forum for negotiations” both with regard to existing agreements and
potential future agreements. The organization has thus been given an
important governance function, i.e. the task to act as a place for nego-
tiations on existing rules as well as the elaboration of new rules.7As
these words make clear, the WTO has no power to enact general
rules as a legislator. Art. X provides, however, for the possibility that
Members can be bound by some minor rules without their consent.8
This possibility is far more limited than e.g. that under Art. 2.9 of the
Montreal Protocol on Substances that Deplete the Ozone Layer.9The
5For an overview of the structure, see Kaiser, Article IV WTO Agreement, paras 11
et seq. and 16 et seq.
6See von Bogdandy, Preamble WTO Agreement, para. 6.
7Petersmann, Nw. J. Int’l L. & Bus. 18 (1996–97), 398, 438.
8See Art. X.
916 September 1987, UNTS 1522 (1987), 3.
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32 agreement establishing the world trade organization
prospect for substantially changing the current system towards granting
the WTO more autonomous legislative power does not seem likely; a
more viable option seems to lie in incremental changes to the exist-
ing system.10
Art. III:2 distinguishes two different spheres. According to sentence
1, the organization is to provide the forum for further development of
existing treaties. This includes all agreements that are contained in
the annexes to the WTO Agreement. Furthermore, according to sen-
tence 2, the organization constitutes a “forum” for prospective arrange-
ments on the Members’ multilateral trade relations. The WTO Agreement
thus responds to the limited competence of the GATT 1947, which made
it necessary—due to the jurisdictional limits of GATT11—to organize the
Uruguay Round negotiations in two formally separate forums.12 The first,
headed “Negotiations on Goods” was to deal with trade in goods and
was formally placed in the context of GATT, while the second was to
concern itself with trade in services outside the GATT framework, although
the GATT procedures and practices were applied.13
The mandate under Art. III:2 as a negotiation forum has been charac-
terized as reflecting the “widely shared belief of governments that it may
be politically easier to negotiate future trade, competition, environmen-
tal, investment, social rules or intellectual property rights in the context
of comprehensive ‘WTO package deals’ than outside the WTO”.14 Whether
the WTO should be developed to negotiate on and eventually include
non-trade issues is of course open to discussion.15 Regardless of the out-
come of this discussion and despite the many difficulties Members are
dealing with during the current Doha Round,16 the WTO can be expected
to retain the function assigned to it under Art. III:2 as a “forum for
negotiations”, in which future problems will be discussed.
Both subparagraphs hint at an important distinction with respect to
at least two of the other subsections of Art. III. The WTO Agreement
is not meant to institutionalize any substantial autonomous
political process. This is also how the organization officially presents
itself, when it emphasizes its “serving” function towards the Members as
10 Ehlermann & Ehring, JIEL 8 (2005), 51, 54 and 63 et seq.
11 Croome, 25.
12 Ministerial Declaration on the Uruguay Round, BISD 33S/19, 20 September 1986.
13 Croome, 25.
14 Petersmann, Nw. J. Int’l L. & Bus. 18 (1996–97), 398, 439.
15 Palmeter & Mavroidis, AJIL 92 (1998), 398, 399; Pauwelyn, AJIL 92 (2001), 535 et seq.
argue for the inclusion of non-WTO issues. On the other side of the spectrum see e.g.
Trachtman, Harv. Int’l L.J. 40 (1999), 333, 342; Böckenförde, ZaöRV 63 (2003), 971 et seq.
16 See e.g. the contributions in Buckley.
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“it’s the governments who dictate to the WTO”.17 The most prominent
and well-known expression of this attitude is that of the WTO as a
“member driven institution”. The situation differs from that of other
international organizations, such as the IMF or the World Bank, which
enjoy greater operational autonomy in their respective fields of jurisdiction.
IV. Adjudicative Function (Art. III:3)
The adjudicative function means the settlement of disputes. Under
Art. III:3, the organization wields far more substantial competences than
under Art. III:1 or 2. Rather than being limited to “providing a forum”
or taking on a “facilitating” role, the WTO “shall administer the
Understanding on Rules and Procedures Governing the Settlement of
Disputes”. The administration of the DSU is not merely a formal ele-
ment, but bears considerable substantive quality. Art. III:3 provides
the WTO with an autonomous adjudicative function, as proven by
a number of DSU provisions. Contrary to the practice of most interna-
tional adjudicative bodies, Art. 6.1 DSU does not necessitate the con-
sent of the respondent Member. Furthermore, under Arts 8.6 and 8.7
DSU the Secretariat and the Director-General have been given a strong
in the nomination of the panelists.18 This is compounded by two addi-
tional factors. The relatively small number of individuals, who—due to
their qualifications—are able to serve as panelists19 and the fact that their
opinion is more or less known, provides some control over the devel-
opment of WTO law, at least at the Panel stage. Moreover, the legal
counsel of the Secretariat is reported to exert considerable influence in
the framing of Panel reports, a process through which the control of the
Secretariat over the development of WTO jurisprudence is further strength-
ened.20 Finally, the most important argument can be drawn from Arts
16.4 and 17.14 DSU, which prevent the political blockage of disputes
and are perhaps the most famous provisions of the DSU. While a body
made up of Members’ representatives, the DSB, is formally responsible
for the ultimate decision regarding adjudication, this same political body
17 WTO, 10 Common Misunderstandings about the WTO, 1. The WTO does NOT
tell governments what to do, <http://www.wto.org/english/thewto_e/whatis_e/10mis_e/
10m01_e.htm>.
18 Although Art. 8.6 DSU provides for Members to have a role in the selection of
panelists, opposition to the nomination shall only be made for “compelling reasons”.
19 At the time of writing, the overall number of potential panelist positions was 315.
These were filled by 164 individuals who have served on Panels, some of whom have
served no fewer than nine times. These numbers are accessible at WorldTradeLaw.net,
List of WTO panelists with Number of Panels Served On, <http://www.worldtrade-
law.net/dsc/database/panelistcases.asp> and WorldTradeLaw.net, Count of WTO Panelists,
by country, <http://www.worldtradelaw.net/dsc/database/panelistcountrycount.asp>.
20 Weiler, JWT 35 (2001) 2, 191, 197 and 205; Kaiser, Art. 27 DSU para. 5.
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34 agreement establishing the world trade organization
is capable of arriving at a different conclusion from a Panel or the
Appellate Body Report only in extreme circumstances due to the prin-
ciple of “reverse consensus” or “automaticity”.21
Drawing on these considerations, the Appellate Body Report and the
Panels display considerable elements of independent adjudicative
bodies.22
V. Trade Policy Review Mechanism (Art. III:4)
The TPRM23 can be considered as falling under the executive func-
tion as it is, according to Section A of the TPRM, designed to con-
tribute to “improved adherence by all Members to rules, disciplines and
commitments made under the Multilateral Trade Agreements” and “the
smoother functioning of the multilateral trading system”. It thus com-
bines a legal dimension and a policy dimension in that an assessment
of Members’ trade policies is carried out vis-à-vis the MTAs, but also a
review of the Members’ general trade policy.
VI. External Relations (Art. III:5)
1. General Considerations
Together with Art. V, Art. III:5 concerns the external relations of
the WTO. In contrast to the language employed in Art. V which makes
use of the terms “effective cooperation with other intergovernmental orga-
nizations” and “consultation or cooperation with non-governmental orga-
nizations”, the expression “achieving greater coherence in global
economic policy making” implies a preferential relationship between
the WTO, the IMF and the World Bank over those with other inter-
governmental or non-governmental organizations.
In order to achieve this coherence, the WTO is to cooperate with these
two organizations. This is commensurate with the language of the
Marrakesh Declaration of 15 April 1994, which heralded a “new era of
global economic cooperation”.24 This cooperation was deemed necessary
as the WTO alone would not be in a position to cover all policy areas
concerning international trade.25 The interaction between trade on the
one hand and exchange rates and financial conditions provides a case
in point.
21 Jackson, Law and Policy, 125; Movesian, Mich. J. Int’l L., 20 (1999), 775, 786.
22 See furthermore Arts 8.9, 8.11, 13 and 17.7 DSU.
23 For a more detailed analysis of the TPRM, see Benzing, TPRM.
24 ILM 33 (1994), 1263, para. 2.
25 Already in 1994, there was a Ministerial Declaration to this effect, see LT/UR/DEC-
1/1.
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article iii wto agreement 35
In an attempt to fulfill this mandate, the Director-General negotiated
cooperation agreements with both the IMF and the World Bank.
In November 1996 and on the basis of Art. III:5, the General Council
approved26 the agreements with both organizations.27 A subsequent report
of the Director-General issued on 13 November 1997 stressed that there
was a need for taking additional steps in order to strive for a coher-
ent framework for the three organizations in carrying out their func-
tions.28 These agreements mandate the three organizations to consult
with one another as a general rule where policy areas of another orga-
nization are touched upon. Furthermore, WTO officials may participate
in the meetings of the IMF and the World Bank when trade issues are
concerned. The Agreement Between the IMF and the WTO provides
in paragraph 6 for participation of an IMF representative in a whole
range of bodies; participation in DSB proceedings however is lim-
ited to situations in which “matters of jurisdictional relevance to the
Fund are to be considered”. The same is true “when the WTO, after
consultation between the WTO Secretariat and the staffof the Fund,
finds that such a presence would be of particular common interest to
both organizations”.
While these agreements could serve as the foundation for further formal
arrangements, few further measures have since been taken, a fact rightly
criticized in the Sutherland Report.29 One of those measures consisted
of a—very brief—joint “Report on Coherence” by the Managing Director
of the IMF, the President of the World Bank and the Director-General
of the WTO.30 Outside these trilateral relations, all three organizations
have been active in other forums, sometimes going so far as to make
arrangements with other organizations in an attempt to achieve greater
coherence in global economic policy-making.31
26 General Council, Minutes of Meeting held in the Centre William Rappard on 7,
8 and 13 November 1996, WT/GC/M/16, 6 December 1996, section XIII. The actual
text of the decision approving the report is contained in General Council, Agreements
Between the WTO and the IMF and the World Bank, WT/L/194, 18 November 1996.
27 The text of the agreements is contained in Annex I and Annex II to WT/L/195,
for the IMF and the World Bank, respectively.
28 General Council, Agreements With the Fund and the Bank, Report by the Director-
General on the Implementation of the Agreements, WT/GC/W/68, 13 November 1997.
29 Consultative Board to the Director-General Supachai Panitchpakdi, para. 174. The same report
also proposes that “additional international organizations” should be involved in con-
sultations in order to work towards greater coherence. Such a move would certainly be
welcome, but would, due to the restricted language of Art. III:5, fall under Art. V instead
of Art. III:5.
30 WT/GC/13.
31 E.g. the so-called Monterrey Consensus, Report of the International Conference on
Financing for Development, UN Doc. A/CONF.198/11, 18–22 March 2002, para. 69.
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36 agreement establishing the world trade organization
The terminology of Art. III:5 could provide somewhat of a justification
for not taking more concrete action through the inclusion of the words
“as appropriate”. Both the above-mentioned General Council decision
and the Sutherland Report suggest otherwise. Considerable leeway has
been given to the Director-General in this field through a formal, inde-
pendent mandate32—a role that has yet to be fulfilled.
It is clear from the language that the coherence mandate contained in
Art. III:5 is limited to the IMF and the World Bank. Agreements with
international institutions apart from the IMF and the World Bank are
governed by Art. V:1.33
2. The Coherence Issue in Dispute Settlement Proceedings
The relationship between the WTO and the IMF has been an issue in
a number of dispute settlement proceedings under the DSU. This raises
the question of the legal status of an IMF obligation under WTO
law. This has been dealt with by the Appellate Body Report paradig-
matically in Argentina—Textiles and Apparel.34
Procedurally, Argentina had argued that the Panel had failed to make
“an objective assessment of the matter”, as required by Art. 11 DSU,
by not seeking information from the IMF. Relying on the language of
Art. 13 DSU and the Agreement Between the IMF and the WTO, the
Appellate Body Report emphasized the discretionary nature that Panels
possess in such instances, stating that although it might have been “use-
ful” to seek such information, the Panel had not abused its discretion
by not seeking information or an opinion from the IMF.35
Such information-seeking by the Panel has taken place e.g. in Dominican
Republic—Cigarettes,36 a case involving the question of exchange controls
or exchange restrictions in accordance with the IMF Articles of Agreement,
an area falling under Art. XV:9 lit. a GATT 1994 and for which the
Panel declared that the jurisdiction to ascertain that matter rested with
the IMF.
Turning to substantive law, the Appellate Body Report in Argentina—
Textiles and Apparel found that the Agreement Between the IMF and the
WTO would not justify a “conclusion that a Member’s commitments to
32 Consultative Board to the Director-General Supachai Panitchpakdi, para. 174.
33 Benedek, in: Weiss et al. (eds), 479. See for further details Kaiser, Art. V WTO
Agreement, para. 10 et seq.
34 Argentina—Textiles and Apparel, WT/DS56/AB/R.
35 Ibid., paras 82–86.
36 Dominican Republic—Import and Sale of Cigarettes, WT/DS302/R.
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the IMF shall prevail over its obligations under Art. VIII of the GATT
1994”.37 This was based on an understanding that said agreement
does not modify, add to or diminish the rights and obligations of Members
under the WTO Agreement, nor does it modify individual States’ com-
mitments to the IMF. It does not provide any substantive rules concern-
ing the resolution of possible conflicts between obligations of a Member
under the WTO Agreement and obligations under the Articles of Agreement
of the IMF or any agreement with the IMF.
Using this premise as a starting point, the Appellate Body Report confirmed
the Panel’s finding that Argentina could not absolve itself from its oblig-
ations under WTO law by way of its IMF obligations.38
A number of observations may be drawn from these pronounce-
ments. The first is that Panels enjoy considerable discretion over
whether to consult with the IMF or not. This discretion was underscored
by the Appellate Body Report in Argentina—Textiles and Apparel when it
found that, although consultations might have been useful, the Panel’s
conduct was not in violation of any DSU norm.39 A second and more
fundamental observation is that the bodies entrusted with settling dis-
putes under the rules of the WTO seem to be carefully guarding their
own jurisdictional competence while at the same time being mind-
ful of the competences of e.g. the IMF. Through its construction of the
Agreement Between the IMF and the WTO, the Appellate Body Report
stressed the independence of the WTO vis-à-vis the other organizations,
something that might have been considered necessary as the WTO still
found itself in the early stages of its existence. This stance is certainly
in line with other pronouncements over the inclusion of non-WTO mat-
ters in WTO dispute settlement.40
Furthermore, through its construction the Appellate Body Report pru-
dently avoided a pronouncement on the role that both organizations are
to play. The Sutherland Report, e.g., was less reticent when it seemed
to indicate a different division of labour between the international financial
institutions and the WTO. The report seems to suggest that the WTO
is to determine the economic framework that its Members should adopt,
while the financial institutions are to provide the financial assistance
37 Argentina—Textiles and Apparel, WT/DS56/AB/R, para. 70.
38 The Appellate Body Report noted that certain exceptions such as Arts XII, XIV,
XV and XVIII, permit a WTO Member, in certain specified circumstances relating to
exchange matters and/or balance of payments, to be excused from certain of its obligations
under the GATT 1994. Argentina—Textiles and Apparel, WT/DS56/AB/R, para. 73.
39 Ibid., paras 82–86.
40 EC—Hormones, WT/DS26/AB/R, WT/DS48/AB/R, paras 120–125.
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38 agreement establishing the world trade organization
necessary to implement the domestic reforms, in particular through
financing adjustment mechanisms.41
D. Evaluation and Outlook
In sum, it can be said that the division among the executive, leg-
islative and adjudicative functions of the WTO is similar to the
conception underlying the traditional separation of powers doctrine.
However, under the WTO system, only one power is developed, namely
the adjudicative one, embodied in the Dispute Settlement Body. This
creates a tension within the WTO system, which needs to be reflected
in any interpretation of WTO law.42
Compared to other forms of adjudication on the international plane, dis-
pute settlement under the WTO umbrella represents a considerable step
towards a more efficient exercise of international public functions. The
same cannot be said for either the legislative or the executive “branch”
of the WTO. Although the WTO Agreement provides for an almost
continuous process of rule-making through e.g. Art. XIX GATS, these
rules cannot be enacted by WTO organs, as none of the instruments
accords WTO organs the power to truly legislate. Rather, Art. III:2
specifically limits the organs’ role to one of a “forum for negotiations
among its Members”. Accordingly, there is a WTO competence to orga-
nize negotiations, but not a competence to amend its own rules or to
enact new rules concerning international economic policy. The main leg-
islative (i.e. rule-making) procedures for treaty amendments are those of
Art. X; the extension of WTO law through new agreements proceeds
according to the standard forms of international treaty-making. In both
cases, acceptance by Members, usually after parliamentary approval, is
required. The enactment happens through new treaties, mostly the fruit
of highly complex, tedious and protracted negotiation rounds, with the
current Doha Round acting as the case in point.
41 Consultative Board to the Director-General Supachai Panitchpakdi, paras 44 and 162.
42 von Bogdandy, Max Planck UNYB 5 (2001), 609, 651 et seq.; Steinberg, AJIL 98 (2004),
247 et seq.
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