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TWN
Info Service on WTO and Trade Issues (Oct24/08) Geneva, 11 Oct (D. Ravi Kanth) — Several members of the World Trade Organization (WTO), including the United States, appear to have informally conveyed their concerns to the WTO’s General Council (GC) chair, Ambassador Petter Olberg of Norway, over the legality of the purported appointment process for the next WTO Director-General, said people familiar with the development. Last week, the chair unilaterally launched the DG appointment process without authorization from the General Council. He claimed that his decision was based on the detection of “convergence”, as opposed to consensus, said people familiar with the development. The GC chair’s rather unusual haste in commencing the appointment process of the next WTO DG on 8 October has raised critical questions about governance and the rule of law within the institution, said a trade envoy who asked not to be quoted. After a spokesperson for the Office of the US Trade Representative (USTR) emphasized that “the United States is concerned that this action was taken based on the Chair’s assumption of convergence, rather than consensus”, “chaos” apparently ensued, said people who asked not to be quoted. It appears that the US Mission to the WTO in Geneva has informally repeated the position of the Office of the USTR that convergence does not equate to consensus, suggesting the possibility of procedural missteps in the chair’s approach and raising questions about the legal validity of the process. At the heart of the controversy is whether Ambassador Olberg, Permanent Representative of Norway to the WTO and the current chair of the General Council, the WTO’s highest decision-making body in between Ministerial Conferences, acted within his legal mandate when he moved forward with the appointment process. Up until now, the WTO has adhered to the principle of consensus-based decision-making, including in the selection of the DG, said people who asked not to be quoted. Following the informal developments on 9 October, the SUNS reached out to the GC chair with several questions seeking clarifications on the legal grounds for his actions, the distinction between “convergence” and “consensus”, and whether the established rules for the DG appointment process could be altered without a formal decision by the GC. The following questions were sent to the GC chair on 9 October for comment. “1. Could you kindly explain how the convergence to commence the appointment process earlier than anticipated was detected? 2. How do you define “convergence” in this context, and should Members interpret this to mean that consensus has been reached, or is the term used to indicate that complete agreement has not yet been finalized? 3. If consensus was achieved in your consultations, could you explain the rationale for starting the appointment process on 8 October 2024, when the next General Council meeting is just one week later on 15-16 October 2024? Would it not have been possible to table this for a decision at that meeting? 4. Could you clarify the legal basis for amending Rule 7 of the Procedures for the Appointment of Directors- General (WT/L/509) without a formal decision by the General Council? 5. Is it within the Chair’s prerogative to change the adopted rules through informal consultations, or should such changes follow a formal process? 6. Can consensus-based rules and decisions now be changed without a formal body adopting such changes?” However, these questions were left unanswered, further fuelling concerns about the transparency and procedural integrity of the WTO. With the next GC meeting scheduled for 15 and 16 October 2024, several members are asking why, if genuine convergence existed, a draft decision was not tabled for formal discussion. On the condition of anonymity, one Ambassador expressed serious concerns about the implications of the chair’s actions: “This raises the systemic issue of whether the Chair’s actions set a dangerous precedent: Can a Chair now, through informal consultations, amend established rules? Today, the matter concerns procedural rules for the DG selection process, but tomorrow it could involve substantive trade rules. At what point do WTO members call Chairpersons to order, ensuring accountability, without fearing political consequences or being victimized for challenging irregularities in Chairpersons’ actions?” US CALLS FOR TRANSPARENCY The US is pressing for a transparent and predictable selection process, stating that adherence to the established procedures is in the best interest of the WTO’s governance and credibility. This concern was shared by several members. Other members may begin to question whether the WTO’s decision-making processes are being properly followed or if the informal assumption of convergence is being used to bypass the need for consensus. The critical question now is whether the chair will suspend the appointment process in light of these concerns, said people familiar with the development. Further, the WTO members must decide how to proceed, especially if legal questions over the process are left unanswered, said people on a background basis. “If the WTO’s long-standing tradition of consensus is disregarded, it could open the door for future procedural changes to be made without formal approval, a move that may ultimately undermine trust in the institution’s governance framework,” they said, preferring not to be identified. Several countries from Africa, the European Union, China, and several other industrialized countries are apparently going to extraordinary lengths to expedite this process, primarily to avoid the uncertainty of the upcoming US elections. These countries seem to be making a concerted effort to ensure that the DG appointment process is finalized before any potential shifts in US policy, especially with the possibility of a return of the previous Trump administration. As the situation unfolds, it remains to be seen whether the chair will address the growing concerns or whether members will demand a formal decision before the process can proceed any further, said people familiar with the development. “What is clear, however, is that the debate over the distinction between convergence and consensus is far from settled, and the path forward for the WTO DG appointment process remains uncertain,” said people who asked not to be quoted. For now, members and observers alike are closely watching to see whether the chair’s actions will face a formal challenge, and what impact this might have on the future governance of the WTO, said people on a background basis.
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