1. Legal Assessment

DOHA DEVELOPMENT AGENDA

  1. DDA is still technically on-going, it has not been closed
  2. Conditions that must be fulfilled before the Round is closed
  3. Why the DDA is important for developing countries

NEW ISSUES

  1. What are they?
  2. There was no agreement to begin discussions on new issues
  3. On the Singapore issues, there must be consensus – a GC or MC Decision – before discussions can begin (because of para 1g, July Framework)
  4. Are they ‘mutually advantageous’?
  5. Do they concern Members’ ‘multilateral trade relations’?

 

  1. Political Assessment
  1. PROCESS ISSUES

 

  1. Most important issues that developed countries want out of the MC is not discussed or negotiated by the Membership ‘due to time constraints’
  2. An apparence of transparency and inclusiveness, but no real transparency and inclusiveness on the most critical issues
  3. Extension of the Conference
  4. 1 or 1.5 hours to read the final text
  5. Composition of small group engaged in the negotiations
  6. Venue of Ministerials

DOHA DEVELOPMENT AGENDA

  1. DDA is still on-going, it has not been concluded

Decisions at the WTO must be taken by consensus (Marrakesh Agreement Article IX.1). The Doha Round remains on-going until there is consensus to conclude it. Despite efforts by some Members, there was no consensus to conclude the Round in Nairobi.

“The WTO shall continue the practice of decision-making by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting”.

Para 30 of the Nairobi MD:

‘’We recognise that many Members reaffirm the Doha Development Agenda, and the Declarations and Decisions adopted at Doha and at the Ministerial Conferences held since the, and reaffirm their full commitment to conclude the DDA on that basis. Other Members do not reaffirm the Doha mandates, as they believe new approaches are necessary to achieve meaningful outcomes in multilateral negotiations. Members have different views on how to address the negotiations. We acknowledge the strong legal structure of this Organisation’’.

As one African Member noted in the 10th Feb informal TNC: ‘

“the mere expression of divergent views on the DDA does not mean its death. By way of example; the mere expressions of marital discontent in public, by a spouse … does not necessarily mean the dissolution of the marriage. It may lead to, but it is not, a divorce.”

  1. Conditions that must be fulfilled before the Round is closed

The Doha Declaration provides the conditions to be fulfilled for the completion of the DDA negotiations:

Para 45 states that

“When the results of the negotiations in all areas have been established, a Special Session of the Ministerial Conference will be held to take decisions regarding the

adoption and implementation of those results”.

Para 48 states that

“Decisions on the outcomes of the negotiations shall be taken only by WTO Members”.

Hence at least 3 conditions must be fulfilled for the conclusion of the Round:

  • A Special Session of the Ministerial Conference must be held and the purpose of this Special Session is for Ministers to declare the Round concluded.
  • Decisions regarding the ‘adoption and implementation of those results’.
  • It has to have been a decision taken by WTO Members.
  1. Should developing countries throw out the DDA or keep it? Why the DDA mandates (not just issues) are important for developing countries
  • Special and Differential Treatment (S&D) mandate of para 44 – making ‘precise, effective and operational’ existing S&D provisions
  • Domestic supports in agriculture- not simply negotiations on the issue but specifically the disciplines as captured in the July Framework; Hong Kong Declaration; and in the 2008

Chair’s text (Rev.4)

  • Less than full reciprocity –in relation to NAMA negotiations
  • Sectoral negotiations in NAMA are voluntary
  • Para 1g of the July Framework keeping the three Singapore issues outside the WTO during the Doha Round:

Relationship between Trade and Investment, Interaction between Trade and Competition Policy and Transparency in Government Procurement: the Council agrees that

these issues, mentioned in the Doha Ministerial Declaration in paragraphs 20-22, 23-25 and 26 respectively, will not form part of the Work Programme set out in that Declaration

and therefore no work towards negotiations on any of these issues will take place

within the WTO during the Doha Round.

  • The DDA cotton mandates are very valuable. The Hong Kong Declaration says that cotton must be dealt with ‘ambitiously, expeditiously and specifically’. The main issue in cotton is and remains domestic supports. The Nairobi language in the cotton Decision on domestic supports is not strong. It simply makes the observation that ‘some more efforts remain to be made’. In contrast, the Hong Kong language goes much further:

–  Market access: Developed countries provide DFQF for cotton exports from LDCs

– Domestic Supports: ‘trade-distorting domestic supports for cotton production be reduced more ambitiously than under whatever general formula is agreed (in the DDA) and that it should be implemented over a shorter period of time than generally applicable.’ (Hong Kong Declaration, para 11).

  • Development (S&D) provisions applicable to all developing countries (DDA para 2)
  • Small and Vulnerable Economies – flexibilities as captured in Hong Kong para 41; the Rev.4 and Rev.3.
  • Recently Acceded Members (RAMS) – as captured in Rev.4 and Rev.3.
  • LDCs – July Framework para 45; Hong Kong Declaration para 20 – LDCs exempted from reduction commitments.
  • DFQF for LDCs for all products or at least 97% of products by the start of the implementation period of the DDA (Hong Kong Declaration, Annex F, para 36).
  • Public Stockholding – whilst this is both a Doha issues and also a stand-alone issue now, separate from the DDA, the ‘stabilised’ solution reached on this issue in 2008 (the Green Box) is already contained in the draft agriculture modalities text (Rev.4, 2008).
  • Special Safeguard Mechanism – also now a stand-alone issue, nevertheless important elements have been elaborated on in the Hong Kong Declaration; and the Rev.4.
  • Implementation Issues – para 12 of DDA
  • Single Undertaking and the need for Overall Balance in the package

NEW ISSUES

  1. What are new issues?

The new issues raised mainly by developed countries include

  • Global value chains (GVCs)
  • Micro and Small and Medium-sized Enterprises (MSMEs)

–  Investment

–  E-commerce

–  Competition

–  Government procurement

–  Deep services liberalisation and regulatory rules in services sectors

–  Climate change etc.

GVCs and MSMEs are the broad over-arching themes or frameworks which have been used to explain the need for new rules in investment, e-commerce, deep services liberalisation etc.

  1. There was no agreement to begin discussions on new issues. Para 34 simply highlights the different views on identification and discussion of ‘other issues for negotiation’.

Para 34 of the Nairobi Ministerial Declaration states:

‘While we concur that officials should prioritise work

where results have not yet been achieved, some wish to identify and discuss other issues for negotiation; others do not. Any decision to launch

negotiations multilaterally on such issues would

need to be agreed by all Members.’

  1. On the Singapore issues, there must be consensus – a GC or MC Decision – before discussions can begin because of para 1g, July Framework

Para 1g of the July Framework:

‘Relationship between Trade and Investment, Interaction between Trade and Competition

Policy and Transparency in Government Procurement: the Council agrees that these issues,

mentioned in the Doha Ministerial Declaration in paragraphs 20-22, 23-25 and 26 respectively, will not form part of the Work Programme set out in that Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round.’

Paragraph 1g of the July Framework cannot be over- turned or undone except by a General Council or Ministerial Conference Decision that it no longer applies.

Similarly, the Doha Round, its mandates and Decisions, cannot be terminated except by a decision of the General Council or Ministerial Conference that the DDA has concluded.

Para 1g is clear – ‘no work towards negotiations on any of these issues will take place within the WTO during the Doha Round.

Members have understood this to mean no discussions, hence after the 2004 July Package, no further discussions on the three Singapore issues (investment, competition, transparency in government procurement) took place.

Para 34 of the Nairobi Ministerial Declaration is clear that ‘discussions’ on new issues are part of the preparatory work for negotiations – ‘some wish to identify and discuss other issues for negotiation’ (para 34, Nairobi Ministerial Declaration).

Presented by : Aileen Kwa Trade and Development Programme South Centre kwa@southcentre.int

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