Analytical Note, November 2013

Discussing the Legal Basis for Entry Into Force of a Trade Facilitation Agreement

A Trade Facilitation Agreement (TFA) has been proposed as an outcome from the Bali WTO Ministerial Conference. The TFA’s provisions create new rights and obligations for WTO Members; they alter the rights and obligations that WTO Members currently have under the WTO Agreement and its annexes. Accordingly, the TFA should be incorporated into WTO law by listing it as one of the covered agreements under Annex 1A of the WTO Agreement.

Consequently, the following note argues that:

• The TFA will only enter into force upon the fulfillment of requirements under Article X of the WTO Agreement (i.e. the article addressing amendments).
• The Ministerial Conference cannot take a decision that overrides the requirements of Article X of the WTO Agreement.
• Members can also argue for pegging the entry into force of the WTO to the conclusion of the Doha Mandate Single Undertaking, basing that on the current content of paragraph 47 of the Doha Declaration.

Anything outside this framework carries a significant threat to the rules-based nature of the WTO, undermines the Marrakesh agreement, sets a problematic precedent, and calls into question the legitimacy of the outcome.

Download