I first saw Gabrielle Marceau in February 1997, shortly after I had joined the Appellate Body Secretariat. I saw and heard her in a corridor of the Centre William Rappard having an animated discussion on some obscure legal issue with Petros Mavroidis, who then also worked at the World Trade Organization (WTO) Legal Affairs Division. I was struck by the passion with which she made her argument and held her ground against an equally passionate Petros. Unnoticed by either, I slipped past them. As the small staff of the Appellate Body Secretariat was, in these early years, not encouraged to mingle with lawyers of the WTO Secretariat, my first real contact with Gabrielle dates from much later, and contacts remained rare and brief until I returned to academia in 2001. In the preceding years, I had, however, become an admirer of her work, and when in 2002, I started working on what would become the CUP book on The Law and Policy of the World Trade Organization<fnref n="1" />, I asked her to join me in this endeavour as a co-author. Unfortunately for me and the book, she had to decline my invitation due to her workload at the Legal Affairs Division. She did, however, strongly encouraged me to persevere, and for that I am very grateful to her. Over the years, Gabrielle spoke many times to my students, first, at Maastricht University, and, later, the World Trade Institute in Bern. Every time students were most impressed, and, on many occasions, I also learned something new from her. She was serving as Director General Lamy’s legal advisor when I was appointed to the Appellate Body in 2009 and during most of my time on the Appellate Body, she served as Senior Counsellor at the Legal Affairs Division. It was a great honour for me to succeed her in 2018 as President of the Society of International Economic Law. This appointment, which was the result of her intense lobbying on my behalf, gave me the courage to carry on in what was a dark time in my personal life. In recent years, we have become friends who also discuss more important matters than trade and trade law. Whereas one might have expected me to write something on WTO dispute settlement for this Tribute to Gabrielle Marceau, I decided to challenge myself—as Gabrielle often encouraged me to do—and pen down some reflections on WTO decision-making, which I know to be a topic close to Gabrielle’s heart.

<footnote n="1">Peter Van den Bossche & Werner Zdouc, *The Law and Policy of the World Trade Organization: Text, Cases and Materials*, 5th ed (Cambridge: Cambridge University Press, 2021).</footnote>
# I. The Straw that Broke the Camel’s Back?

At the 2024 WTO Ministerial Conference in Abu Dhabi (“MC13”), the 126 WTO Members, which had been involved for 3 years in intensive negotiations on investment facilitation, issued on 25 February 2024 a Joint Ministerial Declaration on Investment Facilitation for Development, which officialised the finalization of the *Investment Facilitation for Development Agreement* (“*IFD Agreement*”).<fnref n="2" /> On 29 February 2024, the parties to this agreement requested the Ministerial Conference to add this agreement to Annex 4 of the *Marra- kesh Agreement on the Establishment of the World Trade Organization* (“the *WTO Agreement*”.<fnref n="3" /> By adding the *IFD Agreement* to Annex 4, i.e., the annex of the *WTO Agreement* comprising plurilateral agreements, the *IFD Agreement* would become an integral part of WTO law, be it that, as a plurilateral agreement, it would only bind the parties to the agreement. Pursuant to Article X:9 of the WTO *Agreement*, the Ministerial Conference “may decide exclusively by consensus” to add an agreement to Annex 4. As the parties to the *IFD Agreement* stated in their Joint Ministerial Declaration, adding this agreement to Annex 4 “will enable the domestic procedures for acceptance of the *IFD Agreement* to proceed, with a view to ensuring its timely entry into force”.<fnref n="4" /> While the *IFD Agreement* would not impose any obligation on them or in any other way adversely affect their interests, India nevertheless refused to join the consensus required to add the *IFD Agreement* to Annex 4.<fnref n="5" /> India has consistently objected to WTO negotiations, to which not all Members have given their approval, and it has refused to give its approval to negotiations on “new” issues until issues that were on the Doha Development Round agenda are dealt with in a manner that addresses the interests of developing countries. Therefore, its objection to adding the *IFD Agreement* to Annex 4 did not come as a surprise. Nevertheless, the 126 Members Parties to the *IFD Agreement*, including 90 developing countries, were very frustrated by the fact that a WTO Member—motivated by “unrelated” grievances—was able to prevent more than 3/4 of the WTO Membership to adopt new rules that would facilitate investment and thus promote economic development. The failure to adopt the decision on adding the IFD Agreement put the issue of the WTO’s practice of decision-making by consensus very high on the agenda of WTO reform discussions. In March, May, July, October and December 2024, and February 2025, the incorporation of the *IFD Agreement* in Annex 4 was again on the agenda of the General Council meeting, but a decision was again blocked by the same Member, now joined by South Africa<fnref n="6" /> and Türkiye.<fnref n="7" /> These Members, joined by a few other Members,<fnref n="8" /> also blocked at the General Council meeting of February 2025, the first request of a group of 66 Members to incorporate in Annex 4 the *2024 Plurilateral Agreement on Electronic Commerce*.<fnref n="9" />

<footnote n="2">WTO, *Ministerial Conference Meeting on 26 February — 2 March 2024 — Joint Ministerial Declaration on the Investment Facilitation for Development Agreement*, WT/MIN(24)/17/Rev.1, 13th Sess (26—29 February 2024), online: <edit.wti.org> [perma.cc/4W5M-CUXR].</footnote>

<footnote n="3">WTO, *Ministerial Conference Meeting on 26 February-2 March 2024-Draft Ministerial Decision on Adding the Investment Facilitation for Development Agreement to Annex 4 of the WTO Agreement, Communication from the Member Parties to the Investment Facilitation for Development Agreement*, WT/MIN(24)/W/25 (29 February 2024), online: <docs.wto.org> [perma.cc/V6UL-FUFT].</footnote>

<footnote n="4">WT/MIN(24)/17/Rev.1, *supra* note 2 at para 3.</footnote>

<footnote n="5">WTO,*Ministerial Conference Meeting on 26 February-2 March 2024-Ministerial Statement by India*, WT/MIN(24)/29 (1 March 2024), online: <web.wtocenter.org> [perma.cc/7QL9-77CU].</footnote>

<footnote n="6">WTO, *General Council Meeting on 22—23 July 2024-Minutes of the Meeting*, WT/GC/M/212 (11 October 2024) at para 4.9-4.10, online: <docs.wto.org> [perma.cc/XBP8-KNAU].</footnote>

<footnote n="7">WTO, *General Council Meeting on 21—22 March 2024-Minutes of the Meeting*, WT/GC/M/210 (17 May 2024) at para 8.41—8.42, online: <fr.scribd.com> [perma.cc/FU7A-VXG6].</footnote>

<footnote n="8">Peter Ungphakorn, “E-commerce Initiative is the Latest WTO Rule-Making Effort to be Blocked” (19 February 2025), online: Trade B Blog <tradebetablog.wordpress.com> [perma.cc/7Y95-5S2P]. Apart from those blocking the consensus for the incorporation in Annex 4 of the IFD Agreement, also Pakistan, Bangladesh, Brazil and Indonesia did not support adding the *Agreement on E-Commerce* to Annex 4.</footnote>

<footnote n="9">WTO, *Incorporation of the Agreement on Electronic Commerce into Annex 4 of the WTO Agreement, Communication from the Members Parties to the Agreement on Electronic Commerce*, WT/GC/W/963 (6 February 2025), online: <web.wtocenter.org.tw> [perma.cc/3PNX-4BNG].</footnote>
# II. The Rules and Reality of WTO Decision-Making

Article IX:1, first sentence of the *WTO Agreement* states: “The WTO shall continue the practice of decision-making by consensus followed under GATT 1947”.<fnref n="10" /> In footnote to this sentence, it is explained that a decision shall be deemed to have been taken by consensus “if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision”. In the WTO, any of the 166 Members has the veto power, but it was expected that, as in the General Agreement on Tariffs and Trade (GATT) period, Members would not block the consensus unless a vital national interest is at stake.<fnref n="11" /> While in the WTO, the GATT practice of consensus decision-making was thus to be continued, Article IX.1, second sentence, does provide, however, for the possibility of resorting to voting, where a decision cannot be arrived at by consensus.<fnref n="12" /> While possible, in the past 30 years, Members have only in very few instances resorted to voting. One of the rare decisions taken by voting was the 1996 decision on the accession of Ecuador to the WTO.<fnref n="13" /> WTO Members do not vote, not because it is not an option available to them, but because they value highly the consensus practice.<fnref n="14" /> There are very good reasons to prefer decision-making by consensus over decision-making by voting. Decision-making by consensus allows all Members, regardless of size and level of development, to have, at least in theory, an equal voice in decision-making. It also may ensure a more conciliatory and less adversarial approach to negotiations and decision-making, and limits alienation and confrontation. Above all, however, decision-making by consensus increases the legitimacy of, and compliance with, the decisions taken. Decisions taken by consensus obviously have more “democratic” legitimacy than decisions taken by majority voting. Majority decisions that go against vital national interests of the minority are unlikely to be complied with. Compared to other international economic organization, such as the IMF and the World Bank, which rely on power dynamics and quota-based systems as a basis for decision-making, the WTO stands out for allowing each Member to secure that no decisions are taken that undermine its vital interests. Consensus decision-making “symbolizes democracy within the WTO”<fnref n="15" />.

<footnote n="10">*Agreement Establishing the World Trade Organization*, 15 April 1994, 1867 UNTS 154, art IX(1) (entered into force 1 January 1995).</footnote>

<footnote n="11">John H Jackson,*The World Trade Organization: Constitution and Jurisprudence*(London: Royal Institute of International Affairs, 1998) at 46; see also Peter Sutherland et al, *The Future of the WTO- Addressing Institutional Challenges in the New Millennium*, Report of the Consultative Board to the Director-General Supachai Panitchpakdi (Geneva: WTO, 2004) at para 289, online: <wto.org> [perma.cc/AM6E-2VML].</footnote>

<footnote n="12">For most decisions, it is not specified how long Members should try to reach consensus before they may resort to voting. An exception in this regard are decisions on waivers pursuant to Article IX:3(a) of the *WTO Agreement*.</footnote>

<footnote n="13">WTO, *Accession of Ecuador, Decision of 16 August 1995, WT/ACC/ECU/5* (22 August 1995) at footnote 1, online: <docs.wto.org> [perma.cc/9NZ3-WZU5].</footnote>

<footnote n="14">WTO, *General Council Meeting on 22—23 May 2024 — Minutes of the Meeting*, WT/GC/M/211 (27 June 2024) at para 8.115 (Statement by China), online: <docs.wto.org> [perma.cc/WQV9-NBGB] [*WTO WT/GC/M/211*].</footnote>

<footnote n="15">*Ibid*at para 8.50 (Statement by Tunisia)*.*</footnote>
# III. Concerns and Frustration Regarding the Abuse of the Practice of Consensus
        Decision-Making

While the blocking by India at MC13 of the decision to incorporate the *IDF Agreement*in the Annex 4 of the *WTO Agreement* may have been the straw that broke the camel’s back, concerns and frustration regarding consensus decision-making in the WTO had been present for years. The need for new international rules addressing 21<sup>st</sup> century trade issues is clear to all. Yet, the WTO finds it very hard to agree on new rules due to the practice of consensus decision-making, or to be more precise, the abuse of this practice. While in recent years, WTO Members have occasionally been able to agree on agreements setting out new rules, such as, for example, the *Fisheries Subsidies Agreement*, WTO decision-making has been largely paralyzed. The abuse of the practice of consensus decision-making has manifested itself not only in the context of negotiations on, and adoption of, new substantive rights and obligations of Members, but also with regard to purely procedural decisions necessary to allow the WTO to function, such as the adoption of the agenda of a meeting of a WTO body. Usually, adopting the agenda of a meeting by consensus is not a problem, but on occasion, Members have blocked the adoption and have thus prevented a meeting from taking place. Notorious in this regard is the blocking by the United States of the adoption of the agenda of a Dispute Settlement Body (DSB) meeting at which the establishment of a panel requested by Venezuela was to be decided.<fnref n="16" /> By blocking the adoption of the agenda, the United States was able to deny Venezuela its right under the *WTO Dispute Settlement Understanding* to have a panel review the WTO consistency of US trade restrictions on Venezuelan goods and services. Obviously, an even more important abuse of the requirement of consensus decision-making has been the blocking by the United States of a DSB decision to initiate the process of appointing Appellate Body members. At the DSB meeting of 25 April 2025, Colombia, speaking on behalf of 130 Members, tabled for the 86th time a draft decision to initiate the appointment process.<fnref n="17" /> As it had done on all previous occasions, the United States blocked the adoption of this decision.<fnref n="18" /> The practice of consensus decision-making has undermined the WTO’s ability to exercise its basic functions of negotiating new rules and settling disputes and thus threatens to render the WTO irrelevant in the current turbulent times when it is needed most.

<footnote n="16">WTO, *United States—Measures Relating to Trade in Goods and Services Request for the Establishment of a Panel by Venezuela*, WT/DS574/2/Rev.1 (16 March 2021), online: <web.wtocenter.org> [perma.cc/HR55-GAPU]. See Office of the United States Trade Representative, press release, nd, “Statement from USTR Spokesperson Adam Hodge on U.S. Action to Prevent Maduro Regime’s Attempt to Undermine U.S. Sanctions” (March 2021), online: <ustr.gov> [perma.cc/DY6H-8ENT].</footnote>

<footnote n="17">Note that the European Union, one of the sponsors of the draft decision, spoke also on behalf of its 27 Member States. Therefore, the draft decision was, in fact, supported by 157 of the 166 WTO Members, online: <wto.org> [perma.cc/2888-3JQL].</footnote>

<footnote n="18">World Trade Organization, “2025 News Items”, *WTO News* (25 April 2025) online: <wto.org> [perma.cc/63LF-GEGV].</footnote>
# IV. WTO General Council Meeting of May 2024

Triggered by the failure to agree at MC13 on making the *IFDA Agreement* part of Annex 4 of the *WTO Agreement*, WTO Members engaged at the General Council meeting on 22 and 23 May 2024 in an in-depth and “passionate” discussion on the practice of consensus decision-making.<fnref n="19" /> This discussion, during which no less than 46 Members made statements, was introduced and guided by two communications: a communication from Brunei, Costa Rica, The Gambia, Korea, Norway, Peru, Singapore, Switzerland and Chinese Taipei (“Singapore Communication”)<fnref n="20" />, and a communication from Samoa on behalf of the ACP Group and the African Group (“ACP Group Communication”).<fnref n="21" /> As China noted, these two communications were perhaps more complementary than they were contradictory. The ACP Group Communication focused on why consensus decision-making should be preserved, while the Singapore Communication focused on how to preserve consensus decision-making.<fnref n="22" /> Be that as it may, during the General Council discussion, the distrust between the sponsors and supporters of the two communications was palpable and profound.

The Singapore Communication, which is only a few paragraphs long, introduced the concept of “responsible consensus”. The draft General Council Decision included in this Communication stated:

We agree to uphold the practice of decision-making by consensus in a responsible manner by:

1. Pursuing national interests while supporting the systemic interests of the WTO;
2. Adopting a win-win approach in negotiations by exercising flexibility and making compromises in order to reach agreement; and
3. Engaging in negotiations based on facts and evidence.<fnref n="23" />

The Communication noted that “the practice of consensus is highly valued as it has allowed all Members, regardless of size, to have an equal voice in decision-making”, and that “Members must re-commit to uphold the practice of consensus in a responsible manner in order to ensure that the WTO remains the cornerstone of the rules-based multilateral trading system.”<fnref n="24" /> The sponsors of the Singapore Communication do not challenge the practice of consensus decision-making as such but argue that the manner in which this practice is used must change.

Other WTO Members made similar statements. Brazil, for example, stated that the discussion “is not about changing” the consensus principle, but “about the current application of consensus and its consequences for the multilateral trading system and the WTO”<fnref n="25" />. Canada expressed the view that the discussion on consensus decision-making is aimed at “reforming the culture around reaching consensus at the WTO, not the principle of consensus itself”.<fnref n="26" /> The European Union, perhaps less conciliatory and more “frank”, stated that “consensus is being abused”, and while not questioning “the right not to join consensus when a key national interest is at stake”, it is troublesome when “we are systematically prevented from advancing on topics or results of negotiations” when there is broad majority of Members in favour of doing so and “there is no negative spillover on non-participants”.<fnref n="27" />

The ACP Group Communication, which is almost as short as the Singapore Communication, emphasized that—as already noted above—compared with other international organizations which rely on power-dynamics, “the WTO stands out as one of the few that allows each Member, irrespective of its size or level of development, the wherewithal to secure certain outcomes in its interests through consensus-based decision-making” and that consensus decision-making protects “especially the smallest, poorest and most vulnerable Members of the WTO” “from the vagaries of power dynamics”<fnref n="28" />. The ACP and African Groups pointed out that Article IX:1 does “not qualify consensus with terms such as “responsible”, “constructive” or “flexible”, and strongly objected “to the introduction of any qualification or modification” in Article IX:1 of the WTO Agreement”<fnref n="29" />. While recognizing the need for the WTO “to deliver more across a wide range of areas”, for the ACP and African Groups the consensus principle is “non-negotiable”<fnref n="30" />. The ACP and African Groups wish to preserve the status quo and focus on what they referred to as “trust-building activities”.<fnref n="31" />

In support of the ACP Group Communication and attacking the Singapore Communication, India stated that the former communication “could not have been more timely, as certain Members enjoying dominance in terms of power dynamics are questioning the very foundation of the WTO in the other submission”.<fnref n="32" /> This statement is somewhat surprising as none of the sponsors of the Singapore Communication can reasonably be regarded as “Members enjoying dominance in terms of power dynamics”.<fnref n="33" /> While Members of the latter kind, such as the United States, the European Union and China, came out in support of the Singapore Communication<fnref n="34" />, this communication was sponsored by, and received support from developed as well as developing country Members, including least-developed country Members, such as The Gambia.

In commenting on the Singapore Communication, Türkiye correctly noted that “it is not clear how responsible consensus will operate in practice and how the three conditions mentioned in the paper will apply”.<fnref n="35" /> Indeed, “responsible” is an undefined qualifier and its introduction may in fact “raise more questions and confusion than resolve any underlying challenges that it portend to remedy”.<fnref n="36" /> As Samoa, on behalf of the ACP Group, noted: “while the concept of responsible consensus seems innocuous enough, there is a possibility that there are some Members who may want to go further than this and therefore open the door to change fundamentally the WTO’s decision-making system”<fnref n="37" />. In a way unlikely to reassure the African and ACP Groups and other Members taking a similar position, the United States explained how it understood the exercise of responsible consensus. The United States argued that “all Members need to determine what they can tolerate, that is what they do not necessarily like, but what they can live with”. It suggested to call this “mindful consensus” or “responsible tolerance” and considered the exercise of this tolerance necessary if WTO Members “truly want to tackle the important challenges of our times”.<fnref n="38" /> In adopting this new approach to WTO decision-making, the WTO should, according to the United States, “start with baby steps” and exercise responsible consensus on procedural issues, such as chair and facilitator selection”.<fnref n="39" /> The “responsible tolerance” on procedural issues, advocated by the United States, clearly had, however, limits, as it continued in 2025 to block a decision, supported by 130 WTO Members, on the procedural issue of starting the process of appointing Appellate Body members.<fnref n="40" />

In her statement at the end of the General Council discussion, WTO Director General Ngozi Okonjo Iweala said that this was “probably one of the best conversations that I have heard in a long time […]. There is still a little bit of talking past each other but despite that, there is a lot of frankness.”<fnref n="41" /> In his concluding statement, Amb. Petter Ølberg, the General Council Chair, agreed with the Director General’s assessment that this discussion had been “the best one we have had in a long time”<fnref n="42" />. He also said that he saw a consensus among Members on the following: (1) consensus is a fundamental principle of the WTO; (2) there is shared frustration on the paralysis of decision-making; and (3) the need to preserve the effectiveness and relevance of the WTO in getting results.<fnref n="43" /> All this led him to the conclusion that this “has been a very good start” but that “we need to continue this discussion”.<fnref n="44" />

<footnote n="19">As observed by one Member, “the number, and the passion, of interventions underlines how important this issue of consensus is to us.”; See *WTO WT/GC/M/211*, *supra* note 14 at para 8.110 (Statement by the United Kingdom).</footnote>

<footnote n="20">WTO, *General Council, Responsible Consensus, Communication from Brunei Darussalam, Costa Rica; The Gambia; Korea, Republic of; Norway; Peru; Singapore; Switzerland; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu*, WT/GC/W/933/Rev.1 (5 June 2024), online: <web.wtocenter.org> [perma.cc/VJ2W-X9FH] [*WTO WT/GC/W/933/Rev.1*].</footnote>

<footnote n="21">WTO, *General Council, Preserving the Current Practice of Consensus-Based Decision-Making in the WTO, Communication from Samoa on Behalf of The African, Caribbean and Pacific Group and the African Group*, WT/GC/W/932/Rev.1 (22 May 2024), online: <web.wtocenter.org> [perma.cc/K7S3-PQ8M].</footnote>

<footnote n="22">*WTO WT/GC/M/211*, *supra* note 14 at para 8.115 (Statement by China).</footnote>

<footnote n="23">*Ibid* (Statement by the United Kingdom).</footnote>

<footnote n="24">*WTO* *WT/GC/M/211*,*supra* note 14 at para 1.1.</footnote>

<footnote n="25">*Ibid*at para 8.100 (Statement by Brazil).</footnote>

<footnote n="26">*Ibid* at para 8.29 (Statement by Canada).</footnote>

<footnote n="27">*Ibid* at para 8.42 and 8.44 (Statement by the European Union).</footnote>

<footnote n="28">*WTO WT/GC/W/933/Rev.1*, *supra* note 20 at para 1.2 and 2.1.</footnote>

<footnote n="29">*Ibid* at para 1.3 and 3.1.</footnote>

<footnote n="30">*Ibid* at para 3.2.</footnote>

<footnote n="31">*Ibid* at para 3.3.</footnote>

<footnote n="32">*WTO* *WT/GC/M/211*, *supra* note 14 at para 8.131 (Statement by India).</footnote>

<footnote n="33">Note that South Africa, while aligning itself with the ACP Communication, took a more conciliatory position, stating that it does “not question the motives” of the Singapore Communication but that “framing the topic can be more polarizing than solve the problem”. See *WTO* *WT/GC/M/211*,*supra* note 14 at para 8.120 (Statement by South Africa).</footnote>

<footnote n="34">*Ibid* at para 8.89-8.91, 8.41-8.45 and 8.114—8.116 (Statements by the United States, the European Union and China).</footnote>

<footnote n="35">*Ibid* at para 8.48 (Statement by Türkiye).</footnote>

<footnote n="36">*Ibid* at para 8.18 (Statement by Chad on behalf of the African Group).</footnote>

<footnote n="37">*Ibid* at para 8.5 (Statement by Samoa on behalf of the ACP Group).</footnote>

<footnote n="38">*Ibid* at para 8.90 (Statement by the United States).</footnote>

<footnote n="39">*Ibid* at para 8.91 (Statement by the United States).</footnote>

<footnote n="40">WTO,*Dispute Settlement Body, Minutes of the Meeting on 27 January 2025*, WT/DSB/M/497 (17 February 2025) at para 5.1 to 5.26, online: <docs.wto.org> [perma.cc/LPC6-5LVE].</footnote>

<footnote n="41">*WTO* *WT/GC/M/211*, *supra* note 14 at para 8.168 (Statement by DG Ngozi Okonjo-Iweala).</footnote>

<footnote n="42">*WTO* *WT/GC/M/211*,*supra* note 14 at para 8.173.</footnote>

<footnote n="43">*Ibid* at para 8.173—8.174.</footnote>

<footnote n="44">*Ibid* at para 8.174.</footnote>
# V. Room Document RD/GC/31

The discussion did continue at the WTO Retreat on Decision-Making, convened by the General Council Chair on 11 July 2024 at the Geneva Hilton Hotel. As at the General Council meeting in May 2024, also at this informal, brainstorming meeting, attended by 122 WTO Members, no consensus was reached on whether, and if so, how, consensus decision-making should be changed. In fact, Members continued to be sharply divided, with many of them adhering to their earlier positions. A few days before the Retreat, China circulated among WTO Members an unofficial room document, entitled “Revisiting the Marrakesh Agreement to Improve WTO Decision-Making”.<fnref n="45" /> In this document, circulated for discussion purposes only, China first reminded Members of the fact that consensus decision-making in the GATT and the WTO had “never been a rigid practice and has provided flexibilities to address Members’ concerns while ensuring that the multilateral trading system can move forward and its inclusiveness”.<fnref n="46" /> It subsequently stated—in wording almost identical to the statement of the European Union at the General Council meeting of May 2024—that: “No member should be compelled by the majority to accept obligations they don’t want”, but that: “In turn, the majority, if they wish to move forward, should not be held back by a few”.<fnref n="47" /> According to China, “allowing a substantial part of WTO membership to proceed with rule-making that is open, transparent in process, beneficial for the participants, and does not harm the interests of non-participants would benefit the multilateral trading system and, in the end, benefit all”<fnref n="48" />. China’s Room Document is particularly useful in that it makes procedural suggestions to facilitate consensus decision-making and, in this way, brings more clarity to the concept of “responsible consensus” and how to operationalize it. These procedural suggestions reflected ideas already found in statements made at the General Council Meeting of May 2024, particularly the statement made by Japan.<fnref n="49" /> In order to facilitate consensus decision-making, China called for “enhanced transparency”, for “obligatory engagement”, and “mediation by an appointed third party”. It suggested that a Member blocking consensus should provide clear and convincing reasons for doing so (“enhanced transparency”). In his report on the Retreat, the General Council Chair took up this suggestion.<fnref n="50" /> China also suggested that before (and after) blocking consensus, a Member should actively engage (and continue to engage) with other Members with a view to finding a solution (“obligatory engagement”). China finally suggested that where there is an overwhelming majority in favor of a matter, a special consultative process should be set up to help bridge gaps and propose necessary solutions (“mediation by an appointed third party”). These procedural suggestions, combined with allowing Members to make different levels of commitment in recognition of their level of development and capacity, and the use of common treaty-making tools, such as opt-outs and reservations, should facilitate consensus decision-making in the WTO. Note that in his report on the Retreat, the General Council Chair also took up the suggestion of using common treaty-making tools and added to the tools referred to by China, the application of footnotes and sunset clauses.<fnref n="51" />

<footnote n="45">It is not clear whether China’s Room Document was explicit discussed or used as a basis for discussion at the Retreat. In his report on the Retreat of July 2024, the General Council Chair made no mention of it. However, the Chair’s takeaways and follow-up suggestions did include some of the suggestions made by China. See WTO, *General Council, Takeaways and Follow-up Suggestions from the 8 July Retreat on WTO Decision-Making & Way Forward, Communication by H.E. Mr. Petter Ølberg, Chairperson of the General Council*, JOB/GC/402 (15 July 2024) at para 2.5 to 2.7, online: <docs.wto.org> [perma.cc/E3WB-4UUD] [*WTO JOB/GC/402*].</footnote>

<footnote n="46">Ravi Kanth Devarakonda, “Trade: WTO retreat fails to bridge positions on decision-making processes” (11 July 2024), online: <twn.my> [perma.cc/K9ET-FZAA]. Note that the Room Document RD/GC/31 is a restricted document.</footnote>

<footnote n="47">*Ibid.*</footnote>

<footnote n="48">*Ibid.*</footnote>

<footnote n="49">*WTO WT/GC/M/211*, *supra* note 14 at para 8.118 (Statement by Japan). At least one of these ideas (regarding transparency) was also already reflected in the 2004 Sutherland Report, *supra* note 11, para. 289.</footnote>

<footnote n="50">*WTO JOB/GC/402*, *supra* note 45 at para 2.6.</footnote>

<footnote n="51">*Ibid* at para 2.7.</footnote>
# —

The problem of consensus decision-making has not been on the agenda of the General Council as a separate item for discussion since July 2024.<fnref n="52" /> Undoubtedly, Members thought during the remainder of 2024 that further discussion would, at that time, not bring them any closer to a “solution”, and since January 2025 and the change of government in the United States, Members have been concerned about a much bigger issue, namely the very existence of multilateral trading system. While it is doubtful whether the current US government would even be willing to discuss the problem of consensus decision-making in the WTO, and any “solution” to this problem may thus be out of reach for the years to come, the discussion on consensus decision-making should continue. The need for such discussion finds strong support in a recent survey among WTO Members by the Hinrich Foundation, which showed that “more than 92% of our survey’s respondents agreed it was important to modernize the practice of consensus, with 57% saying it was extremely important”.<fnref n="53" />

While the practice of consensus decision-making as such is, for good reason, uncontested, it is its abuse which has been criticized. Requiring that this practice is used in a “responsible” manner is in the interest of, and should be acceptable, to all Members. It is important, however, to clarify what constitutes such “responsible” use. This can best be done by imposing a few procedural requirements, as those suggested by China and others, including requirements regarding enhanced transparency and obligatory engagement. Moreover, consensus decision-making can also be facilitated using common treaty-taking tools that provide flexibility to Members regarding the commitments they make. Finally, it would be useful to distinguish—as “suggested” by the United States—between, on the one hand, decisions adding to, or altering, substantive rights and obligations of Members, and, on the other hand, decisions on procedural matters, which do nothing more than allowing the WTO to function as mandated. For the latter decisions, which include decisions on the adoption of the agenda of a meeting, the appointment of chairs of WTO bodies, or the appointment of Appellate Body members, blocking consensus would, in all but the most exceptional situations, not constitute a responsible use of the practice of consensus decision-making.

<footnote n="52">The repeated failure of adopting decisions to incorporate the plurilateral agreements in Annex 4 of the WTO Agreement, as discussed above, did, of course, keep the problem of consensus decision-making on everybody’s mind. *WTO WT/GC/M/210*, *supra* note 7; also see from WTO, *General Council Meeting on 18—19 February 2025 — Proposed Agenda,* WT/GC/W/964 (14 February 2025), online: <web.wtocenter.org.tw> [perma.cc/W6ZX-YY2Y]; WTO, *General Council Meeting held on 15—16 October 2024 — Proposed Agenda*, WT/GC/W/951 (11 October 2024), online: <web.wtocenter.org> [perma.cc/H9R8-Y7AF].</footnote>

<footnote n="53">Hinrich Foundation, “Findings from the Hinrich Foundation survey on WTO reform”, online: <hinrichfoundation.com> [perma.cc/NU9K-MGBK].</footnote>