WT/GC/262  
 
21 December 2023  
(23-8771) Page: 1/5 
General Council  Original: English  
 
STATEMENT BY INDIA ON AGENDA ITEM 18  
GENERAL COUNCIL MEETING – 13 - 15 DECEMBER 2023  
COMMUNICATION FROM INDIA  
The following communication, dated 20 December 2023, is being circulated at the request of the 
delegation of India.  
 
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1. This communication refers to discussions in the General Council held from 13 to 
15 December  2023. The agenda for this meeting was circulated in the document WTO/AIR/GC/53 , 
dated 4 December 2023. Item 18 in this agenda reads as belo w:  
 
18. INFORMATION ON INVESTMENT FACILITATION FOR DEVELOPMENT – REQUEST FROM 
CHILE AND THE REPUBLIC OF KOREA ( JOB/GC/373 ) 
 
2. During the meeting, India wanted to make a detailed statement in view of the sensitivities 
involved in starting a new negotiation i n the WTO. However, a two/three minute time limit imposed 
on Members to deliver their oral statements on this agenda item meant that it was not feasible to 
deliver from the floor a full statement that was necessary to explain India's position on this sensi tive 
issue involving serious systemic concerns.  
 
3. Though India is of the conscious view that the "right to reply"  necessitated India getting the 
time that it needed on this highly sensitive item, India abided by the direction of the Chair.  
 
4. Subsequent to the GC meeting, many Members have approached India in formal and informal 
discussions requesting to share Indi a's written statement. In this context, India is submitting this 
detailed written statement as annexed to this document to explain to the Membership, with the help 
of facts, past discussions, decisions, and the systemic concerns and sensitivities involved.  This 
written statement will appear in the GC meeting minutes, but going by the past record, it might take 
six to eight weeks which brings this very close to  the Ministerial Conference. Hence, for the purpose 
of transparency, and ready reference India feel s it is necessary to appraise the Membership of the 
systemic concerns that it had wished to explain during the meeting on the agenda item at the 
earliest.  
 
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  WT/GC/262  
 
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  ANNEX  
COMPLETE STATEMENT OF THE INDIAN DELEGATION ON AGENDA ITEM 18  
OF THE GENER AL COUNCIL - 13-15 DECEMBER 2023  
  
1. Opening pleasantries  
 
2. Chair, first of all, India would like to thank the coordinators of the informal process for this 
submission meant only for information of the membership. If you recall, the day before yesterda y, 
India had sought a specific clarification as to whether this proposal was only for information. One of 
the coordinators, Chile, had confirmed that it was indeed for information only. Chair, you also had 
confirmed this. I thank all the respondents who ha ve spoken on this topic.  
 
3. Negotiation on Investment does not belong to WTO. India 's concern emanates from the fact 
that proponents of IFD, a  Joint Statement Initiative  (JSI) process, should not be attempting to bring 
a non -mandated, non -multilateral is sue to the formal process in the WTO in violation of the WTO 
framework and fundamental rule of consensus -based decision -making for starting a negotiation. 
There has not been any Ministerial mandate for starting negotiations on investment -related matters. 
Several attempts have been made in the past to push this agenda, starting from the 1st MC and till 
the 11th MC. However, these attempts ended with a negative mandate every time.  
 
4 The negative mandate did not allow the Members, desirous of IFD, to pursue it in a multilateral 
forum upon a consensus. Therefore, to circumvent the negative mandate and short -circuit the 
consensus requirement that is fundamental to initiating any formal discussion in WTO architecture, 
certain Members began an informal process th at did not have any legal sanctity, and now, at the 
end of their informal process, these members are back to consensus seeking on their outcome of an 
informal process the foundation of which is devoid of consensus. What could be more ironic in WTO 
than thi s, i.e., violating the treaty -embedded right of members to start consensus -based 
negotiations on mandated issues, and then at the end of such unrecognized and unlawful process, 
seeking consensus from those very members whose treaty -embedded right was inten tionally vitiated 
in the first instance.  
 
5. In this context, I would like to take Members back in memory, and I'm sure those who were 
here in 2017 during the May General Council meeting would be aware of the historical facts of this 
subject. In this rega rd, India would like to draw attention of members to four facts, - 
 
i. One is what we call the July 2004 framework. I would like to place this on record 
document number WT/L/579  dated 2 August 2004, as part of our statement. As 
captured in this document, the GC gave an explicit negative mandate to this topic and 
on initiating any negotiation or even taking this item in any Work Programme. The 
relevant para of this document reads as below:  
"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." [Para 1(g)].  
ii. It is also worth recalling that the Doha Declaration, in para 20, envisaged that 
negotiations on this topic could only be on the basis of a decision to be taken  
by explicit co nsensus. July framework made it explicit that there was a negative 
consensus in the Council.  
iii. In the Nairobi Ministerial 2015, i.e., just eight years back, which in the WTO context 
is not very distant, negative mandate again continued on this issue along w ith certain 
other issues. I am not saying non -mandated issues but the negative mandate of 
Ministers not to have negotiation on such subjects on which all members have not 
agreed to discuss in consensus, such as Competition, Government Procurement, and 
this issue of investment facilitation. Paragraph 34 of the Nairobi Ministerial declaration 
reads as below:  WT/GC/262  
 
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  "34. While we concur, that officials should prioritize 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.".  
iv. Then, of course, we had in 2017 the GC deliberation over two days, 10  May and  
18 May in 2017. The minutes thereof are a vailable in the WTO document No. 
WT/GC/M/167 , dated 21 July 2017. This is the third document which I would like to 
place on record as part of my statement. Clearly, members interested in discussions 
on investment facilitation had stated that their proposed informal dialogue on the issue 
was only for information sharing and that there was no intention to start negotiation. 
Further, India had opposed the agenda in the May 2017 GC meeting to begin with. 
However, India was asked to allow the agenda as it was not  a proposal to start any 
negotiations. It was mentioned that members involved in informal discussions wished 
only to inform other members of an informal process they wanted to initiate. The 
observations of the GC Chair were as follows:  
"Members will recall  the July 2004 General Council Decision (as contained in WT/L/579 ) 
as well as paragraph 34 of the Nairobi Ministerial Declaration …. 
It is noted that the proponents seek to share information on informal dialogues on 
investment facilitation, and that the communica tions do not constitute proposals for 
negotiations. Proponents believe that informal dialogues on investment facilitation are 
important.  
It is also noted that some Members believe that investment facilitation does not lie 
within the scope of the WTO and he nce the General Council.  
Finally, pursuant to rules 2 and 4 of the Rules of Procedure for the General Council, 
we note that the General Council is not required to take any decisions under this item 
of the agenda.". [ Para 65]  
v. It is clear, as is evident fro m the observation of the GC Chair, that members had vastly 
differing views on the issue. It lacked consensus. In the backdrop it was clarified in no 
uncertain words that the issue was only for information, and GC was not required to 
take a decision, nor co uld it have taken a decision taking into account the negative 
mandate. Needless to say, GC did not take any decision to start negotiations, but some 
members decided to go ahead with negotiations in utter disregard to the system and 
the architecture of the WTO.  
vi. Members engaged in negotiations on a negative mandate issue have breached their 
own commitments made in this very forum. They are trying to do it one more time by 
altering the very framework whose custodianship lies with these members. They are 
doing it through violation of Articles III.1, III.2, IX, and X of the Marrakesh Agreement. 
Article III.1 of the WTO Agreement states that " the WTO shall facilitate the 
implementation, administration and operation and further the objectives of this 
Agreement and of the multilateral trade agreements" . Article III.2 of the WTO 
Agreement stated that "the WTO shall provide a forum for negotiations among its 
Members concerning their multilateral trade relations." . Article IX and X, respectively, 
prescribe for consensus -based decision -making and amendments of the Marrakesh 
Agreement or the Multilateral Agreements covered therein.  
vii. I will not get into the substance and will only talk about the process. As per the 
provisions of Article III.2 and Article X of the Marrakesh a greement, any new 
disciplines needing negotiation require consensus of all WTO members.  
viii. In respect of any new Agreement that has to become part of Annex 4 (Plurilateral 
Agreement), if such agreement falls within the scope of WTO, consensus is needed to 
start such negotiation, and consensus is needed to incorporate the negotiated and 
agreed text to the Annex 4 in accordance with Article X of the Agreement. Slicing this 
consensus rule only to seek to incorporate an agreement into Annex 4 is illegal.  WT/GC/262  
 
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  ix. And the  last document which I would like to quote is the document presented by 
Namibia, South Africa, and India, which is WT/GC/W/819/Rev.1 . In this document, we 
have explained our understanding as to why JSIs do not have any legal status.  
6. Members interested in IFD or any other non -mandated issue could have informal discussions 
outside the formal structu res of the WTO. However, when discussions under JSIs turn into 
negotiations, and their outcomes are sought to be formalised into the WTO framework of rules, it 
can only be done in accordance with the rules of procedure for amendments as well as 
decision -making as set out in Article, III.2, and X of the Marrakesh Agreement. Investment 
facilitation has a negative mandate, as detailed above. Hence, with this negative mandate even to 
start negotiation, a case for its formalisation in WTO does not arise. Therefo re, it is a matter of 
serious concern to us if the proponents of IFD, a JSI outcome, try to force their interests into the 
rule-based WTO multilateral system in violation of WTO Rules and the basic foundation of the 
Marrakesh Agreement, which specifically requires decision -making through consensus.  
 
7. In our view, the proponents of the informal process are trying to take away our treaty 
embedded right in the consensus -based decision -making process of the WTO in their attempt to 
push this agenda. Certain me mbers who are willing to give away this treaty embedded right in the 
case of IFD should very well be ready for a WTO future wherein members will bring issues of their 
interest and push them into WTO, even without consensus. Would the same Members now pushi ng 
for IFD negotiations without consensus forgo this treaty -embedded right of theirs with the same 
eagerness for issues like "Trade and Forced Labour", "Trade and Democracy", and Trade and Human 
Rights "? We have already heard the interest of some members i n rulemaking in WTO on these issues. 
Similarly, we would also wish to ask here as to whether we could appoint Appellate Body members 
without a consensus, as only one member has a different view on this.  
 
8. Unlike other international organisations, where only a few members dictate the agenda, the 
WTO provides rights to every individual member to have a say in deciding the negotiating agenda. 
The interests of the developing and LDC Members are safeguarded in the WTO and also attract them 
to join the WTO bec ause of this crucial aspect of WTO architecture even though wide asymmetry 
exists in WTO that is against the interests of the developing and LDC members. Therefore, it is of 
paramount interest to this organisation that this treaty -embedded right is preserv ed and not eroded 
in the name of WTO reforms.  
 
9. In this background, I would like to reiterate that Investment Facilitation for Development, 
which supposedly facilitated investment, did not pertain to multilateral trade relations. Investment 
per se  is not  trade . It could or could not result in cross -border trade, which is the subject of 
multilateral trade relations. Investment covers a wide range of assets or enterprises subject to a 
separate universe of obligations. A linkage of an issue with the trade do es not empower WTO to 
negotiate on it under the aegis of multilateral trade relations. For example, certain members 
mentioned that trade, investment, and employment are all related; hence, they should be discussed. 
Going with this logic, and also consideri ng that employment is listed as an objective in the Marrakesh 
Agreement, would such Members be ready to discuss trade and forced labour in the WTO since 
labour/employment is also related to trade?  
 
10. As far as the investment aspects of trade are concerne d, the Agreement on TRIMS and the 
GATS already deal with trade -related investment aspects in goods and services, respectively. The 
TRIMS deals with certain trade -related investment measures that can restrict and distort trade. The 
GATS dealt with the suppl y of services through commercial presence in the territory of any other 
Member, which was related to trade in services and not purely investment.  None of these 
agreements, however, has provided the context for a general discussion on policies, rules and 
regulations surrounding investment.  
 
11. If we stretch the argument of the proponents that investment and trade are linked and, 
therefore, we could make rules on investment in the WTO, then we could start rulemaking in 
Intellectual Property (IP) here in the  WTO, even for the non -trade related aspect of IP.  
 
12. India would like to reiterate again that Members interested in IFD, or any other non -mandated 
subject are entitled to take up informal discussions outside the formal structure of the WTO.  
 
13. We do not have any reservations about changes, additions or deletions of WTO Treaty 
commitments, Mandates or Decisions in the WTO, but that should be done through legal means, WT/GC/262  
 
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  that is, first amending relevant Articles. As demonstrated, the whole approach to  JSI is legally 
inconsistent with the fundamental principles and procedures of the Marrakesh Agreement. We, 
therefore, do not agree to bring disciplines within the rule -based WTO legal framework through this 
illegal process.   
 
14. Finally, to sum up, the d ocument referred to in the communication is an outcome of an illegal 
process nurtured in a rule -based multilateral system, and therefore, we would not like it to be placed 
before the Ministers. Thank you.  
 
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