RESTRICTED  
  
RD/RO/77* 
13 February 2019  
 Page: 1/2 
Committee on Rules of Origin   
 
  
UNOFFICIAL ROOM DOCU MENT1 
INFORMAL MEETING OF TH E COMMITTEE ON RULES  OF ORIGIN – 7 FEBRUARY 2019  
PRESENTATION BY THE SECRETARIAT  – MR JÁNOS VOLKAI  
Legal Status of Decisions Taken by WTO  Committees  
 
 
 
Comité des règles d'origine  
 
DOCUMENT DE S ÉANCE NON OFFICIEL1 
INFORMAL MEETING OF TH E COMMITTEE ON RULES  OF ORIGIN – 7 FEBRUARY 2019  
PRESENTATION BY THE SECRETARIAT  – MR JÁNOS VOLKAI  
Legal Status of Decisions Taken by WTO Committees  
 
 
 
Comité de Normas de Origen  
 
DOCUMENTO DE SALA NO  OFICIAL1 
INFORMAL MEETING OF TH E COMMITTEE ON RULES  OF ORIGIN – 7 FEBRUARY 2019  
PRESENTATION BY THE SECRETARIAT  – MR JÁNOS VOLKAI  
Legal Status of Decisions Taken by WTO Committees  
_______________  
  
                                                
* In Original language only/En langue originale seulement/En el idioma original solamente.  
1 Documents issued in the RD series are not official WTO documents. They usually appear in their 
language of submission and will not be translated systematically into the working languages of the WTO. Th ey 
are intended for use in WTO meeting rooms and are attributed an unofficial symbol for archiving purposes only.  
Les documents de la série RD ne sont pas des documents officiels de l 'OMC. Ils ne paraissent 
généralement que dans la langue dans laquelle ils ont été communiqués et ne seront pas systématiquement 
traduits dans les langues de travail de l'OMC. Ils sont destinés aux salles de réunion de l'OMC et une cote non 
officielle leur est attribuée à des fins d'archivage.  
Los documentos de la serie RD no  son documentos oficiales de la OMC. Por lo general se distribuyen en 
el idioma en que han sido presentados y no se traduce n sistemáticamente a los idiomas de trabajo de la 
Organización. Se distribuyen para su uso en las salas de reunión de la OMC y se les  asigna una signatura no 
oficial a efectos de archivo únicamente.  RD/RO/77  
 
- 2 - 
 
  In the b roadest sense, WTO decisions are acts adopted by Members in relevant WTO bodies following 
certain rules and procedures.  
 
The main rule is contained in Article IX:1 of the WTO Agreement, which determines the basic 
technique for adopting decisions at the WTO  in general. This rule does not address the legal status 
of decisions, e.g. their binding nature, enforceability, legal value depending on the level at which 
they are adopted. Nor do WTO rules provide a typology of decisions according to their title.  
 
Absent guidance from the WTO agreements or otherwise from Members, there is no unified theory 
in the abstract on the legal status of decisions taken by the WTO, or specifically by certain types of 
WTO bodies. All we have is guidance from specific past disputes , but this remains rather fragmented: 
specific dispute settlement proceedings interpreting specific decisions in regard to specific provisions 
in the so -called covered agreements, in light of specific evidence and arguments advanced by the 
parties.  
 
As a m atter of fact, there is a wide variety of approaches in terms of the text used in decisions, 
including Committee decisions. The legal, interpretive status of such decisions has been determined 
on a case -by-case basis in WTO dispute settlement, in light of the text used in the decisions, for 
instance whether the wording was of a hortatory nature, and its relationship of the language with 
specific provisions in the covered agreements.  
 
For instance, a TBT Committee Decision was interpreted as a subsequent agr eement among 
Members regarding the interpretation of a specific provision in the TBT Agreement based on the 
timing of the decision relative to the TBT Agreement and whether it reflected an agreement among 
Members concerning the interpretation of a specific  provision, i.e. ultimately to the extent the 
relevant language of the decision was bearing specifically on the specific term in question in the 
TBT Agreement.2 
 
By way of comparison, in another dispute a Ministerial Conference Decision was recognised by t he 
Appellate Body as having "subsequent agreement" status.3 In reaching that conclusion, the 
Appellate  Body underscored the importance of substance over form:  
 
We note that the text of Article  31(3)(a) of the Vienna Convention  does not establish a 
requirem ent as to the form which a 'subsequent agreement between the parties' should 
take. We consider, therefore, that the term 'agreement' in Article  31(3)(a) of the Vienna 
Convention  refers, fundamentally, to substance rather than to form . Thus, in our view, 
paragraph  5.2 of the Doha Ministerial Decision can be characterized as a 'subsequent 
agreement' within the meaning of Article  31(3)(a) of the Vienna Convention  provided 
that it clearly expresses a common understanding, and an acceptance of that 
understanding  among Members with regard to the meaning of the term 'reasonable 
interval' in Article  2.12 of the TBT Agreement . In determining whether this is so, we 
find the terms and content of paragraph  5.2 to be dispositive. In this connection, we 
note that the unde rstanding among Members with regard to the meaning of the term 
'reasonable interval' in Article  2.12 of the TBT Agreement  is expressed by terms —'shall 
be understood to mean '—that cannot be considered as merely hortatory.4 
WTO decisions may be and indeed ha ve been taken at various levels , e.g. at the 
Ministerial  Conference, the General Council, the C ouncil for Trade in Goods, and Committees. 
The level at which these decisions are taken does not a priori confer a higher or less er legal status 
to such decision s. In particular, a  generic Ministerial Decision is a priori not more binding than a 
Committee Decision; as you could see from my presentation, what matters first and foremost is the 
language used in the decision in question . 
 
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2 Appellate Body Report,  US – Tuna II  (Mexico) , paras. 371 -372. 
3 US – Clove Cigarettes . 
4 Appellate Body Report, US – Clove Cigarettes , para. 267.