In response to India’s questions on the legal basis by which the WTO director general is assigned the role of acting as the depositary of the Interim Arrangements for the Agreement on Electronic Commerce (ECA), the organisation said that serving as a depositary of the ECA would not conflict with the chief’s role and responsibilities.
“The absence of an explicit limitation in the WTO Agreement, considered in light of customary international law… supports the interpretation that the WTO Director-General is allowed to play depositary functions for other treaties,” the DG said in a communication, even as she referred certain questions posed by India to the ECA participants, including those on the institutional basis for the arrangements.
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In July, India raised questions at the WTO over an interim arrangement as a pathway for implementing an agreement on e-commerce, which has been agreed upon by only 66 member countries. India opposed the agreement, arguing that such pacts bypass multilateral consensus, and questioned the systemic, legal and institutional implications arising from the current arrangements.
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“If the parties to the WTO Agreement had wanted to limit the DG from acting as depositary for other treaties, they could have explicitly done so, but they did not,” the WTO chief said in the communication. India had also questioned the legal basis for the WTO Secretariat to facilitate its implementation despite the pact lacking the consensus required for incorporation into the WTO framework. Since the ECA has not been added to Annex 4, India has sought clarification on the legal authority under which the DG is receiving instruments of acceptance for the agreement. The WTO agreement requires consensus for inclusion in Annex 4, and consensus was not reached on two occasions.