The Illegitimacy of Joint Statement Initiatives and Their Systemic Implications for the WTO

Jane Kelsey

Journal of International Economic Law, 2022, vol. 25, issue 1, 2-24

Abstract: The launch of ‘Joint Statement Initiatives’ (JSI) on electronic commerce, investment facilitation, and domestic regulation of services by groups of mainly developed country members in 2017 aimed to reinvigorate the World Trade Organization’s negotiating arm. These plurilateral negotiations to produce new rules that might be applied on a most-favoured-nation basis have been justified with a pragmatic blend of political, ideological, and legal arguments. This strategy directly challenges the World Trade Organization’s (WTO) core tenets of multilateralism, Member-driven consensus decision-making, and special and differential treatment, and sidelines the WTO’s role to mandate negotiations and its established bodies. Developing countries have challenged the systemic implications of JSIs for their ability to advance their own priorities, as was promised when the WTO was established. This article shows why JSIs lack legal legitimacy and their adverse systemic implications with reference to the WTO’s founding principles and its legal rules. It finds the justifications for JSIs rely on tenuous interpretations of WTO rules and the preferred mode of implementation involves a misuse of trade in services schedules. It warns that the precedent set by these JSIs would license future rule making by self-selecting groups of Members on a potentially limitless range of matters and deepen existing fissures within the troubled WTO.

Date: 2022
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