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© Oxford University Press 2005, all rights reserved
Decision-Making in the World Trade Organization
Is the Consensus Practice of the World Trade Organization Adequate for Making, Revising and Implementing Rules on International Trade?
1 Professor Dr. Dr. h.c. Claus-Dieter Ehlermann is Senior Counsel with Wilmer Cutler Pickering Hale and Dorr. He was formerly Member, and in 2001 Chairman, of the Appellate Body of the World Trade Organization. Before that, he was Director-General of Competition and of the Legal Service at the European Commission. Email: claus-dieter.ehlermann{at}wilmerhale.com. Lothar Ehring serves in the Directorate-General for Trade of the European Commission. He formerly worked in the Legal Affairs Division of the WTO Secretariat and the Appellate Body Secretariat. Email: leh{at}post.harvard.edu.
Globalization creates a demand for international rule-making, and the WTO remains the forum for creating binding and enforceable international trade rules. The WTO therefore needs an effective decision-making system capable of resolving diverging interests. Although the WTO Agreement foresees votes where consensus cannot be reached, the practice of consensus dominates the process of decision-making. The GATT 1947 only spoke of voting and did not mention the word ‘consensus’. The WTO Agreement reflects the evolution from votes to consensus in the GATT 1947. Nevertheless, voting was not abandoned in the WTO Agreement. Although the consensus practice generally works well, it nevertheless implies the risk of deadlock and in particular the Membership’s inability to respond legislatively where it disagrees with a panel’s or the Appellate Body’s legal interpretation. Consensus also inherently favours the status quo and can make it extremely difficult to achieve change. Consensus does not provide for equality (in terms of decision and influence) because not every Member has the same ability to maintain vetoes. Consensus of course has many advantages, but it is questionable whether it is also more democratic than the majority rule.