Several World Trade Organization members, including the United States, appear to have informally conveyed their concerns over the legality of the appointment process for the next Director-General to the General Council Chairperson, Ambassador Petter Olberg, said people familiar with the developments.
Last week, the Chair launched the appointment process for the next WTO Director-General without the authorization of the General Council.
He opined that his decision was based on a detection of “convergence” rather than consensus, said people familiar with the development.
The GC chair’s unusual haste to commence the appointment of the next Director-General has raised critical questions about governance and the rule of law within the institution, said a trade envoy who asked not to be quoted.
After a spokesperson for the US Trade Representative’s Office said that “The United States is concerned that this action was taken based on the Chair’s assumption of convergence, rather than consensus,” there was “chaos”, said people who asked not to be quoted.
It appears the US Mission to the WTO has informally repeated the position that convergence does not equate to consensus, suggesting the possibility of procedural missteps in the Chair’s approach and raising questions about the legal validity of the process.
Legal Mandate
At the heart of the controversy is whether GC Chair Olberg acted within his legal mandate when he moved forward with the appointment process.
Up until now, the WTO has adhered to a consensus-based decision-making process, including the selection of the DG, said people familiar with the process.
There has been no response to a request from WTD to the Chair seeking answers to questions about the process.
With the next GC meeting scheduled for next week – October 15-16 – several members are questioning why, if genuine convergence existed, a draft decision was not tabled for formal discussion. On the condition of anonymity, one Ambassador expressed serious concerns about the implications of the Chair’s actions. “This raises the systemic issue of whether the Chair’s actions set a dangerous precedent: Can a Chair now, through informal consultations, amend established rules? Today the matter concerns procedural rules for the DG selection process, but tomorrow it could involve substantive trade rules. At what point do WTO members call Chairpersons to order, ensuring accountability, without fearing political consequences or being victimized for challenging irregularities in chairpersons’ actions?”
US Wants Transparency
The United States is pressing for a transparent and predictable selection process, stating that adherence to established procedures is in the best interest of the WTO’s governance and credibility. This concern is shared by several other members. Other members may begin to question whether the WTO’s decision-making processes are being properly followed or if the informal assumption of convergence is being used to bypass the need for consensus.
The critical question now is whether the Chair will suspend the appointment process in light of these concerns, said people familiar with the developments. Further, the WTO members must decide how to proceed, especially if legal questions over the process are left unanswered, said people on a background basis. “If the WTO's long-standing tradition of consensus is disregarded, it could open the door for future procedural changes to be made without formal approval, a move that may ultimately undermine trust in the institution’s governance framework,” they said, preferring not to be identified.
Several countries from Africa, the European Union, China and some other industrialized countries appear to go to any extraordinary lengths to expedite this process, primarily to avoid the uncertainty of the upcoming US elections. These countries seem to be making a concerted effort to ensure the appointment is finalized before any potential shifts in US policy, especially with the possibility of a return of former President Trump.
As the situation unfolds, it remains to be seen whether the Chair will address the growing concerns or whether members will demand a formal decision before the process can proceed further, said people familiar with the developments.
“What is clear, however, is that the debate over the distinction between convergence and consensus is far from settled, and the path forward for the WTO DG appointment process remains uncertain,” said people who asked not to be quoted.
For now, members and observers alike are closely watching to see whether the Chair’s actions will face a formal challenge, and what , impact this might have on the future governance of the WTO, said people on a background basis.
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