Japan, Australia and Singapore for Plurilateral E-commerce in Annex 4 of WTO Agreement

[ABS News Service/30.09.2026]

Geneva – The Director-General of the World Trade Organization has responded legal questions raised by India regarding the Interim Arrangements for the Agreement on Electronic Commerce.

Ngozi Okonjo-Iweala referred several of India’s question back to the ECA participants, including questions on the institutional basis for the arrangements, while defending her decision to act as the depositary of the ECA's instruments of acceptance, said people familiar with the developments.

The DG's replies follow responses issued by the three co-convenors of the ECA – Japan, Australia and Singapore – defending the Interim Arrangements.

Responding to India's question on the institutional basis for the Interim Arrangements, given that consensus to add the ECA to Annex 4 under Article X:9 was not reached on two occasions, the co-convenors said, “there is a strong institutional basis for the ECA and its implementation at the WTO.”

They argued that “as an initiative driven by WTO Members accounting for approximately 70% of global trade, the ECA is consistent with the WTO's long-established practice of supporting plurilateral initiatives and activities within its institutional framework. WTO Members have always been able to conduct such activities at the WTO, and the WTO Agreement does not require consensus to conduct such activities.”

The co-convenors justified the Secretariat's support for the ECA by saying that “the WTO Secretariat has an established practice of providing its services for initiatives at the request of groups of Members. For example, various Member-requested meetings, activities and initiatives are carried out at the WTO, including coordination groups for LDCs and regional groups, plurilateral initiatives on MSMEs, trade and gender and plastics pollution. Similarly, the Secretariat has supported ECA-related activities at the request of participating Members.”

On the DG's role as depositary, they argued that serving as depositary “is not inconsistent” with her role and responsibilities, citing the Vienna Convention on the Law of Treaties, the practice of the UN Secretary-General, regional trade agreements and the Information Technology Agreement.

India Opposes as WTO DG Dodges Question

Five days after the co-convenors issued their responses, the DG issued a restricted document (JOB/GC/522), in which she referred four of India's questions, in whole or in part, to the ECA participants.

For example, India noted that Article X.9 of the Marrakesh Agreement “requires consensus to add an Agreement to Annex 4. Consensus was not reached on two occasions,” and said: “In the absence of consensus, we would like to understand the institutional basis on which the Interim Arrangements (IA) are operating.”

The DG's answer: “This question should be addressed to the ECA participants.”

In another question, India noted that “Articles XIV.3 and XIV.4 of the WTO Agreement, i.e. the Marrakesh Agreement explicitly provide that the WTO Director-General acts as depositary of the WTO Agreement and its annexed Multilateral and Plurilateral Trade Agreements, the latter specified under Article II.3 of the WTO Agreement to mean ‘[t]he agreements and associated legal instruments included in Annex 4.’”

India also noted that “the WTO's depositary functions page confirms that the Director-General's depositary mandate covers WTO agreements and related instruments, and that the Legal Affairs Division's role covers WTO-related legal instruments and instruments of acceptance of protocols amending WTO agreements.”

India said that the ECA has not been incorporated into Annex 4. “However, the WTO DG circulated to WTO Members a copy of the ECA (ECA/DEP/1) on 10th June 2026 in accordance with Article 37.2 of the ECA.”

DG to Act as Depository

When India requested “clarification regarding the legal basis within the WTO Agreement on which the function to act as the depositary of the ECA is being performed by the WTO DG,” the DG answered: “Article XIV:3 and 4 of the WTO Agreement mandate the WTO Director-General to be the depositary of the Marrakesh Agreement, the Multilateral Trade Agreements, and the Plurilateral Agreements under Annex 4 of the WTO Agreement. The WTO Agreement is otherwise silent on whether the Director-General can exercise discretion to be the depositary of any other treaty. 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 DG said, “the absence of an explicit limitation in the WTO Agreement, considered in light of customary international law as codified in Article 76 of the Vienna Convention on the Law of Treaties (VCLT), therefore supports the interpretation that the WTO Director-General is allowed to play depositary functions for other treaties.”

The DG justified her action by saying that “on treaty law matters including depositary functions, it is reasonable for the WTO to follow the UN's guidance and practice.”

The DG argued that “in this regard, the UN Secretary-General has discretion to accept or reject depositary functions for any treaty they deem appropriate, even in the absence of specific provisions to that effect in the UN Charter.”