Interim arrangements for stalled WTO plurilaterals: The role of committees in the administration of disputes
Carlo M. Cantore[1]
At the Ministerial Conference held in March this year, 67 WTO Members participating in the negotiations for the Agreement on Electronic Commerce (ECA) issued a “Declaration on Interim Arrangements for the Agreement on Electronic Commerce”.[2] In a nutshell, those Members announced their intention to have the ECA provisionally enter into force outside of the WTO legal framework, while continuing to push for a consensus-based decision for the incorporation of the ECA into Annex IV to the WTO Agreement as a “plurilateral agreement”.[3]
The key elements of the interim arrangements are as follows: (i) the Interim Arrangements Annex becomes an integral part of the ECA and prevails over the latter in the event of conflicts; (ii) the Interim Arrangements Annex will automatically lapse if and when the ECA is incorporated into Annex IV to the WTO Agreement; (iii) the provisions of the DSU are incorporated by reference into the Interim Arrangements Annex, mutatis mutandis, and appeal arbitration is established as the default mechanism for appeals.
In a recent news article, Chris Horseman reported that the European Union might be interested in pushing for a similar solution for the other plurilateral agreement that is currently in a state of limbo due to lack of consensus at the General Council: the Agreement on Investment Facilitation for Development (IFDA).[4]
WTO Members are actively debating the matter. At the latest General Council meeting held in July this year, Members discussed a number of issues concerning the ECA interim arrangements, including the involvement of the Director-General as the depositary of the agreement and the extent to which the Committee on Trade-Related Aspects of Electronic Commerce (“ECA Committee”) to be established pursuant to the Interim Arrangements will receive support from the Secretariat once the agreement enters into force.[5]
This post focuses on one aspect that has not caught much attention: the role of the ECA Committee in the administration of disputes under the Interim Arrangements.
As the ECA Interim Arrangements will not formally be a WTO Agreement, the WTO DSU will not apply to it. The drafters of the ECA Interim Arrangements opted to incorporate by reference the rules of the DSU, mutatis mutandis, thereby creating a parallel set of provisions on dispute settlement, identical in content to, but formally distinct from, those of the DSU. This approach certainly has a merit: the drafters did not have to conduct extensive negotiations over dispute settlement matters, and could instead refer to a set of rules everyone was already accustomed to.
The WTO DSU entrusts the Dispute Settlement Body (DSB) with a number of key functions that are crucial for the operations of the dispute settlement mechanism. Since recourse to the DSB was not possible for a non-WTO agreement, the drafters of the ECA Interim Arrangements assigned those functions to the ECA Committee.
Paragraph 3.3 of the ECA Interim Arrangements reads as follows:
3.3 For the purposes of this Annex:
(…)
(b) references to the "Dispute Settlement Body" or to the "DSB" in the DSU shall be understood as references to the Committee (…).
In practical terms, this means that for disputes under the ECA Interim Arrangements, the ECA Committee “shall have the authority to establish panels, adopt panel (…) reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions of obligations under the covered agreements”.[6]
The implications for the ECA Committee are not negligible. The ECA Committee, in fact, will have to perform the same functions as other committees established under the WTO covered agreements. In addition to those, it will also administer dispute settlement operations, which is a task assigned to the DSB for WTO covered agreements. This is likely to increase the workload of the ECA Committee, in a situation where certain non-participants have already raised concerns regarding the extent to which the WTO Secretariat will support the activities of the committee.
One way to minimize the burden on the ECA Committee would be for parties in disputes under the ECA (or the IFDA, if participants will also proceed with interim arrangements) to resort to arbitration pursuant to Article 25 of the DSU, as incorporated by reference in the interim arrangements annex, also for first instance disputes. Replacing panel proceedings with arbitrations means that the ECA Committee would not have to perform certain functions normally assigned to the DSB under the WTO DSU. Arbitration proceedings, in fact, are premised on an agreement between the parties and arbitration bodies need not be established by the DSB. Furthermore, the parties to arbitration proceedings agree to abide by the arbitration awards, such that the DSB is not called to adopt arbitration awards.
Pursuant to Article 25.2 of the DSU, in the event that the parties agree to resort to arbitration, they shall also “agree on the procedures to be followed”. This can be done on the basis of ad hoc arrangements or by means of a template set of procedures to be followed in every dispute, similar to the MPIA. The procedures need not be unnecessarily complex or different from panel proceedings under the DSU. In this respect, inspiration could be drawn from the EU-US arrangements in the Steel and Aluminium and Additional Duties disputes, where the parties agreed to replace panel proceedings with arbitration proceedings. They did so to “freeze” their dispute while they sought a negotiated solution, anticipating that negotiations could take longer than the 12-month limit envisaged in Article 12.12 of the DSU for the suspension of disputes. The parties thus terminated their panel proceedings and initiated arbitration proceedings, appointing the original panelists as arbitrators. In terms of the procedures, the parties agreed to reproduce the “rules, procedures and practices on panel proceedings that would have applied to the panel proceedings”, with the exception of the twelve-month limit set forth Article 12.12 of the DSU.[7] At the time of writing this post, both arbitration proceedings are still formally suspended.
Replacing panel proceedings with arbitrations also for first instance disputes would thus be coherent with economical approach of the ECA Interim Arrangements. When negotiating interim arrangements for the IFDA, drafters could consider the solutions suggested in this post as a way to ensure that the committee to be established under that agreement will devote all its energies to its core business, without having to also perform the functions originally assigned to the DSB under the WTO DSU.
[1] International trade lawyer, ccantore@pm.me.
[2] WTO, Declaration on Interim Arrangements for the Agreement on Electronic Commerce, WT/MIN(26)/42 (27 April 2026).
[3] Plurilateral agreements are binding only for those WTO Members that have accepted them and do not create rights and obligations for other WTO Members (Article II:3 of the WTO Agreement). Pursuant to Article X:9 of the WTO Agreement, the Ministerial Conference (or the General Council in the intervals between meetings of the Ministerial Conference) may decide “exclusively by consensus” to add a new plurilateral agreement to Annex IV to the WTO Agreement.
[4] C. Horseman, “EU to push for interim fix on stalled WTO investment pact” (available at: https://borderlex.net/2026/09/02/eu-to-push-for-interim-fix-on-stalled-wto-investment-pact/, last accessed, 15 September 2026).
[5] P. Ungphakorn, “Text: WTO Head on the E-Commerce Plurilateral Deal and Secretariat Support” (available at: https://tradebetablog.wordpress.com/text-dg-reply-secretariat-and-e-commerce-plurilateral/, last accessed, 15 September 2026).
[6] Article 2.1 of the DSU.
[7] WTO, US – Steel and Aluminium Products (EU) – Recourse to Article 25 of the DSU, WT/DS548/19, paras. 5 and 6; EU – Additional Duties (US) – Recourse to Article 25 of the DSU, WT/DS559/7, paras. 5 and 6.