NATIONAL LAW UNIVERSITY

JODHPUR

SUBJECT: INTERNATIONAL TRADE

NGOs and WTO

SUBMITTED TO:
Mr. Bipin Kumar

SUBMITTED BY:
Utkarsh Singh

Department of Law

Roll No. 1045

National Law University,

U.G. 6th Semester

Jodhpur.

B.A.LLB (Hons)
Submission Date : 9th, March, 2015.

CONTENTS

Contents...........................................................................................................................................
Acknowledgement...........................................................................................................................
Introduction......................................................................................................................................
What Are NGOs?.............................................................................................................................
What is WTO?.................................................................................................................................
Arguments in Favour of NGO Participation in WTO......................................................................
Arguments against NGO participation in WTO............................................................................
NGOs at WTO...............................................................................................................................
Legal Basis of NGO Involvement in WTO...................................................................................
Present State of NGOs in WTO.....................................................................................................
Conclusion.....................................................................................................................................
Bibliography..................................................................................................................................

ACKNOWLEDGEMENT
This project could never have been possible without co-operation from all sides.
Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.
Secondly, I take this opportunity to express my gratitude to the Faculty of Law of NLU,
specially our subject teacher Mr. Bipin Kumar. He has constantly helped and guided me in
the compilation of this project.
Thirdly, I would also like to thank the entire library staff for providing me with the various
sources of information that I utilized during the course of my project ,thereby, helping me to
complete this endeavour of mine successfully.

INTRODUCTION
NGOs have been defined as formal (professionalized), independent societal organizations
whose primary aim is to promote common goods at the national or the international level.1
NGOs do not possess an international legal personality and the relevant national regulations
of the states where they are located govern them. NGO was originally an awkwardly
negative title coined by the United Nations that described a vast range of international and
national citizens organizations, trade unions, voluntary associations, research institutes,
public policy centers, private government agencies, business and trade associations,
foundations and charitable endeavors.2
The importance of non-governmental organizations (NGOs) as international actors has
increased sharply over the last decades. Since 1945, when NGOs were explicitly recognized
as actors on the international scene by Article 71 of the United Nations Charter, NGOs have
become an ever stronger and more vocal force in international policy-making, policyimplementation, compliance-monitoring, and dispute-settlement.3 The interest and
involvement of NGOs in the activities of international organizations has especially
intensified since the early 1990s.4 At present, a continuously growing number of NGOs
participate; or aspire to participate, in the work of international organizations.
1 Kerstin Martens, Mission Impossible?Defining Nongovernmental Organisations, 13
INTL J. Voluntary & Nonprofit Org. 271, 282 (2002).
2 Angus Archer, Methods of Multilateral Management: The Interrelationship of
International Organisations and NGOs, in The US, The UN, and the Management of
Global Change 303 (Toby Trister Gati ed. 1983), provided in Seema Sapra, The WTO
system of trade governance: The State NGO debate and the appropriate role for non-state
actors, retrieved from ssrn.
3 Peter Van Den Bossche, Non-Governmental Organisations and The WTO: Limits to
Involvement?, Maastricht Working Papers, Faculty of Law, 2009.
4

World Trade Organization deals with regulation of trade between participating countries by
providing a framework for negotiating and formalizing trade agreements and a dispute
resolution process aimed at enforcing participants' adherence to WTO agreements, which are
signed by representatives of member governments5 and ratified by their parliaments.6
International NGOs have been keen to be involved in the activities of the World Trade
Organization (WTO). As the primary international organization concerned with transborder trade, the WTO is at the forefront of the multilateral effort to manage and regulate
economic globalization. The law of the WTO governs the trade relations between its
Members and plays a crucial role in resolving trade disputes between these Members. Not
surprisingly, the WTO has emerged as a prime target for anti-globalization protests.7
The debate about the accommodation of non-state actors in the WTO has in many respects
moved on from the concerns that dominated the early discussions in the WTO in the late
1990s. The early debates dealt with the issue of direct participation by NGOs in the WTO.8
That was a time when international NGOs were demanding a seat at the table in order to
directly influence the negotiations, agenda, and decisions of national delegations.9 The calls
for NGO participation were made on the ground that there was a perceived democratic deficit
in the functioning of the WTO. The WTO was criticized as non-transparent, illegitimate, and
4 Ibid.
5 Understanding WTO, available at
https://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf, last visited on
26th Feb, 2015.
6 Malanczuk, P. International Organisations and Space Law:World Trade Organization,
Encyclopedia Britannica 442. P. 305.
7 Supra at 3.
8 Steve Charnovitz, Opening the WTO to Non-governmental Interests, 24 FORDHAM
INTL L.J. 173, 194 (2000).
5

unaccountable.10 Participation by civil society was felt to be necessary in order to help the
WTO overcome these deficiencies.
Early demands for NGO participation emanated more from international NGOs
headquartered in major developed countries than from NGOs based in developing countries.11
NGOs championed issues such as environmental and labor standards, which many
developing countries thought were inappropriate for the WTO to regulate. At that time,
NGOs in most developing countries had little capacity to engage with WTO issues.
Developing countries were still struggling to build capacity within their state bureaucracies
and their officials were not keen on transparency vis--vis domestic NGOs.12
Developing countries opposition to direct NGO involvement was driven by the concern that
such involvement would alter the balance of power by providing more ammunition in
support of certain issues important to developed countries, like the environment. Developing
countries also believed that bringing NGOs into the room would strengthen developed
country negotiators, as developing country NGOs had little access to Geneva.13
9 NGO Statement on WTO Crisis in Seattle: A Call for Change (Dec. 12, 2009), available
at
http://digitalcollections.lib.washington.edu/cdm/singleitem/collection/wto/id/318.http://di
gitalcollections.lib.washington.edu/cdm/singleitem/collection/wto/id/318.
10 Daniel Esty, Non-Governmental Organizations at the World Trade Organization:
Cooperation, Competition, or Exclusion, 1 J. INTL ECON. L. 123, 13637 (1998).
11 Mary Kaldor, Civilising Globalisation? The Implications of the Battle in Seattle,
29 MILLENNIUM J. INTL STUD. 105 (2000).
12 Seema Sapra, The WTO system of trade governance: The State NGO debate and the
appropriate role for non-state actors, available at
https://law.uoregon.edu/org/oril/docs/11-1/Sapra.pdf, last visited on 7th Mar, 2015.
13 Ibid.
6

The Doha Round has shifted the contours of the debate. The debate has evolved and the shifts
in the facts on the ground as well as in the positions of key actors on the question of non-state
actor involvement in the WTO need to be acknowledged. In order to map the movement
within the debate, it is useful to distinguish between what can be described as the pre-Doha
concerns and the post-Doha concerns. The movement in this debate since Doha has partly
resulted from improved understanding and capacity among developing country domestic
actors about how the WTO functions. There has been substantial capacity development
within developing country governments, interest groups, industry associations, domestic
NGOs, and research think tanks. International NGOs have also directed their efforts at
influencing national level policy-makers, and have opted for a more indirect and subtle
influence on global trade policy-making.14
This project aims to discuss the definition of NGOs and WTO and then the role of NGOs in
WTO. Then, the discussion is on pros and cons of the NGO participation in WTO which is
further led by the discussion on legal capacity of NGOs for participation in WTO. NGOs
participation before the start of DOHA rounds and after the start of DOHA rounds has also
been discussed taking into consideration the Seattle Conference.

WHAT ARE NGOS?

NGOs are private organizations ( associations, federations, unions, institutes, groups ) not
established by a government or by intergovernmental agreement, which are capable of
playing a role in international affairs by virtue of their activities, and whose members enjoy
independent voting rights. The members of an NGO may be individuals or corporate bodies
[].15
Since the end of the Cold War, there has been an enormous growth in the number, size and
reach of transnational NGOs. Contacts with global regimes and multilateral institutions
became more frequent towards the 1980s. The creation of the WTO has increased calls by
14 Ibid.
15 Former World Trade Organization Director General Renato Ruggiero in a statement on
July 17th, 1998; available under
http://www.wto.org/english/news_e/pres98_e/pr107_e.htm.
7

NGOs to participate in decisions about trade policy, including in WTO dispute settlement as
amici curiae. Many NGOs have claimed that the rights and interests of citizens are
inadequately reflected in WTO decisions; their scepticism has been nurtured by the
confidentiality of the GATT / WTO dispute settlement mechanism, which gives rise to
speculation about what happens behind closed doors.16
But many governments, especially in developing countries, accuse NGOs of being
unrepresentative and radical, thereby distorting the democratic process, undermining the
authority of elected officials, and fostering urban, middle class minorities.17
However, both practically and politically, it is virtually impossible to retreat from the trend of
greater NGO engagement. The Marrakesh Agreement establishing the World Trade
Organization of 1994 in fact explicitly acknowledges involvement by NGOs in the WTO,
stipulating that The General Council may make appropriate arrangements for consultation
and cooperation with non governmental organizations concerned with matters related to
those of the WTO.18 In 1996, the General Council of the WTO elaborated formal guidelines
for increased relations with NGOs.19
Even then it must not be overlooked that pragmatically, NGOs were kept away from the most
important forums like green room where the real negotiations take place.

WHAT

IS

WTO?

The WTO is the only global intergovernmental organization regulating trade between
nations20, set up, inter alia, to supervise national trade policies. It came into being in 1995,
16 The Participation of NGOs in the WTO Dispute Settlement System. Brandstetter,
Patricia. Seminar aus Voelkerrecht (International Economic Law) ao. Univ. Prof. MMag.
Dr. August Reinisch, 2003.
17 Ibid.
18 Art. 5 (2) of the Marrakesh Agreement Establishing the World Trade Organization.
19 Supra at 16.
8

as a result of the Uruguay Round ( 1986 to 1994 ) initiated in order to address a crisis of the
GATT and thereby to modify the old order of international trade.21
The WTO has legal personality, and Members are required to accord to the WTO such legal
capacity, privileges and immunities as may be necessary for it to carry out its functions.22
The preamble of the Marrakesh Agreement Establishing the World Trade Organization23
summarizes its intention to [] develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the results of past
liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade
Negotiations.
The WTO is integrated in that it provides for the so called single undertaking
approach, meaning that all rules are to be uniformly applied to all of the WTO agreements.
On the basis of this approach, all members are required to accept all agreements. Members
may not make any reservations in respect of their membership of the WTO. By Art. XVI (4)
of the Marrakesh Agreement, members commit themselves to alter their laws, regulations and
administrative procedures to conform with the supra - state trade regime. Alleged violations
of WTO rules are considered by a panel of experts whose decisions are binding unless every
WTO member votes to overturn the advice. The WTO as an international organization is a
consensus based institution driven by the members themselves.24

20 August Reinisch/Christina Irgel, The participation of non governmental

organizations (NGOs) in the WTO dispute settlement system, Kluwer Law International
(2001), p.127.
21 Jeffrey S. Thomas/Michael A. Meyer, The New Rules of Global Trade A Guide to
the World Trade Organization, Carswell (1997).
22 Art. VIII of Marrakesh Agreement.
23 Ernst Ulrich Petersmann, The Dispute Settlement System of the WTO and the
Evolution of the GATT Dispute Settlement System since 1948, Common Market Law
Review, Kluwer Academic Publishers (1994), p. 1160.
9

ARGUMENTS

IN

FAVOUR

OF

NGO PARTICIPATION

IN

WTO

Following are the four most important arguments in favour of the NGO participation in
WTO25:
1. NGOs enhances WTO decision making process:
NGOs provide information, arguments and perspectives that governments do not bring
forward. Many NGOs have a wealth of specialized knowledge, resources and analytical
capacity. NGOs can and should function as 'intellectual competitors' to governments in the
quest for optimal policies.26 In fact, governments often lack the resources and very specific
expertise necessary to investigate certain issues. NGOs are frequently able to assist, enhance
the resources and expertise available and enrich the policy debate.
2. NGO participation increases the legitimacy of the WTO:
Earlier the WTO was a secretive organization in which the governments (of a few major
trading nations), unsupervised by parliaments or civil society, set the agenda and push
through rules that affected the welfare of people worldwide. WTO decision-making has been
described as undemocratic and lacking in transparency. For decision-making to be
democratic, NGOs have involved either directly, or through representation, those who will be
affected by the decisions taken.
The legitimacy of the WTO and public confidence in the WTO has increase when NGOs had
the opportunity to be heard and to observe the decision-making process. NGOs have
contributed to ensure that decisions result from an open exchange of rational arguments
rather than from shady bargaining.
24 Supra at 16.
25 Peter Van Den Bossche, Non-Governmental Organisations and The WTO: Limits to
Involvement?, Maastricht Working Papers, Faculty of Law, 2009.
26 Daniel Esty, Non-Governmental Organizations at the World Trade Organization:
Cooperation, Competition, or Exclusion, 1 J. INTL ECON. L. 123, 13637 (1998).
10

3. NGOs increase the discussion on International Issues:

Transnational interests and concerns may not be adequately represented by any national
government. By allowing NGO involvement in WTO discussions, the WTO hears about
important issues which are international in nature.
4. Alternate forum for NGOs to be heard:
Civil society participation in the debate at the national level is only an option in those WTO
Members with open and democratic processes at the national level. This is not the case for all
WTO Members. Hearing NGOs at the WTO thus compensate for the fact that NGOs are not
always heard at the national level in every country.

ARGUMENTS

AGAINST

NGO

PARTICIPATION IN

WTO

Following are the arguments against NGO participation in WTO:

1. NGO involvement increases special interests in decision making process27:
Trade liberalization produces diffuse and hard-to-quantify benefits for the general public,
while producing visible harm to specific and well-organized interests. The NGOs seeking
access to the WTO are often entities representing special interests, not the interests of the
general public. Thus, special interests may gain undue influence.28
2. NGOs does not have legitimacy:
They are neither accountable to an electorate nor representative in a general way. NGOs
typically advocate relatively narrow interests. Unlike governments, they do not balance all of
society's interests. It is legitimate to ask questions regarding the actual constituency of an
NGO and its financial backing.29
3. NGOs might act anti-democratic:
27 Jeffrey L Dunoff, 'The Misguided Debate over NGO Participation at the WTO', 1
Journal of International Economic Law 437 (1998).
28 Supra at 16.
11

NGOs lobby and compete in the politics of individual WTO Member states; it`s the failure to
achieve their goals in the national arena that impels them to again lobby at the WTO itself.
Giving NGOs the opportunity to do so would be giving them two bites of the apple which
might actually undermine democracy. The idea is that it is anti - democratic if countries do
not speak with one voice.30
4. Objection of developing member countries:
Most developing-country Members object to greater involvement of NGOs in the WTO
because they view most NGOs, and in particular NGOs focusing on environmental or labour
issues, as inimical to their interests at their current level of economic development.
Moreover, NGOs of industrialized Members tend to be well-organized and well-financed. It
is feared that allowing NGOs a bigger role may therefore further marginalize developingcountry Members within the WTO decision-making process. In other words, it may tilt the
negotiating balance further to the disadvantage of developing countries31.

NGOS

AT

WTO

The first WTO Ministerial Conference, in December 1996 in Singapore, followed the
publication of WTO guidelines for arrangements on relations with NGOs; but these
guidelines contained no instructions on participation at ministerial meetings.32 Again, it was
pressure coming from European and North American member states that prodded the General
Council to mandate the Secretariat to coordinate civil society representation in Singapore.
29 Ibid.
30 The Participation of NGOs in the WTO Dispute Settlement System. Brandstetter,
Patricia. Seminar aus Voelkerrecht (International Economic Law) ao. Univ. Prof. MMag.
Dr. August Reinisch, 2003.
31 Supra at 16.
32 Michael Mason, The World Trade Regime and Non-Governmental Organisations:
Addressing Transnational Environmental Concerns.
12

Lacking the legal template available to United Nations bodies for accrediting NGOs to
participate in relevant conferences33, the Secretariat invited NGO registration on the basis of
Article V.2 of the Marrakesh Agreement that they were non-profit organisations concerned
with matters related to those of the WTO.
Art. V (2) of the Marrakesh Agreement provides that [t]he General Council may make
appropriate arrangements for consultation and cooperation with non-governmental
organizations concerned with matters related to those of the WTO. In accordance with this
mandate, the Secretariat was given the task by the General Council in the 1996 Guidelines
For Arrangements on Relations With Non Governmental Organizations34 of playing a
more active role in its direct contacts with NGOs who, as a valuable resource, can contribute
to the accuracy and richness of the public debate [].35
Still, in practice, it is hard for NGOs to counter the prevailing opinion among WTO Members
that the WTO was founded by states and for states only; the Guidelines even expressly
refer to this view36, underlining the intergovernmental character of the WTO legal system.
Chances for consultation and cooperation with NGOs could arise in all three branches of
the WTO: the legislative, the executive, and the judicial branch. Some of the most persistent
efforts to reform the WTO have come from environmental NGOs, who maintain that a liberal
trade regime tends to worsen ecological degradation. Thus, they have sought to institute
restrictions on trade where it causes ecological damage.37 Not only have NGOs tried to
influence WTO policies, but they have also sought to change the operating procedures of the

33 Ibid.
34 Supra at 30.
35 Par. IV of the Guidelines For Arrangements on Relations with NGOs, WT/L/162 (23
July 1996).
36 Par. VI of the Guidelines For Arrangements on Relations with NGOs.
37 Supra at 30.
13

WTO, advocating a democratization of the organization by giving citizens increased access

to and influence in its proceedings and decisions.38
The full power and potential of NGOs were demonstrated in 2001, when they succeeded in
blocking the WTO Ministerial Conference in Seattle. It was unthinkable that an international
conference to be conducted by sovereign states could be aborted just because NGOs did not
agree with its theme.39 Modern means of communication and transportation, however,
brought the costs of organizing such a blockade and of transporting the members of the
NGOs to affordable levels. Thereafter, the presence and influence of NGOs have been felt in
all major international conferences , including the Cancun WTO Ministerial Conference in
2003, the Hongkong WTO Ministerial conference in 2005 and the Copenhagen Climate
Change Conference in 2009, just a few to name.40
NGOs have now acquired observer status in the WTO. With that, they have made the
multilateral trade system accountable not only to WTO members but also to the international
community at large. As a result, many norms and principles of the WTO are different from
those of its predecessor, the GATT. The presence of NGOs in Ministerial Meetings is almost
a must. It would be big news if a meeting were to be held without their presence and, in fact,
the importance of such a meeting might be significantly reduced as a result of their absence.41
NGOs do not confine their activities to large-scale conferences. They now play a growing
role in all kinds of affairs of the international community. For instance, they exoress their
38 Ibid.
39 Guiguo Wang, Radiating Impact of WTO on Its Members Legal System: The
Chinese Perspective, available at https://books.google.co.in/books?
id=ER9NsrC2arsC&pg=PA312&lpg=PA312&dq=seattle+conference+2009+ngos&sourc
e=bl&ots=vJFofkb9Qj&sig=nLqD6PKgOeuCxNHt45RJ1sjzLw&hl=en&sa=X&ei=PXoBVYWhI5GWuATWyIKYBg&
ved=0CFIQ6AEwCA#v=onepage&q=seattle%20conference%202009%20ngos&f=false.
40 Ibid.
41 Ibid.
14

vies on almost every specific issues in dispute.42 A case in point is WTO dispute settlement
and negotiations. In the US-Shrimp case43, for instance, three NGOs the Centre for Marine
Conseravttion, the Centre for International Environmental Law and the World Wide Fund for
Nature at their own initiative provided the panel with their opinions. The WTO Appellate
Body held that such opinions might be received, considered and taken into account by the
panel in its deliberations in the case. NGOs also frequently supply position papers to
negotiating parties at the WTO and other international fora.44
Once a presence or opinion is made, its impact will be felt sooner or later. It is now a
common practice for NGOs to express their views on a case in a dispute within the WTO or
on other matters. It should be pointed out that NGOs differ in nature and therefore have
varied focus and interests.45

LEGAL BASIS

OF

NGO INVOLVEMENT

IN

WTO

The Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement)
explicitly empowers the WTO to engage with NGOs. Article V:2 of the WTO Agreement
provides: The General Council may make appropriate arrangements for consultations and
cooperation with non-governmental organizations concerned with matters related to those of
the WTO.46
Such explicit authority to engage with NGOs can also be found in the UN Charter. Article 71
of the UN Charter states: The Economic and Social Council may make suitable

42 Ibid.
43 United States Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R, adopted 6 November 1998.
44 Supra at 39.
45 Ibid.
46 Supra at 3.
15

arrangements for consultation with non-governmental organizations which are concerned

with matters within its competence.47
The constituent instruments of other international organizations, such as WIPO, the United
Nations Conference on Trade and Development (UNCTAD) and the International Labour
Organization (ILO) explicitly provide for engagement with NGOs. However, the
constituent instruments of two international organizations with which the WTO has
particularly close links and a shared responsibility for coherence in global economic policymaking,48 namely the IMF and the International Bank for Reconstruction and Development
(World Bank), do not provide an explicit legal basis for NGO involvement.49
Pursuant to the mandate given to it in Article V:2 of the WTO Agreement, the General
Council of the WTO adopted in 1996 the Guidelines for Arrangements on Relations with
Non-Governmental Organizations (the 1996 Guidelines).50 In this one-page document,
Members recognized that NGOs can play a role to increase the awareness of the public in
respect of WTO activities and that NGOs are a valuable resource that can contribute to the
accuracy and richness of the public debate.51 In the 1996 Guidelines, it was agreed that
interaction with NGOs should be developed through the organization of symposia for NGOs
on specific WTO-related issues; informal arrangements to circulate among interested
Members position papers and information NGOs may wish to make available; the
continuation of the practice of the WTO Secretariat of responding to requests for general
47 Ibid.
48 See Article III:5 of the Agreement Establishing the World Trade Organization (WTO
Agreement).
49 Ibid.
50 Decision by the General Council, Guidelines for Arrangements on Relations with
Non-Governmental Organizations, WT/L/162, dated 23 July 1996.
51 Ibid, paras. II and IV.
16

information and briefings about the WTO; and participation of chairpersons of WTO councils
and committees, in their personal capacity, in discussions and meetings with NGOs.52
The 1996 Guidelines also made the limits of NGO involvement clear. In the concluding
paragraph, the General Council referred to the special character of the WTO, which is both
an intergovernmental organization based on a binding treaty of rights and obligations among
its Members and a forum for negotiations.53
While Article V:2 of the WTO Agreement allows the General Council to provide for fullfledged involvement of NGOs in WTO activities, the General Council opted in 1996 to direct
the main responsibility for engaging with civil society to the national level.54 Furthermore,
the General Council instructed only the WTO Secretariat to engage with NGOs and
effectively barred NGOs from participation in the activities of WTO bodies. While the legal
basis in the WTO Agreement is broad enough to allow for this, NGOs do not have
consultative status in any WTO bodies.55

PRESENT STATE

OF

NGOS

IN

WTO

An account of how non-state actors, including NGOs, are participating within the WTO
System of Trade Governance involves two narratives. The first is an account of the
acknowledged formalized and institutionalized processes of the WTOs engagement with

52 Ibid, paras. IV and V.

53 Supra at 3.
54 Ibid.
55 Ibid.
17

non-state actors.56 The second discusses the less visible role of non-state actors in trade
negotiations, especially in the Doha Round.57
In 1996, the General Council issued Guidelines for Arrangements on Relations with NonGovernmental Organizations (the Guidelines).58 In the same year, the General Council
decided to permit NGOs to attend the Singapore Ministerial Conference, and this practice has
been followed for subsequent Ministerials.59 The WTO also adopted a decision on
transparency and prescribed procedures for circulation and derestriction of WTO documents
in 1996.60 In 1998, the General Council granted the Secretariat approval to provide
information and reports to NGOs and to organize NGO briefings on issues of NGO interest.
Director-General Renato Ruggiero announced additional initiatives in 1998.61 In 1999, the
General Council asked the Secretariat to suggest ways to promote the institutional image of
the WTO.62 After the Seattle Ministerial Conference, Director-General Mike Moore
strengthened the External Relations Division of the WTO. It is the staff of this Division that
56 Daniel Esty, Non-Governmental Organizations at the World Trade Organization:
Cooperation, Competition, or Exclusion, 1 J. INTL ECON. L. 123, 13637 (1998).
57 Supra at 12.
58 General Council Decision, Guidelines for Arrangements on Relations with NonGovernmental Organizations, WT/L/162 (July 23, 1996).
59 Supra at 12.
60 General Council, Procedures for the Circulation and Derestriction of WTO
Documents, WT/L/160/Rev.1 (July 26, 1996).
61 Available at http://www.wto.org/english/news_e/pres98_e/pr107_e.htm.
62 Seema Sapra, The WTO system of trade governance: The State NGO debate and the
appropriate role for non-state actors, available at
https://law.uoregon.edu/org/oril/docs/11-1/Sapra.pdf, last visited on 7th Mar, 2015.
18

interacts with NGOs on a daily basis.63 The WTOs document de-restriction procedures were
revised in 2002.64 Time taken to de-restrict documents was reduced and WTO documents
were automatically deemed to be public with specified exceptions. Charnovitz writes that the
WTO began to implement its constitutional provisions on WTO-NGO relations in the first
three years of its existence. Interactions between WTO secretariat staff and NGOs deepened
in 1998 and opened a new chapter in the relationship between the WTO and NGOs.65
The WTO website provides the principal means for transparency and enhanced participation
between the WTO system and non-state actors. It includes a section reserved for NGOs,
featuring chatrooms, NGO position papers, and NGO bulletins. The WTO website has
become a valuable resource for information.66
Pursuant to the 1996 Guidelines, the External Relations Division of the WTO engages in
formal interaction with non-state actors, including NGOs, business groups, parliamentarians,
and research groups. Institutionalized NGO activities in the WTO include attendance at the
bi-annual ministerial meetings (though this is restricted to the plenary sessions); participation
in public symposiums and public forums organized by the Secretariat; access to the WTO
Contact Point for trade related information; opportunities for interaction with Secretariat staff
through informal, ad hoc meetings leading to exchange of information;67 involvement in
dispute settlement proceedings through the amicus curiae briefs; and access to some recent
dispute settlement hearings that have been opened to the public. NGOs regularly participate
in meetings called by chairs or coordinators of various WTO councils and committees.
63 Ibid.
64 Rimantas Daujotas, Defining the Extent of NGOs Participation in the WTO.
65 Supra at 12.
66 Ibid.
67 Peter Van den Bossche, NGO Involvement in the WTO: A Lawyers Perspective on a
Glass Half-full or Half-empty 10 (Maastricht Fac. L., Working Papers, 2006), available
at http://www.unimaas.nl/bestand.asp?id=6981.
19

There have been three instances so far where the WTO has established cooperative
mechanisms with NGOs by establishing fixed term advisory bodies.68 These have included an
Informal Council created by Director General Mike Moore in 2001, an NGO Advisory Body
and a Business Advisory Body set up by Director- General Dr. Supachai Panitchpakdi in
2003, and the Consultative Board on the Future of the WTO also set up by Dr. Supachai
Panitchpakdi in 2003. The 2001 Informal Council included academic institutions and NGOs
like Transparency International, International Institute for Sustainable Development (IISD),
and the International Federation of Free Trade Unions. There was an official WTO report on
the creation and composition of this body. The NGO Advisory Body of 2003 was comprised
of ten high-level NGO representatives selected at the discretion of the Director-General on
the basis of the NGOs influence and representativeness. The Advisory Bodys mandate was
to advise the Director General on WTO issues and communicate the concerns of civil society.
The Consultative Board on the Future of the WTO issued its report in 2005 (Sutherland
Report).69
The narrative of institutionalized engagement has ended in calls for more participation by
NGOs at WTO meetings as observers or consultants. It has been suggested that NGOs should
be allowed to speak and submit proposals in these meetings. The literature has compared
rules for NGO engagement across various other intergovernmental organizations like the
U.N. ECOSOC Committee, the ILO, the IMF, and the World Bank. It has been suggested that
the WTO can learn from how these other organizations have accommodated NGOs.70 The
WTOs exclusion of NGOs from its formal processes of decision-making and deliberation
has been described as unjustifiable WTO exceptionalism.71

68 Supra at 55.
69 Ibid.
70 Ibid.
71 Ibid.
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CONCLUSION
The way that NGOs have been able to bring about changes in the practices of the WTO is
impressive: The DSU has no provision for the submission of amicus briefs, but NGOs went
ahead and submitted briefs anyway.72
Now that NGOs are already actively involved in trade negotiations, the more important
question might no longer be whether NGOs should participate, but what influence do NGOs
have and how is it being exercised. We need to move away from making normative claims
for greater NGO participation and start investigating NGO strategies and analyzing their
impact. However, a discussion of the appropriate role for NGOs must be based upon sound
empirical research that examines how NGOs participate in the WTO.73
It is necessary to establish uniform rules or to apply a uniform practice for the acceptance and
consideration of amicus curiae briefs in WTO dispute settlement procedures. The case law of
the AB shows that the legal framework, as interpreted by the AB, exists. Therefore, as
mentioned above, the provisions of the DSU do not necessarily have to be changed; it is just
a matter of applying the legal framework in a consistent way so that NGOs will be able to
assess what their procedural rights are in the WTO dispute settlement system, and so that
WTO Members no longer face unpredictability on the part of panels and the AB.74
Still, although the adjudicating bodies will increasingly try to fill the void and develop
procedures and criteria, it must not be forgotten that Members have the primary
responsibility for adopting rules regarding amicus briefs. What is especially crucial in this
context is to see to it that the overall effectiveness of the dispute settlement proceedings is
not compromised; given the vast number of NGOs, ways to avoid delays in the system must
be found.75

72 The Participation of NGOs in the WTO Dispute Settlement System. Brandstetter,

Patricia. Seminar aus Voelkerrecht (International Economic Law) ao. Univ. Prof. MMag.
Dr. August Reinisch, 2003.
73 WTO Public Forum 2008, http://www.wto.org/ english/forums_e/public_forum08_e/hot_topics_e.htm.
74 Supra at 72.
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Another issue to be recognized is that opening the doors to NGOs in WTO will also mean to
open the door for extensive lobbying.
So far, the WTO has not yet taken its contacts with NGOs very far beyond public relations
exercises. NGOs, in turn, often did not provide the WTO with sufficient precisely formulated
and carefully researched inputs.
In my opinion, opening the doors of WTO for NGOs has come out with the positive effects in
contrary to the fear expressed by the developing countries. It will increase the effectiveness
of the global trade regime and result in the fairness of the WTO judgments.

75 Ibid.
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