4 April 2026
The e-commerce plurilateral reveals the backdoor strategy to adopt JSIs
by Professor Emeritus Jane Kelsey, University of Auckland, New Zealand. J.Kelsey@auckland.ac.nz
Arguably, the most significant outcome from the World Trade Organization’s “reform” ministerial conference (MC14) in Yaoundé, Cameroon in March 2026 was the adoption by a sub-group of 66 Members of a plurilateral agreement on electronic commerce. Article X.9 of the Marrakesh Agreement specifies that adopting a plurilateral agreement in the WTO, which becomes part of Annex IV, is explicitly by consensus. That reflects its exceptional status in the multilateral trade regime. However, this agreement was never subject to discussion, let alone a consensus decision, by the Members at the MC14. Despite that, its participants have branded it a WTO agreement – apparently with support from the WTO Director-General.
The agreement’s significance goes far beyond its content. It is being treated as a precedent for other plurilateral agreements among sub-sets of members to become de facto WTO instruments, without complying with a mandate or meeting requirements for adoption by consensus under the Marrakesh Agreement. This short note provides a preliminary analysis of its legal and systemic implications.
Key concerns about the JSI e-commerce as a precedent
1. Unmandated plurilateral negotiations, and the adoption of the resulting agreement as a WTO instrument, using a “pragmatic” approach that is not provided in the rules would create a precedent for more general non-compliance with WTO rules.
2. If plurilaterals can be adopted as de facto agreements in this way, Members will have no incentive to comply with the explicit Article X.9 requirements for consensus.
3. An open-ended plurilateral that provides for future negotiations based on the will of a sub-group of Members can override inbuilt negotiating mandates on the subject matter by making them irrelevant.
4. If the Director-General and Secretariat facilitate, and then service, these agreements they will exceed the constitutional limits on their power and have no effective constraints on what they do.
5. If the WTO’s instruments and the scope of its agreements can be expanded by collective action outside the rules, the institution itself will have no boundaries.
6. All of this works in favour of the power-brokers in the WTO whose economic and strategic influence will enable them to dictate the future direction, subjects and activities of the WTO at the expense of developing countries and LDCs.
The context of JSIs
This strategy is the latest step in a decade of moves to shift the WTO from a multilateral to a plurilateral institution. The negotiation of a Trade in Services Agreement (TiSA) on the margins of the WTO between 2013 and 2016 was designed to bypass multilaterally-mandated negotiations under the General Agreement on Tariffs and Trade (GATS) and develop a plurilateral agreement that would be adopted in the WTO. The negotiation was actively facilitated by the WTO Secretariat. TISA was never concluded, so the question of how to incorporate it into the WTO was never resolved.
In 2017, at the MC11 in Buenos Aires, several sub-groups of WTO Members, led by its wealthier and more powerful countries, launched joint ministerial statements on sectoral topics. These became known as Joint Statement Initiatives (JSIs). Lead proponents were almost identical to those who declared the Doha “Development” Round of multilateral negotiations dead at the previous ministerial.
These joint statements led to formal negotiations of three agreements without a WTO negotiating mandate under Article III.2 of the Marrakesh Agreement, and by-passed existing institutional decisions, mandates and bodies on those matters. Again, this had the active support of the Secretariat. Despite the lack of formal status and multilateral participation, they were treated as negotiations within the WTO. However, this posed a dilemma for their adoption in the WTO, as plurilateral agreements would require consensus under Article X.9 of the Marrakesh Agreement.
(i) The JSI on Services Domestic Regulation (SDR) was the first to be concluded. Although the agreement added to the core rules of the GATS, its architects took a back-door route for its adoption to avoid formally amending the GATS (which also requires consensus), by adding it to Members’ GATS schedules. However, most JSI SDR participants also signed a side-letter saying it would not create a precedent and that pathway is narrow as the content needs to relates exclusively to the GATS.
(ii) The first attempt to secure adoption of a JSI under Article X.9 as an Annex IV plurilateral agreement was the Investment Facilitation Agreement (IFA). India, and initially South Africa, prevented its adoption at the General Council over concerns about the systemic implications of the proliferation of plurilaterals and their overtaking multilateralism. India maintained that position at the MC14. The 129 participating countries issued a Declaration at the end of the MC14 committing to seek timely integration of the IFA within the WTO Framework. However, they would also “explore practical pathways” towards the deal’s “effective implementation”. Informal discussions at the MC14 indicate there was discussion about pursuing the same pathway at the JSI on electronic commerce.
(iii) The JSI negotiation on electronic commerce was concluded in July 2024. At the General Council in February 2025 and December 2025 there was no consensus for the adoption of the agreement as an Annex IV plurilateral. An early draft of the MC14 agenda proposed its adoption as an Annex IV agreement; however, that was dropped from later versions. This JSI has much less support than the IFA, so its chances of adoption at the MC14 were even less. Some months earlier, the proponents began developing an alternative strategy to finesse the adoption of the JSI as a quasi-WTO instrument, irrespective of the legalities. Adoption of the agreement by its signatories, who would then initiate their domestic ratification processes, was announced during the MC14. However, the original 91 participating Members in the JSI had dwindled to 66.
Endorsement of this unlawful process
By the end of the ministerial it was clear that this would be seen as a precedent for the backdoor adoption of the existing and future unmandated plurilateral agreements:
(a) In March, prior to the ministerial, the US Trade Representative foreshadowed the adoption of “interim plurilaterals”, which he described as “voluntary and temporary agreements among a subset of Members to move forward on specific issues without needing full consensus”. There is no such thing as an “interim plurilateral” in the WTO.
(b) At the launch of the agreement on the third day of the ministerial, Japan’s trade minister said it “serves as a successful milestone of the WTO’s rule-making function in plurilateral format.”
(c) Canada’s minister went further, misleadingly describing it as “a path forward for a plurilateral initiative conceived and negotiated at the WTO”.
(d) At the conclusion of the ministerial, the MC14 Chair described it as a “pragmatic pathway” to bring the agreement into effect while working towards its full incorporation into the WTO legal framework.
(e) At her final press conference the Director-General proposed completing the work on the failed IFA initiative and submitting that and the JSI on e-commerce to the Secretariat for notification while waiting for the process to be agreed upon at the General Council. She is quoted as saying “Let’s see if within the configuration of the WTO we can also have willing coaitions of members who, when there is an opportunity, can seize it in a plurilateral and move ahead without necessarily waiting to go through the process”.
Legal issues with the JSI on e-Commerce
The original JSI e-commerce text was designed to be adopted, implemented and enforced within the WTO. That has not occurred.
The “Declaration on Interim Arrangements for the Agreement on Electronic Commerce” says the participants will continue to seek its adoption as an Annex 4 agreement.
The Declaration contains the whole July 2024 text, sandwiched between a ten paragraph Declaration at the start and a 12-paragraph Annex on Interim Arrangements and a more detailed appendix on appeal arbitration procedures at the end.
The Interim Agreements Annex has no status a WTO document, yet it has been allocated the formal WTO document number WT/MIN(26)/W/26 in the Ministerial Conference series. The allocation of specific document numbers at ministerial conferences dates back to Doha, but there appear to be no rules that restrict when a document can be given such a reference. That potentially opens the door to an unlimited range of Member-initiated communications being tabled at a Ministerial and securing a document number that confers some legitimacy on it as belonging within the WTO.
The Declaration says the participants “affirm their commitment to agree WTO rules on trade-related aspects of electronic commerce, as announced on 25 January 2019 (WT/L/1056).” That cross-references the 2019 Joint Ministerial Statement where 49 Members announced their intention to “commence WTO negotiations on trade-related aspects of e-commerce”, despite there being no mandate from all the Members for such negotiations and hence to describe them as WTO negotiations on “WTO rules”. The document does not indicate which WTO body circulated it on behalf of that group of Members. Such a “bootstraps” argument allows Members to seek to legitimise a final plurilateral agreement by citing their own previous joint statement and its assertions of WTO status.
Administration by the WTO Secretariat
A number of provisions in the original text rely on the Director-General and Secretariat for implementation. These have not been amended in the Interim Arrangements Annex.
The Agreement is still to come into force among its parties – necessarily outside the WTO – on the deposit of 45 instruments of acceptance. Yet that process is to be supported by the Director-General and the Secretariat:
• Article 29 says “Acceptance shall take place by deposit of an instrument of acceptance to this Agreement with the Director-General of the WTO.”
• Article 36 says the Agreement shall be serviced by the WTO Secretariat.
• Article 37 says the Agreement shall be deposited with the Director-General who shall promptly furnish it to all parties to the Agreement, along with notifications of acceptance or withdrawal.
In what legal capacity can the Director-General do this?
The Director-General’s functions include receipt of notification of acceptance of amendments to the Marrakesh Agreement, to an Annex 1 Agreement (Art X.7, Art XIV.3), and to Plurilateral Agreements that are defined in Article II.3 as those adopted in Annex 4:
• Article XIV.4 The acceptance and entry into force of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. Such Agreements shall be deposited with the Director-General to the CONTRACTING PARTIES to GATT 1947. Upon the entry into force of this Agreement, such Agreements shall be deposited with the Director-General of the WTO.
• Article X.7: Any Member accepting an amendment to this Agreement or to a Multilateral Trade Agreement in Annex 1 shall deposit an instrument of acceptance with the Director-General of the WTO within the period of acceptance specified by the Ministerial Conference.
• Article XIV.3: This Agreement and the Multilateral Trade Agreements, and any amendments thereto, shall, upon the entry into force of this Agreement, be deposited with the Director-General of the WTO.
None of those apply here.
Further, Section A, para 3 of the Appendix on Arbitration Appeals has the WTO Director-General notifying the parties to the dispute and third parties about the results of selection of arbitrators in a dispute.
Moreover, Article IV of the Marrakesh Agreement requires the Director-General to discharge her duties independently. “The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character. In the discharge of their duties, the Director-General and the staff of the Secretariat shall not seek or accept instructions from any government or any other authority external to the WTO. They shall refrain from any action which might adversely reflect on their position as international officials.
Equally: “The Members of the WTO shall respect the international character of the responsibilities of the Director-General and of the staff of the Secretariat and shall not seek to influence them in the discharge of their duties.”
In this case, it appears that the Secretariat, led by the Director-General, and the sub-set of Members participating in this JSI, have collaborated to advance a position favoured by those Members, thereby breaching their respective obligations under the Marrakesh Agreement.
In addition, there has been no specific budget allocation to support the unmandated JSIs or the Direct-General’s role.
Unclear Status of Dispute Settlement
The original JSO text said in Article 27 said the dispute settlement provisions of the GATT and GATS and the Dispute Settlement Understanding (DSU) applied to disputes under the Agreement, with development flexibilities set out in Article 20.
The Annex to the Interim Agreement disapplies Article 27 until the agreement is added to the WTO agreements.
Instead, the Articles XXII and XXIII of the GATT and GATS, as elaborated by the DSU, are incorporated into the agreement, mutatis mutandi. The incorporation of the DSU into this agreement replaces the Dispute Settlement Body (DSB) with the Committee of the Parties. But it does not address the enforcement issues whereby the DSB can authorise suspension of obligations or commitments that are beyond the scope of the provision breached.
The Appendix on arbitration appeals applies Article 22 of the DSU on Compensation and Suspension of Concessions mutatis mutandis – but the DSU allows a party to request permission to authorise the suspension of concessions across the same and other covered WTO Agreements. The latter requires consultation with the relevant WTO Councils and sectoral bodies with responsibility for those agreements. Leaving that unamended would require those bodies to engage with a dispute process for a non-WTO agreement.
The Appendix to the Annex provides for a substitute arbitration appeal mechanism that seeks to replicate the DSU, but uses the WTO’s pool of standing arbitrators. The arbitration would be governed by the DSU and the WTO rules and procedures applicable to WTO Appellate Review.
However , in several places (para 11, 13, 14, 15) the appendix uses the words “Pursuant to Article … of the DSU …”, as if this was being undertaken as a matter that is subject to the DSU.
And the transparency provision in Article 18 is “further to” the relevant GATT and GATS provisions relating to dispute settlement.
As noted above, Section A, para 3 of the Appendix of this non-WTO agreement also has the WTO Director-General notifying the parties to the dispute and third parties about the results of selection of arbitrators.
Moratorium on Customs Duties on Electronic Transmissions
This note focuses on the operational provisions of the JSI. However, there are substantive obligations on participants that have significant consequences if they are misrepresented as WTO rules. Article 11 on Customs Duties on Electronic Transmissions is defined to include content, a matter that has been accepted by some states in non-WTO Agreements, but has not been determined by the Members on the WTO. If this purports to be a WTO agreement or WTO rules, and seeks to import that expanded definition into the organization, it will significantly shift the ground in the pending negotiations on this issue.
Notably, the provision in Article 11.5 to review the ban on customs duties on e-transmissions after 5 years, and periodically thereafter, with a view to assessing whether amendments are appropriate was largely mirrored in the proposal of proponents of a permanent ban buring the MC14.
Three days after the end of the MC14 a group of 23 Members issued a new Joint Statement that they would maintain the current practice of not imposing tariffs on e-transmissions, including content. This was an open-ended “temporary plurilateral measure” that only applies until the next General Council meeting in May 2026. Its function therefore seems symbolic, but may be intended to message members that they will enter a future plurilateral on the moratorium on their terms.
Interestingly, this did not include all the signatories to the JSI on e-commerce, which also makes the moratorium permanent, and did include several Members that are not party to the JSI (Ecuador, Guatemala, Mexico, Panama, Paraguay, Taiwan, US, Uruguay).