The role of Chairman's statements in the WTO

Journal of World Trade

Volumn 41, Issue 3, 2007, Pages 475-534

  Grosse Ruse Khan, Henning M ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; GATT; WORLD TRADE ORGANIZATION;

EID: 34548736491     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2007019     Document Type: Article

References (196)

1. J.P. Kuijper, "Some Institutional Issues Presenty Before the WTO", in D. Kennedy and J. Southwick (eds.) The Political Economy of International Trade Law: Essays of Robert E. Hudex (Cambridge: Cambridge University Press, 20002), p. 106.
2. World Trade Organization, Rules of Procedure for Sessions of the Ministerial Conference and for Meetings of the General Council (WT/L/ 161, 25 July 1996), Rule 12.
3. Several other rules deal with the chairman's role in upholding order in the meetings (Rules 17 s.2, and 18), determining the succession of speakers and their time available (Rules 21, 22 and 24) and deciding on voting procedures (Rule 34); these rules relate to the Meetings of the General Council - the relevant rules for Ministerial Conferences are 2, 3 and 4, 12-15, 17, 18, 21, 22 and 33.
4. Rules 2-4 of the Rules of Procedure for Sessions of the Ministerial Conference.
5. General Council, Guidelines for appointment of Officers to WTO Bodies (WT/L/510, 21 January 2003), adopted on 11 December 2002, para. 2.2.
6. J. Odell, "Chairing a WTO Negotiation", in E.-U. Petersmann and J. Harrison (eds), Reforming the World Trading System (2005), p. 473.
7. Id.
8. For a comprehensive analysis of these different tactics employed by chairpersons in the WTO, see Odell, as note 6 above, at pp. 469-493;
9. further, R. Wolfe, Decision-making and Transparency in the "Medieval" WTO: Does the Sutherland Report Have the Right Prescription?, 8 J.I.E.L. 3 (2005), pp. 637-638.
10. See GATT Council, Minutes of Meeting of 7-8 December 1981 (C/M/154), 28 January 1982, pp. 6-7. The GATT Council adopted this understanding together with four controversial panel reports on US and European taxation measures. Effectively, the 1981 understanding was meant to reverse the Panel rulings on the illegality of both the EU and the US taxation measures on export income.
11. See R. Hudec "Industrial Subsidies: Tax Treatment of Foreign Sales Corporations", in E.-U. Petersmarm and M. Pollack (eds), Transatlantic Economic Disputes - The EU, the US and the WTO (Oxford: Oxford University Press, Oxford, 2003), p. 179.
12. For the final version see GATT Council, as note 9 above, at p. 7; a draft version can be found in General Agreement on Tariffs and Trade Council, Item 4 ofthe Agenda (C/W/376/Rev.1), 8 December 1981; in the draft, the second paragraph contains the 1981 understanding, the third contains the draft chair statement.
13. GATT Council, as note 9 above, at p. 7.
14. Ibid., at pp. 7-9; while the parties to the tax disputes declared their individual understandings, most other GATT contracting parties reserved their rights under GATT and pointed to the respective language in the chair statement.
15. General Council, Minutes of Meeting of 15 November 1995 (WT/GC/M/8), 13 December 1995, p. 6.
16. "Except as provided otherwise, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting under the relevant provisions of Articles IX and XII" (emphasis added to indicate where the wording of the statement departs from the wording of Article IX:1).
17. General Council, as note 13 above, at p. 6; finally, it points out the consequences of an absence of a Member at the meeting when the decision is taken (compare fn.1 to the WTO Agreement) and thus reminds Members of the need to be present at meetings where such decisions are taken.
18. General Council, as note 13 above, at p. 6.
19. India referred to footnote 4 to Article IX:3, which calls for consensus (instead of three-fourths majority) in cases in which a waiver extends a transition period.
20. General Council, as note 13 above, at p. 6; finally the intervention aimed to secure the possibility of smaller Geneva delegations to actually participate in decisions on waivers and accession by sufficient prior notice, etc.
21. See General Council, as note 13 above, at p. 6. In a letter of 17 November 1995, the representative of India indicated that his government was willing to join the consensus on the understanding that the decision was based on the elements outlined in his delegation's statement at the meeting and that this statement would form part of the record. The chair's statement, however, was published on 24 November in its original form and without any reference to the further understandings of the Indian delegation as document W/L/93.
22. Under Article XXIII:1(b) and (c) GATT 1994, a WTO Member may initiate dispute settlement proceedings if it feels that another Member's measure nullifies or impairs benefits accruing to it under the GATT - regardless whether the measure violates GATT provisions. While the general idea of this type of complaint is to safeguard legitimate market access expectations against (non-tarift) measures, its application in the TRIPs context has always been controversial.
23. The TRIPs Council, which is charged in Article 64(3) to submit recommendations on scope and applications of non-violation complaints to the Ministerial Conference, did not have an initial exchange of views on it until its meeting in December 1998 and still continues to discuss the matter; see Council for TRIPs, Minutes of Meeting of 14-15 June 2006 (IP/ C/M/51), 20 September 2006, at parns 136-138.
24. General Council, Minutes of Meeting of 17 December 1999 (WT/GC/M/52), 3 January 2000, pp. 4-5: intervention of the representative of Pakistan, further backed by the Dominican Republic, Ecuador, Cuba and Uganda.
25. Ibid., at p. 6: intervention of the representative of Pakistan,
26. Ibid., at pp. 5-6: intervention of the representative of the EC, backed by the United States and Switzerland.
27. General Council, as note 22 above, at pp. 9-10: statement of the chair.
28. General Council, Minutes of Meeting of 17 December 1999 (WT/GC/M/52/ Corr.1), 21 January 2000. This Corrigendum explicitly modifies the language of the original Minutes (WT/GC/M/52), which stated that the General Council "so ageed by replacing these words with the words "agreed to postpone consideration of Item 3".
29. General Council, Minutes of Meeting of 7-8 February 2000 (WT/GC/M/53), 15 March 2000, at paras 88, 89.
30. See para.11.1 of the Decision on Implementation-Kelated Issues and Concerns (WT/MIN(01)/17), 20 November 2001, taken by the Ministerial Conference; point 1.h. of the Decision on Doha Work Programme (WT/L/ 579), 2 August 2004), taken by the General Council; and para. 45 of the Ministerial Declaration on the Doha Work Programme (WT/MIN(05)/DEC), 22 December 2005.
31. For an overview, see P. Pedersen, The WTO Decision-Making Process and Internal Transparency, 5 World Trade Review 1 (2006), p. 108.
32. Odell, as note 6 above, at p. 479. This is further underlined by the chairman's remarks when introducing his (revised) text to the General Council. See WT/GC/M/57, 14 September 2000, at para. 133.
33. General Council, Minutes of Meeting of 17 and 19 July 2000 (WT/GC/M/57), 14 September 2000, para. 134; this chair's statement is often also referred to as "progress report".
34. General Council, as note 31 above, paras 147-165: interventions of various representatives.
35. Pedersen, as note 29 above, at p. 112;
36. Odell, as note 6 above, at p. 479.
37. Trade Negotiations Committee, Minutes of Meeting of 28 January and 1 February 2002 (TN/C/M/1), 14 February 2002, paras 6-8.
38. Compare also Pedersen, as note 29 above, at p. 115.
39. General Council, Minutes of Meeting 3 and 8 May 2000 (WT/GC/M/55), 16 June 2000, Annex I: later circulated under document number JOB(01)/139.
40. Ibid., at para. 134.
41. Ibid., at paras 138, 143, 144 and 152: representatives of Malaysia, Bolivia, Honduras and Egypt.
42. Ibid., at paras 142, 148 and 163: representatives of Costa Rica, Hong Kong and the United States.
43. Ibid., at paras 166 and 172 (emphasis added): interventions of the representatives of Pakistan and Brazil.
44. Ibid., at para. 175: intervention of the representative of Costa Rica.
45. Ibid., at para. 169 (emphasis added): the former version was slightly less affirmative by stating that this decision was without prejudice to Members' positions (emphasis added).
46. Ibid., at para. 179.
47. Ministerial Conference, Ministerial Declaration of 14 November 2001 (WT/ MIN(01)/DEC/1), 20 November 2001, paras 20, 23, 26 and 27. The term. "explicit consensus" originates from paras 20 and 21 of the Singapore Ministerial Declaration of 13 December 1996 (XW/MIN(96)/DEC), 18 December 1996, which had mandated the establishment of working groups on these issues.
48. The "Singapore Issues" deal with (1) the relationship between trade and investment; (2) the interaction between trade and competition policy; (3) transparency in government procurement and (4) simplifying customs procedures (trade facilitation).
49. See Ministerial Conference, Summary records of the Ninth Meeting of Ministerial Conference on 14 November 2001 (WT/MIN(01)/SR/9), 10 January 2002, Subject 1, p. 3: statement of the Indian representative.
50. Ibid., Subject 1, pp. 2-3.
51. This understanding has been proven correct. On 1 August 2004, the General Council finally dropped three of the Singapore Issues (i.e., investment, competition, transparency in government) while agreeing "by explicit consensus" to commence negotiations on trade facilitation.
52. See General Council, Decision of 30 August 2003 (WT/L/540 and Corr.1), 1 September 2003; and General Council, Decision of 6 December 2005 (WT/L/ 641), 8 December 2005.
53. This problem stems from the requirement of Article 31(f) TRIPs, which prevents the granting of a compulsory licence to export a predominant part of the production of a patented drug to another country and was formally recognized in paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health of 14 November 2001 (WT/MIN(01)/DEC/2), 20 November 2001.
54. The so-called "Perez Motta Draft" tabled by the then TRIPs Council Chairman, Ambassador Perez Motta, waived Article 31(f) TRIPs to export patented medication to a Member with insufficient manufacturing capacity and included further provisions on eligible exporting and importing Members, the procedure to be followed, remuneration and trade diversion safeguards JOB(02)/217), 16 December 2002.
55. The final version of the statement can be found in General Council, Minutes of Meeting of 25, 26, 30 August (WT/GC/M/82), 13 November 2003, para. 29 and Annex I (Best Practice Guidelines). Both chair statement and guidelines are available at (visited 25 July 2006).
56. Ibid., at para. 30.
57. Ibid., at paras 42-43, 48, 52, 60-61 and 72.
58. See Council for TRIPs, Minutes of Meeting of 16 June 2004 (IP/C/M/44), 19 July 2004, para. 82: statement of the representative of Argentina.
59. Ibid., at para. 123: statement of the representative of the United States.
60. Communication from Rwanda on behalf of the African Group, Legal Arguments to Support the African Group Proposal (IP/C/W/440), 1 March 2005, paras 12-13.
61. Communication from the United States, Comments on Implementation of the 30 August 2003 Agreement (IP/C/W/444), 18 March 2005, paras 10-12.
62. Paragraph 6 of the introductory chapter in the unofficial EC proposal, available at (visited 17 August 2006).
63. Compare, in particular, the discussions in the TRIPs Council Meetings in June 2004 (IP/C/M/44), March 2005 (IP/C/M/47), and October 2005 (IP/C/M/ 49); for a detailed discussion on the issue see section IV.A.3 below.
64. It contained the full substantive text of the 30 August decision divided into a new Article 31 bis TRIPs with mainly operative provisions; an Annex to TRIPs with definitions, procedures and trade diversion safeguards as well as an Appendix to the Annex regarding the assessment of lacking manufacturing capacity. The 29 November 2005 draft is available at (visited 17 August 2006).
65. The informal choreography, dated 4 December 2005, is available at (visited 17 August 2006).
66. See General Council, Meeting of 1, 2 and 6 December 2005 (WT/GC/M/100), 27 March 2006, paras 29-31, 32 and 33.
67. Compare C.-D. Ehlermann and L. Ehring, Decision-Making in the World Trade Organization, 8 J.I.E.L. 1 (2005), pp. 51-75.
68. Article XXVIII bis GATT 1994; compare the similar wording in Article XIX:1 GATS.
69. For example, one only needs to look at the blame game after the suspension of the Doha Round in June 2006 on who is responsible because of its unwillingness to "put something substantial on the table".
70. WTO Secretariat, Market Actess: Unfinished Business, Special Studies 6 (Geneva: WTO, 2001), p. 99.
71. GATT Council, as note 9 above, at p. 7.
72. See General Council, as note 76 above, para. 169.
73. Ministerial Conference, as note 46 above, Subject 1, pp. 2-3.
74. See General Council, as note 52 above, at para. 29;
75. and General Council, as note 63 above, at para. 29.
76. General Council, as note 22 above, at pp. 9-10: statement of the chair.
77. The waivers and accession statement whose substance received explicit approval by the General Council will be addressed in more detail below. The 30 August 2003 statement only has been taken note of by Members of the General Council. The main difference in the related adoption procedure is that the related General Council decision has been agreed to "in light of" the chair statement. The implications of this phrase are examined in section IV.B.3 below.
78. Again, the best evidence for this can be found in lengthy discussions in the TRIPs Council in 2004 and 2005 over the role and legal status of the statement (see, e.g., Council for TRIPs, as note 165 above). The differences are the result of one side stressing the formal differences while the other points to the substance of the statement.
79. See General Council, as note 22 above, at p. 6: statement of the representative of Brazil, backed by Morocco, India, Egypt, Norway and Hungary.
80. Ehlermann and Ehring, as note 64 above, at p. 70.
81. See Report by the Consultative Board to the Director-General Supachai Panitchpakdi ("the Sutherland Report"), The Future of the WTO (Geneva: WTO, 2004), ch, 6 para. 284;
82. Ehlermann and Elming, as note 64 above, at pp. 51-75.
83. General Council, as note 31 above, at para. 165: intervention of the representative of Pakistan.
84. This is exemplified in the endorsement of these best practices by the TNC (compare Trade Negotiations Committee, as note 36 above, at para. 8);
85. see, further, Pedersen, as note 29 above, at p. 112.
86. Trade Negotiations Committee, as note 36 above, at paras 6-8.
87. P. Van der Bossche, The Law and Policy of the World Trade Organization (Cambridge: Cambridge University Press, 2005), p. 145;
88. Pedersen, as note 29 above, at pp. 108-112.
89. Ehlermann and Ehring, as note 64 above, at p. 54.
90. See the last sentence ofArticle 3.2 and Article 19.2 of the DSU, according to which recommendations and rulings of the DSB cannot add or diminish the rights and obligations provided under the WTO.
91. See United States - Tax Treatment for Foreign Sales Corporations (WT/DS108/AB/R), Appellate Body Report (24 February 2000), paras 112 and 113;
92. Ehlermann and Ehring, as note 64 above, at p. 58;
93. J.H. Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd edn, Cambridge, MA; MIT Press, 1997), pp. 123-124.
94. See Van der Bossche, as note 81 above, at p. 145.
95. See WTO, Analytical Index - Guide to GATT Law and Practice (online version), Article IX:3 of the WTO Agreement, available at (visited 1 September 2006).
96. General Council, Minutes of Meeting of 15 November 1995 (WT/GC/M/8), 13 December 1995, p. 6.
97. See US - Foreign Sales Corporations, as note 84 above, at para. 112; interestingly, it is the disclaimer language of the related chair statement and not the 1981 understanding itself on which the Appellate Body relied.
98. Footnote 1 WTO Agreement.
99. This does not mean that the intervention is not to be taken into account at all. It can become relevant under Vienna Convention Article 32 if the meaning of the waivers and accessions statement remains unclear.
100. This is in fact exactly the question that the chair statement at issue here has answered with regard to waivers and accessions.
101. WTO, Rules of Procedure for Sessions of the Ministerial Conference and for Meetings of the General Council (WT/L/161, 25 July 1996), Rule 33.
102. See WTO Analytical Index, as note 86 above.
103. Kuijper, as note 1 above, at p. 82.
104. If one takes the view that, e.g., the extended notification requirement contains new obligations not inherent in the TRIPs Amendment, one could even question whether the statement conflicts with the prohibition to use authoritative interpretations to undermine amendments under Article X.
105. Ministerial Conference, Declaration on the TRIPs Agreement and Public Health of 14 November 2001 (WT/MIN(01)/DEC/2), 20 November 2001.
106. Ministerial Conference, Decision on Implementation-Related Issues and Concerns (WT/MIN(01)/17), 20 November 2001.
107. See Ministerial Conference, as note 97 above, at paras 3.1, 3.2 and 5.2, the latter stating that "Subject to the conditions specified in paragraph 12 of Article 2 of the Agreement on Technical Barriers to Trade, the phrase 'reasonable interval' shall be understood to mean normally a period of not less than 6 months, except when this would be ineffective in fulfilling the legitimate objectives pursued."
108. See Ministerial Conference, as note 96 above; para. 5(c) states "Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/Aids, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency."
109. Ehlermann and Ehring, as note 64 above, at p. 59.
110. US - Tax Treatment for Foreign Sales Corporations (WT/DS108/R), Panel Report (8 October 1999), para. 7.56 (citing Oxford Shorter English Dictionary, 3rd edn).
111. The statement on deadlines and in particular the statement on internal transparency.
112. Kuijper, as note 1 above, at p. 106.
113. See S. Charnovitz, The Legal Status of the Doha Declarations, 5 J.I.E.L. 2 (2002), p. 211.
114. See Van den Bossche, as note 81 above, at p. 162.
115. For several suggestions on how to improve decision-making and institutional issues within the WTO, see P. Van den Bossche and I. Alexovicova, Effective Global Economic Governance by the World Trade Organization, 8 J.I.E.L. 3 (2005), pp. 670-677;
116. and Kuijper, as note 1 above, at pp. 106-107.
117. Such as Article X which regulates the amendment procedures for the WTO Agreement and the multilateral trade agreements.
118. Further by virtue of Article IV:2; also the General Council.
119. The latter comprise all Agreements included in Annexes 1, 2 and 3 (Article II:2).
120. Several WTO Members, notably the Untied States, have not ratified the Vienna Convention.
121. United States - Standards for Reformulated and Conventional Gasoline (WT/DS2/AB/R), Appellate Body Report (29 April 1996), p. 16;
122. India - Patent Protection for Pharmaceutical and Agricultural Chemical Products (WT/DS50/AB/R), Appellate Body Report (19 December 1997), para. 46;
123. United States - Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Geermany (WT/DS213/AB/R) Appellate Body Report (28 November 2002), paras 61-62.
124. Yearbook of the International Law Commission, The International Law Commission's Commentary on Art. 27 to 29 of its Final Draft Articles on the Law of Treaties, Vol. II (1966), p. 220.
125. Id.
126. United States - Import Prohibition of Certain Shrimp and Shrimp Products (WT/DS58/AB/R), Appellate Body Report (12 October 1998), para. 114.
127. European Communities - Customs Classfication of Certain Computer Equipment (WT/DS68/AB/R), Appellate Body Report (5 June 1998), para. 84.
128. I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p. 117.
129. See Yearbook, as note 112 above, at p. 220;
130. Sinclair, as note 116 above, at p. 153.
131. Sinclair, as note 116 above, at p. 153.
132. See US - Standards for Reformulated and Comentional Gasoline, as note 33 above, p. 16.
133. See US - Foreign Sales Corporations, as note 101 above, at paras 7.56, 7.58, 7.59 and 7.66;
134. US - Foreign Sales Corporations, as note 84 above, at paras 109-114.
135. US - Foreign Sales Corporations, as note 101 above, at para. 7.50.
136. Ibid., at paras 7.56-7.63.
137. Ibid., at para. 7.66 (emphasis added).
138. Ibid., at para. 7.68.
139. GATT Council, as note 9 above, at p. 7 (emphasis added).
140. US - Foreign Sales Corporations, as note 101 above, at para. 7.69.
141. Id.
142. Ibid., at para. 7.71.
143. See GATT Council, as note 9 above, at pp. 7-8.
144. US - Foreign Sales Corporations, as note 101 above, at para. 7.74.
145. US - Foreign Sales Corporations, as note 84 above, at para. 111.
146. Ibid., at para. 114.
147. US - Foreign Sales Corporations, as note 101 above, at para. 7.69.
148. General Council, as note 13 above, at p. 6.
149. Id. (emphasis added).
150. As observed above, due to the definition of consensus as the absence of formal objection in footnote 1 to Article IX of the WTO Agreement, the conditional consent of India further does not invalidate the consensus of the General Council.
151. US - Foreign Sales Corporations, as note 101 above, at para. 7.71.
152. US - Foreign Sales Corporations, as note 84 above, at para. 112 (fn. 126).
153. Compare, also, Ehlermann and Ehring, as note 64 above, at p. 59.
154. See General Council, as note 55 above, at para. 82: statements of the representative of Argentina; and para. 123: statement of the representative of the United States.
155. Compare Sinclair, as note 116 above, at p. 129.
156. Oxford English Dictionary (Oxford: Oxford University Press, 2005).
157. Yearbook, as note 112 above, at p. 221.
158. Ibid., at p. 220.
159. See General Council, as note 63 above, at para. 28.
160. Ibid., at paras 29-31.
161. Ibid., at para. 33.
162. Paragraph 6 of the introductory chapter in the unofficial EC proposal.
163. The intention to retain the adoption procedure of 30 August 2003 went so far that this sentence seems to be simply copied from the respective General Council Minutes and pasted into the 6 December 2005 minutes without any necessary adaptation. While the sentence refers only to one chairman's statement in whose light the draft proposal was to be adopted, it was overlooked that this time the chairman had issued two statements - the original August 2003 statement and an extra statement dealing with non-violation complaints. Does this mean that the proposal is not adopted "in light of" the statement on non-violation complaints?
164. Chambers Dictionary (Edinburgh: Chambers Harrap, 1993).
165. Even though the statement was drafted by the TRIPs Council chairman in small group consultations with the United States, Brazil, India, South Africa and Kenya in mid-August 2003, an argument could be made for at least "intellectual co-authorship" of the United States since the statement was to address US concerns and modelled around four key issues raised by the United States during these consultations. One could even consider a form of joint authorship of all participants in these small group consultations. Whether this suffices for Article 31(2)(b) seems rather doubtful given the recent Appellate Body Report in United States - Gambling (see discussion below).
166. Yearbook, as note 112 above, at p. 221.
167. Document W/120, entitled "SERVICES SECTORAL CLASSIFICATION LIST" was circulated on 10 July 1991 by the GATT Secretariat. The document consists of a table in two columns. The left column is entitled "SECTORS AND SUBSECTORS" and consists of a list classifying services broad service sectors, each divided into several subsectors. The right-hand column is entitled "CORRESPONDING CPC" (a reference to the United Nations Provisional Central Product Classification) and sets out, for nearly every subsector listed in the left-hand column, a CPC number to which that subsector corresponds.
168. On 3 September 1993, the 1993 Scheduling Guidelines were circulated by the GATT Secretariat in response to requests by the negotiating parties as an "Explanatory Note" designed to "assist in the preparation of offers, requests, and national Schedules of commitments" and to ensure "comparable and unambiguous commitments" and achieve "precision and chaity" (see MTN. GNS/W/164, 3 September 1993). This document addresses two main questions: (i) what items should be put in a Schedule; and (ii) how they should be entered. The document also instructs Members as to the language to use when making a specific commitment, and includes a template indicating the overall structure, and columns and rows that should constitute a Member's Schedule.
169. United States - Measures Affecting the Cross Border Supply of Gambling and Betting Services (WT/DS285/R) Panel Report (10 November 2004), paras 6.77-6.82.
170. United States - Measures Affecting the Cross Border Supply of Gambling and Betting Services (WT/DS285/AB/R), Appellate Body Report (7 April 2005), para. 175.
171. Ibid., at para. 176.
172. This has been described as "an excessively formalistic approach to the rules of treaty interpretation provided by the Vienna Convention"; see Frederico Ortino, Treaty Interpretation and the WTO Appellate Body Report in US - Gambhng: A Critique, 9 J.I.E.L. 1 (2006), p. 128.
173. Established in 1988 under the auspices of the World Customs Union (WCO).
174. European Communities - Custom Classifications of Frozen Boneless Chicken Cuts (WT/DS269&DS286/AB/R), Appellate Body Report (12 September 2005).
175. Ibid., paras 195-199.
176. Article 31(3) concerns either subsequent agreements and agreed practice between the parties or other rules of international law.
177. Yearbook, as note 112 above, at p. 223.
178. Sinclair, as note 116 above, at p. 141.
179. See US - Foreign Sales Corporations, as note 84 above, at para. 114 and the detailed discussion in section IV.B.1 above.
180. South Centre/CIEL, Intellectual Property Quarterly Update, 4th Quarter 2005, p. 6.
181. Sinclair, as note 116 above, at p. 130.
182. Yearbook, as note 112 above, at p. 221.
183. Compare Yearbook, ibid., at p. 220;
184. Sinclair, as note 116 above, at p. 153.
185. See General Council, as note 52 above, at paras 42-43, 48, 52, 60-61 and 72.
186. See US - Foreign Sales Corporations, as note 84 above, at para. 112 (fn. 126).
187. One may recall that the chairman understood "explicit consensus" as giving "each member the right to take a position on modalities that would prevent negotiations from proceeding" until that Member is prepared to join in an explicit consensus. See WT /MIN(01)/SR/9, 10 January 2002, Subject 1, pp. 2-3. This interpretation aimed to allay fears of some developing countries that agreeing to a negotiation mandate on the Singapore issue would lead to an automaticity in these negotiations to proceed.
188. General Council, as note 36 above, at para. 169 (emphasis added).
189. See Pedersen, as note 29 above, at p. 108.
190. Odell, as note 6 above, at p. 479.
191. Trade Negotiations Committee, as note 34 above, at para. 8.
192. Japan - Taxes on Alcoholic Beverages (WT/DS8,DS10&DS11/AB/R) Appellate Body Report (4 October 1996), p. 13.
193. General Council, as note 22 above, at pp. 9-10: statement of the chair.
194. Kuijper, as note 1 above, at p. 106.
195. Id.
196. See Article 3.2 DSU, last sentence.