The WTO Director-General Selection Process; Will the Discontent of Some Eliminated Candidates Disrupt the Ongoing Process?

April 17, 2013

In Geneva, this past week marked an important step in the effort to find a consensus candidate to become the next Director-General of the World Trade Organization (“WTO”) Secretariat when the term of the current Director-General, Pascal Lamy, expires at the end of August 2013.

As reviewed in prior firm Trade Flows (See Trade Flows posted on January 8, 2013 and April 2, 2013), the WTO membership adopted procedures to be followed in the Director-General selection process back in 2002 after a bruising fight amongst members in 1999 resulted in the organization having no Director-General for a period of time before an important ministerial.

Until last week, the adopted procedures had appeared to be working reasonably well in the current selection process.  WTO Members made nominations of candidates during the month of December 2012.  Procedures were then adopted to permit each candidate to address the WTO membership in Geneva in late January. Then, the first of three rounds of consultations occurred between April 2 and April 9, 2013. Those consultations were led by the Chairman of the General Council, Ambassador Shahid Bashir of Pakistan, with the assistance of two other Geneva-based Ambassadors, the heads of the Dispute Settlement Body (Amb. Jonathan Fried of Canada) and the Trade Policy Review Body (Amb. Joakim Reiter of Sweden).

The nine candidates and their governments were informed of the outcome of the first round of consultations on April 11th. There was then a General Council meeting at the heads of delegation level the afternoon of April 12 to inform the full membership. All 159 WTO members participated in the first round of consultations. As had been announced before the consultations started, there will be three rounds of consultations (with a fourth possible if consensus is not possible by the end of the third) and that, for this to work, the field would be reduced from nine to five candidates after the first round and from five to two candidates after the second round. The plan is for the next WTO Director-General to be selected in the third round from the remaining two candidates, which it is hoped can be completed by the end of May.

The prepared statement of Ambassador Bashir at the April 12th General Council meeting (JOB/GC/40, 12 April 2013) recognized that all nine candidates were well-qualified, that the procedures announced in March and contained in the 2002 procedures had been followed, that all members had participated, and that the selection of the five to move forward was the same regardless of how Amb. Bashir and his facilitators looked at the relevant information.[1] Ambassador Bashir thanked the candidates for their contributions to the organization through their willingness to be considered and to the members who had put forward their candidates. The procedures envision that candidates who are not included in the next round of consultations will graciously withdraw. But the procedures do not give the Chair the ability to force a candidate to withdraw. The schedule for the second round of consultations was announced, and those will start on April 16 and run through April 24. Most importantly, the statement identified the four candidates not advancing to round two and the five who are:

Not advancing:

  • Mr. Alan John Kwadwo Kyerematen (Ghana)
  • Ms. Anabel González (Costa Rica)
  • Ms. Amina C. Mohamed (Kenya)
  • Mr. Ahmad Thougan Hindawi (Jordan)

Advancing:

  • Ms. Mari Elka Pangestu (Indonesia)
  • Mr. Tim Groser (New Zealand)
  • Mr. Herminio Blanco (Mexico)
  • Mr. Taeho Bark (Republic of Korea)
  • Mr. Roberto Carvalho de Azevêdo (Brazil)

All candidates and their host governments have worked very hard over the last months, with candidates traveling to dozens of countries on multiple continents and meeting with business and civil society groups to share their views and seek support in the selection process. So it is understandable that those not advancing (and their host governments) are severely disappointed.

Press reports indicate that for the two African countries and their candidates, the disappointment has been accompanied by criticism expressed to the WTO on the selection process. In addition, one of the candidates, Ms. Amina C. Mohamed of Kenya, indicated that she would not withdraw from the selection process. It is not clear how Members will react to Ms. Mohamed’s statement. Paragraph 18 of the Procedures for the Appointment of Directors-General adopted by the General Council in 2002 (WT/L/509) specifically calls for candidates not deemed likely to form a consensus to withdraw:

18. The outcome of the consultations shall be reported to the membership at each stage. It is understood that the candidate or candidates least likely to attract consensus shall withdraw. The number of candidates expected to withdraw at each stage shall be determined according to the initial number of candidates, and made known in advance. This process shall be repeated in successive stages on the basis of a revised slate of candidates each time, with the aim of establishing consensus around one candidate.

WT/L/509 at 5 (emphasis added).

It is unclear at this early point whether the concerns expressed by the candidates and their governments on procedures will fester and cause problems as the process moves forward. It is also unclear whether Ms. Mohamed will in fact not withdraw, and, if she does not, what that means for the process. In a prior D-G election, it is understood that a candidate opted not to withdraw despite being eliminated by the Chair and facilitators. The candidate reportedly lost significant support from prior supporters and eventually withdrew. See Inside U.S. Trade’s World Trade Online, Ghana, Kenya Slam DG Selection Process; Mohamed Stays in the Race, (April 12, 2013) [“Two Geneva sources noted that this is not the first time that a candidate has opposed being eliminated from the process. In 1999, Canadian candidate Roy MacLaren stayed in the race even after WTO officials indicated that he did not have sufficient support (Inside U.S. Trade, March 19, 1999). His level of support quickly dwindled, and he was ultimately forced to exit the contest.”].

The procedures adopted in 2002 for the Appointment of Directors-General, WT/L/509, provide for a vote in exceptional circumstances in paragraph 20:

Recourse to voting as a last resort

20. If, after having carried out all the procedures set out above, it has not been possible for the General Council to take a decision by consensus by the deadline provided for the appointment, Members should consider the possibility of recourse to a vote as a last resort by a procedure to be determined at that time. Recourse to a vote for the appointment of a Director-General shall be understood to be an exceptional departure from the customary practice of decision-making by consensus, and shall not establish any precedent for such recourse in respect of any future decisions in the WTO.

WT/L/509 at 5.

Thus, arguably Kenya (and Ghana and possibly others) could refuse to agree to a consensus finding in the hope that they could generate sufficient votes to win a vote at the General Council for a candidate not still in the process being run by the Chair. While such an option certainly exists (and is intended to provide a road forward where the membership is deadlocked), few countries have been willing to place the organization in the situation of forcing such a procedure where it flows from the discontent of one or two with the agreed procedures being followed. Thus, it seems unlikely that Kenya and Ms. Mohamed will create a crisis out of her elimination in the process.

Concerns Raised With the First Round of Consultations

Some of the concerns raised by Kenya and Ghana about the first round of consultations relate to whether all Members provided four preferences as they were asked (the Chair indicated in his prepared statement that most did provide four; some provided more; some fewer; the Chair indicated that the view of the Chair and the facilitators was that this deviation did not result in a bias of the outcome). Kenya and Ghana also raised concerns about whether the EU changed the voting process for its member states from having each vote separately vs. the EU voting once for the entire group. The latter issue is relevant since the EU has 27 member states and hence 27 votes. Press accounts indicate that the EU did change its approach and cast a uniform set of preferences for all members. This latter issue does not appear controversial. Article IX:1 of the Marrakesh Agreement Establishing the WTO seems to specifically envision the EU being able to vote for its member states: “Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States which are Members of the WTO.”

Press Accounts of Member Views Before the Announcement Confirm the Reasonableness of the 1st Round Results

The trade media inquired of various delegations their views on likely candidates who would survive and not survive round one of the consultations. Reports in the media correspond to what my own conversations with a wide range of delegations over the last few months have revealed. The popular wisdom in much of Geneva was that two or three of the Latin American candidates would survive, as well as the Indonesian candidate and the New Zealand candidate. All of the other candidates were deemed to be qualified but to not be preferred for one reason or another (e.g., some might not have extensive backgrounds in Geneva). That one of the Latin American candidates would not make it tended to be viewed as a reflection more of divisions within the Latin American community than a reflection on any of the three candidates.

Thus, to this writer, the outcome announced on April 12th by Ambassador Bashir reflected a broad consensus from many types of Members from many geographic areas that the press was able to discern ahead of the announcement.

Likely Pressure to Stay With the Agreed Procedures and Obtain Consensus by the End of May

If the World Trade Organization and its Members are to fulfill their desire to achieve progress by the Bali Ministerial in December 2013, it is critical that the Director-General appointment process go smoothly so that the transfer of responsibility from Pascal Lamy to the new D-G can occur without loss of focus on the ongoing efforts to develop a package for Bali. If there are delays or a major challenge to the procedures at the end requiring a vote, it is likely that the WTO members would lose focus and any chance for a successful Bali Ministerial would be significantly reduced. In the past, when the process has not worked as intended, the conflict between Members has put overall progress at the WTO on hold for some extended period of time. Thus, for the health of the organization, already faced with daunting problems in maintaining its relevance and advancing an agreed upon agenda, let us hope that the initial reactions by some of the candidates and their Members prove to be a temporary disagreement with the system rather than the basis for a challenge to the ongoing selection process.

[1] See WTO News, DG selection: Five candidates advance to second round (April 12, 2013); available at http://www.wto.org/english/news_e/news13_e/dgsel__12apr13_e.htm.



All Trade Flows and Washington Updates
A Primerus Law Firm
Terms and Conditions
© 2013 - 2019 Stewart and Stewart
[ Log On ]