Silence in WTO

Abstract

The World Trade Organization’s expansion in terms of its activities is becoming increasingly demanding for Members. Members may not express their acceptance or rejection to every statement or action taking place in the WTO, and they may remain silent to intentionally signify their position. This article examines the legal significance of Members’ silence in the WTO, in particular in the consensus-based decision-making procedures, in committees and council meetings, in the determination of subsequent practice when interpreting WTO provisions, schedules and practices, and in the assessment of whether or not a WTO Member has relinquished its right to initiate WTO dispute settlement proceedings. A brief description of the state of play of silence in public international law serves as a reference point to guide the analysis of silence in WTO law, which highlights the fact-specific nature of silence in both fields. While this article reveals that silence plays a role in the consensus decision-making function of the WTO, whether silence can amount to acquiescence in the context of councils and committees meetings remains unclear. Similarly, the Appellate Body has left the door open to the possibility that Members’ silence may provide evidence of subsequent practice for purposes of treaty interpretation. Contrary to international law where it has been suggested that silence may lead to a waiver of a state’s right to invoke the responsibility of another State, a relinquishment of a WTO Member’s right to initiate WTO dispute settlement proceedings must be formulated in clear and unambiguous language. WTO, silence, protest, acceptance, relinquishment of rights, practice, decision-making, interpretation, subsequent practice