WORLD TRADE
ORGANIZATIONIP/C/W/363/Add.1
23 July 2002
(02-4079)
Council for Trade-Related Aspects
of Intellectual Property Rights
PROPOSALS ON PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS
AGREEMENT AND PUBLIC HEALTH:  THEMATIC COMPILATION
Note by the Secretariat
Addendum
I. INTRODUCTION
1. As requested by the TRIPS Council at its meeting of 25-27 June 2002, the Secretariat
circulated in document IP/C/W/363, dated 11 July 2002, a thematic compilation of the five written
proposals that had been received on the implementation of paragraph 6 of the Doha Declaration on the
TRIPS Agreement and Public Health ("the Declaration").  The Council also requested the Secretariat
to provide information on the procedural requirements of each proposed legal mechanism and
experience with the use of that mechanism.  This addendum to the above-mentioned document aims
to respond to the latter request.
2. In the five written proposals and oral discussions in the Council, four possible legal
mechanisms have been identified for the purposes of implementing paragraph 6 of the Declaration,
namely:  (i) an interpretation of the TRIPS Agreement under Article IX of the Marrakesh Agreement
Establishing the World Trade Organization ("the WTO Agreement");  (ii) a waiver under Article IX
of the WTO Agreement;  (iii) an amendment of the TRIPS Agreement under Article X of the WTO
Agreement;  (iv) and a moratorium on dispute settlement.1
3. This addendum looks at the procedural requirements of each of these legal mechanisms at the
multilateral level under the WTO Agreement and provides information on the experience in the
application of these mechanisms under that Agreement.  This note does not address the legislative or
other actions that the implementation of paragraph 6 of the Declaration through any of these
mechanisms may require at the national level before the envisaged solution becomes operational inany given Member.
4. Annex 1 to this note reproduces the texts of the Articles of the WTO Agreement referred to in
it.  Annex 2 contains the text of the Decision-Ma king Procedures under Articles IX and XII of the
WTO Agreement agreed by the General Council in November 1995.
2
                                                     
1 For more information on the proposals in this regard, please see Section I.C of document IP/C/W/363.
2 Document WT/L/93.This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTOIP/C/W/363/Add.1
Page 2
II. GENERAL COMMENT ABOUT DECISION-MAKING IN THE WTO
5. Article IV:1 of the WTO Agreement provides that the Ministerial Conference has the
authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so
requested by a Member, in accordance with the specific requirements for decision-making in the
WTO Agreement and in the relevant Multilateral Trade Agreement.  In the intervals between
meetings of the Ministerial Conference, its functions are conducted by the General Council(Article IV:2).  Given this, we refer to the Ministerial Conference/General Council hereafter in this
note where appropriate.
6. According to the general rules on decision-making in Article IX:1, the WTO shall continue
the practice of decision-making by consensus.  Where a decision cannot be arrived at by consensus,
the Article provides for the possibility of deciding a matter by voting.  In these circumstances,
decisions concerning authoritative interpretations and waivers can be taken by qualified majorities
which differ as indicated later in this note.  Similarly, Article X provides that decisions to submit aproposed amendment to the Members for acceptance sh all be taken by consensus, failing which, there
is the possibility of deciding by qualified majority.  In the absence of specific rules, decisions of the
Ministerial Conference and the General Council can be taken by a majority of the votes cast but, to
date, all decisions in the WTO have been agreed by consensus.
3  The practice has been that where a
body has failed to reach consensus on a matter, it has held further consultations with a view to seekingconsensus.
III. INTERPRETATION OF THE TRIPS AGREEMENT UNDER ARTICLE IX OF THE
WTO AGREEMENT
7. Article IX:2 provides the Ministerial Conference and the General Council with the exclusive
authority
4 to adopt interpretations of the WTO Agreement and of the Multilateral Trade Agreements,
including the TRIPS Agreement.  They shall exercise this authority on the basis of a recommendation
by the Council overseeing the functioning of the relevant agreement, i.e. in case of the TRIPS
Agreement on the basis of a recommendation by the TRIPS Council.
8. If a decision concerning interpretation cannot be arrived at by consensus, the decision by the
Ministerial Conference or the General Council to adopt an interpretation must be taken by a three-fourths majority of the Members.
9. The last sentence of paragraph 2 of Article IX provides that the paragraph shall not be used in
a manner that would undermine the amendment provisions in Article X.  In other words, the validity
of interpretation decisions that go so far as to amend provisions of WTO Agreements could be
challenged on this basis.
                                                     
3 The only time that the voting procedure has been used was when the General Council, at its meeting
of 31 July 1995, agreed to submit the draft decisions on the accession of Ecuador and on certain draft waivers toa vote by postal ballot (pp. 2-5 of document WT/GC/M/6).  However, this was done after consensus had beenreached on the contents of these decisions.  At its m eeting of 15 November 1995, the General Council agreed on
a statement on the procedures regarding decision-making by the General Council under Articles IX and XII of
the WTO Agreement (WT/GC/M/8, pp. 5 and 6, subsequently circulated in document WT/L/93).  Thisdocument makes it clear that the General Council will seek a decision on a matter related to a request for awaiver or an accession by consensus and that, except as otherwise provided, a vote will be taken only where thematter cannot be decided by consensus.  The text of this document is reproduced in Annex 2 to this note.
4 The Appellate Body has, on a number of occasions, noted that the Ministerial Conference and the
General Council have exclusive authority to adopt interpretations of the WTO Agreement and the Multilateral
Trade Agreements (of which the TRIPS Agreement is one).  See Japan – Alcoholic Beverages (WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R) at p.12;  US – Wool Shirts and Blouses  (WT/DS33/AB/R) at p.19; and US –
Certain EC Products (WT/DS165/AB/R) para. 92.IP/C/W/363/Add.1
Page 3
10. No authoritative interpretations of the WTO Agreement or the Multilateral Trade Agreements
have been adopted to date explicitly under Article IX:2 of the WTO Agreement.  One request for such
an interpretation has been made, but it did not lead to action by the General Council.5, 6
IV. WAIVER ADOPTED UNDER ARTICLE IX OF THE TRIPS AGREEMENT
11. Article IX:3 of the WTO Agreement provides the Ministerial Conference/General Council
with authority to waive an obligation imposed on a Member by the WTO Agreement or any of theMultilateral Trade Agreements,
7 including the TRIPS Agreement.  The Ministerial
Conference/General Council may exercise this authority "in exceptional circumstances".  A decision
on a waiver must state the exceptional circumstances justifying it (Article IX:4).
12. Under Article IX:3(b), a request for a waiver must be submitted initially to the Council
overseeing the relevant agreement for consideration during a time-period which shall not exceed 90
days.  Thus a request for a waiver concerning the TRIPS Agreement must be submitted initially to the
TRIPS Council.  In practice, most waivers submitted to one of the Councils have been requested byindividual Members, but there have been cases wher e the request for a waiver intended to apply to a
number of Members has been inferred from the need for such a waiver that had come up in the work
of the relevant Council.
8
13. After the relevant Council has considered a draf t waiver, it forwards it to the Ministerial
Conference/General Council for consideration pu rsuant to the practice of decision-making by
consensus.9  If the Ministerial Conference/General Council does not reach consensus, any decision to
grant a waiver shall be taken by three-fourths of the Members.10  The usual practice is that once the
relevant sectoral Council has approved a draft waiver by consensus, the General Council adopts it by
consensus without further substantive discussion.
14. Article IX:4 provides that a decision by the Ministerial Conference/General Council granting
a waiver shall state the exceptional circumstances justifying the decision, the terms and conditions
governing the application of the waiver, and the da te on which the waiver shall terminate.  It also
                                                     
5 The European Communities requested, on 21 January 1999, the General Council to adopt an
authoritative interpretation pursuant to Article IX:2 of certain provisions of the Dispute SettlementUnderstanding ("the DSU") (document WT/GC/W/133), and requested it to hold a special meeting to considerthe request (document WT/GC/W/143).  The United States opposed the request, inter alia , on the basis that the
requested interpretation would have amounted to an amendment of the substantive provisions of the DSU and
that addressing the request as an interpretation would have contradicted the last sentence of Article IX:2
(document WT/GC/W/144).  The General Council did not hold a special meeting to consider the request.
6 It was considered to be within the functions of the GATT CONTRACTING PARTIES, acting jointly
under Article XXV of the General Agreement on Tariffs and Trade (GATT 1947), to interpret GATT 1947whenever they saw fit.  The CONTRACTING PARTIES followed different procedures for resolving questions
of interpretation, such as Chairman's rulings, deci sions by CONTRACTING PARTIES, adoption of reports of
panels or working parties including interpretations, and decisions by the Council to interpret GATT 1947 or toadopt reports including interpretations. More information on GATT practice in this regard can be found in theAnalytical Index, Guide to GATT Law and Practice (WTO, 1995), pp. 875-876.
7 The WTO Agreement also contains an Understanding in Respect of Waivers of Obligations under the
General Agreement on Tariffs and Trade 1994.
8 See the collective waivers on Preferential Tariff Treatment for Least-Developed Countries (adopted
on 15 June 1999, document WT/L/304), the Introduction of Harmonized System 2002 Changes into WTOSchedules of Tariff Concessions (adopted on 13 May 2002, document WT/L/469) and Least-Developed CountryMembers – Obligations under Article 70.9 of the TRIPS Agreement with respect to Pharmaceutical Products(adopted on 8 July 2002, document WT/L/478).
9 Article IX:3(b) also provides that the relevant Council shall submit a report to the Ministerial
Conference.  In practice, the Chair of the relevant sector al Council gives a brief oral report at the meeting of the
General Council where the adoption of the draft waiver approved by the sectoral Council is on the agenda.
10 See also the Decision-Making Procedures under Articles IX and XII of the WTO Agreement agreed
by the General Council in November 1995 (document WT/L/93) contained in Annex 2 to this document.IP/C/W/363/Add.1
Page 4
requires that any waiver granted for a period of more than one year shall be reviewed by the
Ministerial Conference/General C ouncil not later than one year after it is granted, and thereafter
annually until the waiver terminates.  In each revi ew, the Ministerial Conference/General Council
shall examine whether the exceptional circumstances justifying the waiver still exist and whether the
terms and conditions attached to the waiver have been met.  The Ministerial Conference/General
Council, on the basis of the annual review, may exte nd, modify or terminate the waiver.  The reviews
under Article IX:4 that have taken place so far have been relatively brief and no delegations have
questioned the waivers under review.
15. To date, some 140 waivers have been granted under Article IX of the WTO Agreement.  Most
of them concern the Harmonized Commodity Description and Coding System (usually referred to as
the "Harmonized System") and regional trade agreements.11
16. The scope of waivers has, on rare occasions, been subject to dispute.  In the only case in the
WTO, the issue was whether a waiver relating to GATT Article I also justified deviation from GATTArticle XIII.
12  A GATT panel report considered whether a Contracting Party had acted in conformity
with a waiver.13
V. AMENDMENT OF THE TRIPS AGREEMENT UNDER ARTICLE X OF THE WTO
AGREEMENT
17.  The TRIPS Council can initiate the procedure for amendment of the TRIPS Agreement by
submitting to the Ministerial Conference/General Council a proposal to amend the Agreement in
accordance with Article X:1 of the WTO Agreement.14  The Ministerial Conference/General Council
would then attempt to reach consensus on whether to submit the proposed amendment to the Members
for acceptance.  Unless the Ministerial Conference/General Council decides on a longer period, for a
period of 90 days after the proposal has been tabled  formally at the Ministerial Conference/General
Council any decision by the Ministerial Conference/General Council to submit the proposed
amendment to the Members for acceptance shall be ta ken by consensus.  If consensus is not reached,
the Ministerial Conference/General Council can decide by a two-thirds majority of the Members
whether to submit the proposed amendment to the Members for acceptance.
18. Article X:7 provides that a Member may accept an amendment by depositing an instrument of
acceptance with the Director-General of the WTO within the period of acceptance specified by the
                                                     
11 As of 1 January 1995, there had been 115 original waiver decisions by GATT CONTRACTING
PARTIES under Article XXV:5 of GATT 1947, as well as many other waiver decisions extending or amending
a prior waiver decision.  For more information on the GATT practice concerning waivers under Article XXV:5,see the Analytical Index, Guide to GATT Law and Practice (WTO, 1995), pp.  882-906.
12 In EC – Bananas III , the European Communities argued that a certain waiver on its import regime
for bananas should be interpreted so as to justify a deviation from GATT Article XIII although it waived only
compliance with GATT Article I in its terms.  The Panel accepted this argument to the extent that "the scope of
Article XIII is identical  with that of Article I" (Panel Report on EC – Bananas III , para. 7.107), but the
Appellate Body rejected this finding.  In support of its conclusion, the Appellate Body observed that "[a]lthoughthe WTO Agreement  does not provide any specific rules on the interpretation of waivers, Article IX of the WTO
Agreement  and the Understanding in Respect of Wa ivers of Obligations under the General Agreement on Tariffs
and Trade 1994 , which provide requirements for granting and renewing waivers, stress the exceptional nature of
waivers and subject waivers to strict disciplines.  T hus, waivers should be interpreted with great care."
(Appellate Body Report on EC – Bananas III , para. 185.)
13 The GATT Panel Report on US – Sugar Waiver (adopted 7 November 1990, BISD 37S/228)
concluded that quantitative restrictions imposed by a Contracting Party were inconsistent with its obligationsunder GATT 1947 but in conformity with the terms of a waiver of that obligation.
14 Article X:1 envisages also another way of initiating the process of amending the relevant agreements.
Any Member of the WTO may initiate a proposal to amend the provisions of the WTO Agreement or the
Multilateral Trade Agreements in Annex 1 thereto, including the TRIPS Agreement, by submitting suchproposal to the Ministerial Conference/General Council.   Amendments to the provisions of the Multilateral
Trade Agreements in Annexes 2 and 3 are regulated in Article X:8 of the WTO Agreement.IP/C/W/363/Add.1
Page 5
Ministerial Conference/General Council.15  In practice, this means that the Member delivers a
document to the WTO Secretariat in which it establishes its intention to be bound by the amendment.
It delivers the document after completion of the steps necessary under the domestic legal system.  In
many Members, these steps involve approval by the legislature.
19. Paragraphs 2-4 of Article X deal with the entry into force of amendments.  Paragraph 3
provides that amendments of a nature that would alter the rights and obligations of the Members(other than those concerning most-favoured-nation treatment), shall take effect for the Members that
have accepted them upon acceptance by two-thirds of the Members and thereafter for each other
Member upon acceptance by it.  The Ministerial Conference/General Council may decide by a three-
fourths majority of the Members that any amendment made effective under this paragraph is of such a
nature that any Member which has not accepted it within a period specified by the Ministerial
Conference/General Council in each case shall be free to withdraw from the WTO or to remain a
Member with the consent of the Ministerial Conference/General Council.
16
20. To date, the Ministerial Conference/General  Council has not submitted any amendments of
the WTO Agreement or the Multilateral Trade Agreements to the Members for acceptance in
accordance with Article X of the WTO Agreement.
21. Two proposals to amend the DSU were submitted to the Third Session of the Ministerial
Conference held in Seattle in 1999, one by Canada, Costa Rica, Czech Republic, Ecuador, theEuropean Communities and its member States, Hungary, Japan, Korea, New Zealand, Norway, Peru,
Slovenia, Switzerland, Thailand and Venezuela in respect of footnotes 6 and 7 of the DSU
17 and the
other by Turkey that proposed adding a new paragraph to Article 10 of the DSU.18, 19
                                                     
15 In comparison, it could be noted that the WTO Agreement was open for acceptance for original
Members either by signature or otherwise.  However, most Governments that signed the WTO Agreement didso subject to ratification and subsequently deposited their instrument of ratification.
16 Paragraph 4 provides that amendments of a nature that would not alter the rights and obligations  of
the Members shall take effect for all Members upon acceptance by two-thirds of the Members.
Furthermore, paragraph 1 provides that a consensu s decision by the Ministerial Conference to submit
an amendment to the Members for acceptance must specify whether the provisions of paragraph 3 or 4 apply tothe entry into force of the amendment.  If the decision has been made by a qualified majority, the provisions of
paragraph 3 apply to the entry into force of the amen dment, unless the Ministerial Conference decides by a
three-fourths majority of the Members that the provisions of paragraph 4 apply.
Paragraph 2 provides that amendments to the provisions of Article 4 of the TRIPS Agreement on most-
favoured-nation treatment and to certain provisions of other agreements take effect only upon acceptance by allMembers.
Article X:6 of the WTO Agreement together with Article 71.2 of the TRIPS Agreement concerns
amendments that merely serve the purpose of adjusting to higher levels of protection of intellectual property
rights achieved, and in force, in other multilateral agreements and accepted under those agreements by allMembers of the WTO.
17 Document WT/MIN(99)/8.
18 Document WT/MIN(99)/15.
19 Apart from certain early amendments, there were basically two sets of amendments to GATT 1947,
the texts of which were adopted in 1955 and 1965.  Two protocols were done on 10 March 1955.  The Protocol
Amending the Preamble and Parts II and III of GATT 1947 (requiring acceptance by two-thirds) entered intoforce on 7 October 1957.  The Protocol Amending Part I and Articles XXIX and XXX failed to gain therequired acceptance by all contracting parties, and was subsequently abandoned.  (Article XXX:1 of GATT
1947 provided that amendments to the provisions of its Part I and Article XXIX became effective uponacceptance by all contracting parties, and other amendmen ts upon acceptance by two-thirds of the contracting
parties.)  The Protocol Amending the General Agreement to Introduce a Part IV on Trade and Development was
done on 8 February 1965, and entered into force on 27 June 1966.  For more information on the GATT practiceunder Article XXX of GATT 1947, see the Analytical Index, Guide to GATT Law and Practice (WTO, 1995),pp. 1002-1009.IP/C/W/363/Add.1
Page 6
VI. MORATORIUM ON DISPUTE SETTLEMENT
22. The WTO Agreement does not have any specific provisions concerning decisions on
moratoria.  As noted above, Article IV:1 of the WTO Agreement provides that the Ministerial
Conference/General Council has the authority to take decisions on all matters under any of the
Multilateral Trade Agreements, if so requested by a Member, in accordance with the specific
requirements for decision-making in the WTO Ag reement and in the relevant Multilateral Trade
Agreement.
23. With regard to the WTO practice, the Doha Ministerial Conference agreed to extend the
moratorium concerning certain types of complaints under the dispute settlement system originally
provided under Article 64.2 of the TRIPS Agreement.  Article 64.2 created a moratorium on
complaints under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 (so-called "non-
violation and situation complaints") for five years from 1995.20  Article 64.3 required the TRIPS
Council to examine the scope and modalities for co mplaints of this type under the TRIPS Agreement
and to submit recommendations to the Ministerial Conference for approval by the end of the
moratorium.
24. Article 64.3 further provides that any decision of the Ministerial Conference to approve such
recommendations or to extend the period in paragraph 2 shall be made only by consensus, and
approved recommendations shall be effective for all Members without formal acceptance process.  AtDoha, the Ministerial Conference adopted a Decision on Implementation-Related Issues and
Concerns.
21  Paragraph 11.1 of that Decision reads as follows:
"The TRIPS Council is directed to continue its examination of the scope and
modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c)
of Article XXIII of GATT 1994 and make recommendations to the Fifth Session ofthe Ministerial Conference.  It is agreed that, in the meantime, Members will not
initiate such complaints under the TRIPS Agreement."
25. Another example of a moratorium on dispute settlement is the one concerning
telecommunication accounting rates.  In its report of 15 February 1997 made in accordance with
paragraph 4 of the Decision on Commitments in Basic Telecommunications, adopted by the Councilfor Trade in Services on 30 April 1996,
22 the Group on Basic Telecommunications stated the
following:
"it is the understanding of the Group that:
- the application of [differential] accounting rates [to services and service
suppliers of other Members] would not give rise to action by Members under
dispute settlement under the WTO;  and
                                                     
20 Another moratorium in the Multilateral Trade Agreements can be found in Article 13 of the WTO
Agreement on Agriculture.
21 Document WT/MIN(01)/17.
22 Document S/L/19.IP/C/W/363/Add.1
Page 7
- that this understanding will be reviewed not later than the commencement  of
the further Round of negotiations on Services Commitments due to begin not
later than 1 January 2000."23, 24
                                                     
23 Paragraph 7 of document S/GBT/4.
24 Ministers' declarations relating to electronic commerce have also b een characterized as moratoria –
in these cases not on dispute settlement but on imposing customs duties on electronic transmissions.  In aDeclaration on Global Electronic Commerce, adopted by the Second Session of the Ministerial Conference in
Geneva in 1988, Ministers, inter alia , "declare[d] that Members will continue their current practice of not
imposing customs duties on electronic transmissions.  When reporting to our third session, the General Councilwill review this declaration, the extension of which will be decided by consensus, taking into account theprogress of the work programme [on global electronic commerce]" (document WT/MIN(98)/DEC/2). In theMinisterial Declaration, adopted at the Fourth Session held in Doha in November 2001, Ministers "declare[d]that Members will maintain their current practice of not imposing customs duties on electronic transmission
until the Fifth Session" (para. 34 of document WT/MIN(01)/DEC/1).IP/C/W/363/Add.1
Page 8
ANNEX 1
MARRAKESH AGREEMENT ESTABLISHING
THE WORLD TRADE ORGANIZATION
[…]
Article IV
Structure of the WTO
1. There shall be a Ministerial Conference composed of representatives of all the Members,
which shall meet at least once every two years.  The Ministerial Conference shall carry out the
functions of the WTO and take actions necessary to this effect.  The Ministerial Conference shall have
the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so
requested by a Member, in accordance with the specific requirements for decision-making in this
Agreement and in the relevant Multilateral Trade Agreement.
2. There shall be a General Council composed of representatives of all the Members, which shall
meet as appropriate.  In the intervals between meetings of the Ministerial Conference, its functions
shall be conducted by the General Council.  The General Council shall also carry out the functions
assigned to it by this Agreement.  The General Council shall establish its rules of procedure andapprove the rules of procedure for the Committees provided for in paragraph 7.
3. The General Council shall convene as appropriate to discharge the responsibilities of the
Dispute Settlement Body provided for in the Dispute Settlement Unde rstanding.  The Dispute
Settlement Body may have its own chairman and sh all establish such rules of procedure as it deems
necessary for the fulfilment of those responsibilities.
4. The General Council shall convene as appropriate to discharge the responsibilities of the
Trade Policy Review Body provided for in the TPRM.  The Trade Policy Review Body may have its
own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of
those responsibilities.
5. There shall be a Council for Trade in Goods, a Council for Trade in Services and a Council
for Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the "Council for
TRIPS"), which shall operate under the general guidance of the General Council.  The Council for
Trade in Goods shall oversee the functioning of the Multilateral Trade Agreements in Annex 1A.  The
Council for Trade in Services shall oversee the functioning of the General Agreement on Trade inServices (hereinafter referred to as "GATS").   The Council for TRIPS shall oversee the functioning
of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as
the "Agreement on TRIPS").  These Councils shall carry  out the functions assigned to them by their
respective agreements and by the General Council.  They shall establish their respective rules of
procedure subject to the approval of the General Council.  Member-ship in these Councils shall beopen to representatives of all Members.  These Councils shall meet as necessary to carry out their
functions.
6. The Council for Trade in Goods, the Council for Trade in Services and the Council for TRIPS
shall establish subsidiary bodies as required.  These subsidiary bodies shall establish their respectiverules of procedure subject to the approval of their respective Councils.IP/C/W/363/Add.1
Page 9
7. The Ministerial Conference shall establish a Committee on Trade and Development, a
Commit-tee on Balance-of-Payments Restricti ons and a Committee on Budget, Finance and
Administration, which shall carry out the functions assigned to them by this Agreement and by the
Multilateral Trade Agreements, and any additional functions assigned to them by the General Council,
and may establish such additional Committees with such functions as it may deem appropriate.  As
part of its functions, the Committee on Trade and Development shall periodically review the specialprovisions in the Multilateral Trade Agreements in favour of the least-developed country Members
and report to the General Council for appropriate action.  Membership in these Committees shall be
open to representatives of all Members.
8. The bodies provided for under the Plurilateral Trade Agreements shall carry out the functions
as-signed to them under those Agreements and shall operate within the institutional framework of the
WTO.  These bodies shall keep the General Council informed of their activities on a regular basis.
Article IX
Decision-Making
1. The WTO shall continue the practice of decision-making by consensus followed under
GATT 1947.
1  Except as otherwise provided, where a decision cannot be arrived at by consensus, the
matter at issue shall be decided by voting.  At meetings of the Ministerial Conference and the General
Council, each Member of the WTO shall have one vote.  Where the European Communities exercisetheir right to vote, they shall have a number of votes equal to the number of their member States
2
which are Members of the WTO.  Decisions of the Ministerial Conference and the General Councilshall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in the
relevant Multilateral Trade Agreement.
3
2. The Ministerial Conference and the General Council shall have the exclusive authority toadopt interpretations of this Agreement and of the Multilateral Trade Agreements.  In the case of an
interpretation of a Multilateral Trade Agreement in Annex 1, they shall exercise their authority on the
basis of a recommendation by the Council overseeing the functioning of that Agreement.  The
decision to adopt an interpretation shall be taken by a three-fourths majority of the Members.  This
paragraph shall not be used in a manner that would undermine the amendment provisions in Article X.
3. In exceptional circumstances, the Ministerial Conference may decide to waive an obligation
imposed on a Member by this Agreement or any of the Multilateral Trade Agreements, provided that
any such decision shall be taken by three fourths
4  of the Members unless otherwise provided for in
this paragraph.
(a) A request for a waiver concerning this Agreement shall be submitted to the
Ministerial Conference for consideration pursuant to the practice of decision-making
by consensus.  The Ministerial Conference shall establish a time-period, which shall
not exceed 90 days, to consider the request.  If consensus is not reached during the
                                                     
1 The body concerned shall be deemed to have decided by consensus on a matter submitted for its
consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposeddecision.
2 The number of votes of the European Communities and their member States shall in no case exceed
the number of the member States of the European Communities.
3 Decisions by the General Council when convened as the Dispute Settlement Body shall be taken only
in accordance with the provisions of paragraph 4 of Article 2 of the Dispute Settlement Understanding.
4 A decision to grant a waiver in respect of any obligation subject to a transition period or a period for
staged implementation that the requesting Member has not performed by the end of the relevant period shall betaken only by consensus.IP/C/W/363/Add.1
Page 10
time-period, any decision to grant a waiver shall be taken by three fourths4 of the
Members.
(b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A
or 1B or 1C and their annexes shall be s ubmitted initially to the Council for Trade in
Goods, the Council for Trade in Services or  the Council for TRIPS, respectively, for
consideration during a time-period which shall not exceed 90 days.  At the end of the
time-period, the relevant Council shall submit a report to the Ministerial Conference.
4. A decision by the Ministerial Conference granting a waiver shall state the exceptional
circumstances justifying the decision, the terms and conditions governing the application of the
waiver, and the date on which the waiver shall terminate.  Any waiver granted for a period of more
than one year shall be reviewed by the Ministeria l Conference not later than one year after it is
granted, and thereafter annually until the waiver terminates.  In each review, the Ministerial
Conference shall examine whether the exceptional circumstances justifying the waiver still exist and
whether the terms and conditions attached to the waiver have been met.  The Ministerial Conference,
on the basis of the annual review, may extend, modify or terminate the waiver.
5. Decisions under a Plurilateral Trade Agreement, including any decisions on interpretations
and waivers, shall be governed by the provisions of that Agreement.
Article X
Amendment s
1. Any Member of the WTO may initiate a proposal to amend the provisions of this Agreement
or the Multilateral Trade Agreements in Annex 1 by submitting such proposal to the MinisterialConference.  The Councils listed in paragraph 5 of Article IV may also submit to the Ministerial
Conference proposals to amend the provisions of the corresponding Multilateral Trade Agreements in
Annex 1 the functioning of which they oversee.  Unless the Ministerial Conference decides on a
longer period, for a period of 90 days after the proposal has been tabled formally at the Ministerial
Conference any decision by the Ministerial Conference to submit the proposed amendment to the
Members for acceptance shall be taken by consensus.  Unless the provisions of paragraphs 2, 5 or 6
apply, that decision shall specify whether the provisions of paragraphs 3 or 4 shall apply.  Ifconsensus is reached, the Ministerial Conference shall forthwith submit the proposed amendment to
the Members for acceptance.  If consensus is not reached at a meeting of the Ministerial Conference
within the established period, the Ministerial Conference shall decide by a two-thirds majority of the
Members whether to submit the proposed amendment to the Members for acceptance.  Except as
provided in paragraphs 2, 5 and 6, the provisions of paragraph 3 shall apply to the proposedamendment, unless the Ministerial Conference decides by a three-fourths majority of the Members
that the provisions of paragraph 4 shall apply.
2. Amendments to the provisions of this Article and to the provisions of the following Articles
shall take effect only upon acceptance by all Members:
Article IX of this Agreement;
Articles I and II of GATT 1994;
Article II:1 of GATS;
Article 4 of the Agreement on TRIPS.
3. Amendments to provisions of this Agreement, or of the Multilateral Trade Agreements in
Annexes 1A and 1C, other than those listed in para graphs 2 and 6, of a nature that would alter the
rights and obligations of the Members, shall take effect for the Members that have accepted them
upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptanceIP/C/W/363/Add.1
Page 11
by it.  The Ministerial Conference may decide by a three-fourths majority of the Members that any
amendment made effective under this paragraph is of such a nature that any Member which has not
accepted it within a period specified by the Ministerial Conference in each case shall be free to
withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference.
4. Amendments to provisions of this Agreement or of the Multilateral Trade Agreements in
Annexes 1A and 1C, other than those listed in paragr aphs 2 and 6, of a nature that would not alter the
rights and obligations of the Members, shall take effect for all Members upon acceptance by two
thirds of the Members.
5. Except as provided in paragraph 2 above, amendments to Parts I, II and III of GATS and the
respective annexes shall take effect for the Members that have accepted them upon acceptance by two
thirds of the Members and thereafter for each Member upon acceptance by it.  The MinisterialConference may decide by a three-fourths majority of the Members that any amendment made
effective under the preceding provision is of such a nature that any Member which has not accepted it
within a period specified by the Ministerial Conference in each case shall be free to withdraw from
the WTO or to remain a Member with the consent of the Ministerial Conference.  Amendments to
Parts IV, V and VI of GATS and the respective annexes shall take effect for all Members uponacceptance by two thirds of the Members.
6. Notwithstanding the other provisions of this Article, amendments to the Agreement on TRIPS
meeting the requirements of paragraph 2 of Article 71 thereof may be adopted by the Ministerial
Conference without further formal acceptance process.
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.
8. Any Member of the WTO may initiate a proposal to amend the provisions of the Multilateral
Trade Agreements in Annexes 2 and 3 by submittin g such proposal to the Ministerial Conference.
The decision to approve amendments to the Multilateral Trade Agreement in Annex 2 shall be made
by consensus and these amendments shall take effect for all Members upon approval by the
Ministerial Conference.  Decisions to approve amendments to the Multilateral Trade Agreement in
Annex 3 shall take effect for all Members upon approval by the Ministerial Conference.
9. The Ministerial Conference, upon the request of the Members parties to a trade agreement,
may decide exclusively by consensus to add that agreement to Annex 4.  The Ministerial Conference,
upon the request of the Members parties to a Plurilat eral Trade Agreement, may decide to delete that
Agreement from Annex 4.
10. Amendments to a Plurilateral Trade Agreement shall be governed by the provisions of that
Agreement.IP/C/W/363/Add.1
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ANNEX 2
Text of document WT/L/93, dated 24 November 1995
DECISION-MAKING PROCEDURES UNDER ARTICLES IX AND XII
OF THE WTO AGREEMENT
Statement by the Chairman
As agreed by the General Council on 15 November 1995
On occasions when the General Council deals with matters related to requests for waivers or
accessions to the WTO under Articles IX or XII of the WTO Agreement respectively, the General
Council will seek a decision in accordance with Article IX:1.  Except as otherwise provided, where adecision cannot be arrived at by consensus, the matter at issue shall be decided by voting under the
relevant provisions of Articles IX or XII.
The above procedure does not preclude a Member from requesting a vote at the time the
decision is taken.
Consequently, if any Member has a particular problem with a proposed decision regarding a
request for a waiver or an accession to the WTO, it should ensure its presence at the meeting in which
this matter will be considered.  The absence of a Member will be assumed to imply that it has no
comments on or objections to the proposed decision on the matter.
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