The World Trade Organization Belongs to the Future — But How Do We Get There?
By Gabrielle Marceau and Jian Ling Teo
Published on 25 March 2026
Introduction
Trade has evolved and most modern transactions today have cross-border dimensions; thus, they become trade-related matters. In that context, the World Trade Organization (WTO) has proved to be a relevant forum for discussing new issues, such as trade-related climate measures (TrCMs), digital trade, COVID-19-related actions, supply chains, and intellectual property (IP). Notably, Ministerial Declarations have emphasised the importance and role of sustainable development across its economic, social and environmental dimensions (see here and here), which raises further matters for the WTO. We take three examples of new trade-related sectors that WTO Members brought to the WTO for negotiation.
In December 2017, a sub-group of developing countries (Brazil, China, Argentina, Nigeria, Pakistan, Chile and Colombia) began discussions on an Investment Facilitation for Development (IFD) Agreement at the WTO. Negotiations started in September 2020, and a text was agreed by 123 Members on 25 February 2024 (see here). However, discussions are blocked on how to legally and formally integrate such text into the WTO Agreement, while India continues to oppose the consensus to integrate IFD in Annex 4.
The WTO has also become a key forum to discuss the cross-border aspects of digital trade and digital technologies (see here and here). AI has become a highly relevant topic because it can, for example, affect the processes and production methods used to make goods. AI affects every dimension of the WTO Agreement. Notably, the 2025 World Trade Report discussed AI and its relationship with the WTO’s rules on IP, services, and other areas. 76 Members have also concluded e-commerce negotiations, with current discussions focusing on how to finalise this negotiation and incorporate the stabilised text of the Agreement on E-Commerce into the WTO Agreement (see here and here).
The WTO has also developed a fundamental role in global climate debates. WTO agreements did not originally address climate and even less so TrCMs, but they are now extensively discussed in the WTO committees. For example, China proposed in 2023 to hold dedicated multilateral discussions on TrCMs rather than resorting to dispute settlement. Similarly, in 2024, the US proposed ways to deepen the understanding of the coherence and interoperability of TrCMs. Several Members have also circulated proposals on decarbonisation standards and regulatory cooperation for lithium-ion batteries (see here, here and here). Moreover, the European Carbon Border Adjustment Mechanism is a border trade and climate measure that has been discussed in almost all WTO committees and bodies. At COP28 in 2024, the WTO was given the lead among all intergovernmental organisations to try to determine a carbon price (see here and here). On 19 March 2026, 79 WTO Members participating in the Trade and Environmental Sustainability Structured Discussions unveiled a package of outcome documents showcasing all trade and climate progress achieved over the past five years.
Although the WTO seems to excel as a forum for discussing new trade issues, introducing new relevant provisions or adopting related decisions within the WTO Agreement has proved very difficult, if not impossible. The WTO traditional consensus rule has allowed some Members to easily stall negotiations on new rules, either because they want leverage to protect their interests in other areas (e.g. agriculture) or because they are simply not interested in having the WTO address those issues. As Members never vote as a matter of customary practice (WT/L/519), this situation has frustrated Members who support the addition of plurilateral rules to address pressing trade needs. Ultimately, this affects the WTO’s ability to adapt to new economic realities, thereby undermining the security and predictability of international trade.
Despite the current consensus deadlock, willing Members must explore alternative paths for rulemaking. It is important to remember that the ‘rule of law’ is not limited to formal legal rules but also includes soft law instruments and law-making mechanisms. We suggest hereinafter different mechanisms and tools that could be put in place to facilitate Members’ efforts to response to new needs and how to change and adapt to old trade rules.
A. Introducing Processes and/or Procedural Steps to Facilitate Consensus and Avoid Voting
WTO Members had very early on adopted a decision calling for every effort to avoid voting on decisions concerning accession and waivers (WT/L/93). Therefore, Members can consider adding more sophisticated processes and procedures to facilitate consensus and avoid reaching a need to vote.
First, Members can cultivate a culture around how to exercise their decision-making power in good faith. For example, in 2024, several Members (spearheaded by Singapore) circulated a proposal on ‘responsible consensus’. This could involve developing a practice in which a Member who refuses to join consensus must ‘justify’ its refusal within the parameters of the consensus decision. This prevents the abuse of the consensus rule by ensuring that reasons for blocking consensus are based on issues included in the matter for decision, rather than as a tactic to extract concessions in other areas of negotiations not concerned by the consensus call.
Second, it may be good practice to circulate a ‘list of Members supporting a matter for which consensus is desired’, to share with the membership the outreach of the consensus decision. Something similar was attempted with the IFD Joint Statement Initiative (JSI) in 2024 (see here).
Third, Members could also develop a practice of ‘Tacit Consensus’ (similar to ‘reverse consensus’ under the Dispute Settlement Understanding (DSU)). For example, the 1972 Convention on the International Regulations for Preventing Collisions at Sea provides for a ‘tacit acceptance’ procedure. This procedure allows an amendment to enter into force at a specified time unless objections to the amendments were received from a specified number of Parties before that date. Therefore, Members can either consider the ‘tacit acceptance’ process as an eventual amendment to the consensus rule or to inspire a voluntary practice to prevent non-participating Members from stalling progress in negotiations—reversing a quasi-consensus would require an explicit justification.
The above suggestions could be triggered following a failed consensus attempt (a period that could be defined, e.g. 12 months or after a certain number of attempts). Such a procedure could be used for any decision or agreement (including those which only want to bind a sub-group of Members).
The issue of consensus-based decision-making is paradoxical. Members are as committed to the practice of consensus as they are aware that it severely limits their ability to make progress on these new challenges posed by economic globalisation. The facilitator for WTO reform, H.E. Peter Olberg, highlighted this point in his latest report to the General Council (see here. For news on the 14th WTO Ministerial Conference (MC), see here and here. For examples on Members’ WTO Reform proposals, particularly on the most-favoured-nation principle, see here (UK), here (Paraguay), here (African Group), here, here (US), here (China), and here (EU)).
B. The Use of Softer Norms or Softer Language
Soft law is part of the rule of law, and Members should use it more when other Members oppose binding norms. This is all the more important given that the economic system demands new norms in a short timeframe, which traditional sources cannot deliver. Further, Members may more easily reach consensus with softer instruments. Members can start considering varying the level of ‘bindingness’ in their instruments. For instance, Members can use more ‘best efforts’ or ‘best endeavour’ type of language in their instruments. Additionally, Members can also consider issuing principles, guidelines, or best practices that, although less binding, can foster ‘state practices.’ These practices may evolve into ‘harder’ norms as in the Climate Change Advisory Opinion where the International Court of Justice considered several international environmental law principles, such as ‘common but differentiated responsibilities and respective capabilities’, as ‘applicable law’ (see here). In times of crisis and disruption to the multilateral trading system, such instruments may also simply consist of standstill commitments or a reaffirmation and commitment to existing rules. One early illustration can be found in discussions within the GATT in the early 1980s, when the global economy was affected by the aftermath of oil shocks and the associated economic downturn. Contracting parties committed themselves both to resist protectionist pressures and to refrain from introducing measures inconsistent with GATT disciplines (see here).
C. Equivalences and Mutual Recognitions instead of Harmonisation
Members should consider concluding more trade instruments based on the principles of equivalence and mutual recognition rather than harmonisation to drive substantive cooperation. Mutual recognition allows different standards to be accepted as equivalent, rather than requiring a single approach towards addressing an issue. The WTO supports these principles, as evidenced by Article 2.7 of the Agreement on the Technical Barriers to Trade, Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures and Article VII of the General Agreement on Trades in Services (GATS).
This approach is also useful when private standards are involved. For example, in 2023, the WTO Trade Forum for Decarbonization Standards in the Steel Sector brought together various stakeholders (e.g. some of the world’s biggest steel companies). The participants highlighted the WTO’s role in encouraging the use of the principles of equivalence and mutual recognition of standards between countries. Further, the Steel Standards Principles, which supported by the WTO and launched at COP28, recognised the importance of equivalence and mutual recognition (see here).
D. The Use of Dynamic and Variable Geometry Commitments in Sub-group Instruments
a. Annex 4 Plurilateral Agreements
Incorporating a plurilateral agreement under Annex 4 of the WTO Agreement by consensus is the most direct way to bring new topic agreements within the scope of the WTO. However, Members who are not involved in the negotiations of such agreements can easily block consensus incorporation requests, as evidenced by what has happened with the JSIs on IFD and E-Commerce, where consensus has not been possible.
Interestingly, in March 2026, the US proposed two mechanisms for developing plurilateral agreements: ‘interim plurilaterals’ and a ‘critical mass’ test. The first allows a sub-group of Members to implement ‘voluntary and temporary agreements’ without needing full consensus. Instead of pursuing formal incorporation into the WTO Agreement, the ‘interim plurilateral’ will be implemented and monitored for a specified period. This allows both parties and non-parties a chance to observe its impact. At the end of the specified period, Members could then negotiate whether to incorporate the interim agreement into Annex 4. In the event a non-party objects, parties can strongly consider making it a non-WTO plurilateral agreement. Notably, it was reported that the signatories to the E-Commerce JSI plan to announce at MC 14 that they intend to implement the deal on an interim basis regardless of India’s opposition, which in part resembles the US’ ‘interim plurilaterals’ proposal.
Second, the US proposed a ‘critical mass’ test, which could be used alongside ‘interim plurilaterals’. Under this proposal, if participants of the plurilateral account for at least ‘x’ per cent of trade in the products covered by the agreement, the agreement would be incorporated into the WTO Agreement. The threshold ‘x’ must be agreed upon at the outset of the negotiations.
b. Reference Papers and Similar Sectorial Additional Commitments
In the context of services, Members have used instruments that include additional commitments to existing sectoral agreements. For example, the Telecommunications Reference Paper, which included commitments in addition to the Fourth Protocol of the GATS, became legally binding for interested Members when they appended the document (either in whole or in part) to their GATS schedules of commitments. Additionally, some Members chose to schedule their financial services commitments according to the Understanding on Commitments in Financial Services, which is an optional set of deeper commitments under GATS, rather than the standard GATS scheduling approach.
c. JSI and Other Informal Sub-group Instruments
JSIs are more concerned with commitments on new issues than with additional commitments to an existing agreement. So far, some groups of Members have agreed to work on additional regulatory commitments such as Services Domestic Regulation (SDR, which is already finalised), IFD, and e-commerce. Ideally, JSIs on new issues should advance without being blocked by consensus. JSIs offer flexibility and dynamism that are essential in international trade today and can be amended more easily than traditional agreements.
The Mechanism on Dispute Settlement practices (JOB/DSB/1) allows participating Members to resolve disputes through their own specific ad hoc procedure (as of today, there are 14 such mechanisms in place). The Multi-Party Interim Appeal Arbitration Arrangement is a good example of such a mechanism, establishing for its 60 current participating Members, an interim arbitration appeal procedure under Article 25 of the DSU until the resurrection of the Apellate Body. This mechanism binds those who want to follow the agreed-upon procedures and does not require the membership’s consensus.
d. Decision by a Sub-group of Members
Members can explore allowing a sub-group of Members to make a joint decision, which has never been done before. This is distinct from a WTO Ministerial Decision, and a joint statement or a Declaration by Members. Even if controversial, it can help spark discussions on an important issue. With enough repetition, it may just result in quasi-codification of a normative practice. Such sub-group decisions could be a first step toward full membership decisions on issues such as a permanent moratorium on electronic transmission, or broader regulatory commitments on e-commerce or IFD. Groups of Members have already made voluntary commitments in the form of declarations, such as those regarding the safeguarding of supply chains during the COVID-19 pandemic through the Trade and Health Initiative, but these declarations do not carry the same authority as decisions.
e. Mini-deals and Target Trade Deals
Mini-deals or Targeted Trade Deals (TTDs) can be understood as new forms of instruments of global value chain governance. TTDs are not regional trade agreements because they usually cover only specific sectors and have a targeted objective (e.g. the Digital Economy Partnership Agreement, EU-Japan Economic Partnership Agreement Protocol on cross-border data flows). In practice, TTDs function as a declaration that some governments are discussing certain trade issues between themselves. The Global Value Chain Development Report 2025 identified 185 TTDs, encompassing 106 related to critical minerals and 79 related to the digital economy and electronic commerce. Given that the WTO Agreement does not explicitly address new challenges posed to modern trade today, agreements that simply bring governments together (i.e., by encouraging consultations and cooperation on certain new trade-related issues) are arguably not illegal per se under Article III(2) of the WTO Agreement. These agreements may generate sufficient ‘state practice’ and/or publicity, pressuring Members to return to the WTO negotiation table to discuss new rules in the form of plurilaterals, as we see with critical minerals which is becoming a priority in the US 2026 Trade Policy Agenda.
E. The Use of Members’ Individual Schedules to Integrate New Commitments
As incorporating a plurilateral agreement into Annex 4 of the WTO Agreement is currently deadlocked (e.g. E-Commerce JSI achieved a stabilised text (see here and here)), Members can consider inscribing plurilateral non-tariff commitments under their GATS and GATT 1994 schedules. Under Article XVIII of the GATS, such commitments can be inscribed in the ‘additional commitments’ column. Under Article II(1)(b) of the GATT 1994, plurilateral non-tariff commitments could be introduced as ‘terms, conditions or qualifications’. These procedures have made it possible to incorporate reference papers, regulatory commitments such as the JSI on SDR, as well as TTDs such as the agreement on pharmaceuticals or information technology. These procedures could then be considered for incorporating disciplines related to the IFD, E-Commerce, or for liberalising the trade in environmental goods and services.
The modification of GATS and GATT 1994 schedules must follow their respective Procedures (see here and here). The certification process under these Procedures does not block changes made to a Member’s schedule, whether under the GATT or GATS if they do not affect the benefits of third countries. For example, the Panel in EU – Poultry (China) confirmed that the certification process cannot be used to prevent deals from being implemented between relevant supplying Members. Additionally, when India lost its arbitration challenge against how Australia chose to reflect its Services Domestic Regulation JSI commitments in its GATS schedule in 2024, the arbitrators confirmed that the certification procedure does not invalidate the agreement resulting from a successfully completed (i.e. WTO-compliant) modification procedure.
Conclusion
Overcoming the WTO consensus deadlock requires a multi-pronged approach. Importantly, the suggestions raised in this blog are certainly not meant to be exhaustive and can be considered as suggestions to navigate the deadlock. The WTO Agreement remains crucial to ensure security and predictability in international trade. However, given today’s new trade needs, Members need to adjust existing rules and adopt new ones, and therefore, alternatives to those blocking strategies must be explored. The suggestions above, although imperfect, can lead to the development of ‘new ways of doing things’ and, eventually, (unilateral but coordinated) ‘state practices’ among several WTO Members that build up momentum to law-making. The birth and eventual codification of the old consensus decision on the Enabling Clause is a beautiful example of this potential. Soft law mechanisms can be in line with the ‘rule of law’ that help guarantee, on the one hand, the traditional predictability and transparency, and on the other hand, the flexibility and adaptation capacity which are now inherent to the dynamic nature of international trade that calls for rapid changes and adaptation and which are essential to international economic stability.
Professor Gabrielle Marceau wishes to express her gratitude to the NUS Centre for International Law for hosting her as a Distinguished Visiting Scholar from 23 February to 3 March 2026.
- Gabrielle Marceau is Honorary Professor at the Faculty of Law of the University of Geneva and Visiting Professor at the University of Ottawa. She worked as legal adviser for 30 years at the WTO Secretariat. She was a Distinguished Visiting Scholar at the NUS Centre of International Law from 23 February 2026 to 3 March 2026.
- Jian Ling Teo is a Research Associate (International Economic Law & Policy) at the NUS Centre for International Law.