Frank R. Pfetsch and Alice Landau: Chairing Negotiations in the World

Trade Organization1

Frank R. Pfetsch, Institute of Political Science of the Ruprecht-Karls University of Heidelberg

Address: Institut für Politische Wissenschaft

Marstallstrasse 6

D-69117 Heidelberg, Germany

Tel. ++ 49 6221 542872e-mail: frank.pfetsch@urz.uni-heidelberg.de

Paper to be presented at the 3e Biennale International de la Negotiation“Strategies de negociation et risques: recherche et application”

Paris les 14 et 15 novembre 2007

1 In the memory of Alice Landau

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Frank R. Pfetsch and Alice Landau: Chairing Negotiations in the World Trade

Organization2

In International Organizations membership has greatly expanded encompassing many

industrialized as well as developing countries that previously were outsiders or inactive

players in trade negotiations. These participants represent diverse interests and objectives, and

have complicated decision-making in international organizations. Thus a consensus finding

agent is very much in need. The chairperson in such organizations has just this task to fulfill:

organize a consensus with all the members. Thus negotiations in the World Trade

Organization (WTO) seem to be a real challenge that is to find a deal that could satisfy more

than 130 governments from highly heterogeneous countries.

Chairing the WTO is different from chairing a United Nations meeting, for example

the Security Council, because here some issues have to be tackled immediately. The chair in

the Security Council presents a draft, reflecting his own preferences (Blavoukos, Bourantonis

2005). The chair in the WTO is neutral and has to set aside his country’s preferences.

Negotiations in the WTO are complex and uncertain: complexity created by the large

number of parties to the negotiations and issues on the table, uncertainty heightened by the

difficulties of communicating preferences and exchanging information among a large number

of participants that render more difficult to identify potential agreements and thus create a

demand for more active mediation. Hence, governments tend to delegate their interests to a

mediator and consensus builder on behalf of the whole. The choice of a chairperson should

primarily reflect the capacity and the availability of that person to undertake the special

responsibilities required.

Literature on chairing negotiations is virtually absent, very little has been published

describing how chairs perform their functions or assess the effectiveness of the different

techniques they use (Odell 2005: 1). Nearly all that have been published has concentrated on

wars and military-political disputes. Some of the ideas provided are relevant in the trade

domain. Some of the literature on the EU presidency (Tallberg), the law of the sea (Antrim,

Sebenius), or the environmental negotiations (Young) are of course relevant to the WTO-

negotiations. Those are marked by complexity; by many conflicts of interests they generate,

many opportunities for collective action and inefficiencies.

2 In the memory of Alice Landau

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Although WTO is a member-driven organization, member states have given a limited role to

the chair of their negotiating bodies to build consensus and mediate deadlocks. There are little

rules for chairing at WTO. Chairpersons according to the WTO should continue the tradition

of being impartial and objective; ensuring transparency and inclusiveness in decision-making

and consultative processes; and aiming to facilitate consensus. Therefore, there is little code

of practice the chairs could rely on.

What is odd with the WTO is that it provided its members with a chair to run ministerial

proceedings, but does little to specify the Chair’s mandate and interaction with other members

(Narlikar Wilkinson 2004: 452). The sketchy rules induce the use of manipulation tactics for

the chairs to gain some influence. But as quoted by Narlikar: ”The WTO is riddled by very

serious flaws of institutional design and that its regulatory framework has evolved in a highly

uneven and deeply problematic manner”. One of them is to rely on chairs and not giving them

the means to function effectively. This is all the more striking as chairing WTO negotiations

is such an important part of the negotiations. The process of negotiation shapes the outcomes.

The ministerial meeting in Seattle collapsed, without ministers even issuing a communiqué

pledging to keep working together. In contrast, the same states negotiated in Doha, and this

time, ministers agreed on an agenda to launch a major round covering twelve complex issues.

What accounted for the difference? Variations in the negotiation process must have shaped

the outcomes. The way the chairs operate may have significant effect on the likelihood of

agreement, the distribution of gains and losses, and the WTO’s legitimacy.

The chairs’ functions have three related dimensions. Their task is partly organizational –

creating and managing an organization to help carry out its function. The task is partly

intellectual and subjective- gathering information, identifying the parties’ true reservation and

imagining a formula or focal point that will create value and become equilibrium. And the

task is partly tactical – the mediator makes choices among communication, formation, and

manipulation tactics. Hence, the chair has three types of mediation tactics from which to

choose (Odell 2005: 431). These types increase in strength from the more passive to the more

interventionist. On the whole the task of the chair in the WTO is that of a mediator. Hence we

have to clarify first what mediation is all about.

MEDIATING NEGOTIATIONS

Bercovitch and Houston (2000) define mediation as a process of conflict management,

related to but distinct from the parties’ own efforts whereby the disputing parties or their

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representatives seek the assistance, or accept an offer of help from an individual, group, state

or organization to change, affect or influence their perception or behavior. According to

Rothschild (1997: 93), mediation in the formal sense means promoting agreement by helping

to “provide information, reduce misperception, develop a consensus on principles and goals,

set an agenda, define the issues under contention, recommend compromises and adjustments

and manipulate pressures and incentives in order to alter the payoff structure”. Mediation

plays a role when parties do better than unilaterally, without one (Steenhausen 2003: 4).

A mediator plays an active role in the negotiation process, by developing proposals that can

be accepted by the parties concerned. In general, propositions are jointly developed, but are

not binding. The mediator is voluntarily commissioned by the disputing parties, and may

pursue his own interests (Pfetsch 2007: 153). This should not be done by imposing own

interests upon the members. Where it was done it failed getting the approval of the members

of the organization. For example, by using the role of the host of the sixth Summit of the

‘Non-Aligned Movement’ in 1979, Fidel Castro tried at the beginning to present the Soviet

Union as the “natural ally” of the Third World, but failed to receive the approval of the

member countries.

Mediation is used by states when they are unable to resolve a dispute themselves. An outside

party is used to cool passions, clarify issues and helps settle the dispute. A mediator may

make only suggestion, never legally binding decisions, on how to resolve the parties’

problem.

In order to succeed a mediator firstly has to be impartial, i.e. has to keep equidistant and

balance relationships to both parties, what does not necessarily means neutrality. He or she

does not prefer or favor one disputant over the other. Secondly, a chair has to be firm,

especially at the outset of the negotiation process, in implementing the procedure, but also

being flexible (Meerts/Cede 2004: 5). Third, he or she should dispose of negotiation resources

and bargaining power, which can be material but also immaterial. Fourthly, the disputing

parties should be clearly identifiable; the spokesman of a group should possess legitimacy in

the representing group. Fifth, in the end no party should lose its face. Six, Touval and

Zartman (1985: 11) argue that stalemate is necessary to mediation just as mediation is

necessary to stalemate. Stalemate can provide incentive to change preferences toward ones

that are mutually beneficial to both parties (Rotschild 1997: 245). It can therefore lead to a

“ripe moment” when the antagonists realize that they would be better off by agreeing to a

peaceful compromise ending the conflict than by continuing the fight. When the balance of

forces is changing, the antagonist has more incentive to do so. Seventh, an agreement can be

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found easier when the disputed issue is divisible, that is, there must be sufficient issues to

allow for exchange deals.

Third party can greatly assist conflict resolution by defusing passions gathering relevant

information, generating possible alternative solutions, and facilitating communication

between antagonists. Third party can identify alternative approach and offering potential

solutions. The parties are too absorbed in the conflict to be able to think creatively of its

management (Zartman 1997: 15). The intervention of a third party provides a good

opportunity.

Mediators can act as communicators, formulators or manipulators depending on the depth of

involvement in the management and resolution process (Touval, Zartman 1985: 11). As

communicators they remain pure catalysts performing the communication function that

conflict prevents the parties from accomplishing alone. As formulators they overcome the

inability of the parties. Formulators are located on a continuum from communicators to

manipulators, and lines of divide between functions are often blurred. As manipulators they

deal with incentives and outcomes as well as proposals and communications between the

parties. Thus, they need resources of power, influence, and persuasion that can make the

parties move to agreement. Mediators assess the situation, and take the appropriate decisions.

Sometimes, their only aim is to keep the communication open until the ripe moment arrives,

when the antagonists realize that they would be better off by agreeing to a peaceful

compromise ending the conflict than by continuing the fight. Mediator just buys time to wait

for the ripe moment. Conflicts are reduced, downgraded, contained at best until the

demanders get new ammunition, new evidence, new pressure, new followers, or until new

issues and demands break up their ranks (Zartman 1997: 9). However, a potential mediator

should maintain contacts with all parties in the conflict. If he does not, he promotes fear of

exclusion and hostility (Pillar 1983: 45).

Several motives lead the conflicting parties to seek or accept mediation. The most obvious is

the expectation that mediation will help gain an outcome more favorable in the balance than

continued conflict - a way out of a stalemate. The adversary may have a similar assessment in

the balance; he may accept and cooperate with the mediator because a rejection may cause

him even greater harm. Acceptance is based on a cost benefit calculation of obtainable

outcomes (Touval, Zartman 1985: 15).

Mediators have only two sources of leverage: the most important is simply the ability to

formulate an outcome that is attractive to both sides, or more precisely to deliver to each party

the other party’s agreement to an outcome that is attractive to the first party. The mediator

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cannot be a weak state. He must have some credentials for successful mediation; he requires

leverage -resources of power, influence, and persuasion that can be brought to bear on the

parties to move them to agreement. As noted by Touval and Zartman (1985: 12): “leverage is

the most elusive element of mediation”.

Chair can greatly assist conflict resolution by defusing passions gathering relevant

information, generating possible alternative solutions, and facilitating communication

between antagonists. Third party can identify alternative approach and offering potential

solutions. The first of the task performed by a chair is one of communicator. We now turn to

it.

THE CHAIR AS A COMMUNICATOR.

The most passive WTO mediation tactics consist of observation, diagnosis, and

communication (Odell 2005: 431). The chair is supposed to communicate, and so he develops

an ability to listen, to become aware of the emotions and psychological concerns to others, to

emphasize, to communicate clearly and effectively (Fisher/Ury 1981: 130). The chair has the

task of collecting information and of providing an accurate record of the discussions. A chair

as a communicator is rather a passive exercise. This is confirmed by a WTO official: a chair is

somebody who carefully listens to negotiators (Interview 8 February 2006). Odell (2003)

recalled the chair of the dispute settlement, Lacarte of Uruguay.

“Ambassador Lacarte was a great chair. He listened very carefully. He went to great lengths

to give everyone a sense of being included. Essentially he said, “Trust me. Show me your

cards”. I am not sure how many really did. But he tried to test, to probe for where you had

flexibility and were you really had none. And once he found something where you really had

no flexibility, he took that on board as something you were going to have to have. On other

issues, he expected you to sit silently, and cooperate when it was something the other guy had

to have.”

The most obvious pitfall would be for a chair to fail to ask and listen carefully. Charlene

Barshefsky’s chair in the Seattle ministerial meeting in 1999 epitomizes what a chair should

not do. She insisted on heading the US delegation, while chairing the meeting. For

comparison, the mid-term summit of Montreal and Brussels were chaired by Uruguay who

had participated in the compromise text launching the Uruguay round.

Any U.S representative would have had difficulty gaining the trust of other delegates as an

honest broker. This led to confusion about the division of authority between the host country

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and the chairperson, which harmed the credibility of the Seattle meeting. Barshevsky spent

more time defending firm U.S distributive positions in press conferences that privately

building consensus, cajoling ministers for concessions, keeping them informed.

Charlene Barshevsky’s style and her brusque chair were in complete contradiction with the

rules on the appointment of directors-general (WT/L/509), and of officers to standing WTO

bodies (WT/L/510). She hijacked the agenda, and had indeed an abrasive style. Rather than

offsetting predictable suspicions, Barshevsky amplified them. She made statements that others

found arrogant. She appeared ill-equipped and ill-suited for the more sophisticated task of

building consensus in the WTO.

Barshefsky threatened the full plenary session, 24 hours before the deadline that she would

call a small meeting excluding most members, dubbed the Green Room, if they did not reach

agreement first. She ventured to say that “if we are unable to achieve that goal, I fully reserve

the right to also use a more exclusive process to achieve a final outcome. There is no question

about either my right as a chair to it or my intention as the chair to do it”. This threat was not

on behalf of a text already crafted to represent a wide consensus and it was not enough to

produce agreement (Odell 2004: 17).

This move infuriated the developing countries who criticized the “non-transparency character

of the green rooms practice”, and who went on saying that :”there is no transparency in the

proceedings and African countries are marginalized and generally excluded on issues of vital

importance for our peoples and their future” (Narlikar 2003: 192). Many developing countries

were simply excluded from meetings organized between members of the quad and some

developing countries like India, Brazil and Egypt. In Seattle, the developing countries which

were set aside, reacted and refused to be “rolled” again.

The basic functions of a chairman are also presiding the sessions. He enjoys considerable

leeway in setting the agenda and deciding the frequency and invitations to formal meetings.

He can also force issues on to the agenda. In this sense a WTO chair is a policy promoter in selecting proposals and placing them on the ministers' agenda. From this point of view, there is no difference between the Commission and the

WTO. In the former, the chairman controls the order in which agenda items are taken, the

sequence of speakers on each item. He then sums up the debate, identifying conclusion and

action points where possible (Johnson 1998: 28). After the Hong Kong summit, the

agriculture chair Crawford Falconer, acknowledged the effort being made to progress on some

issues. He set an ambitious agenda to cover all the issues and forge the degree of convergence

that would be needed to achieve finalized modalities (http://www. wto.org).

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Yet, a chair’s main role is mediating between conflicting views and thus assisting a

conference towards a conciliatory solutions of some problems (Kaufmann 1988: 95). He is a moderator between WTO member states. Sometimes, a chair may help to keep

negotiators on track by discouraging unhelpful and often inflammatory delays and

digressions, including monologues by the parties. He summons the recalcitrant negotiators.

Negotiation chairs can help states overcome bargaining impediments that prevent the

realization of collective gains (Tallberg 2006: 8). This corresponds to the editing phase which

conditions the tactical and strategic considerations of negotiators. Editing diplomacy evolves

in two stages. The first is characterized by issue clarification. In that state the chair has a great

role to play as developing countries sometimes did not understand the Uruguay Round

technical issues. The chair has a great knowledge of WTO matters and can help negotiators

understand the intricacies of the organization. In this stage there is little bloc building; instead

negotiators try to express their individual concerns in the process of agenda setting, and try to

design general approaches to the resolution of negotiation problems. In complex trade

negotiations such editing is a demanding kind of diplomacy requiring a high degree of

professional skill and access to the necessary technical expertise and information that the

chair usually possesses (Sojsdedt 1994: 45). A chair does whatever he can to produce an

accurate and exhaustive map of possibilities.

Many trade ministers and WTO delegates know very little of the technical and economic

issues they are negotiating. The WTO negotiations entailed a substantial amount of analytical

groundwork. In complex setting as the WTO, it may take prolonged active search and

piecemeal learning through trial and error. There is no basis to assume that these efforts will

generally produce an exhaustive and accurate map of possibilities. This is all the more so

since each party is likely to be concerned primarily with its own payoff.

Most international negotiations such as at the WTO occurs at two levels, an external

negotiations between nations and an internal negotiation conducted within the policy

structures of the participating governments. The greatest struggle usually occurs in the

internal negotiations. Negotiators tend to be insensitive to structural problems of their

negotiating partners; they have enough trouble worrying about how they will get proposals

accepted by their own government to appreciate fully their adversaries’ political difficulties.

As argued by Winham (1979: 197), this sometimes leads to unrealistic proposals and

positions, and the chair is best placed to communicate this to parties. Thus the chair is a mail

carrier, a go-between of sort that opens up a conduit for dialogue. This communicative role

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consists of passing demands and counter demands back and forth between the negotiators

until a solution is found.

The task of a chair is to help negotiators to structure what they want (Winham 1979: 196).

Usually negotiators enter negotiations with imperfect information in the process (Zartman,

Berman 1982). They have incomplete information and also tentative or vague preferences.

Governments’ bottom lines are not always as clear and as firm as theorists assume. Most

delegations don’t know their bottom lines. Even skillful negotiators have an approximate

knowledge of foreign countries they are going to negotiate with before the negotiations begin.

The difficulties in identifying a clear bottom line at the outset multiply the complexity of a

round of talks encompassing a dozen or more technical issue areas simultaneously.

Governments even can conceal or exaggerate the zone of agreement in order to extract more

concessions from their negotiating partners. Typically in a negotiation, diplomats open with

distributive tactics – high demands, resistance to discuss the demands of others, manipulating

information. In the first stage of a negotiation, parties have a tendency to bid high to

safeguard room for subsequent maneuvering. They also link their concessions on some issues to gain on other issues. Diplomats tend to delay as long as possible integrative proposals until the last hours prior to the deadline.

Negotiation processes involve both actions to enhance what is jointly possible through

agreement (creating values) and actions to allocate the value of agreement (claiming value).

Distributive tactics entail opening negotiation with tough demands and according to the

tautology “the strongest side wins” manipulating concessions, and retaining information,

misleading other parties, linking issues and interests for leverage, and exploiting others’

expectations. The tougher the negotiator the greater the chances of getting a favorable

agreement but the less the chance of getting an agreement at all (Zartman 2002: 74). Most

negotiations are distributive, “win-lose”. Value claimed by one party implies loss for others

(Pruitt 2002: 240). To adhere to this distributive strategy impedes the process of discovering

mutual gains. As Odell recalled, “when a party A limits itself to value-claiming tactics, it

encourages B and C to manipulate information, delay, take their own hostages, and develop

alternatives to an agreement with A.

On the contrary integration tactics are a win-win approach to negotiations.

“Creating value” entails reaching mutually beneficial agreements, improving them jointly,

and preventing conflict escalation, channeling hostility productively. Many negotiators

instinctively seek “common ground”, and believe that differences among negotiators divide

them. However, it is precisely differences that constitute raw material for creating values.

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Integrative tactics include exploration of common problems; proposing exchanges of

concessions that might benefit to each negotiator; and reframing the issues themselves in

ways that ease impasses (Odell 2004).

Thus the chair should then separate bluff from what is true reservation values and form a diagnosis of blockages. A final deal will end up in being a

package deal trading-off between areas to satisfy each of the players. For example, in late

1989 the points of difference in the WTO negotiations (more than 500) were all known.

Developing countries preferred to wait in other areas before proceeding in intellectual

property. They were mostly interested in agriculture, tariff reductions and the phasing out of

the multifiber agreement in textiles. Developing countries wanted to trade off these issues in

giving in on intellectual property and services that developed countries wanted to negotiate.

It might be sometimes difficult to separate bluff from true reservation values. The chair lacks

information. He may think that a stated position is a bluff and issue a compromise formulation

(Odell 2005: 440). In 2003, Pettigrew and Derbez may have thought that African and least

developed countries would accept some Singapore issues despite their public rejections. One

the other side, chairs may bet that inconsistent stated positions are final when in fact players

still can be convinced they have room for flexibility, and finally fail to realize an available

opportunity for agreement (Odell 2005: 441).

The chair keeps negotiators informed about the issues and about countries’ bottom lines.

Privileged access to information about the parties’ true preferences enables the chair to

construct viable compromise proposals (Tallberg 2006: 5). He can mediate between

conflicting views, and thus assisting the conference towards a conciliatory solutions of some

problems, trying to bring opposing sides together (Kaufman 1988: 97).

The functions performed by the chair enable member states to negotiate on the basis of

delimited agendas, uncover underlying zones of agreement. The management of the agenda

permits chairs to assign priority to competing political concerns.

One of the main achievement of a chair is to create an esprit de corps, which helps to

legitimize him and help to foster among negotiators a sense of belonging and parties may

come to realize that at least some spirit of compromise is necessary for a satisfactory

negotiated outcome, they are unable or reluctant to alter their preciously states positions for

fear of losing face and looking weak in front of each other and a domestic audience. This is

especially true for longer-running, higher profile and higher-stakes negotiations between

traditional protagonists.

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It is that which happens in the Uruguay Round of negotiations. Given the highly laden value of agriculture and the powerful interests of the Commission in trade policy, it might have been predicted that EC trade policy would clash in a struggle between conflicting goals over the Common Agricultural Policy. The

EU’s inability to conduct negotiations at an earlier stage of the negotiations cannot be

explained only by a wait-and-see strategy in front of the USA’s maximalist zero-option. The

EU was under pressure of their powerful farm lobbies. It could not bulge from its no CAP-

negotiation stance.

In negotiations, maintaining uncertainty about concessions is crucial. Negotiations are devoted to lowering expectations to the minimum acceptable deal for each of the players (Fisher, Ury 1981: 194). As quoted by Wallace (1989: 194), “for the negotiator faced with a tight range of options and other players with similarly circumscribed room for maneuver, the best may well be the enemy of the could”.

The agricultural negotiations provide once more evidence of this. In diverse

negotiations such as the Uruguay Round of negotiations, there is more opportunity for a

maximized numbers of trade-offs between negotiators and of linkages (Zartman 1986: 285). A

broad span of issues arising in international economic negotiations provides opportunities for

trade-offs between negotiators (Zartman 1986: 285). With an inclusive agenda, where all

issues are discussed conjointly, the number of possible combinations or linkages - and hence

the number of possible compromises or package deals - is maximized (Jönsson 1982: 38). As

pointed out by Homans (1961): “The more the items at stake can be divided into goods valued

more by one party than they cost to the first, the greater the chances of a successful outcome”.

Parties were thus able to trade differently valued items for mutual gains. As nicely put by

Jönsson (1982: 38), “instead of joggling with one ball at the time, negotiators should keep all

the balls in the air until the final combination is found”.

The agenda of the Uruguay Round was articulated in specific and functional issues, which

could be mutually productive for countries (Landau 2001). Structure of issues provided

additional chance for trade-offs between negotiating parties. Within one issue, different

components facilitated negotiations. Developing countries realized that negotiating on

intellectual property or services could provide some trade-offs on more valued items. The

chair helps to identify trade-offs. When negotiations go on, negotiators explore ways to make

a gain on one of the issue by trading a concession on another.

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Some countries are included in the multilateral negotiation only if they

manifest their interest and confirm it by their substantial contribution to the negotiation. And

they remain in the negotiation only if they do not block it by a clumsy defense of their

interests, however legitimate they may be.

Here are some of the tasks performed by a chair acting as a communicator:

Tasks to be performed Get in touch with the parties

Listen to negotiators

Make contacts with parties, gain their trust

Identify issues and interests

develop good relations with disputing parties

Arrange for communication between parties,

Allow all parties’ objectives to be discussed

Transmit messages between parties

Supply missing information

Avoid taking sides, impartiality

Offer positive evaluations

Create an esprit de corps

Suggest or control procedures, pace and formality

of meetings

Take up simple issues first in an editing stage

CHAIR AS A FORMULATOR

The fact that chair has limited authority induces them to use different techniques to

ensure their influence. As argued by Odell (2005: 433), chairs regularly go beyond minimal

tactics and reach for moderately interventionist ones. A less passive mediation tactic is that of

a formulator. The chair is in a position for collecting information about the sources of

impasses and is expected to use his position to help government find a balanced consensus.

Hence the chair must multiply opportunities for negotiators to meet. Chairs have to manage

informal gatherings. Such procedures are standard conflict resolution techniques. This is a

more active exercise than the simple communicator one.

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To communicate information better between the negotiators, chairs can call mini-ministerial

meetings (Odell 2004). In their private consultations with delegates, chairs may raise the

easier issues first in hopes to achieve a partial agreement that will encourage flexibility on

other issues. They use bilateral consultations with negotiators or tour the countries to try to

extract concessions, and unwelcome options away from it (Tallberg 2006: 16). Chairs are

expected to conduct private consultations to gather specific information on the current

impasse. The chair must travel extensively from capital to capital. During the Hong Kong

summit in 2005, more than 450 meetings took place, among them six important gatherings

and more than 200 consultations had been organized ( http://www. wto.org).

The Director General, Mike Moore, invited ministers from 22 countries to meet informally in

Mexico City in August and in Singapore in October, prior to the Doha meeting set for

November 2001. At the occasion, an Ambassador from a developed country reported:

“These were not decision-making sessions and were not meant to be. They were

important, first, for building relationships between people. This way you didn’t show up in

Doha and shake hands for the first time. There were lunches where no one was present except

ministers. So they could relax and begin to get to know each other. And second, they were

important for putting thins in a political context. Pascal Lamy would say things like, “you’ve

got to understand that I have got to have something on environment”. These were all

politicians and they all understand political demands. And so I heard some say, “Well, I don’t

like want you are doing and don’t agree, but I hadn’t quite thought of it that way”. These

meetings were very very useful. I don’t think Doha would have been a success without them”.

These meetings are off record, first in small conference room in the DG’s office. Each time it

was the same list of countries invited, the Quad, and regularly included developing countries

such as Brazil, Argentina, Chile, Mexico, Egypt, Morocco, India, Singapore or Malaysia. Like

minded countries such as Switzerland or Scandinavian countries were also invited. Käre Bryn,

Norway’s Ambassador and chair of the WTO General Council, held also frequent Council

meetings, and private consultations in order to propose a set of procedures that would permit

some work to be done privately in small groups while respecting the authority of the plenary

meeting (Odell 2005: 434). The chair can exercise considerable impact on the de facto

exclusion of certain members and their interests (Mayashekhi, Tuerk 2003: 10). However,

there has been a concerted attempt to maintain balance between developed and developing

countries at least after the Seattle meeting.

Those gatherings help to break deadlocks. When a chair feels that the debate is not

well-enough informed technically, he can ask the secretariat to prepare a technical

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background paper for the negotiating group. Major States and groups of States can and must

exploit in the negotiation the weight of their responsibilities, their demographic, economic

and geopolitical importance. But this influence must not be – and generally is not - used to

such an extent that it would prevent smaller entities to defend their interests.

Eduardo Perez Motto, the Mexican Ambassador chairing the WTO’s TRIPs Council, held an

open-ended meeting in 2002, in order to determine whether there was any movement in the

positions of governments that would bring members closer to an agreement (http://www.

cptech.org/ip/wto/p6/bna12062002.html). Odell (2003) recalled Ambassador Lacarte of

Uruguay: he also called each delegation, or spokesman for several delegations, for what he

called “confessionals”. This system figured among the new methods introduced to arrive at

consensus in the Cancun meeting destined to shift the discourse from grand rhetoric to

bottom lines (Narlikar, Wilkinson 2004: 451).

The intensity of these meetings ensures that a serious problem – even though endured by only

one smaller country – will find a solution, even if the price paid is a series of long efforts and

sometimes very tense situations. This procedure of small gatherings is similar to the one in the

EU where the practice of bilateral confessionals is common and through which member states

offer the Presidency privileged information about national bottom lines (Tallberg 2006).

Here are some of the tasks performed by a chair acting as a formulator:

Tasks performed by the chair as a formulator Choose the venue

Control the space and formalities of the meeting

Organize confessionals

Take down minutes

Propose a course of action

Highlight common interests

Structure the agenda

Deal the less-disputed issues first

Make substantive proposals, including a formula

for acceptable outcomes

Keep the parties at the negotiation table

Suggest concessions parties could make

THE CHAIR AS A BROKER

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The more interventionist mediation tactic is that of the broker. Here also the chair has

some tactics to use to bring the parties together and the negotiations to an achievement. It is at

this stage that chair can deploy all its talents. The negotiations evolve from mild at the

beginning to harsh at the end of the negotiations. It is at this final stage that chairs are most wanted as they draft the final documents, and bring the negotiations to an end.

Brokers are located on a continuum from communicators to manipulators, and lines of divide

between functions are often blurred. However, very often the WTO impedes the chair to act

efficiently.

The focal point. Chairs can assist the parties without changing the fundamental nature

of a negotiation, that is by stressing the virtues of communication and cooperation, they can

lead the parties down a road in which joint gains that neither side once believed were possible

are created – gains that, for once, do not benefit one side by taking something away from the

other. The chair breaks the negotiation as a zero-sum game into being a one creating values.

He investigates and defines the problem with recommendations designed to provide a

mutually acceptable solution (Bercovitch 2002: 6). An important part of negotiations is a

focal point. A chair can supply an idea for an agreement as a focal point solution that the

states might not find otherwise.

When negotiations are approaching the end, positions must converge. This stage is

characterized by text consolidation. As Odell argues: “It entails the beginning of movements

of convergence in the negotiating groups toward a dominant position followed by the search

for a single text. This is a formulation tactic as chair decides what to include in the text after

conducting extensive “confessionals” with delegations”.

The importance of the single negotiating text (SNT). A SNT is meant to help moving the large

group towards agreement. This move can help reduce many issues to a few, excluding

proposals that are not generating support, without taking a position between the few. A draft

is almost essential for large multilateral negotiations such as in WTO. One hundred and fifty

nations cannot constructively discuss a hundred and fifty proposals. Nor can the chair can

make concessions contingent upon mutual concession by everybody else. He needs some way

to simplify the process of decision making. The one-text procedure serves that purpose

(Fisher, Ury 1981: 121-122).

The chair does not have to get anyone’s consent to start using the one-text procedure. He

simply prepares the draft and asks for criticism, and put the remaining questions into brackets.

15

The deadlock between what developing countries and developed countries wanted to

negotiate broke in March 1990, then the United States, EC, Japan and Switzerland submitted a

SNT that could form the basis of a final treaty. The text was not detailed enough in its

provisions to really counter all the proposals. Yet it did yield minor gains by providing the

basis for agreement on intellectual property (Odell 2004: 67).

The chair pinpoints the “crystallized points”, helping to overcome the hurdles

in the negotiations and bring the parties together. A single text helps to express an emerging

consensus, not to display rival versions side by side. However, the text would not be

presented as an agreed text, but as an indication of the deliberations at this point in the

negotiations. The chair listens to both sides, prepares a draft to which no one is committed to,

asks for criticism, and improves the draft again and again until the chair feels they can

improve it no further. The problem with this SNT is that procedures have changed after

Seattle. The single text presented by the chair is no more a bracketed text but a text under the

own responsibility of the chair. Therefore it plays a role in the agenda setting without having

the agreement of all the WTO members.

Negotiations are likely to succeed if a chair introduces a SNT, to present in its

own name. It is a formulation tactic often used by WTO chairs. Once there is a text, parties

have incentive to initiate compromises among themselves since the chair can otherwise

threaten to throw the towel. Once things are written, it becomes easier to get a consensus. The

chair is not alone in introducing a text, he is also helped in his task by the “Friends of the

chair” or facilitators appointed to organize discussion in identified areas. The Friends of the

chair played an important role in the Uruguay round of negotiations. At the outset of the Doha

meeting, the secretariat named six ministers as “friends of the chair” to specialize in brokering

deals on implementation, environment, trips/public heath, agriculture, rules such as anti

dumping, and the new issues.

The best example of chairs presenting a single text was the Dunkel text issued during the

Uruguay Round of negotiations. Dunkel took the responsibility for proposing a settlement for

the most explosive issue, agriculture. The text put forwarded specific proposals in three areas

(cuts in the volume of export subsidies and in domestic support, market access with complete

tariffication and rebalancing as well as sanitary and phytosanitary measures. It provided

guidelines for reform of world agriculture (Meyers& al. 1992: IX) and a real breakthrough in

the difficult negotiations. France and Ireland, the winning coalition in the Council of

agriculture Ministers opposed the text, the United Kingdom and Germany supported it. It was

nevertheless a start around which most countries could position themselves.

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The EU responded that the Dunkel Text provided nevertheless the bias for a final position but

that this would not necessarily constitute the final position of the EU. The breakthrough went with the adoption of the CAP reform in 1992. However, The Commission had encouraged Dunkel to produce his paper which the Commission could use to pressure the Council of Ministers to change the mandate and be more forthcoming, which eventually happened (Landau 1998). In international negotiations, “domestic” political institutions always shape the

bargaining behavior of international actors (Evans, Jacobson 1993). A text may also designed to help negotiators deal with constituents back home. As argues by Singh (2006: 47), for international rules to be effective, they must have “domestic resonance”. WTO Member states exploit the chairmanship for national

political purposes, wielding its privileged power resources for private gains.

This single text has to be balanced. Pascal Lamy

(http://www,wto.org/english/news e/sppl e.htm), the WTO Director-General, by that time the

EU commissioner for trade, said during the Hong Kong meeting “Members must strengthen a

draft declaration, build on it, and take it forward”. This text is intended to inject a focal point

into the process and pull the parties toward one another (Odell 2004). Finding a mutually

agreed deal gives incentive to other negotiators to accept it. Thus the chair’s role is to sum up

the different positions, which have to be reflected in the reference papers.

The problem is that often the text is not balanced, and weighted towards one of the

side. It happened with the Perez del Castillo text. At Cancun, his draft was contested. Perez de

Castillo’s draft was seen by developing countries to privilege the proposals of some

developed countries and marginalizing alternative proposals although Perez de Castillo

claimed that it would be without prejudice to any delegations position (Narlikar 2003: 2). The

text was on Perez del Castillo’s own responsibility, in close cooperation with the Director

General. It formed the basis of the negotiations – rather than a bracketed text or a text actually

agreed upon by members, as is normally the case – and was accompanied by a letter for the

Chair and the Director-General pleading for energy, co-operation and agreement. But the draft

incorporated many of the proposals that have been put forth in the EU-US draft. It envisioned

two options. The option one was to start negotiations on the Singapore issues, which the

developing countries rejected. The option 2 was to clarify the issues without actually

negotiating them. The text weighted heavily towards option 13.

3 The chair’s text played an important role in the agenda setting, to the detriment of developing countries. The problem is that the vast majority of developing countries simply did not receive the

17

The Cairns group felt that Castillo draft had not paid sufficient attention to its

proposals. The text would have been more acceptable were it accompanied by a set of checks

and balances that dissenting countries could use to ensure that their views received equal

representation (Narlikar, Wilkinson 2004: 449).

So they are rules in the WTO but they are not followed. It has a penchant for improvisation.

The WTO suffers from a democratic deficit. Besides the fact that there are little rules for

chairing at WTO, chairs tend to act alone, without the backing of the organization.

The problem of square brackets. The chair is not alone in editing a negotiating text. As one

official puts it: “the secretariat is always involved in assisting the chair. The secretariat gives

him advice, and draft the words with him”. This text needs to be balanced, leaving conflicting

proposals on issue in square brackets which indicate disagreements. The question of brackets

is a debatable one. The draft links many issues in a package and is informal in the senses that

no delegation has agreed to it. Is it better to put alternatives in brackets, then running the risk

of reinforcing disagreements, or no brackets at all and run the risk of a rejection? Still the

brackets are safer than run the risk of reinforcing an impasse. The chair has to persuade

diplomats that the cost of rejecting the text will be high. However it is only a starting point.

The draft is a time consuming process. One of the tactics used when there is stalemate as was

the developing countries’ positions on implementation issues is to subtract the conflicting

issues from a single text, and put them in a separate draft to increase the chances of agreement

on the rest.

While he was chair at the Council, Stuart, the Hong Kong Ambassador, Stuart Harbinson,

circulated a first draft in November 2001. The draft was a skeleton, with many headlines. The

chair met with representatives of the various member states, then with head of delegations in

order to put some flesh on the skeleton. He then issued a declaration in November. It was not

an agreement but only a text with brackets. The declaration was well received by the Member

states. Everybody’s opinion was preserved in it. When Stuart Harbinson became chair for the

Committee on agriculture, he issued a second draft on 12 February 2003, on modalities which

were targets for achieving the objectives of the negotiation. However, the draft was issued too

early so could not stir the necessary consensus. Harbinson’s text signaled the Congress that if they rejected all deals that included the antidumping item (to satisfy the steel industry), he would block a round that could benefit many other U.S sectors (Odell 1995). The same tactics was used by the

same kind of attention, despite much dissatisfaction being expressed in Geneva before the meeting (Narlikar, Wilkinson 2004: 449).

18

Commission who took the lead after the de Zeew paper on agricultural reform in July 1994. On this occasion, the Commission acted as a policy promoter in selecting innovative proposals and placing them on the ministers’ agenda. The member states were in a respondent’s role.

The United States had concerns about Harbinson’s paper lacks of “harmonization and

equity in both the market access and domestic support” (http:///www.usinfo.stategov).

However, the draft enabled the WTO to meet a deadline for establishing tariff and subsidy

reduction commitment. The draft was, according to the Agriculture Secretary, Ann Veneman,

an attempt to establish a basis for future negotiation (www.USINFO.States.gov). However,

Harbinson subtracted the implementation issue, where it seemed there was no agreement

zone, and put them in a separate draft declaration, to increase the chance of agreement on the

rest.

The importance of timing. The chair could fail if the text does not satisfy parties’ senses of

balance, or if he presents the text too early, before parties decide they have exhausted all the

other alternatives. The chair should sense that timing is of a crucial importance in a

negotiation. It is important to keep the heat on delegates to suggest their own integrative

formulations and convince their capitals of the need for compromise. Otherwise they might

not be ready to accept the chair’s suggestion (Odell 2005: 440). This happened in the Seattle

meeting. A 33-page draft was simply compiled. This draft encouraged foot-dragging even

more. Once delegations saw their positions in the chair’s text, the bargaining process

amounted to convincing parties to give up things already won, making it even more difficult

to achieved any consensus. Obviously the chair had not performed his home work, and

conducted informal discussions which would have indicated that a consensus was unlikely to

form around that language (Odell 2001: 13-14).

Another dilemma is the weights of the members. The chair is in the middle of a struggle

between unequal members with very unequal power. Even if at the WTO each country has a

vote and it follows the rule of the legal equality. It is sometimes difficult for a chair to decide

which proposal to include in his text. As argued by Odell (2005: 441): “shares of the world

trade are taken into account when deciding what elements to add or to exclude from a

package”. Proposals might be left aside if they are coming from weak powers, and on the

contrary always included if coming from the US or the EU.

19

In the Uruguay Round, between the two extreme positions of the United States and the

EU, there was enough space for the Cairns Group to slot into the negotiations. This

development coincided with the emergence of coalitions of nations supporting the various

main proposals or texts (Sojsdedt 1994: 61).

Chairs must be endowed with vision and intellectual guidance. A leadership based on

status, skills and effort is a role to which representatives of small countries can aspire

(Underdal 1994: 179). They sometimes find in a better position than great powers. At the

beginning of the Uruguay Round of negotiations, the role of broker was taken up by middle

powers, such as Colombia and Switzerland, who succeeded in forging a consensus in front of

the strong coalition of developing countries, including Brazil and India who rejected any new

negotiations. Middle powers were catapulted in the unprecedented role of leadership.

The tasks performed by a chair as a broker are the following.

Tasks performed by a chair as broker Keep parties at the table

Change parties’ expectations

Propose concessions which the parties can accept

Press parties to show flexibility

Make the parties aware of costs of non-agreement

Supply information, and filter it purposively

Help negotiators undo a commitment

Reward concession made by parties

Promise resources, threaten to withdraw them

Threaten punishments

Offer to monitor and report noncompliance with

the agreement

Offer to enforce the agreement

Threaten to withdraw mediation

Source: John Odell. 2004. Mediating Multilateral Trade Negotiations. Paper presented at the annual meeting of

the International Studies Association. Montreal.

CONCLUSION

Chairing is an essential part of the WTO negotiations. It helps to reach agreement and achieve the trade liberalization the WTO is devoted to. Of all

20

the WTO summits, one will only remember the chair texts: those of Harbinson, Derbez or Dunkel. The chair plays a significant role in influencing the consensus building and the resulting

capacity of gains and losses in the negotiations. As manipulators chairs deal with incentives

and outcomes as well as proposals and communications between the parties. Thus, they need

resources of power, influence, and persuasion that can make the parties move to agreement.

Chairs assess the situation, and take the appropriate decisions. Sometimes, their only aim is to

keep the communication open until the ripe moment arrives, when the antagonists realize that

they would be better off by agreeing to a text that could satisfy everybody. Chair just buys

time to wait for the ripe moment. Chairs as mediators can act as communicators, catalysts or

manipulators depending on the depth of involvement in the management and resolution

process.

Being a chair can be a tricky business: a chair can face a diagnosing impasse: he has to

separate bluff from real reservation values, he has to decide a single negotiating text, and he

has to weigh demands from diverse WTO members. Moreover, WTO provides members with

chairs to run ministerial proceedings, but does little to specify the Chair’s mandate and

interaction with other members. He has also to persuade the WTO of his effectiveness.

A chair has the authority by office which should not be underestimated. He can influence

the outcome by formal or informal diplomatic negotiations, meetings in the run-up of a

conference, the deliverance of an opening speech, setting the agenda, calling for a meeting,

termination of a session, setting the order of speakers, influencing the media, drafting the final

documents and utilizing the code of practice.

The three categories designed in this paper are not mutually exclusive but rather are the outcome of a continuum. The border between the three is blurred. They are independent, although linked in a way, which goes in a linear direction from mild at the outset to harsher at the end of the negotiations. Chairing at the WTO is also very different from chairing in another international organization. It requires imagination, skills, technical knowledge and intellectual ability. However, chairing requires some conditions to work better:٠ It is more effective when negotiators have information about their counteracts’ deadlines.

٠ It is more effective when the chair proposes a single text with few brackets.

٠ The negotiators are more willing to compromise when they think there are not alternatives,

no BATNA.

21

The chair intervenes in an attempt to affect the final outcome; he is altering the negotiation agenda. He is endowed with a lot of power. In the final, he has a capacity of overcome obstacles to the negotiation. However, he has no say in the increasing conflicts that characterized the international economic scene. But international economic negotiations are there to solve them.

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