TN/RL/W/276/Add.1  
 
11 May 2021  
(21-4029) Page: 1/26 
Negotiating Group on Rules  Original: English  
 
FISHERIES SUBSIDIES  
DRAFT CONSOLIDATED CHAIR  TEXT  
CHAIR'S EXPLANATORY NOTE ACCOMPANYING TN/RL/W/276  
Addendum  
The attached document is the Chair's explanatory note accompanying the new fisheries subsidies 
draft negotiating text circulated in TN/RL/W/276. The content of the explanatory note was delivered 
orally by the Chair when he presented the text at the 11 May 2021 meeting of the Negotiating Group 
on Rules at the level of Heads of Delegation.  
_______________  
  TN/RL/W/276/Add.1  
 
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  INTRODUCTION  
1. Good morning colleagues. First of all, thank you for joining me this morning. As I announced 
on 3 May in my statement to the Trade Negotiations Committee and in my e-mail to all delegations , 
the objective of today's meeting is for me to present a new draft  text to serve as the basis for work 
toward a clean text to present to Ministers  in July , for a meeting  focused on fisheries subsidies. The 
new draft text was sent to all of you a few minutes ago, so that it will be easier for you to follow my 
detailed pre sentation of its contents. Before getting to the substance, let me remind you of how I 
intend to conduct the meeting. As I indicated to you by e -mail at the end of last week, I am simply 
presenting the text this morning. This is not a meeting for substanti ve discussion, and therefore I 
will not be opening the floor. Once I have presented the text and discussed some next steps, I will 
close the meeting.  
2. Coming back now to the substance, a s you know, th e Ministerial  meeting is now set for 15  July 
– the invita tions went out last Friday. This leaves us just two months to finish. The shared sense of 
urgency is palpable, and we need to harness that sense to finally agree to the compromise landing 
zones that will represent the ambitious and balanced outcome that Ministers in Buenos Aires 
mandated us to find, to make a substantial and tangible contribution to the health of our shared 
oceans. The health of our very stressed planet is at stake – we cannot afford to let her down.  
3. These are the imperatives that have been in my mind as I put the new text together. I now 
present th is text to you as my most sincere and honest attempt, based on everything that I have 
heard from you  in the nearly six months since circulating RD/TN/RL/126/Rev.2  ("126/Rev.2") , at an 
appropri ate and workable balance between ambition and necessary flexibility. And to be clear, where 
the choice was between more ambition and less, I opted for more, given the mandate under which 
we are working  and your recurring statements in the Negotiating Group , as well as in the TNC, on 
the need to deliver a meaningful outcome . I can only strongly urge all Members to approach the 
new text and this new phase of our work from the same place, and to resist the temptation of 
resorting to a lowest -common -denominator  cop-out that makes no appreciable change to the status 
quo.  
4. Of course I do not pretend that this text represents the final draft for Ministers. Rather it is 
intended as the crucial first step in getting there. So I ask for your careful attention this mor ning as 
I walk you through each provision of the text in detail, particularly where I am proposing compromise 
language on the areas where differences have persisted. I also ask all delegations , in reviewing the 
text in detail in  Geneva and in capitals, to approach it with an open mind and with a view to using it 
as the basis for our engagement in this new and intensive phase of our negotiations.  
5. Regarding the nature of this text, you will see that the title refers to it as a "Chair text", and 
this is becau se I have prepared it on my own responsibility. While many provisions are very familiar 
as they are transferred to the new text with little or no amendment from 126/Rev.2, other provisions 
are new, and represent my attempt at balanced compromise suggestion s on issues where 
convergence has not yet emerged. And given the time pressure that we are under, I see such an 
arbitrated text, proposing specific compromise language where gaps remain, as the best basis for 
the focused further discussion that is needed f or us to be able close the gaps in the time available.  
6. In this regard, let me be clear that the new text is not a consolidation of proposals, and if we 
were to start treating it as such, with every new suggestion copy -pasted in, we would be taking a 
giant step backward. We already developed such a compilation text a couple of years ago, and our 
process moved beyond the point where that document provided a workable basis for discussion. 
Thus, we will need to be very disciplined as we move forward in our wor k in respect of amendments 
to the new text. We need to bear in mind at all times that we are creating a clean text for Ministerial 
consideration. The operating principle therefore must be that changes to the text are in the direction 
of reducing gaps and b uilding more convergence on the points they address. This does not mean 
that new textual suggestions are not welcome. To the contrary. In fact, over the weekend I received 
two, and these have now been circulated as RD/TN/RL/ 135/Rev.1  and RD/TN/RL/139 at the request 
of their proponents. As our work moves forward between now and the July Ministerial meeting, we 
can expect these and other suggestions from Members to form part of our debates aimed at finding 
ever-greater convergence.  TN/RL/W/276/Add.1  
 
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  PRELIMINARY MATTERS  
7. Before turning to the substance of the new text, I have few preliminary remarks for the whole 
text.  
8. First, it goes without saying that everything in this text is without prejudice to any Member's 
positions or views. This means that the entire document is effecti vely in square brackets and nothing 
is agreed until everything is. This of course applies where square brackets have been  removed. As 
I will elaborate further in the context of relevant changes, brackets can and do serve a number of 
different purposes  in negotiating texts . Depending on the specific context, removal of a set of 
brackets does not necessarily convey that there was full agreement on the piece of text in question , 
recalling that the whole text remains in brackets. This also applies to textual pr oposals, suggestions 
or ideas that are not reflected in the text. Given that the whole text remains in brackets, it means 
that nothing outside of the text is rejected. In fact, one of the purposes of my explanations today is 
to reflect some of these ideas so that we can move forward with all these in mind.  
9. Second, this text reflects the collective work of the Negotiating Group. The sources of the 
language used on the various issues are  Members, whether reflected in a proposal, or facilitator's 
work, or exp ressed during our meetings and consultations. That said, a simple copy -paste of 
language from different sources is neither possible nor help ful at this point in moving us forward or 
closer  to convergence . This is particularly important for this text  which is meant to be the 
springboard for the complete and clean text that will be presented to Ministers, with at most only 
very few choices left for them to decide. This means that while this text needs to reflect our work , 
it also has to be coherent and consistent . To this end,  some drafting adjustments  were necessary  
when bringing together language and ideas from different sources.  Likewise, a s mentioned, in some 
areas where views have remained divergent, I have made an a ttempt at possible middle -ground 
language and/or clear choices.  
10. Finally, as you all know, the eventual form of the new disciplines remains to be decided , 
whether an annex to the SCM Agreement or a stand -alone new agreement . This will have some 
implications  on drafting, but is not an issue that prevents us from engaging on the substance. In 
areas where the drafting depends on the ultimate form of the disciplines , we nevertheless have been 
able to make progress  on the understanding that the drafting could be changed depending on the 
final outcome. While the new text continues to more or less reflect the form of a standalone 
agreement , this is for convenience only, and is without prejudice to the final decision that will be 
taken on this issue.  
ARTICLE  1: SCOP E 
11. Turning now to the text, Article 1 sets out the scope of the fisheries subsidies disciplines . No 
changes have been made compared with the same provisions in 126/Rev.2.  There are two 
paragraphs in this Article ; in paragraph  1, the scope is defined as subsidies within the meaning of 
Article  1.1 of the SCM  Agreement that are specific within the meaning of Article  2 of that Agreement, 
to marine wild capture fishing and fishing related activities at sea ; and paragraph  2, states that  the 
scope also extends to fuel subsidies that are not specific . Paragraph 2  remains in square brackets  to 
indicate that it is an issue to be resolved at the political level.  
12. There are also two footnotes to paragraph  1, neither of which has been changed fr om 
126/Rev.2 : footnote  1 clarifies that aquaculture and inland fisheries are excluded from the scope  of 
the disciplines ; and footnote  2 clarifies that payments from one government to another government 
under fisheries access agreements are not within the s cope, by indicating that those payments would 
not be deemed to be subsidies under the disciplines.  
13. To recall, t he texts for both  paragraphs , as well as footnote  1 to paragraph  1, reflect the work 
of the facilitator  for this issue  and have remained unchanged since they were consolidate d in the 
original draft document last June, except for some minor editorial changes. Footnote  2 was added 
in 126/Rev.2 to reflect the broad ly shared understanding  that payments from one government to 
another go vernment under access agreements would not constitute subsidies for the purpose of 
these disciplines.  TN/RL/W/276/Add.1  
 
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  ARTICLE  2: DEFINITIONS  
14. Article  2 contains definitions for five terms that apply throughout the disciplines , and Members 
have generally supported these definitions as they appear in the text . The definitions for three terms 
in (b), (c) and (d) for "fishing", "fishing related activities", and "vessel" were based on the facilitator's 
work. The definition of "fish" in (a) was added in RD/TN/RL/126/Rev.1 ("126/Rev.1")  after a 
dedicated discussion on this topic. All four terms and definitions were taken directly from the 
Agreement on Port State Measures  (PSMA) , with the exception that in 126/ Rev.2, square brackets 
were placed around  the phrase  "as well as the provisioning of personnel, fuel, gear and other supplies 
at sea" in the definition of "fishing related activities" in subparagraph  (c), although this language is 
part of the corresponding  definition in the PSMA. Since 126/Rev.2 was circulated, views have 
converged that we should not alter terms and definitions taken from the PSMA , so as to avoid any 
inadvertent effect s. On this basis the square brackets have been removed in this current ve rsion.  
15. Concerning the general definition of the term "operator" in 2(e), while this was added to 
Article  2 in 126/Rev.1 , it was not new language , as it had appeared in both facilitators' documents 
and in the first draft consolidated document, RD/TN/RL/126 ("126") . The only thing that changed in 
126/Rev.1 was the placement of this general definition, as in 126 it appeared in a footnote in the 
IUU fishing pillar. The placement in Article 2 reflect s the prevailing  view that all definitions pertain ing 
to the disciplines as a whole  should be consolidated in Article  2. In this vein, only the definitional 
elements pertaining to operators in the specific context of the IUU fishing pillar remain in that pillar.  
16. Thus, other than the removal of the square brackets around the last phrase of 
subparagraph  (c), the text in Article  2 remains unchanged from that in 126/Rev.2.  
ARTICLE  3: ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING  
Overall  
17. Article  3 contains disciplines on subsidies to IUU fishing. The main source of the draft is the 
latest work of the facilitator for this pillar  that was circulated on 10  April 2020 in document 
RD/TN/RL/113/Rev.2 . That work was reflected fully in 126, apart from some minor changes for 
overall consistency. Since then, the Group has dedicated considerable time and efforts on almost all 
aspects of this pillar, and our progress has been captured in each revision of 126,  and again in this 
new text.  
Article  3.1 
18. Article  3.1 sets forth  the prohibition for subsidies to a vessel or operator  (with the term 
"operator" in brackets) engaged in IUU fishing.  Footnote 3 to the title of Article  3 defines the term 
"illegal, unreported and unregulated" fishing through a  reference to paragraph  3 of the International 
Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing . In 
126/Rev.2, the prohibition in paragraph  1 referred to "illegal, unreported or unregulated" fishing, 
which was changed to "illegal, unreported and unregulated" fishing in this new text. The change was 
made to keep consistency with the terminology of the Plan of Action .  
19. Other than this, Article  3.1 and footnot e 3 remain unchanged from 126/Rev.2 . Footnote  4 to 
Article  3.1, which defines t he term "operator" for the purpose of the IUU fishing discipline, also 
remains unchanged  from 126/Rev.2 , with one exception of adding  the word  "fishing" after "IUU", 
such that it now reads "IUU fishing infraction". This purely technical change  – adding the term 
"fishing" wherever "IUU" appears without being followed by that term  – was made throughout the 
document. In addition, the term "operator ", as well as footnote  4 defining "operator" , remain in 
square brackets  throughout this Article , as Members ' views continue to diverge on this issue.  
Article  3.2 
20. Article  3.2 provides that , for the purpose of triggering the subsidy prohibition in Article  3.1, a 
vessel or operator would be considered to be engaged in IUU fishing when it has been found to be 
doing so  by one of the entities listed in Article  3.2. While the basic structure of using the IUU fishing 
determination as a trigger for the subsidy prohibition in Article  3.1 has not changed from the TN/RL/W/276/Add.1  
 
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  facilitator's work, the text has evolved in a number of important aspects based on the Group's work 
since then . 
21. In parti cular, for this provision and throughout our work on Article  3 in general , concerns have 
been raised regarding the relationship of the fisheries subsidies discipline s in this pillar  and Members' 
IUU fishing regime s. In respect of Article  3.2, two specific concerns were discussed : first, whether 
the list of entities under Article  3.2 implied any  hierarchy  among the entities  and their respective 
IUU fishing determinations ; and second, whether the list could inadvertently affect the operation of 
non-WTO instru ments on IUU fishing, in particular in respect of the listed entities.  
22. On the issue of hierarchy, discussion made clear that no Member intended the list to create 
or imply a hierarchy  among the listed entities  and their determinations . As such, an affirmative  
determination that a vessel or operator had engaged in IUU fishing by any of the listed entit ies 
serve s as a trigger for the subsidy prohibition , whether or not  another listed entity might disagree, 
or mig ht make a contrary finding  that IUU fishing had not taken place. This view is clarified in a 
number of places in the current text:  
• The original text of Article  3.2 and Article  3.3 in 126 referred to a "determination", and this 
was changed to an "affirmativ e determination"  in 126/Rev.2 . As explained when this change 
was introduced, t his was to clarify that the "determination" referred to in Article  3.2 means 
only the determination that a vessel or operator has engaged  in IUU fishing . 
• The chapeau of Article  3.2 also states that an affirmative determination may be made by 
"any" of the entities listed thereunder.  
• And t his is confirmed again in Article  3.3(a), which defines  "affirmative determination" as 
the final finding that a vessel or operator has engaged  in IUU fishing.  
23. In this regard, d uring our recent discussions on the IUU fishing pillar , some Members raised a 
concern that a footnote to subparagraph  (c) that appeare d in 126/Rev.2  would , in spite of all of 
these other clarifying provisions,  create a hierarchy  among some of the listed entities . This footnote  
stated that where there are overlapping IUU fishing determinations by a coastal Member and a 
RFMO/A, the coastal  Member determination should prevail. S ome Members agreed, while others 
thought that RFMO/A's determination should prevail. But many Members, including those with views 
on the substance of the footnote, preferred to simply remove this footnote, on the basis that it 
creates  a hierarchy among IUU fishing determination s, that such questions would need to be dealt 
with internally by the RFMO/A and the coastal Member in question, and that leaving this footnote in 
the text might well have inadvertent implicat ions for the operation of international fisheries 
instruments. Accordingly, this footnote does not appear in the new text.  
24. As to the competence  of any entity as a determiner of IUU fishing  under existing international 
law, our discussions have made clear that no Member intends the new disciplines to affect this, and 
in particular to endow new competence s on any entity . In this regard, many Members supported 
footnotes  5 and 6 to the chapeau of Article  3.2. The first of these appeared in 126, and the second 
was added in 126/Rev,.2.  Footnote  5 provides that Members are not obliged to initiate IUU fishing 
investigations or make IUU fishing determinations; and footnote  6 provides that Article  3.2 has no 
legal implications regarding the competence of any entity under other international instruments. 
Thus, this text remains unchanged from that in 126/Rev.2 except for the addition of "fishing" 
following the term "IUU" as I just discussed.  
25. This discussion in turn has informed the Group 's discussion of  each of the entities listed in 
Article  3.2. Concerning  the co astal Member and RFMO/A in subparagraphs  (a) and (c), Members 
agree that these entities are competent authorities under international fisheries law to make IUU 
fishing determinations. Based on th is discussion, these two entities are reflected in the new text as 
they were in 126/Rev.2 .  
26. However, o ne textual change was made to subparagraph  (c), which now qualifies the 
determination by a n RFMO/A as a determination made in accordance with "relevant in ternational 
law". This qualification did not appear in the corresponding provision of 126/Rev.2, but instead was 
part of the positive evidence and due process requirements in Article  3.3(b). During our focused 
work on that provision, Members generally agreed that the "relevant international law" condition is 
pertinent to the RFMO/As , which are  international organizations  by definition , created and regulated TN/RL/W/276/Add.1  
 
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  by specific international instruments . In fact,  the "international law" language was proposed as a 
condition to determinations of RFMO/A s in a number of proposals  by Members . In order to clarify 
this link between the RFMO/As and the "relevant international law" standard, this language thus has 
been moved to Article  3.2(c). 
27. On the flag State Member in subparagraph  (b), I also did not hear any Member saying  that a 
flag State Member is not compet ent to make an IUU fishing determination regarding vessels flying 
its flag. Rather, there was considerable discussion on the specific circumstances under which such 
competence would arise. This is an important question, but it is separate from the issue of whether 
a flag State Member has competence under any circumstance. As Members generally agreed during 
these debates that a flag State Member is competent under certain circumstances  to mak e IUU 
fishing determinations , and concerns over the issue of hierarchy were addressed, the square 
brackets around subparagraph  (b) were removed in 126/Rev.2 to reflect this broadly shared, if not 
fully agreed, understanding . Regarding whether more is neede d here, my sense is that it is best to 
use generic language such as in footnote 6, as in the current and previous texts, rather than trying 
to capture specific nuances of different situations.   
28. Let me here elaborate a bit on how square brackets are used in  the new text , recalling that 
the entire text is in mental square brackets as we know that nothing is agreed until everything is . 
As I already explained last June, when introducing the first consolidated draft document, the  square 
brackets within the text serve different purposes. Some of these are : 
• Simply to highlight some terms that we need to change later based on more general 
discussions , like the term s "Instrument " and "Committee";  
• To indicate where there are binary choices as to whethe r certain text should be kept or not;  
• To provide clear choices between alternative texts; and  
• For placeholders and to add some language as an elaborative form of a placeholder, with an 
expectation that the text will be added or revisited , or that the plac eholder will be removed . 
29. So these more specific brackets are used for various purposes and as in the previous texts, I 
have made some choices about when to remove or retain brackets, to convey a sense of how the 
discussions have been progressing. And of co urse unbracketed text is not carved in stone as if it 
were fully agreed. To the contrary, in the new text certain changes have been introduced to 
unbracketed language.  
30. This brings me to two entities that appeared in brackets in the previous documents, namely 
the subsidizing Member and the port State Member . You will see that neither of these appears in the 
new text. Regarding the subsidizing Member, Members generally agreed that such Memb ers would 
have competence to determine IUU fishing in their own waters and in respect of vessels flying their 
flag – that is, when acting in their capacity as a coastal State or a flag State . Of course, these 
situations already are covered by subparagraphs  (a) and (b). This would leave the situation in which 
a subsidizing Member is providing subsidies to a vessel flying a flag other than its own. As there 
already is a draft provision in Article 5.4 – which I emphasize is in square brackets – that addresses 
this situation explicitly  and would not allow this situation to arise , for the purposes of the new text 
there seemed to be no need also to deal with this issue in the IUU fishing pillar. Once we have 
completed the discussion of Article 5.4 we could return if necessary to the issue of "the subsidizing 
Member" in the context of the IUU fishing pillar.  
31. Concerning the reason for not including port State Members in the list under Article  3.2 of the 
new text,  I recall that there was considerable discussion o f whether a port State Member acting as 
such - rather than as a coastal State Member or a flag State Member – has any competence to make 
IUU fishing determination s under any circumstances. In this regard, a number of Members were 
concerned that listing entities that may not have any competen ce to make IUU fishing 
determination s would undermine the principle , supported by all Members  and reflected in footnote  6, 
that the disciplines  should not have any implication s for international fisheries  law.  
32. That said, Members generally recognize that port State Members do have an important 
potential role to play in eliminating subsidies to IUU fishing. New language, set forth in Article  3.5 TN/RL/W/276/Add.1  
 
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  of the new text, is intended to capture this. I will discuss t hat new language when we get there, but 
let me highlight for now that the importance of port State Members is addressed  in the new text.  
Article  3.3 
33. Turning now to Article  3.3. The elements of this provision  were taken from the facilitator's 
work and reflected in  document  126, with some structural changes aimed at clarifying and narrowing 
down the issues . That drafting then was reformulated into three subparagraphs  in 126/Rev.1 , and 
that basic structure remains unchanged  in the new text of Article  3.3, which : 
• (a) defines what an "affirmative determination" is for the purpose of Article  3.2. 
• (b) requires that an IUU fishing determination be based on positive evidence and follow due 
process  for it to have the effect on the subsidizing Member of triggering the prohibition ; and  
• (c) clarifies (b), by requiring coastal Member s to notify the initiation of an IUU fishing 
investigation to the flag State Member or, if known, the  subsidizing Member , and to provide 
them with an oppor tunity to submit information in the investigation.  
34. As you know, we have dedicated a lot of work to this set of provisions, and to subparagraph  (b) 
in particular, including most recently during our April cluster at the HoD level, and during the HoDs 
meeting held in December last year.  Thanks to you r hard work , we have made important progress  
in this difficult area, which is reflected in the new text. 
35. Subparagraph  (a) has been, and continues to be, broadly acceptable to Members , including 
the addition of "affirmative" to qualify the term "determination" that was made in 126/Rev.2. As 
such, the text of Article  3.3(a) remains unchanged. M embers also supported footnote  7 to 
subparagraph  (a), which is intended to ensure that our work does not have any unintended impact 
on IUU fishing determinations  as such . In this footnote, one change was made in the current text 
based on the textual sugges tion aimed at preventing the discipline on subsidies to IUU fishing having 
the effect of delaying an IUU fishing determination. As it was clear during our discussions that 
Members agree that our work should not have any such impact , this is now clarified i n the text . With 
this change, the footnote now reads "Nothing in this Article shall be interpreted to delay, or affect 
the validity or enforceability of , an IUU fishing determination ." 
36. Subparagraph  (b) requires that IUU fishing determinations shall be base d on positive evidence 
and follow due process in order to trigger the subsidy prohibition. In the facilitator's work t hese 
requirements  applied to IUU fishing determinations made by a coastal State Member, an RFMO/A, 
and/or a port State Member, with all of these entities in brackets.  As discussed earlier, the new text 
of Article  3.2 no longer lists the port State Member, and therefore the reference to it has been 
removed from Article  3.3(b).  
37. As for RFMO/As, no Member has conte sted that the se entities  operate under relevant 
international law, or that the RFMO/A's own rules and procedures do not already incorporate 
procedural and evidentiary standards  applicable for their IUU fishing determinations . All of these 
conditions are now reflected in the text of Article  3.2(c). In addition, s ome Members expressed 
concern that applying to RFMO/As independent standards such as positive evidence and due process 
could inadvertently affect international fisheries law and the role that RFMO/As  play in it. Based on 
all of these views, I have removed the reference to RFMO/As in the current text of Article  3.3(b).  
But let me also highlight that this does not mean that there was full agreement  on this point . I am 
aware that some Members do want the  positive evidence and due process standard to apply to 
RFMO/As, and we will of course keep this in mind as we continue our work.  
38. As a result of these changes, Article  3.3(b) now applies only to the determinations made by 
the coastal Member under subparagraph  (a) of Article  3.2. That brings me to the  bracketed  reference 
to "in accordance with relevant international law"  that appeared in the text of Article  3.3(b) in 
126/Rev.2. In the new text, this language does not appear in this provision, but as  I indicated it has 
been moved to Article 3.2(c), the listing of RFMO/As as entities making IUU fishing determinations. 
The reason for not also retaining this language in Article 3.3  (b) is precisely because while many 
Members viewed the "relevant internat ional law" standard as clearly applicable to RFMO/As , there 
were concerns that also applying this standard to coastal Members would create uncertainty, 
including as to how it would interact with the concepts of positive evidence and due process  that TN/RL/W/276/Add.1  
 
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  also w ould apply in respect of those Members . It also was clear in the discussions that the advocates 
of Article  3.3(b) seek to ensure that all IUU fishing determinations , including those by coastal 
Members, be based on positive evidence and follow a certain min imum procedural standard before 
the subsidy prohibition is triggered. To reflect all of these views , Article  3.3(b) in the new text applies 
the positive evidence and due process standard to coastal Member determinations, and the "relevant 
international law " standard to determinations by RFMO/As, via Article  3.2(c) .  
39. We also have had considerable discussion  on the specific term "due process" used in 
Article  3.3(b). In document 126, the first draft consolidated document , Article  3.3(b) contained a 
more prescr iptive "fair, transparent and non -discriminatory" standard. In our subsequent discussion s 
it became clear that some Members were concerned over  one or more of the elements in this 
formulation. On the other hand, no Member said that they do not follow due process  in making IUU  
fishing  determinations , so the language - "due process"  - was introduced in 126/Rev.1 to capture 
Members' basic common gro und on this point. While since then the discussions have gone  back and 
forth among  a changing range of alternative formulation s suggested by Members, in the April cluster 
many Members also indicated that they could accept the "due process" formulation  if no agreement 
could be found on anything else . And to date there has been no convergence around any of the 
alternatives that have been put forward. In the new text, I thus have retained the unelaborated 
term "due process" , as it still seems to capture the ba sic common ground . 
40. Our work on "due process"  also has been very useful for our understanding of 
subparagraph  (c), which requires that an IUU fishing investigation or determination be notified to 
the flag State Member or, if known,  to the subsidizing Member , and that such a Member should be 
given an opportunity to submit information. Specifically, many Members considered that the 
requirement in (c) is a part of the requirement in (b). In this regard, some textual suggestions were 
made for a requirement similar to that in (c) as a trigger for the subsidy prohibition . This  showed 
that many Members consider the due process in (b) and the process of notification and submission 
of information in (c) to be closely related, and to work together in trigger ing the prohibition . This 
progress is now reflected in the current text of subparagraph  (c), with the  addition of "For the 
purpose of subparagraph  (b)" in the beginning.   
41. Another change from 126/Rev.2 is that  the square brackets around the term "subsidizing 
Member" in subparagraph  (c) have been removed. Our work so far has clarified that the concern 
here is that a subsidizing Member may not be known. No Member said that the subsidizing Member 
should not be notified where it  is known. So, the concern has been addressed by clarifying that the 
requirement applies only where the subsidizing Member is known. In  this regard, the text now refers 
to the flag State Member and, "if known" , the subsidizing Member. With this change, the phrase in 
126/Rev.2 "If the flag State [or subsidizing Member] is known" has become redundant, so it was 
removed. In addition, consist ent with this, the last part of subparagraph  (c) now provides that the 
flag State and the subsidizing Member should be notified and provided the opportunity to present 
information.  Finally, a  few other purely editorial changes to correct the grammar.  
42. Before I conclude on Article 3.3, I would like to underscore that subparagraphs  (b) and (c) 
remain in square brackets. As you are all aware, one long -standing position of certain Members is 
that the  disciplines should contain no standard relating to coastal Me mbers ' IUU fishing 
determinations. The crux of this view is that the final findings of IUU fishing made by a competent 
national authority should be fully respected  and taken at face value for triggering the subsidy 
prohibition,  and that language such as positive evidence and due process should not be included as 
it could be used to second guess such findings. There is an equally strongly -held view that such 
procedural guarantees are required for subsidizing Members to accept such determinations as a 
trigger of the prohibition. Those taking this position have indicated that the aim of Article  3.3(b) and 
(c) is n ot to affect an IUU fishing determination as such, but only to qualify when such a 
determination would trigger the subsidy prohibition on another Member. Having said that, however, 
it is my reading that with the current language, WTO panels would not be re viewing the substance 
of an IUU fishing determination, but instead would focus only on the procedural requirements set 
forth in the disciplines.  
43. Because this issue remains the subject of important differences of view, the provisions remain 
in the square br ackets  in the new text . In this regard, I would like to thank all Members for engaging 
in the discussions of these provisions on a without prejudice basis, which has helped us to clarify 
and narrow down the choices.  TN/RL/W/276/Add.1  
 
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  Article  3.4 
44. Article  3.4 provides that the minimum duration of the subsidy prohibition is the duration of 
the sanction resulting from the relevant IUU fishing determination , or the duration that a vessel or 
operator remains listed as engaged in IUU fishing , whichever is the longer . Subject to thi s minimum 
duration, the subsidizing Member may take into account the nature, gravity and repetition of IUU 
fishing in setting the duration of the prohibition . This text is based on two separate provisions  in 
126/Rev.2 : one on the nature, gravity and repeti tion, or seriousness of IUU fishing; and the other 
on the duration of the prohibition.  
45. In 126/Rev.2,  the first of these two provision s provided that the subsidizing Member could 
take into account the "nature, gravity and repetition ", or as an alternative the "seriousness ", of the 
IUU fishing incident in applying the prohibition . This has been referred to in the discussions as 
"proportionality" . During the dedicated sessions on this text, Members broadly agreed that 
proportionality between the IUU fishing at issue and the subsidy prohibition is  important, but they 
had different views on how it should be reflected in the discipline s. For s ome Members , 
proportionality is taken into account by  the competent authorit ies in making the IUU fishing 
determination s, as well as in determining the appropriate sanction s or in the decision to list a vessel  
or operator as having engaged in IUU fishing . Thus, these Members were of the view that a sanction  
or listing of a vessel  or operator resulting from an affirmative determination of IUU fishing  should 
be considered proportional  to the offense , because the minimum duration of the prohibition is a 
function of the duration of the sanction, which can be expe cted to reflect the seriousness of the 
violation as perceived by the determining entity .  
46. Other Members, recalling that a subsidizing Member would have to remove certain subsidies 
as a result of another Member 's or entity's  IUU fishing determinations , cons idered that the 
subsidizing Member should be able to take proportionality  into account when applying the  subsidy 
prohibition . Many Member s opposed  this approach  on the basis that it would amount to a carte 
blanche  veto power for the subsidizing Member  that would render the discipline ineffective . From 
this discussion, it was clarified that no Member intends to use proportionality to continue subsidizing 
IUU fishing.  
47. Based on all these views, a possible compromise formulation emerged  from our most  recent 
meeting , which is the basis of the language reflected in the current text. This formulation would 
allow the subsidizing Member to take proportionality into account  in setting  the duration of the 
subsidy prohibition. This clarifies that subsidies to  IUU fishing are to be prohibited, and that it is not 
up to the subsidizing Member to decide whether to apply the prohibition based on its own judgement 
of the seriousness of the infraction. Linking proportionality only to duration is consistent with our 
mandate  to eliminate subsidies to IUU fishing , while leaving some room for the subsidizing Member 
to consider proportionality. In the meantime, proportionality also is factored into the IUU fishing 
determination by the entity that makes it , because the dura tion of the subsidy prohibition is at least 
the duration of the sanction or listing resulting from th e IUU fishing determination.  
48. To reflect this new formulation, some additional textual changes from the corresponding text 
in 126/Rev.2 also were necessary. First, the previous bracketed footnote listing IUU fishing 
infractions that should always trigger the application of the prohibiti on does not appear, as it is no 
longer necessary under the new formulation where an IUU fishing determination in every case 
triggers the subsidy prohibition. In addition, the minimum duration of "[X] months" does not appear , 
based on the clarification that  duration is to be based on the duration of the listing or sanction  
resulting from IUU fishing determinations .  
49. Before I conclude on this provision, there are two more changes that I would like to note. First, 
the new text refers to "nature, gravity and re petition" of IUU fishing, whereas 126/Rev.2 also 
contained the "seriousness"  as an alternative . So far, Members seem to consider these two 
formulations to be equivalent and I heard no objection to "nature, gravity and repetition" , which is 
more descriptive . Finally, the square brackets around footnote  8 on the termination of sanctions also 
have been removed, as no Member has raised any concern on this text during our dedicated sessions 
on these topics.   TN/RL/W/276/Add.1  
 
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  Article  3.5 
50. As I indicated in the context of Article  3.2, Article  3.5 is a new provision aimed at setting out 
a role that port State Members could play in delivering on our mandate to eliminate subsidies to IUU 
fishing. As I mentioned , the port State Member does not appear in the list of entities that can make 
IUU fishing determination s under Article  3.2 for the purpose of the subsidy prohibition . Our 
discussions indicated that  Members recognize the unique position of port State Members , and 
Article  3.5 captures this by providi ng that when a port State Member has notified a subsidizing 
Member that it has clear grounds to believe that a vessel in its port has indeed engaged in IUU 
fishing, the subsidizing Member is required to give due regard to this information and take 
appropri ate actions , in respect of its subsidies . 
Articles  3.6 and 3.7 
51. Article  3.6 is an obligation to implement relevant laws, regulations and/or administrative 
procedures to ensure that the prohibited subsidies are not granted or maintained. Article  3.7 requires  
notifications of such instruments. The texts of these provisions fully reflect the facilitator's work, 
with some minor adjustments and changes for coherence and consistency.  In the new text, these 
provisions are identical to their counterparts in 126/Rev. 2 other than a few technical changes, such 
as changing the references to "paragraphs" to "Articles" and simplifying the placeholder . 
52. As some Members have pointed out, while other provisions discussed so far are about what 
happens after IUU fishing takes pl ace, these provisions are about preventing subsidies to IUU fishing 
in the first place. In this sense, these provisions complement the rest of the other provisions and 
are essential for the completeness of the discipline. So far, I have heard no serious concerns about 
these provisions so I have retained them in the new text.   
53. In 126/Rev.2, along with these two provisions, there was another provision that read "Each 
Member shall ensure that this provision is effective in securing complian ce, discouraging infractions 
and depriving offenders of benefits accruing from their IUU fishing activities". This language does 
not appear in the new text because Members broadly agree that our work should focus on subsidies, 
not IUU fishing regimes as su ch. In addition, this provision was first introduced as a safeguard to 
previous proportionality formulations that would have  allowed the subsidizing Member to opt not to 
apply the prohibition . Given that this option does not exist in the new text, this saf eguard language 
has been removed as it no longer serves the intended purpose.  
Article  3.8 
54. Article  3.8 provides for special and differential treatment (SDT) for the IUU fishing pillar. It 
provides a timebound exemption from the prohibition under Article  3.1 for subsidies granted or 
maintained by developing country Members including LDC Members for low income, resource -poor 
or livelihood fishing and fishing -related activities within 12 nautical miles  from the baseline . As a 
starting point for discussi ng this provisi on, I have used two years as the applicable time  period . 
55. As you know, we have devoted considerable time and effort s to the issue of SDT. With respect 
to the IUU fishing pillar, our work has clarified that no one intends to use SDT to  continue subsidizing 
IUU fishing. Instead, the proponents have sought SDT in the IUU fishing pillar  so that they could 
bring their subsidy programmes into compliance , and to provide the opportunity for subsistence, 
artisanal and small -scale fishers to com ply with the relevant rules.  
56. To this end, the proposal in TN/RL/GEN/200/Rev.1 provided for an exemption in respect of 
unreported and unregulated fishing, for fishing within 12 nautical miles  other than fishing by large 
scale industrial fishing vessels. This proposal was the most complete and comprehensive proposal 
on SDT at the time the draft consolidated document in 126 was circulated  last June, and this text 
continued to be reflected in 126/Rev.2. In our work based on this language , a number of concerns 
have been raised:  
• First, some Members consider that IUU fishing is a single concept, and that unreported and 
unregulated fishing cannot be treated separately from the whole.  TN/RL/W/276/Add.1  
 
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  • Many Members also have recalled that in spite of many discussions, Members have not 
agreed on any definition of "large scale industrial" fishing. Here, the discussion we have had 
on subsistence, artisanal and small -scale fishing has been informative, where the idea of 
using certain criteria t o distinguish large -scale and small -scale fishing has emerged.  
• Finally, while a number of Members consider that there should be no SDT what soever in the 
IUU fishing pillar, other Members consider that a timebound exemption would be appropriate 
for the rea sons explained by the SDT proponents, namely to facilitate compliance  of the 
small -scale sectors . Permanent exemption s, on the other hand, were opposed by many 
Members on the grounds that this would be inconsistent with the mandate  and would 
undermine sust ainability .  
57. Based on these views, the new text of Article  3.8 is formulated as a timebound exemption 
that applies to IUU fishing. This covers UU fishing as requested by proponents, while keeping IUU 
fishing as a single concept intact. The new language also replaces the term "large scale industrial 
fishing" with the criteria that emerged during our discussion on subsistence, artisanal or small -scale 
fishing, which are low income, resource -poor and livelihood fishing. Another criterion that has 
emerged from that discussion was the geographic limit of 12 nautical miles, which  had been reflected 
in a footnote  in 126/Rev.2 . As such, the text in the footnote remains unchanged, and has been 
moved to the main text of Article  3.8 for clarity . Finally, with this provision for a timebound 
exemption, the re is no  placeholder for a transition period such as appeared since 126 was circulated .  
58. Note also that this Article remains in square brackets given , as noted,  that some Members 
continue to questi on whether any SDT flexibility is necessary or warranted in the IUU fishing pillar.  
ARTICLE  4: OVERFISHED STOCKS (OFS)  
Overall  
59. Article 4 contains disciplines on subsidies regarding overfished stocks. Up until now, the 
drafting of this Article had remained  essentially the same since it was first introduced in 
document  126. The reason was that many Members had pointed out that the work on overfished 
stocks would be more focused and productive once there was more clarity on the disciplines  in the 
overcapacity  and overfishing pillar. As our work on the overcapacity and overfishing discipline had 
significantly evolved, we revisited the overfished stocks pillar in April.  
60. In that discussion, the common thread regarding the general structure of Article 4, was 
consistency and coherence. A number of Members pointed to the need to review the drafting in 
Article 4 in the light of what we now have in Article 5, to ensure that the two provisions use any 
common terminology in a consistent way and do not work at cross purpo ses. A number of Members 
also pointed to the need to avoid redundancy as much as possible in how the disciplines treat 
subsidies related to overfished stocks and subsidies contributing to overcapacity and overfishing, 
given their conceptual links.  
61. In rela tion to this, I heard different views concerning the merits of this prohibition.  Some 
delegations consider that Article 5 already sufficiently covers the overfished stocks issue; some 
consider that Article 5 should be adjusted to explicitly address overfis hed stocks; while others see 
merit in maintaining Article 4 as a separate pillar on overfished stocks.  Nevertheless, our discussions 
showed that, wherever such disciplines are placed, many delegations see the issue of overfished 
stocks as qualitatively different from that of overcapacity and overfishing, and in need of stricter  
disciplines given that the st ocks are in an already -overfished condition. In the new text, Article 4 is 
maintained as a separate provision.  
Article  4.1 
62. Article  4.1 contains the main discipline of the overfished stocks pillar. It is a straightforward 
prohibition without conditionalitie s, in a single sentence. This is a departure from the text in 
126/Rev.2, which in turn was taken from the facilitator's work. In that previous version, the 
prohibition would be triggered only when certain situations related to an overfished stock were TN/RL/W/276/Add.1  
 
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  present: i) lack of recovery of the overfished stock, or ii) continuous reduction in the level of that 
overfished stock.  
63. I recall that Members had a robust discussion on whether these additional conditions were 
needed. Overall I heard three main views opposin g the inclusion of these parameters:  
• First, many Members noted that it is difficult to measure the parameters “continuous 
reduction” and “lack of recovery”. They considered that simply using the existence of an 
"overfished" condition as the trigger for disciplines  would create a consistent, verifiable and 
predictable framework of implementation because the term “overfished” is scientifically 
defined and widely used in fisheries science. These Members noted that  the difficulty of 
measuring the parameters “c ontinuous reduction” and “lack of recovery”, which are not 
scientifically defined, would make it difficult to ensure predictable implementation of 
overfished disciplines based on these parameters.  
• Second, some Members pointed out that the notion of being able to provide subsides that 
promote the rebuilding of an already overfished stock is already captured in Article 4.3, 
which arguably was the intention behind including the parameters “continuous reduction” 
and “lack of recovery”.  
• Third, some Members note d that a simple prohibition in this Article is important as a signal 
that the disciplines concerning overfished stocks are more stringent than, and address a 
distinct situation from, the disciplines on overcapacity and overfishing.  
Article  4.2 
64. Turning to A rticle 4.2. This provision defines that a fish stock is considered overfished if it is 
recognized as such by a coastal Member with jurisdiction over the area where the fishing is taking 
place, or by a relevant RFMO/A, based on the best scientific evidence available to it. 
65. This is an important revision to the previous language in 126/Rev.2 which contained two 
alternatives: one where a fish stock is overfished if it is recognized as such by a Member with 
jurisdiction for the area or a relevant RFMO/A; and the other where a fi sh stock is overfished when 
it is at such a low level that mortality from fishing needs to be restricted to allow the stock to rebuild 
to a level that produces maximum sustainable yield (MSY) or an alternative reference point (ARP). 
In both alternatives, t he overfished status would be based on the best scientific evidence available 
to and recognized by the Member in question, or by a relevant RMO/A in the first alternative.  
66. I recall that Members expressed  different views and concerns on the concepts in bot h 
alternatives:  
• Regarding the second alternative (the "ALT2" text), some were concerned that this provision 
could be used to call Members' stock assessments into question before a WTO panel. They 
thus preferred the first alternative (the "ALT1" text), base d on competent authorities' stock 
assessments and determinations of overfished status;  
• Regarding the ALT1 text, some were concerned that this approach would make the 
determination of overfished stocks a self -judging standard for the purpose of the subsidy  
prohibition. Concerned that this would make the discipline ineffective, they preferred the 
ALT2 text, as setting out an objective standard for what overfished condition means;  
• Some Members saw merits in both of these views and thought that they could be combined 
to strike an appropriate balance between the need for an effective discipline and the need 
to avoid undue intrusion into competent authorities' stock assessments.  
67. Another important consideration was our discussion of unassessed stocks last year. Members 
generally did not see the need to address unassessed stocks under the overfished stocks pillar, given 
the progress we had made on the overcapacity and overfishing discipline. As a result, there was 
broad support for limiting the overfished stocks d iscipline to the stocks that are assessed and that 
have been found to be overfished. This progress had been reflected in 126/Rev.2, as the placeholder 
for unassessed stocks was removed from Article  4.  TN/RL/W/276/Add.1  
 
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  68. In considering all of these views, I have noted that d iscussions of the ALT  2 text raised a 
number of questions that remain unaddressed. First, this text contains a freestanding definition of 
what an overfished stock is, which means that the WTO, whether by a dispute panel or in a 
Committee, would be put to t he task of determining de novo  whether the stock is overfished. The 
only limit is "based on the best scientific evidence available to and recognized by the Member". 
However, except for the parameters in the discipline on the evidence that could be examined , it 
would be up to the WTO to substitute its own judgement for that of the competent fishing authority 
in respect of whether the stock in question was overfished – including its own analysis of the 
evidence, making substantive judgements based on the evid ence, and ultimately deciding whether 
the stock is overfished . This does not seem compatible with the widely shared view that our work, 
and the WTO's involvement, should be focused on fisheries subsidies, not on fisheries management.  
69. In addition, the ALT  2 text would allow the examination of subsidies to unassessed stocks. In 
particular, under ALT  2 the WTO would be required to make de novo  judgements of whether a stock 
is overfished . This would mean that subsidies to unassessed stocks could be challenged under this 
provision, and the WTO could be asked to make the stock assessments. This does not seem 
compatible with Members' views that unassessed stocks should not be covered under the overfished 
stocks pillar.  
70. Given  these considerations, the approach in the ALT 2 text does not square with the overall 
approach in the disciplines to the role of the WTO in respect of fisheries management issues. For 
these reasons it is not included in the new text, and Article 4.2 incorporates the approach in the 
ALT1 text. .  
71. Before I conclude, I also note two other changes reflected in the current text. First, the 
qualification that the best scientific evidence available to competent authorities also needs to be 
"recognized by them" has been removed. Many Members said that such additional narrowing of the 
best scientific evidence available would give too much de ference to the competent authorities and 
thus would be a major loophole in our disciplines. Also, several Members noted that this language 
would be inconsistent with the terminology used in international fisheries instruments, such as 
UNCLOS and the UN Fis h Stocks Agreement. Finally, "For the purpose of this Article" has been added 
at the start of Article  4.2 so as to clarify that the definition of overfished stocks in this provision has 
no bearing on anything else.  
Article  4.3 
72. Article 4.3 permits subsidie s that otherwise would be prohibited under Article 4.1, if such 
subsidies are implemented in a manner that promotes rebuilding of the stock to a biologically 
sustainable level.  
73. Many delegations pointed out that as formulated in 126/Rev.2, the flexibilitie s in Article 4.3 
were similar to  those in the overcapacity and overfishing pillar, and questioned how their respective 
operation would differ. In the view of these Members, keeping the same sort of flexibility in respect 
of overfished stocks as would apply  in the overcapacity and overfishing pillar would risk undermining 
the disciplines in respect of the stocks that are in the worst condition – the overfished ones. Members 
taking this view consider that any flexibility in the overfished stock pillar should be narrower than 
that in the overcapacity and overfishing pillar, and there should be a direct link between any allowed 
subsidy and its effects on rebuilding the stock, regardless of other fisheries management policies in 
place.   
74. In the new text the Artic le 4.3 language reflects these points, such that it contains a distinct 
approach from that in respect of overcapacity and overfishing. In particular, certain flexibility is 
provided in Article  4.3 only for subsidies that themselves are implemented to promo te rebuilding of 
the stock to a biologically sustainable level. This is distinct from the flexibility in the overcapacity 
and overfishing pillar, where a Member could provide a capacity - or effort -enhancing subsidy if it 
can show that other (non -subsidy) measures are being implemented to maintain the stock or stocks 
at a biologically sustainable level.  
75. Apart from some minor editorial changes for overall coherence and consistency, this narrowing 
of the flexibility has been achieved by substituting the phras e "other appropriate measures are 
implemented in a manner that ensures rebuilding of the stock to a biologically sustainable level" 
with the phrase "subsidies implemented to promote the rebuilding of the stock to a biologically TN/RL/W/276/Add.1  
 
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  sustainable level". This phr ase was suggested by one delegation and supported by many during the 
April meeting on overfished stocks.  
76. The 126/Rev.2 text also contained the phrase "as determined by the coastal Member under 
whose jurisdiction the fishing is taking place or a relevant RF MO/A in areas and for species under its 
competence" after the term biologically sustainable level. This phrase now appears in new 
footnote  9. This footnote defines the term "biologically sustainable level" and is essentially the same 
as the footnote defini ng the same term in the overcapacity and overfishing pillar. As many Members 
pointed out, these are, and are meant to be, the same, and so they should be defined consistently.  
77. Finally, the beginning of this paragraph has been revised to start with "Notwit hstanding Article 
4.1". This was added to clarify that this provision is an exception, given that Members recognized 
overfished stocks as the most vulnerable stocks. In this view, Members generally agreed that any 
flexibility from this pillar should be nar row and exceptional.  
Article  4.4 
78. Article  4.4 sets forth SDT for the overfished stocks pillar. This text is essentially identical to 
the SDT for the IUU fishing pillar in Article  3.8. It provides a timebound exemption from the 
prohibition under Article  4.1 for subsidies granted or maintained by developing country Members 
including LDC Members for low income, resource -poor or livelihood fishing and fishing -related 
activities within 12 nautical miles. As in Article  3.8, a period of 2 years has been proposed fo r the 
applicable time as a conversation starter.  
79. The reason why the same text has been used here as in the IUU fishing pillar is because similar 
concerns were raised in both pillars. As with the IUU fishing pillar, no Member has said that they 
intend to u se SDT to continue subsidizing fishing on overfished stocks. Instead, some proponents 
clarified that they were seeking SDT under the overfished stocks pillar due to the implementation 
challenges , especially in coastal waters  where tropical and multi -specie s stocks are prevalent. With 
a view to addressing these concerns, the text that was reflected in 126/Rev.2 was based on the 
proposal in TN/RL/GEN/200/Rev.1  for this pillar . This text provided for an exemption for developing 
Members , including LDCs , limited  to fishing within 12 nautical miles , on the basis that subsistence, 
artisanal and small -scale fishing is prevalent in this area. During our work based on this text, many 
Members objected to providing a permanen t SDT exemption due to its possible undermining of the 
discipline.  
80. Based on these views, the current text provides a timebound exemption, to provide for 
addressing the implementational challenges faced by developing country Member s. The geographical 
limit of 12 nautical miles has been complemented with certain other criteria. For the proponents of 
the original language that was used as the source, the 12 nautical miles limit was used as a proxy 
to distinguish subsistence, artisanal and small -scale fishing. Based on discus sions since then, a more 
elaborate set of criteria for subsistence, artisanal and small -scale fishing has emerged, which uses 
low-income, resource poor and livelihood fishing in addition to the geographical limit. As such, these 
criteria were used, as was done in Article  3.8. Also, since this is a timebound exemption  now, the 
placeholder for a transition period has been removed.  
81. Again, the entirety of Article  4.4 remains in square brackets, to reflect some Members' view 
that SDT exemptions are not warranted  in the overfished stocks pillar. In the view of these Members, 
overfished stocks are the most vulnerable and therefore the disciplines should apply in full to all 
Members.   
Overlapping jurisdiction  
82. Finally, in 126/Rev.2 there was a provision that stated that where there are overlapping stock 
assessments by a coastal Member and an RFMO/A, the coastal Member's assessment should prevail. 
For the reasons discussed with respect to the similar language tha t existed in Article  3.2 of 
126/Rev.2, this language is not included in the new text.  TN/RL/W/276/Add.1  
 
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  ARTICLE  5: SUBSIDIES CONTRIBUTING TO OVERCAPACITY AND OVERFISHING  
Overall  
83. Article  5 of the new text contains disciplines on subsidies contributing to overcapacity and 
overfishing. As we have said many times in our discussions, the approach to overcapacity and 
overfishing is at the heart of our negotiations. The provisions on this issue in the new text are based 
on the compromise, "hybrid", approach that we have been disc ussing for some time now as an 
alternative to the two main approaches that have been discussed for years without resolution: a 
prohibition based on a list of prohibited subsidies; and a prohibition only when subsidies are shown 
to have caused negative effe cts on fisheries resources. The "hybrid" approach aims to strike a 
balance between these two. It contains a list of presumptively prohibited types of fisheries subsidies, 
modulated by a provision that would permit such subsidies to be provided where measur es are in 
place to maintain fish stocks at a biologically sustainable level. The main prohibition is coupled with 
some additional prohibitions: first, prohibitions  on certain subsidies for fishing beyond a coastal 
Member's jurisdiction; and second, the dr aft prohibition that I referred to earlier on subsidies for a 
vessel not flying the flag of the subsidizing Member. Finally, there are two alternative formulations 
of SDT provisions for this pillar. The first alternative is the same text that was initially  introduced in 
126 and has remained unchanged in the revisions to that document. The second is a set of provisions 
that I have put together after reflecting on the many consultations that I and Ambassador 
Chambovey as  former  Friend of Chair have held.  
84. While we all recognized that Article 5 in 126/Rev.2 was not perfect, it served its intended 
purpose of providing a good basis to continue advancing our work on how to address the 
overcapacity and overfishing pillar, which has been the most difficult to progre ss of the basic pillars 
in the disciplines. Since the beginning of the year, on the basis of the text in 126/Rev.2, we held 
numerous meetings on this pillar in different configurations, including the recent HoDs discussions 
on 15 and 16 of April which were  held in three separate small -group meetings. I was encouraged by 
the wide engagement from many delegations during these meetings and overall, I detected a sincere 
effort to find compromise by many Members. Most importantly, I am very happy that instead of  only 
pointing to perceived shortfalls in the current text or in the views of other Members, some 
constructive suggestions for bridging the gaps were made. Based on all of our discussions, it 
appeared to me that all Members were willing to keep working on the basis of the hybrid approach. 
In the new text I thus have introduced some reformulation of that approach in Article 5, taking into 
account the following considerations:  
• First, Members have certain differences of view concerning the list of prohibited subsidies, 
in terms of its content and whether it should be an open or closed list , although lately most 
Members are of the view that it should remain illustrative ; 
• Second, many delegations have expressed the view that the main prohibition in this Article 
should contain the objective sustainability criteria, rather than putting them in a separate 
provision;  
• Third, some delegations consider that the requirement of a "demonstration" that measures 
are in place to maintain stocks at a sustainable level needs f urther clarification;   
• Fourth, there are different views on disciplines for subsidies to fishing in areas beyond 
anyone's jurisdiction and/or subsidies that are contingent on fishing outside the subsidizing 
Member's EEZ.  
• Fifth, given the significant prog ress that we have made based on the hybrid approach, the 
new text contains no placeholders for alternative approaches.    
• Sixth, there is an ongoing debate about whether the sustainability -based flexibility 
incorporated in the discipline is beyond the reach of most developing Members, and if so, 
how it can be modified so as to be practicable for all WTO Members to use.  
85. With that introduction, I now will explain the provisions of Article 5 in detail, starting with 
Article 5.1.  TN/RL/W/276/Add.1  
 
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  Article  5.1  
86. Article 5.1 c ontains the main prohibition in this pillar, including the prohibition language itself, 
an illustrative list of prohibited subsidies, and some flexibility based on sustainability.  
Chapeau of Article 5.1 and list of prohibited subsidies  
87. The chapeau of Artic le 5.1 contains a simple, straightforward prohibition of all subsides 
contributing to overcapacity or overfishing. For clarity and conciseness, the list of subsidies that 
presumptively contribute to overcapacity or overfishing is no longer a separate subpa ragraph, but 
is moved under the chapeau of Article 5.1.  
88. In the new text, the word "include" at the end of the second sentence of the chapeau 
paragraph is unbracketed. You will recall that the brackets around this word in 126/Revs. 1 and 2 
indicated Member s' different views on whether the list should be open or closed. As I noted in my 
April aide memoire, as time passed it seemed that this difference has narrowed, with most Members 
seeming to prefer that the list be illustrative to prevent circumvention of the prohibition.  
89. Different views also have been expressed on the content of the list  in our various discussions . 
Some Memb ers have argued that the subsidies referred to in subparagraphs (a), (b) and  (c) are the 
most harmful, while other Members countered that even some of these subsidies could be beneficial 
depending on the specifics. For example, one view was that item (b), subsidies for the purchase of 
machines and equipment for vessels, could be non -harmful if the equipment were to improve the 
sustainab ility of the fishing. In addition to views about what types of subsidies should be listed, some 
specific suggestions were made for refining and clarifying the contents. I did not detect convergence 
on any of the suggested modifications. The individual elem ents in the list thus are unchanged from 
the prev ious versions of the list.   
Flexibility provision  
90. Second, the provision on flexibility now appears as subparagraph  1 under Article  5.1. This was 
to respond to the calls from many Members to put objective sustainability criteria in the main 
prohibition rather than in a separate provision. And Members seem broadly to agree that the 
sustainability standard should be referred to only once in  this pillar, and not be duplicated in the 
main prohibition and the flexibility provision. In changing the placement of the flexibility provision, 
the burden of proof has not changed – it remains, as was the case in 126/Rev.2, with the subsidizing 
Member.  
91. I now will highlight the main aspects of the flexibility provision in Article   5.1.1:  
• First, to reflect that this is not an exemption from the main prohibition but instead is a 
sustainability -based flexibility in the prohibition itself, and to make a clear  distinction from 
a similar but different provision in Article 4.3, a drafting suggestion made by delegation s in 
our discussions has been reflected by including the phrase "A subsidy is not inconsistent 
with Article  5.1" instead of "Notwithstanding Article  5.1"; 
• Second, footnote 10 which defines a biologically sustainable level now includes the phrase 
"based on indicators" before the examples of "level of depletion, or level of or trend in time 
series data on catch per unit effort (…)", which appear as they  did in 126/Rev.2. This is a 
simple technical edit to clarify that the "level of depletion" etc. are not themselves alternative 
reference points, but rather indicators on the basis of which alternative reference points can 
be established. The indicators in  question remain in brackets because some Members were 
wary of listing certain indicators, even as examples, while leaving others out. I would recall 
here that the introduction of those indicators into this footnote was based on a suggestion 
from certain M embers aimed at making the flexibility provided for in Article 5.1.1 accessible 
to and usable by all Members, including developing Members.   
• Another technical edit made for consistency is clarification that determinations by relevant 
RFMO/As are only vali d in areas and for species under their competence. The exact same 
reference to an RFMO/A's area of competence is contained in Article 3.2 (c).  TN/RL/W/276/Add.1  
 
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  92. Concerning the issue of clarifying the demonstration requirement, which would be the basis 
for using the flexibil ity in Article 5.1.1, some Members suggested that the demonstration 
requirements should be linked to the notification requirements in Article 8 of the text. That is, when 
a Member provides subsidies referred to in Article 5.1, it should notify the informat ion called for  
under  Article  8. Related to this, some Members suggested that the substantive requirements for the 
demonstration could be addressed in Article 5, and the procedural requirements in Article 8 on 
notification and transparency.  
93. The new text of Article 5 contains no elaboration of the demonstration requirement for two 
reasons. First, as I will explain later, Article 8 on notification and transparency now contains a specific 
link to the flexibility in Article 5.1.1. Second, my sense was that any s ubstantive clarification 
concerning the demonstration requirement might be more detailed than appropriate for the text 
itself, and arguably would be better dealt with by the Committee or other body charged with 
overseeing the implementation of the discipli nes established under this Instrument.  
94. Finally, I recall that some Members suggested including the term "rebuild" in this provision to 
capture subsidies where measures are implemented not only to maintain, but also to rebuild, stocks 
to a biologically sustainable level. This term does not appea r in the new text of Article 5, as this 
provision deals with the situation of subsidization that contributes to overcapacity and overfishing. 
This is a different situation from the one where the stock is already in an overfished condition, and , 
as mentione d by those Members,  certain subsidies might contribute positively to rebuilding the stock 
to a sustainable level. Th is latter situation already is captured in Article 4.3 as I have explained.  
Articles  5.2 and 5.3  
95. The new text maintains the two provisions i n 126/Rev.2 addressing subsidies to fishing beyond 
a Member's jurisdiction. In the new text, these provisions are contained in Articles 5.2 and 5.3. 
Article 5.2(a) sets forth a prohibition on subsidies contingent upon or tied to actual or anticipated 
fishing or fishing  related activities at sea, in areas beyond the subsidizing Member's jurisdiction. This 
is accompanied by a new subparagraph (b) which clarifies that the non -recovery of payments under 
government -to-government access agreements are not capture d by this provision. Article 5.3 
contains a prohibition on subsidies to fishing or fishing related activities in areas beyond a subsidizing 
Member's jurisdiction and outside the competence of a relevant RFMO/A.  
96. Reformulations and revisions pertaining to t he substance in Articles 5.2 and 5.3 compared to 
the counterpart provisions of 126/Rev.2 are mostly structural, not substantive. You will note that 
the previous Article 5.3 in 126/Rev.2 is now contained in two separate provisions, Articles  5.2 
and 5.3. Article 5.3.1 from 126/Rev.2 which explains the contingency appears as footnote 1 1 
attached to Article 5.2 (a)  in the new text . The placeholder in 126/Rev.2 for non -recovery of 
payments under access agreements has been developed into a text which appears as 
subparagraph  (b) under Article 5.2.  
97. Thus, the only substantive change in Article 5.2 is the new language in Article  5.2(b) 
concerning non -recovery of payments under government -to-government access agreements. We 
held a number of dedicated sessions on govern ment-to-government access agreements and one of 
the topics discussed was the terms on which the fishing rights acquired under access agreements 
are distributed, i.e., whether and how much money is recovered from fishers for the rights 
distributed to them. One specific concern by some Members was in respect of access agreements 
under which a vessel or operator of one Member engages in fishing in another Member's waters, and 
the government acquiring the access contributes to conservation and management measur es in the 
fishery in question. These Members acknowledge that the distribution of fishing rights under these 
agreements without the payer government recovering the amounts it paid for the access could be 
construed as a prohibited subsidy under subparagraph  (a), and they support limited flexibility from 
the prohibition where the government acquiring the access takes on conservation and management 
obligations under the access agreement.  
98. The textual proposal on this specific issue made by one delegation at th e meeting of 
21 October 2020 was distributed to the Negotiating Group on 25 January 2021.  This proposal was 
discussed,  and it seemed to raise no objection from Members  to exclude non -recovery of payments 
under government -to-government access agreements from disciplines on subsidies to fishing in 
areas beyond national jurisdiction . Hence, the first part of that textual suggestion has been included 
in Article  5.2(b)  with some editorial changes for consistency . The  second part of th at textual TN/RL/W/276/Add.1  
 
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  suggestion, which focuses on public disclosure requirements in relation to access agreements , is not 
reflected in Article  5, but  is essentially covered by Article  8.2(b) of the new text. 
99. Naturally, this language is only relevan t in relation to Article 5.2(a), as the fishing under access 
agreements by definition takes place in the EEZ of another (coastal) Member.  
100.  As a general matter concerning the draft disciplines on subsidies to fishing beyond national 
jurisdiction, I note the view of some Members that, regardless of the merits of such disciplines,  as 
a practical matter explicit provisions to address such subsidies may be unnecessary because the 
subsidies prohibited under Articles 5.2 and 5.3 are already prohibited under the ma in prohibition in 
Article 5.1. To this point, as I read it, Article 5.1 is not geographically limited to any particular area 
or areas. Given this, it will be important in our work ahead to review the new draft to ensure 
coherence in the geographic coverage  of the various disciplines in Article 5.  
101.  Also, I note the strongly -held view opposing the presumption that all subsidies in the high 
seas are harmful, and linking any subsidy prohibition here to including all fuel subsides, whether 
specific or not, withi n its scope. I would simply note that this is tied to the more general discussion 
of whether non -specific fuel subsidies should be covered by the disciplines.  
Article 5.4  
102.  Article 5.4 sets forth a prohibition on subsidies for vessels not flying the flag of  the subsidizing 
Member. This text, in square brackets, remains unchanged since its introduction in 126. It appears 
in the new text as some Members consider such a prohibition to be necessary, while others reject 
its underlying presumption. On this issue, it appears that the dichotomy of views involves a limited 
number of Members. I can only encourage those Members to reach out to one another to see if they 
can find a way to move forward on this issue. So, the current text reflects the choices before 
Member s on this issue.  
Article  5.5 
103.  Article  5.5 contains SDT provisions for this pillar. Beginning in October 2020 , Ambassador 
Didier Chambovey in his capacity as Friend of the Chair held a number of consultations and open -
ended meetings with a view to finding c onvergence in this area. In his last report to HoDs as Friend 
of the Chair, on 19 February 2021, Ambassador Chambovey noted that the main challenge in 
reaching convergence was the fact that Members still had fundamental differences over the 
objectives of  SDT in the fisheries subsidies negotiations. He reported, and I agree, that some 
Members view SDT as a means to support implementation of the new disciplines, and thus favour 
forms such as transitional periods and technical assistance and capacity building . Others consider 
that the purpose of SDT is to provide policy space to develop fishing capacity, sustainably. 
Ambassador Chambovey reported that, given these diverging views, he did not see convergence 
around the formulation of SDT in this pillar of the disciplines that is set forth in the new draft as 
ALT1 of Article 5.5 (c).  
104.  The proponents and adherents of ALT1 Article 5.5 (c)  describe it as a transitional mechanism 
given that  Members initially falling below the thresholds could eventually exceed them and then 
would graduate from this SDT provision. Other  Members , however, consider some of the criteria in 
the provision as non -germane to fisheries, and see the cumulative effect of the criteria and 
thresholds in the provision as operating to exclude from the disciplines, long term, virtually all 
developing Members, as most developing Members in fact would never graduate and become subject 
to the disciplines. Furthermore, some Memb ers that generally support a criteria -based approach 
such as in ALT1 object to certain specific criteria  in that provision , particularly income -related criteria 
such as GNI per capita, which they consider inappropriate in these negotiations.   
105.  In 126/Rev.2 I added a placeholder  (ALT2)  for an alternative approach simply described as 
"other forms of transitional mechanisms" , to capture in shorthand form the main lines of the 
discussions regarding (c) at that time . In doing so, one question I posed in  the adden dum to  
126/Rev .2 was whether a criteria -based approach could be accepted as a transitional mechanism in 
the first instance.  And if so, what criteria, thresholds or mechanisms - whether those in (c) or others 
– could be acceptable to all Members.  Ensuing di scussions revealed that despite existing 
divergences , the differences did not seem to be unbridgeable. As such, Ambassador Chambovey 
identified some key principles that could guide our work towards bridging language:  TN/RL/W/276/Add.1  
 
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  • No Member suggested that SDT should ena ble subsidies to be given for unsustainable fishing 
in the long term;  
• Whether it is called "needs -based" or "subject to criteria" the objective is similar, which is  
to provide the concerned Members with cover from the general rules based on their 
situations;  
• Whatever the transitional process is called, the concept seems to be similar, that is, at some 
point in the future, the SDT to which a Member may be entitled would come to an end; and  
• The common elements of the proposals that have been made could provide a basis on which 
to build convergence.  
106.  Ambassador Chambovey concluded that Members were also of the view that clarity in the 
overcapacity and overfishing disciplines could give clarity to the SDT for this  pillar. As the discipline 
has evolved, it has been evident that the sustainability -based flexibility in Article 5.1.1 would have 
an impact on SDT. Similarly, there seems to be an inherent link between SDT in this pillar and calls 
for flexibility for subsi dies to subsistence, artisanal and small -scale fishing.   
107.  In light of the above, Article 5. 5 in the new text contains two alternatives. ALT1 remain s 
unchanged  from the corresponding provision in 126/Rev.2. W ork to date has shown wide differences 
in respect  of this draft language, and thus has not produced convergence that could be reflected in 
amendments to this language. That said, the proponents of the ALT1 language have indicated that 
they are working with Members to make adjustments that could build tow ard convergence.   
108.  In the new text, ALT2 contains elaborated language developed on the basis of  the various 
approaches, proposals and discussions over the last few months.  
• Subparagraph (a) of ALT2 is identical to subparagraph (a) of ALT1, providing for an 
exemption for LDC Members. Similar language can be found in various proposals including 
the LDC proposal (RD/TN/RL/125), the ACP proposal (RD/TN/RL/96) and India's proposal 
(TN/RL/GEN/100/Rev.1).  
• Subparagraph (b) of ALT2 sets forth an exemption for subsid ies to subsistence, artisanal 
and small -scale fishing. The text combines elements from the proposals from India 
(TN/RL/GEN/200/Rev.1), Cameroon (RD/TN/RL/135) and the proposal from Argentina, Chile 
and Ecuador (RD/TN/RL/136). A transition period has been a dded in brackets to reflect the 
position of many  Members that any exemption for this type of fishing should be time -bound. 
As a conversation starter, seven years after entry into force of the disciplines is  suggested. 
It should be noted that the idea here is that any transition period for subsidies to this type 
of fishing should be longer than one applicable to subsidies to other types of fishing.  
• Subparagraph (c) provides for a time -bound exemption for developing Members' subsidies 
other than those to subs istence, artisanal and small -scale fishing . Developing Members  that 
so choose  would be allowed to grant or maintain prohibited subsidies to such other fishing 
and fishing -related activities for a certain period, provided that they invok ed the provision  
prior to entry into force of the new disciplines . As a starting point for discussion, five years 
is suggested as that period, that is, a shorter period than for subsidies to subsistence, 
artisanal and small -scale fishing .  
• Subparagraph (d) provides for an extension mechanism for the subsidies covered by 
subparagraphs (b) and (c), for developing Members with a limited share of global fish catch 
and limited total amount of fisheries subsidies . These Members could seek an exten sion 
through a Committee process  beyond the initial periods provided for their subsidies to their 
subsistence, artisanal and small -scale fisheries, and for their subsidies to other kinds of 
fisheries. The language in this provision is modeled on that in Article 27.4 of the SCM  
Agreement .  
• The two criteria for seeking an extension that appear in the text were selected based on 
their direct connection to fisheries subsidies. These are, specifically:  TN/RL/W/276/Add.1  
 
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  o The Member's share of annual global volume of marine captur e. The threshold 
maximum share suggested as a starting point for discussion is 0.7%, as it is 
contained in the proposal by Argentina, Australia, the United States and Uruguay 
(TN/RL/GEN/197/Rev.2 ), and also has been noted by Members during consultations 
as a good starting point.  
o The total amount of the Member's subsidies to fishing and fishing related activities 
at sea.  As a starting point for discussion, the threshold maximum figure suggested 
is USD25 million. This was drawn from the proposal from Brazil 
(RD/TN/RL/124/Rev.1 ).  
In terms of the extension mechanism itself, this would be similar to that provided for in 
Article 27.4 of the SCM Agreement. Developing Members meeting the two criteria that 
sought an extension would need to enter into consultations with the relevant WTO body no 
less than one year before the expiry of the transition period, and justify the need for such 
extension. If the Committee agree s to the extension, the Member then would hold annual 
consultations to determine the necessity of ma intaining the subsidies. Should the body in 
question not grant an extension, th at Member would need to phase out the prohibited 
subsidies within two years.  
109.  Members must recall that because the discipline itself, set forth in Article s 5.1 and 5.1.1 , does 
not strictly prohibit all fisheries subsidies, but is designed to allow those that are not harmful in the 
context of the particular fishery in respect of which they are provided, the SDT provisions , by 
definition,  would apply in a way to allow for harmful s ubsidization. Overall, ALT2 would allow:  
• LDCs to provide subsidies indefinitely , without the need to demonstrate any sustainability 
criteria if providing harmful subsidies ;  
• Developing Members to provide , with no sustainability criteria demonstration,  potentially 
harmful subsidies to subsistence, artisanal and small -scale fishing , for a period of seven 
years  with possible extensions if eligibility criteria are met ; and  
• Developing Members to provide , with no sustainability criteria demons tration,  potentially 
harmful subsidies  to other kinds of fishing for a period of five years , with possible extension s 
if eligibility criteria are met . 
110.  In my view, the combination of these SDT provisions and the built -in flexibility in the discipline 
itself provides the kind of policy space that developing Members have demanded – that is, the space 
to develop their own fisheries in a sustainable manner. The initial exemption periods and any 
extensions would allow the gradual introduction of the necessary str uctures and measures that would 
eventually enable the Member in question to use the built -in flexibilities themselves, to develop and 
exploit fisheries in a sustainable way over the long term.  In considering this, it is also important to 
bear in mind the t echnical assistance and capacity building that would aid Members into successfully 
transitioning to the built -in sustainability flexibility embedded in Article 5.1.1. Indeed, the very 
purpose of technical assistance and capacity building is to assist Membe rs in implementing WTO 
disciplines  – obligations and flexibilities .  
111.  As a final point on SDT in this pillar, as set forth in Article 8, the new text provides that a 
Member could invoke the SDT provisions in respect of subsidies which it has notified  under Article  25 
of the SCM Agreement and Article 8 of these disciplines .  
ARTICLE  6: SPECIFIC PROVISIONS FOR LDC  MEMBERS  
112.  Article  6 contains two paragraphs specific to LDC Members, dealing with graduating 
LDC Members in the first paragraph, and requiring the exercise of due restraint in raising matters 
involving LDC  Members in the second. These provisions, which remain unchan ged since they were 
introduced in 126, were drawn directly from the LDC  Group's proposal in RD/TN/RL/125.  
113.  Article  6.1 is bracketed, as some Members are of the view that this provision should not be 
included in the text; particularly, given that such discu ssion is being held simultaneously in the work 
of other Committees and Councils.  TN/RL/W/276/Add.1  
 
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  114.  Article  6.2 on due restraint is unbracketed, given that similar language exists under Article  26 
of the Dispute Settlement Understanding.  
ARTICLE  7: TECHNICAL ASSISTANCE AND  CAPACITY BUILDING  
115.  Article  7 deals with technical assistance and capacity building. This text has been unchanged 
since its introduction in 126. It is based on India's textual proposal in TN/RL/GEN/200/Rev.1 , with 
the term "land -locked developing country Me mbers" (LLDC Members) added based on the proposal 
made by Afghanistan, Mongolia, Nepal and Paraguay (the LLDC proponents) in document 
RD/TL/RL/130.  
116.  Given the substantive progress made in the disciplines, a discussion on technical assistance 
and capacity bu ilding  during this new phase  of the negotiations would be timely.  
ARTICLES  8-10: OTHER CROSS -CUTTING ISSUES  
Overall  
117.  Texts for Articles  8, 9 and 10 were added in 126/Rev.1, as these were empty placeholders in 
126.  These provisions concern cross -cutting is sues of notification and transparency, institutional 
arrangements,  and dispute settlement , respectively.  
118.  Details of how each text has been drafted have already been provided in 
RD/TN/RL/126/Rev.1/Add.1 when I introduced 126/Rev.1. Generally speaking, these texts were 
drawn from the proposal in RD/TN/RL/90/Rev.2 that was introduced during the plenary session o n 
17 September  2020;  earlier work that was referred to by Members during our discussions such as 
certain language in TN/RL/W/274/Rev.6 and the 2007 Chair's text in TN/RL/W/213 ; and  specific 
textual suggestions and comments made by Members during our meetin gs. Our work on some of 
these provisions is relatively more advanced than on others, so in addition to summarizing the key 
issues for going forward, I will focus on the changes made in the new text compared with the 
corresponding provisions of 126/Rev.2 .  
Article  8: Notification and transparency  
119.  During our work on notification and transparency, as well as on core disciplines, Members 
have highlighted the critical importance of transparency for the fisheries subsidies disciplines . 
Members generally support t he idea that the notification and transparency requirements for the 
fisheries subsidies disciplines should be in  addition to the existing rules under the SCM  Agreement . 
That is, the notification and transparency rules in the fisheries subsidies disciplines  should not 
undermine or replace the corresponding rules in the SCM  Agreement. In this regard, I heard no 
objection to the current approach to Article  8.1, which requires notification of certain information in 
addition to the notification requirements unde r the SCM  Agreement.  
120.  Divergent views have been expressed, however, on what specific information should be 
subject to notification under the fisheries subsidies disciplines. As such, this was left as a placeholder 
in 126/Rev.2. Since then, I have heard Memb ers' views in various consultations, including during 
the small -group meeting held in the March cluster. In addition, the issue of notification and 
transparency was raised in our discussions on the core disciplines. All of these views were very 
helpful in putting together the notification provisions in the new text, which establish two categories 
of information: (a) information that Members are required to provide; and (b) information that 
Members are required to provide to the extent possible.  
121.  Listed unde r (a) are the type or kind of fishing activity for which the subsidy is provided, and 
the relevant catch data. Both of these items were identified as relevant information in 
TN/RL/W/274/Rev.6 and more recently in the proposal in RD/TN/RL/90/Rev.2. So far, Members 
generally have considered them to be directly relevant to the fisheries subsidies.  
122.  However, Members' views varied on the information listed under (b) for different reasons.  
• For the status of the fish stocks, some Members pointed out that not all f ish stocks for which 
a subsidy is provided are assessed.  TN/RL/W/276/Add.1  
 
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  • On conservation and management measures, some Members found the relevance of this 
information to be limited for our purposes as in their view we should be focused on fisheries 
subsidies, not on manag ement measures.  
• With respect to the details regarding fishing vessels, some Members considered that 
obtaining such information would be too burdensome, or even in some cases impossible for 
reasons such as confidentiality.  
123.  With these concerns in mind, thes e types of information have been listed under (b), which 
requires provision of the information to the extent possible. However, the phrase "to the extent 
possible" is in square brackets, as Members have expressed varying degrees of comfort with that 
langua ge.  
124.  Article  8.2 contains specific notification and transparency requirements relating to IUU fishing 
determinations and to government -to-government fisheries access agreements. Article  8.3 is an 
information exchange mechanism among Members , similar to the  mechanism under Articles  25.8 
and 25.9 of the SCM  Agreement . The texts for both of these provisions remain unchanged from 
126/Rev.2, except for some editorial changes for clarity.  
125.  Article  8.4 is new language, which links using the flexibilities in the different pillars of the 
disciplines to certain notification requirements. Members have called for such a link in various 
meetings, in particular during our discussions on a possible exemption for subsidies to subsistence, 
artisanal, a nd small -scale fishing, on the sustainability -based flexibilit y in the overcapacity and 
overfishing pillar , and in the sustainability exception  in the overfished stocks disciplines. To reflect 
these views, first, subparagraph  (a) now provides that the noti fication requirements under Article  25 
of the SCM  Agreement and Article  8.1 of the fisheries subsidies disciplines must be fulfilled in order 
to invoke SDT flexibilities. All of the notification requirements referenced in subparagraph (a) of 
Article 8.4 al ready apply or are meant to apply to all Members pursuant to Article 8.1(a), so this text 
does not impose additional notification requirements  in respect of the SDT provisions beyond those 
that generally apply to all Members . Second , and by contrast, for the sustainability -based exception 
or flexibilities under the overfished stocks , and overcapacity and overfishing pillars, subparagraph  (b) 
of Article 8.4 requires notification of the fish stock status, and the conservation and management 
measures, set fort h in Article 8.1(b). This reflects Members' view s that these types of information 
would become relevant and important for assessing whether the requirements for using the 
exception or the flexibilit y in question have been met.  
Article  9: Institutional arra ngements  
126.  The need for specific institutional arrangements depends on whether the disciplines will be a 
standalone agreement or an annex to the SCM  Agreement. Given that this issue remains outstanding, 
our work on this provision is not as advanced as on oth er issues. In the meantime, the text had 
been developed on the working basis of the disciplines taking the form of a standalone agreement, 
only for the reason of enabling us to move quickly once the decision is made. This means that the 
whole Article shoul d be read as in square brackets, and this is also the reason why there were no 
significant changes to these provisions in the new text.  
127.  Article  9.1 is a provision establishing a new fisheries subsidies Committee , which would be 
needed in the event that the  disciplines take the form of a standalone agreement, and which 
Members might decide to do even if the disciplines are annexed to the SCM Agreement . Subsequent 
paragraphs elaborate on the responsibilities and functions of the body that would be responsible  for 
monitoring the implementation of the new disciplines.  Article  9.2 contains a requirement for each 
Member to inform th at body of, and for the body to review, its measures taken to implement the 
fisheries subsidies disciplines; Article  9.3 is a require ment for Members to inform the body of their 
fisheries regime; Article  9.4 requires the body to examine the notifications made pursuant to the 
disciplines; Article  9.5 requires the body to maintain close contact with certain other international 
organizatio ns; and Article  9.6 requires the body to review the operation of the fisheries subsidies 
disciplines.  
128.  The new text incorporates a few minor drafting changes from the corresponding provisions in 
126/Rev.2. In Article  9.2, the reference to Articles  3, 4 and 5 at the end of the first sentence was in 
square brackets, due to uncertainty – which is now reduced - as to the placement of the referenced 
provisions. In Article 9.3, "URL" was an alternative text to the "electronic link" as an acceptable TN/RL/W/276/Add.1  
 
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  means to make t he necessary notification, indicated with square brackets around both terms. So far, 
our discussions have shown that there is no strong objection to either, so given that "electronic link" 
appeared to be a broader term, I have removed the alternative and t he square brackets. In 
Article  9.4, the frequency of the Committee examination of the information notified under the 
fisheries subsidies discipline has been added, as not less than every two years. The frequency of this 
examination was an empty placeholder in 126/Rev.2, but given that the notification requirements 
include the requirements under the SCM  Agreement, the practice on the frequency of notifications 
that is followed under the SCM  Agreement is now reflected as the starting point.  
129.  Before concluding my remarks on this provision, I would like to highlight one critical 
institutional issue that has not been discussed in full, which is entry into force. As you know, it could 
take many months if not years for a new WTO instrument to enter into f orce. This gap – as well as 
anything that Members may decide to do during this period, such as a provisional application  of this 
instrument  – could affect how we see certain issues. Now that we are in the endgame mode, I would 
urge you to turn your minds t o this issue.  
Article  10: Dispute settlement  
130.  Dispute settlement, covered in Article  10, also depends on whether the disciplines become an 
annex to the SCM  Agreement or a standalone agreement. This is because Article  30 of the 
SCM Agreement already provides  for application of the  Understanding on Rules and Procedures 
Governing the Settlement  of Disputes  (DSU) and special and additional rules for prohibited subsidies 
in Article  4 of the SCM  Agreement. If the fisheries subsidies disciplines are annexed to the SCM 
Agreement, these existing rules of the Agreement would apply to the disciplines, unless we 
specifically decided to depart from them. The current text in Article  10 was added in 126/Rev.1 to 
reflect this default position.  
131.  This text has remained unchange d since then, but this does not mean that we have not been 
discussing this. In fact, so far in 2021 alone,  we have held dedicated sessions on various aspects of 
dispute settlement, such as non -violation claims and standard of review. And the views exchange d 
in those meetings were very helpful. In particular, there appears to be a general acceptance that 
the DSU and Article  4 of the SCM  Agreement should be the starting point, and that we should not 
be inventing new dispute settlement rules for the fisheries subsidies disciplines. Reflecting this 
understanding, this Article is unbracketed in the new text.   
132.  This is not meant to imply that there was full convergence on this provision, or that no more 
work is needed on it. In fact, during our recent meetings on dispute settlement, some Members 
wanted to specifically exclude non -violation claims or set a separate standard of review. In addition, 
I am well aware of the views that fisheries -subsidies -specific remedies and/or countermeasures 
could be crafted. Removin g the square brackets here only means that Article  4 of the 
SCM Agreement and the DSU are a starting point, on which we can build as needed.  
ARTICLE  11: FINAL PROVISIONS  
Overview  
133.  Article  11 contains "Final Provisions ". This Article contains four paragraphs  that do not belong 
readily to one of the existing provisions , or that apply to some, but not all, substantive pillars.  The 
text of this Article remains largely unchanged from that in 126/Rev.2, with some exception s. 
Article  11.1 
134.  Article  11.1 clarifies that nothing in the disciplines shall be construed or applied in a manner 
which will affect the rights of LLDC Members. Th is text was introduced in 126/Rev.2 based on the 
proposal by the LLDC proponents in RD/TL/RL/130, and it remains unchanged in the new text.  
Article  11.2 
135.  Article  11.2 is a provision for a "special care" and "due restraint" requirement when granting 
subsidie s to fishing where the stocks in question are unassessed.  This text was introduced in 
126/Rev.2 based on the textual suggestions that were discussed during the meeting dedicated on TN/RL/W/276/Add.1  
 
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  the issue of unassessed stocks. A few changes were made in the new text com pared with that in 
126/Rev.2:  
• In 126/Rev.2, the term "shall" was in square brackets, along with an alternative "should" 
also in square brackets. However, what needs to be done – namely taking special care and 
exercising due restraint – already leaves ample  flexibility for the Member concerned. The 
proponents of this language also confirmed this intention during the dedicated meeting we 
held on this topic. For this reason, the purpose of the alternative term "should" seems to be 
served by the current formula tion using "shall".  
• In 126/Rev.2, the phrase "take special care" was in square brackets, along with the phrase 
"exercise due restraint" also in square brackets. These two formulations were suggested as 
alternatives. But upon review, they seem to complement  each other covering both 
something that a Member shall do and something that a Member shall refrain from doing. 
As such, the new text contains both elements, rephrased as "take special care and exercise 
due restraint" as unbracketed text.  
• In 126/Rev.2, t here was a qualifier "commercially valuable" in square brackets before 
"stocks", such that this text would apply only to commercially valuable stocks if it were to 
be accepted. As noted, upon review it seemed clear that this text already leaves ample space  
for the Member concerned, such that further limiting the text with qualifiers like "commercial 
valuable" seemed unnecessary. The new text thus does not contain this qualifier.  
Article  11.3 
136.  Article  11.3 is an exception for disaster relief. This text was i ntroduced in 126/Rev.1 based on 
the dedicated  plenary meeting on this topic held during the October cluster last year, and it remained 
unchanged in 126/Rev.2. Two changes were made in the new text. First, the qualifier "natural" in 
square brackets for "nat ural disaster" is omitted. This is because no one has yet to provide a clear 
rationale for limiting this exception to natural disasters, while we heard clear need for such an 
exception for other disaster scenarios, such as oil spills. In addition, the lang uage "except as 
provided in Articles  3 and 4" is unbracketed in the new text. Regarding Article 3, this reflects the 
view that Members broadly shared that such an exception should not apply in respect of subsidies 
to  IUU fishing. As for Article 4 on overf ished stocks, treating the reference as unbracketed reflects 
the significant progress we have made on that pillar since our discussion on disaster relief. As 
explained earlier, this discipline is now triggered only if a stock is recognized as overfished by  the 
competent authority and it no longer has a placeholder for unassessed stocks. Subsidies that 
promote stock rebuilding are also allowed.  
Article  11.4 
137.  Finally, Article  11.4 reflects many Members' firm views that our fisheries subsidies work here 
at the WTO, and anything that flows from that work, should not have any impact on issues of 
territoriality and delimitation of maritime jurisdiction. This text was developed based on the textual 
suggestions and discussions tha t were made in a number of sessions dedicated to this topic. 
Specifically, subparagraph  (a) is aimed at ensuring that the fisheries subsidies disciplines in the WTO, 
including results of dispute settlement, could not be used outside in other international fora. In 
addition, subparagraph  (b) is aimed at ensuring that WTO panels addressing claims under the 
fisheries subsidies disciplines not address any issues of territoriality or delimitation of maritime 
jurisdiction.  
138.  Of course, the fact that this text has not changed since it was introduced in 126/Rev.2 does 
not mean that it reflects convergence. Understandably, the issue of territoriality is one of the most 
sensitive issues for all Members. So far, some but not all Members have expressed a level of comfort  
with the current drafting. As an example, some Members think that the panels should not even be 
allowed to consider whether a claim requires a panel to address any issues of territoriality or 
delimitation of maritime jurisdiction. These Members want an au tomatic suspension or termination 
of a claim once territoriality is raised. On the other hand, some Members think that the current text 
is already too strong, such that it amounts to a carte blanche  veto. We will  thus need to continue 
discussi ng this issue  and the drafting to address it.  TN/RL/W/276/Add.1  
 
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  NEXT STEPS  
139.  So, that brings me to the end of the text. I know that was a lot of information, but I wanted 
to make sure that it was a thorough explanation. As I mentioned earlier, the addendum to the new 
text, containing thi s full explanation , will be circulated  right away, with the French and Spanish 
translation s following in short order.   
140.  To sum up, the whole text is up for discussion and it will ultimately be up to Members to 
resolve the issues that remain open . There is still a lot of work ahead of us. First and foremost, I 
would request that you read the text and addendum carefully, take it all in and consider what you 
can and cannot live with. You have all said on numerous occasions that you want a meaningful 
outcome. I n drafting this text, this is the one message I kept in mind; a text which delivers on our 
mandate in light of various positions. So, I hope that after carefully reading the text and addendum, 
you can conclude that I delivered on that promise.   
141.  After care fully considering the text, we all have to come back to gether  to prepare for 
Ministerial engagement. This brings me to the next steps. I already indicated that I would not open 
the floor today for comments given that you have just received this text. Inste ad, I will make some 
suggestions on how I think we could best engage on the text in the coming weeks. You all would 
have received the invitation from the DG inviting your Ministers to a session of the TNC dedicated 
to fisheries subsidies on July 15. That i s about 8 weeks from now. This is not a lot of time, and we 
have a lot to do.  
142.  As I said during the last TNC meetings, I will be calling on all of you to engage intensively, in 
a compromise -seeking, convergence -oriented mode, aimed at quickly finding accep table landing 
zones. I also ask you to give these negotiations priority, and to be ready to meet at short notice and 
in a range of different configurations - be it bilateral meetings, small -group consultations, 
confessionals, or plenary sessions, including  with the engagement of the DG as appropriate – as well 
as bilateral consultations. If needed, we also need to be ready to work nights and weekends  to get 
this done .  
143.  I appreciate and count on your flexibility on the substance and process, as we head into this 
very intensive phase of our work. Though we should remain flexible, I understand from many of you 
that a calendar of activities would be useful for your preparation, especially if you require input from 
capitals. Therefore, I intend to organize themat ic weeks starting the week of 24 May  as follows:  
• Each week will be dedicated to a specific pillar or pillars from the text.  
• The first two days of each week would be for consultations. This would be an opportunity for 
Members to reach out to me , and for me to reach out to Members, in respect of  particular 
issues regarding that week's theme.  
• The rest of each week would be dedicated to meetings in various configurations. T his is 
where flexibility would be required given that the form of meetings would depend on each 
topic.  
• I can assure you that  the principles of transparency and inclusiveness w ill be respected. And 
in this regard, I plan to give transparency briefings each  week.  
144.  An outline of this structure, including the themes for each week, will be circulated shortly.  I 
hope that you will find this calendar of activities useful in terms of your planning.  
145.  To help my thinking in structuring specific topics of discussion,  I would like to start by first 
touching base with each of you before we start work during the thematic weeks. Therefore, on 
20 and 21 May I intend to hold brief HoDs plus one, in -person, 10 -minute confessional style meetings 
with interested delegations. T he idea is for you to identify up to three issues in the text that are the 
toughest for your delegation. These meetings will be short and to the point; all you have to do is 
come with your list of those three tough issues and share it with me. Further deta ils, including how 
to schedule a slot, will be communicated shortly .    TN/RL/W/276/Add.1  
 
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  146.  I look forward to engaging with all of you during this final stage of these negotiations. I know 
it will not be easy. Nothing is easy when 164 Members need to reach consensus, but it i s doable. 
The good thing is that we have a complete text in front of us on which we can engage . I am sure no 
delegation will be entirely happy with the text  - you will all find something you don't like, in addition 
to things that you do like. Let us now fi gure out those key issues that require further teasing out in 
Geneva so that we can present something to Ministers that provides them with clean and 
straightforward options  in July . As I said at the last TNC, the N egotiating Group on Rules has come 
a long way. Your leadership and willingness to engage over the last year has led us to this point. 
Now it's time to sprint for the finish line.  
147.  This brings me to the end of my report. To recap, expect the following in your inboxes soon:  
• You will receive the  final English version of the text  incorporating minor corrections compared 
with the version sent before the meeting, (i.e., two typos are fixed) and t he addendum 
containing my explanation of the text;  
• So will the French and Spanish versions of the text and adde ndum;  
• You also will receive a schedule of work based on thematic weeks , including details for the 
short confessionals to be held on 20 and 21 May.  
148.  Before closing, I would like to thank the Secretariat team for their formidable work in fully 
supporting me and the whole NGR in this negotiating process. This Negotiating Group should feel 
privileged to have such a dedicated Secretariat team supporting our work. Thank you.  
149.  With this, I hope you all have a good long weekend. Thanking the interprete rs for their hard 
work today, I would now like to close this meeting. The meeting is now closed.  
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